                                               Filed:   August 6, 2004

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 03-4467
                             (CR-02-313)


UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus



SHIRLEY E. SMITH,

                                               Defendant - Appellant.


                              O R D E R


     The court amends its opinion filed August 3, 2004, as follows:

     On page 8, footnote 3 -- the footnote is revised to read:

               In a motion filed July 16, 2004, Smith,
          through counsel, moves to remand on the basis
          of Blakely v. Washington, 124 S.Ct. 2531
          (2004).   Pursuant to U.S. v. Hammoud, No.
          03-4253, 2004 WL 1730309 (4th Cir. August 2,
          2004) (en banc), the motion is DENIED.


                                          For the Court - By Direction



                                              /s/ Patricia S. Connor
                                                       Clerk
                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 03-4467
SHIRLEY E. SMITH,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
           for the District of South Carolina, at Aiken.
            Cameron McGowan Currie, District Judge.
                            (CR-02-313)

                       Argued: June 4, 2004

                      Decided: August 3, 2004

       Before WILLIAMS and KING, Circuit Judges, and
   Louise W. FLANAGAN, United States District Judge for the
    Eastern District of North Carolina, sitting by designation.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                            COUNSEL

ARGUED: Jill Eskin Major HaLevi, Assistant Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
South Carolina, for Appellant. Eric William Ruschky, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF:
2                       UNITED STATES v. SMITH
J. Strom Thurmond, Jr., United States Attorney, Columbia, South
Carolina, for Appellee.



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


                              OPINION

PER CURIAM:

   Shirley E. Smith appeals her 27 month sentence imposed after she
was found guilty at trial of four counts of making false statements
under oath, two counts of making a false claim, and one count of per-
jury. Her primary argument on appeal is that the district court erred
in its application of the grouping provisions of the United States Sen-
tencing Guidelines. Smith also raises additional arguments challeng-
ing her conviction in a pro se supplemental brief submitted to the
court. We affirm Smith’s conviction but vacate her sentence and
remand for resentencing.

                                   I.

   In 1998, while an employee with the United States Department of
Energy (DOE), Smith accused her manager, Hank Harris, of sexual
harassment. During the ensuing investigation into Smith’s allegations,
she made a settlement demand and a claim for compensation of
$250,000.00. In 2001, Smith testified under oath in furtherance of her
accusations against the DOE before an Administrative Law Judge
(ALJ) at an Equal Employment Opportunity Commission (EEOC)
hearing. The ALJ determined that Smith’s claims were without merit,
finding, contrary to Smith’s allegations, that the evidence tended to
show that Harris did not sexually harass Smith, but, rather, that sexual
relations between Smith and Harris were consensual.

   An indictment was returned against Smith on March 20, 2002,
alleging four counts of making false statements, under 18 U.S.C.
                        UNITED STATES v. SMITH                         3
§ 1001(a)(2), three counts of perjury, under 18 U.S.C. § 1623, and
two counts of making a false claim, under 18 U.S.C. § 287. After the
district court dismissed two of the three perjury charges, on July 19,
2002, a jury found Smith guilty on the remaining perjury count (based
on Smith’s 2001 testimony under oath before the ALJ concerning her
sexual harassment claims) and the false statements and claims counts
(based on Smith’s false allegations of harassment and claims for relief
asserted against her employer).

   At sentencing, over Smith’s objection, the court calculated Smith’s
sentence by grouping the multiple counts together into one distinct
group, pursuant to U.S.S.G. § 3D1.2 (1998),1 accounting for the false
statements and false claims counts of conviction under § 3D1.2(d)
and the perjury count of conviction under § 3D1.2(c). The court
arrived at a preadjustment offense level of 16, premised upon reason-
ing set forth in the Presentence Investigation Report (PSR). Although
the Probation Officer (PO) indicated no information to suggest that
Smith impeded or obstructed justice concerning the investigation or
criminal prosecution, the court held Smith accountable for perjury and
utilized the grouping rules to apply an obstruction adjustment as to
the perjury count of conviction. As recommended by the PO, the
court added two levels as an adjustment for obstruction of justice,
pursuant to § 3C1.1, and grouped the perjury count pursuant to
§ 3D1.2(c), resulting in a total offense level of 18, which, with a crim-
inal history category of I, yielded a sentencing range of 27 to 33
months.

