           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 7, 2008
                                     No. 07-10701
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA
                                                  Plaintiff-Appellee
v.

EDWARD C IVORY, JR
                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:06-CR-202-1


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Edward C. Ivory, Jr., appeals the sentence imposed following his guilty
plea conviction for wire fraud and aiding and abetting in violation of 18 U.S.C.
§§ 2 and 1343. He argues that the district court erred in enhancing his offense
level pursuant to U.S.S.G. § 3C1.1 based on its finding that he obstructed justice.
He argues that his conduct did not rise to the level of obstruction of justice
because during the recorded conversation between him and Deaderill Harris, a
woman he had recruited to sell counterfeit transportation vouchers, he merely
repeated a cover story that Harris already knew. He also argues that the facts
do not indicate that he knew that there was an investigation actively underway


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10701

or that his actions actually impeded the investigation. Because Ivory raised this
issue in the district court, the district court’s factual findings, i.e., its findings as
to what acts were performed, are reviewed for clear error, and the district court’s
ruling that its factual findings permit an enhancement for obstruction of justice
is a question of law, which this court reviews de novo. United States v. Brown,
470 F.3d 1091, 1093-94 (5th Cir. 2006).
      Ivory has not shown that the district court erred in enhancing his offense
level pursuant to § 3C1.1 based on its finding that he obstructed justice. The
evidence in the presentence report, the recorded telephone conversation, and the
testimony at the sentencing hearing show that Ivory knew Harris was going to
be interviewed by Secret Service agents; he told Harris to lie to agents by using
a cover story concerning the counterfeit transportation vouchers; he told Harris
not to identify him if she was presented with a photograph by agents; and he told
Harris to throw away any remaining vouchers that she had. Ivory also stated
that a codefendant, Ken Kirby, had told Secret Service agents the same cover
story. This evidence indicates that Ivory knew that there was an ongoing
investigation as he was aware that both Harris and Kirby had been or were
going to be interview by Secret Service agents concerning the vouchers. The
district court’s factual findings regarding Ivory’s conduct are plausible in light
of the record as a whole. See United States v. Cisneros-Guiterrez, 517 F.3d 751,
764 (5th Cir. 2008). Further, the evidence in the instant case supports the
district court’s determination that Ivory’s conduct constituted obstruction of
justice. See Brown, 470 F.3d at 1094.
      AFFIRMED.




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