                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 12, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-30272
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

STEVEN ROBERT WELLS,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                      USDC No. 6:03-CR-20020-1
                        --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Steven Robert Wells appeals the sentence imposed following

his guilty plea conviction for production of child pornography.

Wells was sentenced to 151 months’ imprisonment to be followed by

a three-year term of supervised release.

     Wells argues that the district court clearly erred in making

an adjustment to his offense level based on his obstruction of

justice.   There is evidence in the record that Wells attempted to

destroy and discarded material evidence in the case.     However,


     *
       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this opinion should not be published and is not precedent except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.
                           No. 04-30272
                                -2-

there was no specific evidence presented that Wells was aware

that there was an investigation underway or about to commence at

the time that Wells partially burned and discarded the evidence.

     U.S.S.G. § 3C1.1 of the Sentencing Guidelines provides for a

two-level increase in the defendant’s offense level if the

defendant obstructs or impedes, or attempts to obstruct or

impede, the administration of justice.    The court has determined

that “the guideline specifically limits applicable conduct to

that which occurs during an investigation.”    United States v.

Clayton, 172 F.3d 347, 355 (5th Cir. 1999).   The defendant must

also be aware of the investigation.   United States v. Lister, 53

F.3d 66, 71 (5th Cir. 1995).

     Because there was no evidence that Wells was aware that an

investigation had commenced or was about to commence when he

partially destroyed and disposed of the evidence, the district

court clearly erred in making the adjustment for the obstruction

of justice.   United States v. Storm, 36 F.3d 1289, 1295 (5th Cir.

1994).   The sentence is VACATED and the case is REMANDED for

resentencing in accord with the sentencing guidelines.

     SENTENCE VACATED AND REMANDED.