   Smith appeals her sentence on grounds that the district court
improperly applied the U.S.S.G. § 3D1.2 grouping rules. Smith
argues that all seven counts should be grouped under § 3D1.2(b), as

  1
   The court used the 1998 edition of the U.S. Sentencing Guidelines
Manual (hereinafter "guidelines") because it was "in effect when the
offense was committed" and was deemed less punitive than the 2002 edi-
tion, current at the time of sentencing. J.A. II, p. 18; see U.S.S.G.
§ 1B1.11(a) & (b). The parties do not dispute the application of the 1998
guidelines to the facts of this case, and, hereinafter, all citations to
"U.S.S.G." refer to the 1998 guidelines.
4                        UNITED STATES v. SMITH
they all involve the same victim and constitute a common scheme or
plan, resulting in a total offense level of 16 and a lower guideline range.2

                                    II.

   This court reviews the district court’s application and interpretation
of a particular sentencing guideline de novo and reviews factual deter-
minations made by the district court for clear error. Elliott v. United
States, 332 F.3d 753, 761 (4th Cir. 2003).

   To calculate the guideline sentencing range, the sentencing court
must determine the offense level for each count of conviction, apply
relevant adjustments, and group the counts according to the grouping
guidelines. See U.S.S.G. § 1B1.1(a)-(d). It is undisputed that the false
statements and claims counts are subject to a preadjustment offense
level of 16. § 2F1.1(a) & (b). Applying § 2J1.3, the perjury count is
subject to a preadjustment offense level of 12. § 2J1.3.

   An adjustment for obstruction of justice applies, in relevant part,
only 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 (emphasis added). Here, the PO stated that she
"ha[d] no information to suggest that the defendant impeded or
obstructed justice concerning the investigation or prosecution of the
instant federal offense." J.A. II 18. The district court did not find at
sentencing that Smith obstructed justice during the course of the
investigation, prosecution, or sentencing, nor does the present record
offer any basis upon which to make such a finding.
    2
   Upon review, this court determines that extended discussion of argu-
ments challenging her conviction, raised in Smith’s pro se supplemental
brief, is unnecessary. We find Smith’s challenges to her conviction on
the basis of due process violations in the administrative proceeding with-
out merit and irrelevant to the validity of the criminal conviction. Smith’s
ineffective assistance claim must also be rejected as without merit
because the record does not conclusively show that Smith’s counsel was
ineffective. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Accordingly, we affirm the conviction.
                        UNITED STATES v. SMITH                          5
   Smith’s only obstructive conduct, perjury, occurred during an
EEOC hearing, before any criminal investigation against her had
begun. See J.A. II 8 & 13-16 (outlining offense conduct for perjury
count). Even government counsel at sentencing admitted "quite
frankly, I have trouble viewing the perjury count as an obstruction to
this case." J.A. I 33. Absent any finding that Smith obstructed justice
during the course of the investigation, prosecution, or sentencing, or
any basis in the record for so finding, the district court erred in impos-
ing an adjustment for obstruction of justice under § 3C1.1. See United
States v. Dunnigan, 507 U.S. 87, 95 (1993) (holding that court apply-
ing adjustment for obstruction over objection of the defendant "must
review the evidence and make independent findings necessary to
establish . . . obstruction of justice").

   Application note 8 to § 3C1.1 does not support grouping the per-
jury count as an obstruction adjustment under the circumstances of
this case, contrary to the position taken by the Government and
advanced in the PSR. This application note states:

     If the defendant is convicted both of an obstruction offense
     . . . and an underlying offense (the offense with respect to
     which the obstructive conduct occurred), the count for the
     obstruction offense will be grouped with the count for the
     underlying offense under subsection (c) of § 3D1.2. . . . The
     offense level for that group of closely related counts will be
     the offense level for the underlying offense increased by the
     2-level adjustment specified by this section.

§ 3C1.1, cmt. n.8. (emphasis added). For this provision to apply,
Smith must have been convicted of "an underlying offense" that is
also "the offense with respect to which the obstructive conduct
occurred." Id. Here, as the record now stands, Smith did not commit
obstructive conduct with respect to any of her underlying offenses.
Rather, as noted above, Smith committed perjury during a hearing
before an ALJ, well before any criminal proceedings against her had
begun.

