                      REVISED JANUARY 16, 2003
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 02-50319
                           Summary Calendar


UNITED STATES OF AMERICA

                  Plaintiff - Appellee

     v.

SH’CARIS SEARCY

                  Defendant - Appellant

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. MO-01-CR-29-ALL
                        --------------------
                          December 30, 2002
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:

     Sh’caris Searcy appeals the 87-month sentence imposed

following his guilty-plea conviction for possession of more than

50 grams of cocaine base with the intent to distribute and for

distribution of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1).   Specifically, Searcy challenges the imposition of

the two-level sentencing enhancement he received for obstruction

of justice, pursuant to U.S.S.G. § 3C1.1.     This case presents the

issue, one of first impression in this court, whether a threat

not directly communicated to the intended target may serve as the

basis for a § 3C1.1 enhancement.    We conclude that it may and,
                          No. 02-50319
                               -2-

for the reasons set forth below, AFFIRM the district court’s

judgment.

     The § 3C1.1 enhancement in this case was based upon Searcy’s

attempt, while on pretrial release, to retaliate against the

confidential informant (“CI”) who had assisted law enforcement

officers in the controlled drug purchase leading to his arrest by

contacting a third party, who had a key to the CI’s residence,

and asking the third party to “plant” approximately four ounces

of crack cocaine in the CI’s residence.     Searcy met with the

third party, who, unbeknownst to him, was also a CI, in

furtherance of the plan, but the plan fell apart when Searcy was

unable to secure the money to purchase the crack cocaine.     As he

did in the district court, Searcy argues that the enhancement was

error because he did not directly threaten the CI and because the

CI was never aware of the threat to her.*

     The district court’s determination that a defendant

obstructed justice is a factual finding reviewed for clear error,

meaning that it will be upheld so long as it is plausible in

light of the record as a whole.    United States v. Huerta, 182

F.3d 361, 364 (5th Cir. 1999).    The district court’s

interpretation or application of the guidelines is reviewed de

novo.    Id.


     *
       Searcy does not renew the other grounds upon which he
objected to the enhancement in the district court, and those
arguments are therefore waived. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993)(arguments not briefed on appeal are
deemed abandoned).
                               No. 02-50319
                                    -3-

       Section 3C1.1 of the guidelines provides for a two-level

increase if “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the course of the investigation, prosecution, or

sentencing of the instant offense of conviction . . . .”           § 3C1.1

“Obstructive conduct can vary widely in nature, degree of

planning, and seriousness.”          Id. cmt. n.3.   The commentary to the

guideline provides a nonexhaustive list of the types of conduct

to which the adjustment applies, including “threatening,

intimidating, or otherwise unlawfully influencing a co-defendant,

witness or juror, directly or indirectly, or attempting to do

so.”    Id. cmt. n.4(a).

       Searcy contends that the guideline and commentary do not

encompass a threat not communicated to the intended target, and

he argues that a threat made to a third party which was never

intended to be communicated to the target cannot support the

obstruction-of-justice enhancement.         He relies on the Fourth

Circuit’s decision in United States v. Brooks, 957 F.2d 1138,

1149-50 (4th Cir. 1992).

       Searcy is correct that, to justify the imposition of the

§ 3C1.1 enhancement, the Fourth Circuit has required the threat

to be made directly to the intended target or under circumstances

in which there is some likelihood that the intended target will

learn of the threat.       See id.     Searcy is also correct that the

issue whether a defendant’s threat to a third party which was not
                           No. 02-50319
                                -4-

communicated to the intended target is covered by § 3C1.1 is one

of first impression in this court.   However, all other circuit

courts which have addressed the issue have reached a conclusion

different from the Fourth Circuit’s in Brooks.

     The first court to do so was the Second Circuit, in United

States v. Shoulberg, 895 F.2d 882, 885-86 (2d Cir. 1990), wherein

the court upheld a § 3C1.1 enhancement based upon the defendant’s

having written, prior to trial, a note to a third party

containing threats regarding a potential Government witness which

were never communicated directly to the witness.    The Second

Circuit determined that because the note was a threat relayed to

an intermediary which could have been communicated to the witness

had the Government not intervened, the threat, even though

indirectly made, was an attempt to obstruct justice covered by

§ 3C1.1.   Id.

     The Eighth Circuit similarly upheld the imposition of the

§ 3C1.1 enhancement based on a threat not communicated directly

to the intended target, a coconspirator who had become a CI and,

as in the instant case, was a potential Government witness.

United States v. Capps, 952 F.2d 1026, 1028-29 (8th Cir. 1991).

