text:                                                           United States Court of Appeals
                                                                     Fifth Circuit
                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS              March 1, 2004
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
  
                               No. 03-50404
                             Summary Calendar
  
  
  
       UNITED STATES OF AMERICA,
  
                                               Plaintiff-Appellee,
  
              versus
  
  
       ALVA UPCHURCH,
  
                                               Defendant-Appellant.
  
  
  
  
              Appeal from the United States District Court
                    for the Western District of Texas
                          USDC No. MO-02-CR-66-2
  
  
  
  Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.
  
  PER CURIAM:*
  
       Alva    Upchurch   pleaded   guilty   to   two   counts    of    sexual
  
  exploitation of children, and the district court sentenced her to
  
  151 months in prison and a three-year term of supervised release.
  
  Upchurch argues in this appeal that the district court erred in
  
  determining that she had obstructed justice pursuant to U.S.S.G. §
  
  
  
       *
        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  opinion should not be published and is not precedent except under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.
  3C1.1 and adjusting her offense level accordingly.
  
         Because Upchurch adduced no evidence in the district court to
  
  rebut the facts recited in the presentence report (PSR), the
  
  district court was free to adopt those facts and rely upon them in
  
  sentencing Upchurch.      See United States v. Vital, 68 F.3d 114, 120
  
  (5th Cir. 1995).
  
         The PSR details Upchurch’s attempt to persuade the victim to
  
  recant the account of the underlying facts that she gave to police.
  
  This incident forms a sufficient basis for the district court’s
  
  imposition of the disputed adjustment.              See U.S.S.G. § 3C1.1,
  
  comment. (4(a)).      Upchurch has not shown that the district court’s
  
  findings on this issue are not “plausible in light of the record as
  
  a whole.”       United States v. Brown, 7 F.3d 1155, 1159 (5th Cir.
  
  1993) (internal quotations and citation omitted).
  
         Upchurch argues that her attempt to have the minor victim
  
  recant the account she gave the police occurred approximately two
  
  days before the federal, as opposed to the state, investigation
  
  began.      The record contains nothing from which it may be inferred
  
  that    a   federal   investigation       had   commenced   before    Upchurch
  
  attempted to have the minor victim recant, nor did the district
  
  court or the PSR find or state that a federal (as opposed to a
  
  state) investigation had then begun.
  
         Upchurch relies on United States v. Clayton, 172 F.3d 347 (5th
  
  Cir.   1999).      Clayton,   however,     is   inapposite,   as     there   the
  
  
                                        2
  allegedly obstructive conduct occurred immediately after commission
  
  of the offense, and before any investigation had commenced.                   While
  
  our opinion there does refer to “the federal investigation,” there
  
  is    no   suggestion    in   Clayton   that   there    was    ever   any     other
  
  investigation, and it is apparent that there could not have been at
  
  the    time   of   the   assertedly     obstructive     conduct,      which    was
  
  essentially contemporaneous with the offense.                 Here the criminal
  
  conduct constituting the federal offense (violation of 18 U.S.C. §
  
  2251(a) where the “visual depiction was produced using materials
  
  that have been mailed, shipped or transported in interstate or
  
  foreign commerce by any means, including by computer”) had all
  
  occurred and was the identical conduct that was allegedly under
  
  investigation by the local police, as Upchurch was plainly aware,
  
  at the time of her effort to cause the minor victim to recant which
  
  was clearly designed to obstruct that and any other investigation
  
  into that criminal conduct.        The fact that the federal authorities
  
  are not shown to have then commenced their investigation is in
  
  these circumstances not determinative.                 See United States v.
  
  Roberts, 243 F.3d 235, 238-40 (6th Cir. 2001), and authorities
  
  there cited.
  
         Upchurch’s argument that her efforts to have the victim recant
  
  did not in fact significantly impede any investigation are without
  
  merit.     Such obstruction comes within U.S.S.G. § 3C1.1, comment
  
  4(a) which covers “attempting” to “unlawfully influenc[e] a . . .
  
  
                                          3
  witness.”   Upchurch’s reliance on United States v. Ahmed, 324 F.3d
  
  368 (5th Cir. 2003), is misplaced, as Ahmed concerned only false
  
  material statements to law enforcement officers and under U.S.S.G.
  
  § 3C1.1 comments 4(g) and 5(b), that form of obstruction normally
  
  must have “significantly obstructed or impeded” the investigation
  
  or prosecution.
  
       Accordingly, the district court’s judgment is
  
                               AFFIRMED.
  
  
  
  
                                   4
  