      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 00-1458

                         UNITED STATES,

                           Appellee,

                               v.

                        GLENN R. ELION,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Joyce L. Alexander, U.S. Magistrate Judge]


                             Before

                       Boudin, Chief Judge,
              Torruella and Lynch, Circuit Judges.




     Leslie W. O’Brien on brief for appellant.
     Donald K. Stern, United States Attorney, and Colin Owyang,
Assistant United States Attorney, on Motion for Summary
Disposition for appellee.




                         July 30, 2001
      Per Curiam.          Defendant Glenn Elion ("Elion") appeals a

sentence imposed upon his guilty plea to a one-count information

charging him with wire fraud in violation of 18 U.S.C. §§ 1343

and 2.     He claims that the district court erred in enhancing his

sentence beyond the base level prescribed by the United States

Sentencing        Guidelines    (U.S.S.G.)      based    on    facts   not    proven

beyond     a    reasonable     doubt   in    violation    of    Apprendi     v.   New

Jersey, 530 U.S. 466 (2000).            Elion also mounts a more specific

challenge to a two-level obstruction of justice increase under

U.S.S.G. § 3C1.1.              The government has moved for a summary

affirmance pursuant to Loc. R. 27(c).               After a thorough review

of the record and of the parties' submissions, we allow the

government's motion and summarily affirm the judgment below.



      I.        Apprendi

                Elion asserts that the district court violated Apprendi

v.   New       Jersey,   530   U.S.    466    (2000),    by    applying      various

sentencing enhancements to adjust base level of his offense

upward from 6 to 22 without submitting the factual questions

forming the bases for the increases to a jury.                         Since Elion

failed to raise this            argument before the district court, we

review for plain error.           United States v. Patrick, 248 F.3d 11



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(1st Cir. 2001); United States v. Robinson, 241 F.3d 115, 119

(2001).

                We have consistently held that Apprendi does not

apply to guideline findings that increase the sentence but do

not elevate it beyond the statutory maximum.     United States v.

Robinson, 241 F.3d 115, 121 (1st Cir. 2001); United States v.

Caba, 241 F.3d 98, 101 (1st Cir. 2001); see also United States

v. LaFreniere, 236 F.3d 41, 50 (1st Cir. 2001). Thus, since

Elion's sentence of 46 months is within 18 U.S.C. § 1343's

default statutory maximum of five years, the district court

committed no error, plain or otherwise.

    II. Obstruction of Justice

    Elion also challenges the two-level enhancement applied to

his sentence for obstruction of justice pursuant to    U.S.S.G. §

3C1.1.    Although Elion objected to the enhancement below, he did

so on different grounds than he now raises.       Accordingly, we

review for plain error.

    Section 3C1.1 prescribes a mandatory two-level increase in

a defendant's base offense level if:


           (A) 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, and (B) the obstructive conduct
           related to (i) the defendant's offense of


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             conviction and any relevant conduct; or (ii)
             a closely related offense[.]

       The district court applied the enhancement based on various

material     misrepresentations            Elion    made     to    federal      law

enforcement authorities during the course of their investigation

of a Nigerian advance fee scheme in which Elion was initially

involved as a victim.           Elion developed his own fraud scheme

(i.e., the offense of conviction) as a means to obtain funds to

send    to   the    Nigerian    accounts      under      investigation.         The

misrepresentations       upon    which      the     obstruction      of   justice

enhancement was based were made in order to avoid detection of

the extent of his involvement in the Nigerian scheme and of his

own sub-scheme.         Elion now contends that the district court

committed plain error in basing the § 3C1.1 enhancement on such

conduct because it did not occur "during the course of the

investigation, prosecution or sentencing" of the offense of

which he was ultimately convicted, but, rather, during the

course of the investigation of a separate case.                   We cannot find

plain error.       Had Elion raised the matter below, then presumably

the record might have been developed to show whether, at the

time    Elion      committed    one   or     more   of     acts   found    to    be

obstructive, the investigation into the Nigerian scheme had

expanded to include Elion and conduct relevant to the offense of

conviction.        Since these factual questions could have been


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resolved      by   the   district    court    had     Elion   presented    this

argument, we cannot find plain error.                 See United States v.

Olivier-Diaz, 13 F.3d 1, 5-6 (1st Cir. 1993) ("Where the error

defendant asserts on appeal depends upon a factual finding the

defendant neglected to ask the district court to make, the error

cannot   be    'clear'    or   'obvious'     unless    the    desired   factual

finding is the only one rationally supported by the record

below"); United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)

("Questions of fact capable of resolution by the district court

upon proper objection at sentencing can never constitute plain

error").

    The government's motion for summary disposition is granted.

The judgment is affirmed.           See Loc. R. 27(c).




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