UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 99-4866
JAMES L. MILLER, SR.,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
                  Dennis W. Shedd, District Judge.
                         (CR-98-1114-DWS)

                  Submitted: December 29, 2000

                      Decided: March 6, 2001

  Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                            COUNSEL

Sheldon Bradshaw, Gene Healy, HOWREY, SIMON, ARNOLD &
WHITE, L.L.P., Washington, D.C., for Appellant. J. Rene Josey,
United States Attorney, Dean A. Eichelberger, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
2                        UNITED STATES v. MILLER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                                OPINION

PER CURIAM:

   James L. Miller appeals the sentence of seventy-eight months
imprisonment imposed by the district court after his guilty plea to
mail fraud and conspiracy to commit mail fraud resulting from Mil-
ler’s involvement in a number of staged automobile accidents. We
affirm in part, vacate in part, and remand.

   Miller first argues that the district court plainly erred in adopting
the probation officer’s calculation of his criminal history, rather than
finding, sua sponte, that his prior convictions for receiving stolen
goods and housebreaking/grand larceny were related cases because
they were part of a common scheme or plan. See U.S. Sentencing
Guidelines Manual § 4B1.2, comment. (n.3) (1998). Both crimes
occurred in January 1994, but involved different victims in different
counties in South Carolina. Miller was prosecuted and sentenced sep-
arately for each offense, although the sentences were made concur-
rent. Applying the test set out in United States v. Breckenridge, 

, 138 (4th Cir. 1996), we cannot say that the district court
plainly erred in treating the offenses as unrelated.

   We find next that the district court did not clearly err in determin-
ing that Miller had attempted to obstruct the investigation of his cur-
rent offenses by threatening a co-defendant, Cheryl Parker Gainey,
and adjusting Miller’s offense level accordingly. USSG § 3C1.1,
comment. (n.4(a)). As a consequence, we also find that the district
court did not clearly err in refusing to reduce Miller’s offense level
for acceptance of responsibility. USSG § 3E1.1, comment. (n.4). We
further find that the record does not conclusively establish that Miller
received ineffective assistance in connection with his sentencing,1 and
    1
     Miller represented himself at sentencing.
                        UNITED STATES v. MILLER                         3
that any such claim would be better raised in a motion under 28
U.S.C.A. § 2255 (West Supp. 2000).

   Finally, Miller contends that the district court plainly erred in fail-
ing to make findings that keyed the statutory factors in 18 U.S.C.A.
§ 3664(f)(2) (West 2000) to the type and manner of restitution
ordered. The district court ordered Miller to make restitution to the
insurance companies he had defrauded, but made no factual findings
concerning his ability to pay.2

   Under the Mandatory Victims Restitution Act (MVRA), 18
U.S.C.A. § 3663A (West 2000), which was enacted in 1996 and
applies to post-1996 convictions for certain crimes including fraud,
the district court need not consider the defendant’s ability to make
restitution, but must consider the factors set out in § 3664, thus find-
ing that the manner of restitution ordered is reasonable. See United
States v. Dawkins, 

, 716 (4th Cir.), cert. denied, 120 S.
Ct. 1989 (2000). The statutory factors the court must consider are: the
defendant’s financial resources and other assets, his projected earn-
ings and other income, and his financial obligations, including obliga-
tions to dependents. 18 U.S.C.A. § 3664(f)(2). By contrast, under the
Victim and Witness Protection Act (VWPA), 18 U.S.C.A. §§ 3663,
3664 (West 2000), the district court must make specific findings con-
cerning the defendant’s ability to pay restitution before entering an
order of restitution. United States v. Castner, 

, 1277 (4th
Cir. 1995).

   Miller’s criminal conduct occurred before the MVRA was enacted
on April 24, 1996. The only relevant conduct described in the presen-
tence report that occurred after that date was Miller’s attempts to
intimidate potential witnesses.3
  2
     The court recommended that Miller be given the opportunity to par-
ticipate in the Inmate Financial Opportunity Program.
   3
     Several circuits have held that application of the MVRA to criminal
conduct committed before its effective date violates the Ex Post Facto
Clause. See, e.g., United States v. Edwards, 

, 92 (3d Cir.
1998). This circuit has not addressed the issue. United States v. Karam,

, 330 & n.13 (4th Cir. 2000).
4                      UNITED STATES v. MILLER
   It is not clear from the record whether the VWPA or the MVRA
was applied at sentencing. The probation officer seems to have
assumed that the VWPA should be applied, because the section on
restitution cites 18 U.S.C.A. § 3663, not § 3663A, and states that,
"[u]pon considering the defendant’s ability to pay, restitution may be
ordered . . . ." Under either statute, certain specific factual findings
were required.

   A district court may discharge its duty under the statute if it adopts
a presentence report that contains a section that reflects the defen-
dant’s ability to pay and "‘that contains adequate factual findings to
allow effective appellate review of the fine or restitution.’" 

(quoting 

). The presentence
report in Miller’s case contained a section on his financial condition
and ability to pay. However, the probation officer noted there that
Miller was disabled and his only source of income was Social Secur-
ity benefits, which had been terminated. The probation officer sug-
gested that Miller did not have the ability to pay a fine. Because the
district court’s adoption of the presentence report in this case does not
appear to satisfy the statutory requirements of either the VWPA or the
MVRA, we are constrained to vacate the restitution portion of the
judgment order and remand the case to permit the district court to
state which statute is being applied, and to make the necessary find-
ings.

  We therefore affirm the sentence, but vacate the order of restitution
and remand for further proceedings consistent with this opinion. We
deny Miller’s motion for 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, VACATED,
                                       IN PART, AND REMANDED