UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4438

RANDY CHRISTMAS, a/k/a Dough,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-198)

Submitted: March 31, 1998

Decided: April 21, 1998

Before MURNAGHAN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Anne E. Shaffer, Charleston, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Randy Christmas pled guilty to one count of aiding and abetting
the distribution of crack cocaine, see 21 U.S.C. § 841(a)(1) (1994), 18
U.S.C. § 2 (1994), and was sentenced to 360 months imprisonment.
He appeals his sentence, contending that the district court clearly
erred in finding that he attempted to obstruct justice by threatening or
intimidating a witness who had provided information about him, see
USSG § 3C1.1,* and in denying him an adjustment for acceptance of
responsibility. See USSG § 3E1.1. We affirm.

While he was awaiting sentencing, Christmas was confined at the
South Central Regional Jail. A fellow conspirator, Jerry Lee Adkins,
was also confined there. Adkins was known to be cooperating with
the investigation of the drug operation in which Christmas had been
involved. As a result, the correctional officers had instructions to keep
him and Christmas apart. On March 6, 1997, the two were inadver-
tently brought together in a hallway while Adkins was going to the
visitation room and Christmas, who is six feet, eleven inches tall and
weighs over 200 pounds, was on his way outside for recreation. This
encounter was the basis for the probation officer's recommendation
of an adjustment for obstruction of justice. He reported that Christmas
"stomped his feet as if to charge Adkins. . . .[and] made a statement
to the effect that he was not going to do life and when he got out, he
would get his hands on Adkins." Christmas objected to the recom-
mendation.

The incident was the subject of conflicting testimony at Christmas'
sentencing hearing. Adkins testified about the incident and said he felt
threatened, even after he and Christmas were separated because
Christmas and his friends spread rumors through the jail that Adkins'
family was in danger. Adkins also said he was menaced by a friend
of Christmas a few days later. After that, he asked to be put in protec-
tive custody where he remained for several months.
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*U.S. Sentencing Guidelines Manual (1995).

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The two correctional officers who were present at the foot-
stomping incident also testified. Despite giving a contrary statement
right after the incident, Officer Brookover testified at sentencing that
she was unaware of any threat being made. Officer Leonard said he
did not hear a threat but that Adkins looked like he had seen a ghost.
Leonard said he thought Adkins baited Christmas by looking at him
after being separated from him again, and that he encouraged Christ-
mas to work off his feelings by yelling at Adkins. He acknowledged
that Christmas lost his temper and that he would have felt threatened
in Adkins' place. Drug Task Force Detective Harper testified that he
interviewed Adkins and the two correctional officers soon after the
incident and that all agreed that Christmas had threatened Adkins.
The court also heard from an inmate who had been beaten by Christ-
mas in an unrelated incident.

After considering all the evidence, the district court found that
Christmas had in fact intimidated Adkins by making direct and indi-
rect threats to him. See USSG § 3C1.1, comment. (n.3(a)). In support
of its finding, the court noted that Adkins was known to be cooperat-
ing and was thus susceptible to intimidation, and that Christmas had
the physical capacity to put others in fear and had shown a willing-
ness to act against others.

We review the district court's factfinding for clear error. See
United States v. Ramey, 

, 609 (4th Cir. 1994). Christmas
argues on appeal that the district court misunderstood the Adkins inci-
dent. He claims that Adkins was frightened by unexpectedly finding
himself in close proximity to Christmas--something for which Christ-
mas was not responsible--rather than by Christmas' actions. How-
ever, the record reveals that the court based the adjustment on
Christmas' "actions or threats." Adkins testified that he continued to
be afraid even after Christmas was separated from him and had him-
self placed in protective custody. On these facts, we find that the dis-
trict court did not clearly err in making the adjustment.

Christmas also contends that the district court clearly erred in deny-
ing him an adjustment for acceptance of responsibility. The adjust-
ment is not appropriate when a defendant has received an adjustment
for obstruction of justice except in extraordinary cases. See USSG

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§ 3E1.1, comment. (n.4). Christmas has not shown that his is such an
extraordinary case.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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