                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4541



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LEON OXENDINE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (04-cr-41-1)


Submitted:   June 15, 2007                 Decided:   August 10, 2007


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dennis H. Sullivan, Jr., THE SULLIVAN LAW FIRM, P.C., Wilmington,
North Carolina, for Appellant. George E.B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Leon   Oxendine          was   convicted       by   a   jury     of   witness

tampering, 18 U.S.C.A. § 1512(b)(3) (West Supp. 2007) (Count One);

making a false statement in a matter being investigated by the

Federal Bureau of Investigation (FBI), 18 U.S.C.A. § 1001 (West

2000 & Supp. 2007) (Count Two); and making a false declaration

under oath before a grand jury, 18 U.S.C. § 1623 (2000) (Counts

Three through Seven).           Oxendine was sentenced to a term of fifty-

one months imprisonment.               On appeal, he contests the district

court’s     decision     to     enhance       his    sentence        for    substantial

interference with the administration of justice, U.S. Sentencing

Guidelines Manual § 2J1.2(b)(2) (2004) (Obstruction of Justice),

and for having a leadership role, USSG § 3B1.1(a).                         We affirm.

            Oxendine      was    a    lieutenant      in    the     Lumberton,      North

Carolina,    police      department,        and     the   head      of   the   Selective

Enforcement Team (SET), when he obtained a search warrant for a

house at 11 Albion Street based on false evidence of a controlled

purchase    of   drugs    there      from    James    Adams.         The    confidential

informant actually bought the drugs from a different person at a

different place, facts known to Oxendine when he applied for the

warrant.     In addition, the confidential informant had planted a

computer disk containing an image of a counterfeit $100 bill at 11

Albion Street earlier the same day, at Oxendine’s direction.                        When

the search warrant was executed, the disk was seized from a shelf


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in the bathroom, where the confidential informant told Oxendine he

had put it, and Oxendine then caused a federal investigation to be

started,    which   was   focused   on    Adams’     supposed   counterfeiting

activity.   Adams was in fact a drug dealer, and was arrested during

the search, outside the house at 11 Albion Street, in possession of

a variety of drugs.

            The counterfeiting investigation had not progressed very

far when state investigative agents learned that the computer disk

had been planted at Oxendine’s direction.             Two of the SET officers

were interviewed in December 2002.            Before they were questioned,

Oxendine counseled them not to cooperate, and they did not reveal

what   actually     happened   prior     to   the    search.     Oxendine   was

questioned in February 2003, but did not admit any wrongdoing.

Around this time, one of the officers began cooperating with

authorities and recorded a conversation with Oxendine and two

involved officers on February 14, 2003.             Oxendine testified before

a grand jury in August 2003, and denied that he directed the

informant to plant the disk at 11 Albion Street, discussed such

conduct, admitted to others such conduct, or knew about such

conduct.     Oxendine was tried and convicted in 2004 of witness

tampering, making a false statement, and making false declarations

to the grand jury.

            At sentencing, the district court adopted the presentence

report, which applied a base offense level of 14 under USSG


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§ 2J1.2, and added an enhancement of three levels for substantial

interference      with         the     administration       of     justice       under

§ 2J1.2(b)(2), a four-level adjustment for a leadership role under

USSG § 3B1.1, and two levels for abuse of a position of trust under

USSG § 3B1.3.      The final offense level was 23.                 Oxendine was in

criminal history category I.            His advisory guideline range was 46-

57 months.    The district court overruled Oxendine’s objections to

the   enhancement            for     substantial     interference         with     the

administration of justice and the leadership role adjustment and

imposed a sentence of fifty-one months imprisonment.

