UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5954

DAVID M. HAUGHT,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-95-124)

Submitted: September 24, 1996

Decided: October 15, 1996

Before WIDENER and HALL, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
Paul A. Billups, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

David M. Haught pled guilty to an information charging that he
willfully failed to account for and pay over to the Internal Revenue
Service (IRS) certain taxes withheld from his employees, 26 U.S.C.
§ 7202 (1994). Haught appeals his 18-month sentence. He contends
that the addition of two criminal history points for an offense commit-
ted while on probation, USSG § 4A1.1(d),* violated his cooperation
agreement. See USSG § 1B1.8. We affirm.

Haught incorporated Ocean Graphics, Inc., in February 1988, and
began hiring employees in 1989. Between 1989 and 1994, Haught
withheld money from his employees for Social Security and federal
income taxes, but did not file employment tax returns or make the
required deposits of withheld taxes. While he was under investigation
for these tax code violations, Haught filed tax returns and employ-
ment returns for 1993 and 1992. In September 1995, Haught pled
guilty to an information charging that he failed to account for and pay
the tax due for the final quarter of 1993. His plea agreement afforded
him use immunity except for information from independent, legiti-
mate sources. Afterward, Haught filed returns for 1989 and subse-
quent years.

Haught had been convicted of a similar tax offense in 1986; his
probationary sentence ended in August 1989. When the probation
officer calculated Haught's criminal history score, she added two
points pursuant to USSG § 4A1.1(d). Haught objected, arguing that
the government could not have known with certainty that he hired
employees (and failed to file the necessary returns) while he was still
on probation until he provided the information under the protection
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

                    2
of his cooperation agreement. Thus, he contended, addition of the two
points violated the agreement.

IRS Agent Glen Brewer testified for the government that, because
of Haught's 1986 conviction, his business had been monitored there-
after. Brewer said he was aware in 1990 that Haught had not filed the
forms required of employers for 1989. He also testified that in the
first half of 1989 he knew that there were people working at Ocean
Graphics simply by going there and seeing people who were appar-
ently employees. On this evidence, the district court found that
Haught's cooperation agreement had not been violated.

We agree. The focus of USSG § 1B1.8 is on facts first revealed to
the government by the defendant during his cooperation. The IRS
agent observed people who appeared to be employees at Haught's
business in early 1989, long before Haught disclosed that he had in
fact hired employees at that time. While Haught's disclosure con-
firmed the agent's belief, it did not reveal new information. Conse-
quently, the district court did not clearly err in finding that the
cooperation agreement was not violated.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

                    3