In Capps, after the defendant was arrested, she was heard making

a statement to third parties in a local bar to the effect that

she was planning to have some of her biker friends beat up the CI

for “snitching on her.”   Id. at 1028.    Capps argued that the

enhancement was error because the threat was never communicated
                                No. 02-50319
                                     -5-

to the CI.     Id.   The Eighth Circuit rejected the argument,

holding that:

           since the adjustment applies to attempts to
           obstruct justice, it is not essential that
           the threat was communicated to [the CI] if it
           reflected an attempt by Capps to threaten or
           intimidate her conspirators into obstructing
           the government’s investigation.

Id. at 1029.    The court determined that the evidence showed that

Capp’s threat against the CI was more than idle bar talk and

concluded that the § 3C1.1 enhancement was therefore warranted.

Id.

      The Ninth Circuit has also upheld the imposition of the

§ 3C1.1 enhancement based on indirect threats.      United States v.

Jackson, 974 F.2d 104, 106 (9th Cir. 1992).     In that case, after

Fred Pittman, the defendant’s friend and coconspirator, began

cooperating with the Government, the defendant disseminated to

various third parties copies of Pittman’s cooperation agreement

with the Government, with the words “The `Rat’ Fred Pittman” and

“Snitch” written on the top of the first page.      Id. at 105.   The

Ninth Circuit held that the enhancement was appropriate because,

although he did not directly threaten Pittman, Jackson had

disseminated information which placed Pittman and his family in

danger, potentially chilling Pittman’s willingness to testify.

Id. at 106.    The court concluded, “Where a defendant’s statements

can be reasonably construed as a threat, even if they are not

made directly to the threatened person, the defendant has

obstructed justice.”      Id.
                               No. 02-50319
                                    -6-

     Most recently, the Eleventh Circuit adopted the same

approach, holding that communication of a threat directly to a

Government witness was not required to support the obstruction-

of-justice enhancement.       United States v. Bradford, 277 F.3d

1311, 1314-15 (11th Cir.), cert. denied, 123 S. Ct. 304 (2002).

The court noted the disagreement between the Fourth Circuit and

the Second, Eighth, and Ninth Circuits but concluded that the

approach taken by the Second, Eighth, and Ninth Circuits was more

persuasive.    Id. at 1315.    It therefore held that an indirect

threat to third parties was an appropriate basis for the § 3C1.1

enhancement.    Id.

     This court also finds the reasoning of the Second, Eighth,

Ninth, and Eleventh Circuits the more persuasive and concludes

that the § 3C1.1 enhancement in the instant case should be upheld

based on the reasoning of these courts and on the plain language

of § 3C1.1 and accompanying commentary, which specifically allow

for application of the enhancement to attempts by defendants to

directly or indirectly threaten, intimidate, or influence a

potential Government witness.       See § 3C1.1 & cmt. n.4(a); see

also Stinson v. United States, 508 U.S. 36, 38 (1993)

(“[C]ommentary in the Guidelines Manual that interprets or

explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.”).      The Fourth

Circuit’s conclusion in Brooks notwithstanding, there is nothing
                           No. 02-50319
                                -7-

in the text of the guideline or commentary which restricts

application of § 3C1.1 only to situations in which the defendant

directly threatens a witness or communicates the threat to a

third party with the likelihood that it will in turn be

communicated to the witness.   See § 3C1.1 & cmt. n.4(a).

     It is undisputed that Searcy attempted to threaten the CI

indirectly by instituting a plan to have a third party plant

crack cocaine in her residence prior to Searcy’s trial.     As the

Government argues, had Searcy’s plan succeeded, the credibility

of a potential Government witness would have been undermined,

adversely affecting the Government’s ability to present its case.

Searcy’s conduct amounts to an indirect threat or attempt to

influence a potential witness in an attempt to impede the

judicial proceedings, warranting the obstruction enhancement.

     Searcy argues that, even if a threat made to a third party

and not communicated to the intended target can support a § 3C1.1

enhancement, the enhancement was nevertheless improper in his

case because he did nothing that could qualify as a true attempt

to obstruct justice.   He contends that he formed only a vague

intent to have the crack cocaine planted in the CI’s residence

but took no action likely leading to the actual commission of the

offense.   The uncontested findings of the PSR, however, show that

Searcy met with the third party in furtherance of his plan to

frame the CI and that the plan fell apart when Searcy could not
                          No. 02-50319
                               -8-

secure the money to purchase the cocaine to be planted in the

residence.

     For the foregoing reasons, Searcy’s sentence is AFFIRMED.