            On appeal, Oxendine first challenges the district court’s

determination that his offense resulted in substantial interference

with the administration of justice. As defined in Application Note

1 to § 2J1.2, substantial interference with the administration of

justice “includes a premature or improper termination of a felony

investigation;         an     indictment,        verdict,     or    any       judicial

determination based upon perjury, false testimony, or other false

evidence;    or    the         unnecessary       expenditure       of    substantial

governmental      or        court    resources.”        The      district     court’s

determination     that        Oxendine’s     false    statements        and    witness

tampering resulted in “the unnecessary expenditure of substantial

government and court resources,” is reviewed for clear error.

United States v. Dudley, 941 F.2d 260, 265 (4th Cir. 1991).




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           The    government    argues   that    the    enhancement    applied

because government resources were unnecessarily expended as a

result of Oxendine’s having caused a federal investigation to be

started   based   on    false   evidence,   as   well    as   the   subsequent

investigation that followed Oxendine’s false statements to the

agents.    We are of the view that the initial counterfeiting

investigation, and the conduct that caused it, is not relevant

conduct, given that Oxendine was not convicted of planting false

evidence, only of lying about it and directing others to lie.

Under USSG § 1B1.3(a)(1), a defendant is responsible for his own

conduct, and the conduct of others in a joint criminal activity,

“that occurred during the commission of the offense of conviction,

in preparation for that offense, or in the course of attempting to

avoid detection or responsibility for that offense.”                The conduct

that   caused     the   initial    investigation        of    Adams’   alleged

counterfeiting was none of these.        Moreover, because the offenses

of conviction were not “of a character for which § 3D1.2(d) would

require grouping of multiple counts,” in this case relevant conduct

does not include “all acts and omissions described in subdivisions

(1)(A) and (1)(B) . . . that were part of the same course of

conduct or common scheme or plan as the offense of conviction.”

See USSG § 1B1.3(a)(2).

           Thus, although the dismissal of drug charges against

Adams because Oxendine’s involvement in the search of the Albion


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Street house and his planting of false evidence of counterfeiting

compromised the drug case constitutes an improper termination of a

felony investigation, this determination is based on conduct by

Oxendine which was not relevant conduct under USSG § 1B1.3, and

thus, should not have been considered.

            However, the false statements given by Oxendine and

Jordan     required    additional    investigation      and,      ultimately,

Oxendine’s trial and conviction.       This constituted an “unnecessary

expenditure of substantial governmental or court resources,” which

supports the enhancement. USSG § 2J1.2, comment. (n.1). Moreover,

after Oxendine’s conviction, other persons in whose cases Oxendine

had been involved requested new trials.              This was evidence of

interference with the administration of justice which could be

attributed, at least in part, to the witness tampering, false

statements, and false grand jury testimony which led to Oxendine’s

prosecution.    Oxendine’s lack of truthfulness during the SBI and

FBI investigation of the conduct of the SET further compromised his

credibility, and thus had a serious effect on the administration of

justice.

            Oxendine   maintains    that    the   evidence   of   substantial

interference with the administration of justice did not have

sufficient indicia of reliability to support its probable accuracy.

This argument is belied by the trial record.           He also claims that

his conduct amounted to no more than obstruction of justice.


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However, the enhancement is designed to punish more severely those

instances of obstruction of justice which cause greater disruption

in the administration of justice. United States v. Tankersley, 296

F.3d 620, 623-24 (7th Cir. 2002).      We conclude that the district

court did not clearly err in making the enhancement in his case.

           Oxendine also contends that he was not a leader because

his offenses were singular in nature, that is, committed only by

him.     He argues that the evidence that he influenced another

officer to conceal the planting of the computer disk does not

justify the adjustment because it happened only once. The district

court’s determination that the defendant was a leader or organizer

in the offense is a factual issue that is reviewed for clear error.

United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).      The

evidence at trial established that Oxendine counseled all the

officers who knew about the planting of the computer disk to

conceal what they knew, and he continued to do so, as shown in the

recorded conversation with three involved officers on February 14,

2003.    Consequently, the district court did not clearly err in

finding that Oxendine led others to obstruct justice.

           We therefore affirm the sentence imposed by 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 the decisional process.

                                                            AFFIRMED


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