  The grouping guideline § 3D1.2(c) and its commentary likewise do
not support grouping the perjury count as an obstruction adjustment
6                       UNITED STATES v. SMITH
in this case. Section 3D1.2(c) provides that counts should be grouped
under this section:

    [W]hen one of the counts embodies conduct that is treated
    as a[n] . . . adjustment to the guideline applicable to another
    of the counts.

§ 3D1.2(c) (emphasis added). The relevant commentary states in sim-
ilar terms:

    [W]hen conduct that represents a separate count, e.g., . . .
    obstruction of justice, is also a[n]. . . adjustment to another
    count, the count represented by that conduct is to be
    grouped with the count to which it constitutes an aggravat-
    ing factor.

§ 3D1.2, cmt. n.5 (emphasis added). By the plain language of the rule
and its commentary, § 3D1.2(c) applies only when it already has been
determined properly that the perjury count is an adjustment to another
count. Accordingly, where, as here, no findings were made supporting
treatment of the perjury count as an adjustment to the other false
statement and false claim counts, grouping under § 3D1.2(c) was
improper.

   The sole substantive case cited by the Government, United States
v. McCoy, 242 F.3d 399 (D.C. Cir. 2001), is inapposite on this group-
ing issue. In McCoy, the defendant was convicted of making a false
statement to a bank, making a false statement to the Small Business
Administration, and perjury at a bankruptcy proceeding. There, as
here, the district court applied an additional adjustment for obstruc-
tion. In McCoy, however, in contrast to the instant case, the obstruc-
tion adjustment was based on a specific finding that McCoy testified
falsely at her criminal trial to the same effect of her testimony at the
bankruptcy proceeding. McCoy, 242 F.3d at 407. It was not based
solely on the fact that she committed perjury at the bankruptcy pro-
ceeding. See id. Thus, this case is distinguishable from McCoy, given
that the court did not find that Smith testified falsely at her criminal
trial. See also United States v. Frank, 354 F.3d 910, 923 & 924 (8th
Cir. 2004) (applying obstruction adjustment for perjury count, pursu-
                        UNITED STATES v. SMITH                        7
ant to note 8 to § 3C1.1, where district court found, inter alia, that
defendant "gave materially false trial testimony").

  In sum, the district court erred in treating the perjury count as an
adjustment for obstruction of justice, and in grouping the perjury
count as an adjustment to the other counts under U.S.S.G. § 3D1.2(c),
absent findings supporting such an adjustment. Accordingly, Smith’s
sentence must be vacated.

   Upon resentencing, unless the district court makes factual findings
supporting an adjustment for obstruction, the perjury count must be
grouped according to a different grouping rule, pursuant to § 3D1.2
(a), (b) or (d). Under these rules, the perjury count may be grouped
with the others if the district court finds that it "involve[s] the same
victim and the same act or transaction," § 3D1.2(a), or, that it "in-
volve[s] the same victim and two or more acts or transactions con-
nected by a common criminal objective or constituting part of a
common scheme or plan," § 3D1.2(b). Alternately, even though per-
jury is not specifically enumerated in subsection (d), grouping may be
appropriate "based on the facts of the case and the applicable guide-
lines . . . used to determine the offense level," § 3D1.2(d). We leave
the factual determinations bearing on the application of these group-
ing rules for the district court upon resentencing.

   If either subsection (a), (b) or (d) of § 3D1.2 apply to group the
perjury count in one single group with the other counts, then the dis-
trict court must apply the rules in § 3D1.3 to determine the total
offense level for this group. See § 3D1.3 (providing method for deter-
mining the offense level of a group of closely related counts). If, how-
ever, the perjury count is properly grouped separately from the other
counts, then the court must apply § 3D1.4 to determine the combined
offense level in this case. See § 3D1.4 (outlining "procedure for calcu-
lating the combined offense level when there is more than one Group
of Closely Related Counts").

                                  III.

  For the foregoing reasons, although we affirm Smith’s conviction,
8                      UNITED STATES v. SMITH
we vacate the sentence imposed by the district court and remand for
resentencing in accordance with this opinion.3

                        AFFIRMED IN PART, VACATED IN PART,
                                            AND REMANDED
    3
   In a motion filed July 16, 2004, Smith, through counsel, moves to
remand on the basis of Blakely v. Washington , 124 S.Ct. 2531 (2004).
Pursuant to U.S. v. Hammoud , No. 03-4253, 2004 WL 1730309 (4th
Cir. August 2, 2004) (en banc), the motion is DENIED.
