                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4863



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHNNY LEE SIMMONS,

                                            Defendant - Appellant.



                            No. 05-4019



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHNNY LEE SIMMONS, a/k/a JJ,

                                            Defendant - Appellant.



Appeals from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (CR-03-626; CR-02-289)


Submitted:   June 5, 2006                  Decided:   June 29, 2006


Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant. Jonathan
S. Gasser, United States Attorney, Mary Gordon Baker, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

            Johnny Lee Simmons appeals his sentence imposed after

resentencing after pleading guilty to violations of 18 U.S.C.

§§ 922, 924(a)(2)(1) (2000), unlawful transport of firearms, and 18

U.S.C. § 371 (2000), conspiracy to defraud the United States. At

resentencing the district court continued to apply a two-level

enhancement      for   obstruction   of   justice      under   U.S.   Sentencing

Guidelines Manual § 3C1.1 (2003).           Simmons received a fifty-seven

month term of imprisonment.          On appeal, Simmons argues that the

district court erred in applying the enhancement for obstruction of

justice.    Finding no error, we affirm.

            On appeal, Simmons primarily focuses on whether the

obstruction of justice enhancement was applicable when he was

arrested    despite     the   fact   that    he   gave     officers    a   false

identification.        He also argues that the district court did not

make a factual finding that providing a false identification

significantly hindered the investigation or prosecution of his

case.      The   Government    replies    that    at    the    resentencing   it

incorporated and adopted the factual findings from the first

sentencing hearing at which the court made the necessary findings

to apply the enhancement.

            Simmons was indicted on the fraud charge in March 2002.

An agent working on the matter, Darrell Watkins, testified that the

agents working the case began looking for Simmons soon after the


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indictment issued.        In summer or early fall 2002, a cooperating

witness   informed      Watkins    that    he     spotted    Simmons     driving    an

automobile     in   North   Charleston,          South    Carolina.       The     North

Charleston     police    were     dispatched       to     Simmons’     location    and

interrogated Simmons.         He produced an identification for Anthony

Brown. Because Simmons produced another identification, the police

let him leave the scene after they took a photograph of him.

Police posted the photograph on Crimestoppers, in newspapers, and

on television.        Watkins continued to interview witnesses and

otherwise continued the investigation.

           Another cooperating witness informed Watkins that Simmons

was   living   in   Sumter,     South     Carolina,       with   Kashawn    Drayton.

Investigators called the Sumter police department. Sumter notified

Watkins that they had a search warrant for Drayton’s residence. In

December 2002, Watkins accompanied the local officers to serve the

federal warrants on Simmons and Drayton. At the residence, Simmons

again   identified      himself     as    Anthony        Brown   and    produced    an

identification card for Brown.             Drayton was arrested at the same

time on a federal complaint for conspiracy in the fraud for which

Simmons was indicted.       She later broke down and told officers that

they had the right individual, and that Simmons falsely identified

himself as Brown.       On the day of his arrest, Simmons later properly

identified himself.




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          At the first sentencing hearing, the court imposed the

obstruction enhancement stating that “the defendant [] has the

problem with the Anthony Brown identification twice, and after

being questioned by the North Charleston Police and after being

served with a warrant, he still persisted in being Anthony Brown in

an effort to not be arrested and processed.”        At the second

sentencing hearing, the court heard the Government’s position as to

the two instances, found that the two instances were connected, and

held that giving a false statement to a law enforcement officer,

when the purpose of the interaction is to arrest the individual, is

obstruction.

          Section 3C1.1 directs a sentencing court to increase a

defendant’s offense level by two levels if 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 the obstructive conduct related to the defendant’s offense of

conviction and any relevant conduct.” United States v. Hudson, 272

F.3d 260, 263 (4th Cir. 2001) (citing USSG § 3C1.1 (subdividing

letters and numbers omitted)).    The Application Notes for § 3C1.1

explain that “providing a materially false statement to a law

enforcement officer that significantly obstructed or impeded the

official investigation or prosecution of the instant offense”

amounts to the type of conduct for which the enhancement applies.


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See USSG § 3C1.1, cmt. n.4(g).   Further, this court held in Hudson,

272 F.3d at 263, that the district court erred by failing to apply

USSG § 3C1.1 when the defendant, who was released on bond pending

sentencing, failed to appear for scheduled meetings with his

probation officer and actively eluded police for more than six

months while using aliases and false identification. While Simmons

did not fail to appear for probation meetings as Hudson did, his

use of the Brown identification when he was stopped in summer or

early fall of 2002 resulted in a delay of at least a few months

prior to his arrest.

          However, the USSG § 3C1.1 Application Notes also state

that “providing a false name or identification document at arrest,

except where such conduct actually resulted in a significant

hindrance to the investigation or prosecution of the instant

offense” and “making false statements, not under oath, to law

enforcement officers” are examples of conduct which does not merit

the enhancement for obstruction.     USSG § 3C1.1 cmt. n.5(a), (b).

Because Simmons’ conduct did not involve a single instance of

providing false identification at the time of arrest only,* and his


     *
      The fact that the police arrested Simmons at the time that
the search warrant was executed at Drayton’s residence, when he
presented the Brown identification a second time is irrelevant,
because the enhancement applies to attempted, as well as actual,
obstruction. See United States v. Hicks, 948 F.2d 877, 884-85 (4th
Cir. 1991); see also United States v. Lagasse, 87 F.3d 18, 24 (1st
Cir. 1996) (enhancement applied where witness intimidated prior to
sentencing even though he had nothing to contribute to the
sentencing process); United States v. Cotts, 14 F.3d 300, 307-08

                                 - 6 -
conduct resulted in a significant delay in his arrest, it was not

error for the district court to conclude that Simmons’ conduct

constituted obstruction of justice under the Guidelines.

                  We therefore affirm the sentence.      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




(7th Cir. 1994) (finding enhancement proper where defendant plotted
to kill a fictional informant).

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