                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS              March 1, 2004
                        FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                             No. 03-50404
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

            versus


     ALVA UPCHURCH,

                                             Defendant-Appellant.




            Appeal from the United States District Court
                  for the Western District of Texas
                        USDC No. MO-02-CR-66-2



Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Alva    Upchurch   pleaded   guilty   to   two   counts    of    sexual

exploitation of children, and the district court sentenced her to

151 months in prison and a three-year term of supervised release.

Upchurch argues in this appeal that the district court erred in

determining that she had obstructed justice pursuant to U.S.S.G. §



     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
3C1.1 and adjusting her offense level accordingly.

       Because Upchurch adduced no evidence in the district court to

rebut the facts recited in the presentence report (PSR), the

district court was free to adopt those facts and rely upon them in

sentencing Upchurch.      See United States v. Vital, 68 F.3d 114, 120

(5th Cir. 1995).

       The PSR details Upchurch’s attempt to persuade the victim to

recant the account of the underlying facts that she gave to police.

This incident forms a sufficient basis for the district court’s

imposition of the disputed adjustment.              See U.S.S.G. § 3C1.1,

comment. (4(a)).      Upchurch has not shown that the district court’s

findings on this issue are not “plausible in light of the record as

a whole.”       United States v. Brown, 7 F.3d 1155, 1159 (5th Cir.

1993) (internal quotations and citation omitted).

       Upchurch argues that her attempt to have the minor victim

recant the account she gave the police occurred approximately two

days before the federal, as opposed to the state, investigation

began.      The record contains nothing from which it may be inferred

that    a   federal   investigation       had   commenced   before    Upchurch

attempted to have the minor victim recant, nor did the district

court or the PSR find or state that a federal (as opposed to a

state) investigation had then begun.

       Upchurch relies on United States v. Clayton, 172 F.3d 347 (5th

Cir.   1999).      Clayton,   however,     is   inapposite,   as     there   the


                                      2
allegedly obstructive conduct occurred immediately after commission

of the offense, and before any investigation had commenced.                   While

our opinion there does refer to “the federal investigation,” there

is    no   suggestion    in   Clayton   that   there    was    ever   any     other

investigation, and it is apparent that there could not have been at

the    time   of   the   assertedly     obstructive     conduct,      which    was

essentially contemporaneous with the offense.                 Here the criminal

conduct constituting the federal offense (violation of 18 U.S.C. §

2251(a) where the “visual depiction was produced using materials

that have been mailed, shipped or transported in interstate or

foreign commerce by any means, including by computer”) had all

occurred and was the identical conduct that was allegedly under

investigation by the local police, as Upchurch was plainly aware,

at the time of her effort to cause the minor victim to recant which

was clearly designed to obstruct that and any other investigation

into that criminal conduct.        The fact that the federal authorities

are not shown to have then commenced their investigation is in

these circumstances not determinative.                 See United States v.

Roberts, 243 F.3d 235, 238-40 (6th Cir. 2001), and authorities

there cited.

       Upchurch’s argument that her efforts to have the victim recant

did not in fact significantly impede any investigation are without

merit.     Such obstruction comes within U.S.S.G. § 3C1.1, comment

4(a) which covers “attempting” to “unlawfully influenc[e] a . . .


                                        3
witness.”   Upchurch’s reliance on United States v. Ahmed, 324 F.3d

368 (5th Cir. 2003), is misplaced, as Ahmed concerned only false

material statements to law enforcement officers and under U.S.S.G.

§ 3C1.1 comments 4(g) and 5(b), that form of obstruction normally

must have “significantly obstructed or impeded” the investigation

or prosecution.

     Accordingly, the district court’s judgment is

                             AFFIRMED.




                                 4
