                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4440


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LARRY ROBERT JACKSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:08-cr-00132-1)


Submitted:   April 30, 2010                   Decided:   June 7, 2010


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant.     Charles T.
Miller, United States Attorney, R. Booth Goodwin II, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Larry Robert Jackson pleaded guilty to one count of

wire    fraud,    in       violation       of    18     U.S.C.      § 1343      (2006).         The

district court sentenced Jackson to twenty-four months in prison

and ordered him to pay restitution of $29,078.                                Jackson appeals,

raising two issues.              First, he claims the district court erred

by imposing a two-level sentencing enhancement for obstruction

of   justice;     second,        he    argues         that   $2400       of   the   $29,078      in

restitution should not have been awarded.                          We affirm.

            This       case      revolved         around       a        fraudulent      business

transaction.         Jackson, a West Virginia resident, agreed to trade

four bulldozers to Industrial Buckets, a Mexican company, for an

excavator and $36,500.                Jackson received the excavator, which he

then traded to a man named Jeff Cooley for a used excavator and

$17,500.     Jackson, however, never owned or possessed the four

bulldozers      he    promised        to     Industrial       Buckets.           Subsequently,

Cooley purchased the Industrial Buckets excavator for $45,000,

some $11,000 less than Industrial Buckets claimed the machine

was worth.

            In       the    course      of      the    investigation,           West    Virginia

State Police Sergeant T.C. Bledsoe interviewed Jackson.                                        The

same    evening      as    the   interview,            Jackson      threatened         to    commit

suicide and was taken to the hospital.                             In a hospital waiting

room,    Jackson          told   Christy         Stanley,          an     emergency         medical

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technician, “Before I go to the state pen and be charged with

these charges, I will shoot Sergeant Bledsoe in the head and

kill him, and then I’ll shoot myself and I won’t even have to

go.”   Based on this threat, the probation officer recommended in

the presentence report a two-level adjustment for obstruction of

justice under U.S. Sentencing Guidelines Manual § 3C1.1 (2008).

The probation officer also recommended restitution of $20,778 to

Jeff   Cooley   and    $16,900   to     Industrial         Buckets.      Industrial

Buckets’    claimed     loss     of     $16,900       included        $11,000    that

Industrial Buckets said it lost when it resold the excavator to

Cooley, as well as $2400 for shipping the excavator to Jackson,

$2000 in travel expenses, and $1500 for lost work hours.

           At   sentencing,      the    Government         called     Stanley    as   a

witness, and she testified about the above threat to Bledsoe.

Over   Jackson’s      objection,       the      district     court     applied    the

adjustment for obstruction of justice.                 The district court also

ordered    total   restitution         of       $29,078,    reducing     Industrial

Buckets claim from $16,900 to $8300.                The district court arrived

at $8300 by denying Industrial Buckets’ $11,000 resale loss, but

awarding the company $2400 in shipping costs, which reflected




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the    amount     it       would   have   cost         the   company        to       return   the

excavator to Mexico. *

            The       sentencing      guidelines         provide       for       a    two-level

adjustment      to     a    defendant’s      offense         level     if    the      defendant

“willfully obstructed or impeded, or attempted to obstruct or

impede,    the       administration       of       justice      with     respect        to    the

investigation, prosecution, or sentencing of the instant offense

of conviction, and . . . the obstructive conduct related to (i)

the defendant’s offense of conviction and any relevant conduct;

or (ii) a closely related offense.”                      USSG § 3C1.1.               Obstructive

conduct   within       the     meaning    of       §   3C1.1    includes,        but     is   not

limited to, “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).              Whether

a defendant obstructed justice is a factual question reviewed

for clear error.             United States v. Kiulin, 360 F.3d 456, 460

(4th Cir. 2004).             This deferential standard of review requires

reversal only if the court is “‘left with the definite and firm

conviction that a mistake has been committed.’”                              United States

v.    Stevenson,       396     F.3d   538,     542       (4th     Cir.      2005)       (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

      *
       The district court assumed the return freight would have
been the same as the cost to have the excavator shipped to West
Virginia.



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               On   appeal,    Jackson    argues    that       the   district   court

erred by imposing the obstruction of justice adjustment because

Stanley’s       uncorroborated     testimony       was   insufficient       evidence

that Jackson made the threat.             Jackson further argues that, even

if he did make the threat, it did not warrant the adjustment

given his fragile mental state at the time it was allegedly

made.     We have reviewed the facts of this case and find the

district court did not clearly err in imposing the sentencing

enhancement.           The    district    court    found   Stanley’s        testimony

credible,       and    this    court     defers    to    the     district    court’s

credibility determinations.              United States v. Abu Ali, 528 F.3d

210, 232 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).

The record thus reflects that Jackson made a threat to kill

Bledsoe and that Jackson made the threat to a person who would

likely convey it to Bledsoe.              Accordingly, there was sufficient

evidence to support the conclusion that Jackson attempted to

impede the investigation and prosecution of his offense.

               A district court's order of restitution is reviewed

for abuse of discretion.           United States v. Henoud, 81 F.3d 484,

487     (4th    Cir.    1996).      By    definition,      a    court   abuses    its

discretion when it makes an error of law.                       EEOC v. Navy Fed.

Credit Union, 424 F.3d 397, 405 (4th Cir. 2005).                          Under the

Victim and Witness Protection Act (“VWPA”), the district court

may order a defendant to pay restitution to any victim of an

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offense of conviction.                  See 18 U.S.C.A. § 3663(a)(1)(A) (West

Supp. 2009); United States v. Blake, 81 F.3d 498, 506 (4th Cir.

1996)    (authority          of    district       court       to    order     restitution         is

limited to terms of VWPA).                       The district court’s restitution

order    shall      require         the       defendant       to     return      the      victim’s

property or pay the victim for the property’s loss in value.

See 18 U.S.C. § 3663A(b)(1) (2006).

             Jackson         argues       that        the    district       court        erred    in

awarding Industrial Buckets $2400 because the company did not

actually transport its excavator back to Mexico.                                  We find the

district     court      did       not   abuse     its       discretion      in    ordering       the

$2400 in restitution.                   Industrial Buckets essentially had two

choices: reclaim the excavator from West Virginia or resell it.

The     district        court       assessed          Jackson       $2400,       the     cost    of

reclaiming the excavator, because Industrial Buckets’ decision

to    sell   it    at    a    loss      may     have    been       influenced       by    business

considerations not directly attributable to Jackson’s crime.                                     We

find no abuse of discretion.

             Accordingly, we affirm the sentence.                           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 the decisional process.

                                                                                          AFFIRMED



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