UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4882

DONALD ALAN SKAGGS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-97-44)

Submitted: March 24, 1998

Decided: May 8, 1998

Before WIDENER and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, George H. Lancaster, Jr.,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Steven I. Loew,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Donald Allen Skaggs appeals his sentence for one count
of aiding and abetting others in the unlawful possession of money
order forms. See 18 U.S.C. §§ 2, 500 (1994). Skaggs pled guilty in
accordance with a plea agreement. On appeal, Skaggs contends the
district court erred in enhancing his sentence for obstruction of justice
under U.S. Sentencing Guidelines Manual§ 3C1.1 (1995). Finding no
error, we affirm.

Skaggs was indicted on one count of stealing blank money orders
and a postal money order machine (18 U.S.C. § 1707 (1994)) (count
one), one count of aiding and abetting others in the theft and posses-
sion of a postal money order machine (18 U.S.C.§§ 2, 500) (count
three), and the aforementioned charge of aiding and abetting illegal
possession of money order forms to which Skaggs pled guilty (count
two). The charges resulted from a burglary of a West Virginia post
office. Prior to his arrest, Skaggs hid the postal money order machine
and attempted to cash some money orders. After his arrest and con-
finement, money orders linked to the burglary were unsuccessfully
presented for payment in Florida.

Pursuant to a plea agreement, Skaggs pled guilty to count two, and
the Government dismissed counts one and three of the indictment.
Skaggs did not agree to cooperate with the Government. In its presen-
tence investigation report, the Probation Department recommended a
two-level increase for obstruction of justice based upon the finding
that Skaggs had threatened potential witnesses and failed to disclose
the location of the postal money order machine. The Probation
Department concluded that Skaggs's failure to disclose the location
of the postal money order machine promoted continued criminal con-
duct because additional post-arrest money orders had surfaced.

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At sentencing, the court stated that it would not consider the
alleged threats for purposes of enhancing Skaggs's sentence. How-
ever, it overruled Skaggs's objection to the two-level enhancement,
finding that it "was obvious [Skaggs] participated in concealing the
evidence" and his failure to disclose was "a continuing concealment
of the evidence."

Under USSG § 3C1.1, an offense level can be increased by two
levels if "the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the investi-
gation, prosecution, or sentencing of the instant offense." Application
Note 3 includes a "non-exhaustive" list of examples in which the
enhancement would apply:

          [D]estroying or concealing or directing or procuring another
          person to destroy or conceal evidence that is material to an
          official investigation or judicial proceeding (e.g., shredding
          a document or destroying ledgers upon learning that an offi-
          cial investigation has commenced or is about to commence),
          or attempting to do so; however if such conduct occurred
          contemporaneously with arrest (e.g., attempting to swallow
          or throw away a controlled substance), it shall not, standing
          alone, be sufficient to warrant an adjustment for obstruction
          unless it resulted in a material hindrance to the official
          investigation or prosecution of the instant offense or the sen-
          tencing of the offender.

We review a district court's finding that Skaggs obstructed justice for
clear error. See United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir.
1995).

Skaggs contends that his silence regarding the whereabouts of the
stolen property was not the type of affirmative misconduct contem-
plated by § 3C1.1. We find this argument to be without merit. Skaggs
concedes that he hid the postal money order machine and the money
orders. Furthermore, the property remained concealed after Skaggs's
arrest and was still being utilized to further a criminal objective.
Skaggs's continued silence facilitated the concealment of the property
and hindered the ongoing investigation.

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Skaggs also contends that obligating him to speak or face an
enhanced sentence violates his Fifth Amendment privilege against
self-incrimination. Skaggs's sentence was not enhanced because he
remained silent. Rather, his sentence was enhanced because he con-
cealed material evidence from an ongoing investigation. Furthermore,
Skaggs did not face further criminal prosecution. The Government
agreed to dismiss all other charges concerning the burglary. In addi-
tion, Skaggs was given use immunity for any information provided by
him under the plea agreement. Thus, we also find this claim to be
without merit.

Accordingly, we find no clear error and affirm the sentence of the
district court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid in the decisional process.

AFFIRMED

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