UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4929

ELIZABETH RAY TRANTHAM,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4945

RYAN NEIL TRANTHAM,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-98-371)

Submitted: May 31, 2000

Decided: June 16, 2000

Before MURNAGHAN and KING, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

No. 99-4929 affirmed and No. 99-4945 affirmed in part and dismissed
in part by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Tamura D. Coffey, WILSON & ISEMAN, Winston-Salem, North
Carolina; James B. Craven III, Durham, North Carolina, for Appel-
lants. Walter C. Holton, Jr., United States Attorney, Paul A. Wein-
man, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Ryan Trantham (Ryan) and Elizabeth Trantham (Elizabeth) appeal
their sentences of 168 months and 57 months imprisonment, respec-
tively, which were imposed by the district court after they pled guilty
to offenses arising from the armed robbery of a mail truck.1 We affirm
the sentences for the reasons explained below, and dismiss Ryan's
appeal in part.

At the time of the robbery, Ryan was employed at the post office
where it occurred. Ryan supplied information about the post office to
his co-defendant, Christopher Gagnon, who carried out the robbery.
Gagnon testified at the Tranthams' joint sentencing hearing that he
and Ryan planned the robbery at the Tranthams' residence, where
Elizabeth heard them discuss it. He said he believed that Elizabeth
heard Ryan discuss with him the need to use a gun to intimidate the
postal employees because of the number of times the gun was dis-
_________________________________________________________________
1 Ryan pled guilty to conspiracy to rob the United States mail, see 18
U.S.C. § 371 (1994), armed mail robbery, see 18 U.S.C.A. § 2114(a)
(West Supp. 2000), 18 U.S.C. § 2 (1994), and carrying and using a fire-
arm in a crime of violence. See 18 U.S.C.A.§ 924(c) (West Supp. 1999),
18 U.S.C. § 2. Elizabeth pled guilty to conspiracy.

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cussed. Also according to Gagnon, several weeks before the robbery,
he and the Tranthams went to inspect a bridge near a drainage pond
where they planned to meet before and after the robbery.

On the evening of November 6, 1998, the Tranthams met Gagnon
at the bridge, and Gagnon then proceeded to the loading dock of the
post office. At about 6:30 p.m., Gagnon put a gun in the back of a
postal employee who had just finished loading a mail truck, forced
him to reopen the truck, took nine registered mail bags, and locked
him and the driver in the truck. Afterward, Gagnon returned to the
bridge, where he and the Tranthams put all the money and valuables
he had obtained into one mail bag. Gagnon put the mask, gloves, and
gun he had used into another bag and threw it into the pond below
the bridge. They then went to the apartment of a friend of Gagnon's
where they split the money.

Ryan asked another friend, Brad Snyder, to hold his share of the
money for him. Snyder testified at the sentencing hearing that Ryan
asked him for help in creating a false alibi. As Ryan had done when
he was interviewed by the postal inspectors, Snyder said the
Tranthams had eaten at Taco Bell, where Snyder worked, on the night
of the robbery. However, he refused to give a sworn statement to that
effect. Snyder later turned the money over to the investigators, told
them how he came to have it, and told them that Ryan and Elizabeth
obtained money from him several times during the month he was
holding their share of the robbery proceeds.

Before the sentencing, Elizabeth objected to the probation officer's
recommendation that she receive an enhancement for the use of a fire-
arm during the robbery. See U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2)(B) (1998) (firearm not discharged, but "otherwise
used").2 She argued that use of the gun was not relevant conduct in
her case, see USSG § 1B1.3(a)(1)(B), because she was not part of a
jointly undertaken criminal activity at the time the decision to use a
_________________________________________________________________
2 The term "otherwise used" is defined as conduct that "did not amount
to the discharge of a firearm but was more than brandishing, displaying,
or possessing a firearm or other dangerous weapon." USSG § 1B1.1,
comment. (n.1(g)).

                   3
gun was made, and use of the gun was not reasonably foreseeable to
her.

In her statement to the probation officer, Elizabeth had maintained
that, when she and Ryan went out to meet Gagnon just before the rob-
bery, she thought they were going out to eat, and that she stayed in
the car while Ryan and Gagnon talked. She admitted that, after the
robbery, she heard Gagnon say that a gun was in the bag he threw in
the water, and that she helped count the money. Ryan submitted a let-
ter to the court in which he stated that Elizabeth did not know about
the robbery until they were driving to the meeting point on the day
of the robbery.

The district court determined that Gagnon's testimony was suffi-
ciently credible to establish, by a preponderance of the evidence, that
Elizabeth heard enough of the conversation between him and Ryan
while they planned the robbery to know exactly what they planned,
including the use of a firearm. The court did not find credible Eliza-
beth's statement that she knew nothing about the robbery until she
and Ryan met Gagnon at the rendezvous spot just before the robbery
occurred. The court also found that the use of a firearm during a rob-
bery was reasonably foreseeable to Elizabeth.3

On appeal, Elizabeth argues that the district court clearly erred in
finding that Gagnon's use of a firearm was reasonably foreseeable to
her. However, the district court found, first, that Elizabeth had actual
knowledge that a gun would be used, and only secondarily found that
it was reasonably foreseeable that a firearm or other weapon would
be used in the commission of the robbery. The court decided that
Elizabeth had actual knowledge that a firearm would be used based
on its assessment of the credibility of Gagnon's testimony. The
appeals court does not review the credibility of witnesses. See United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). In light of
Gagnon's testimony, we find that the district court did not clearly err
in making the enhancement.
_________________________________________________________________
3 Because there was no evidence that Gagnon and Ryan discussed lock-
ing up postal employees, the court found that Gagnon's restraint of the
victims was not reasonably foreseeable to Elizabeth.

                    4
In Ryan's case, the district court decided that Ryan's attempt to
obstruct the investigation by creating a false alibi was sufficient to
warrant an adjustment for obstruction of justice. See USSG § 3C1.1.
Ryan argues that his attempt to have Snyder provide a false alibi for
him was not obstruction of justice because it did not significantly
impede the investigation. Because the facts were uncontested, the dis-
trict court's application of the guideline is reviewed de novo. See
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). The
government realized that the alibi was false when Snyder got fright-
ened and refused to give a sworn statement. However, an attempt to
impede the investigation of the offense is a sufficient basis for the
adjustment. See United States v. Hicks, 948 F.2d 877, 884-85 (4th Cir.
1991); see also United States v. Cotts, 14 F.3d 300, 301 (7th Cir.
1994). Therefore, the district court did not err in making the adjust-
ment.

Application Note 4 to § 3E1.1 provides that conduct resulting in an
adjustment for obstruction of justice usually indicates a lack of accep-
tance of responsibility, but that in an extraordinary case, both adjust-
ments may apply. Although Ryan contests the district court's decision
to deny him an adjustment for acceptance of responsibility based on
his obstruction of justice, we find no extraordinary circumstances in
his case, and no clear error in the district court's decision.

Last, Ryan contends that criminal history category II significantly
over-represented the seriousness of his past criminal conduct, and that
the district court should have departed to category I. The court's dis-
cretionary decision not to depart is not reviewable on appeal. See
United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).

We therefore affirm the sentences imposed by the district court,
and dismiss Ryan's appeal to the extent he challenges the district
court's refusal to depart. 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 IN PART; DISMISSED IN PART

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