United States v. Corey Jones ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY THOMAS JONES,
Defendant - Appellant.
No. 12-4565
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM LOUIS COLE, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:11-cr-00530-CMH-2; 1:11-cr-00530-CMH-1)
Argued: May 17, 2013 Decided: July 18, 2013
Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Jerome Patrick Aquino, Springfield, Virginia; Maureen
Leigh White, Richmond, Virginia, for Appellants. Patricia
Tolliver Giles, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride,
United States Attorney, Rebeca H. Bellows, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellants Corey Thomas Jones and William Louis Cole, Jr.,
were convicted by a jury of conspiracy to commit bank robbery,
see 18 U.S.C. § 371, and armed bank robbery, see 18 U.S.C. §
2113(a) and (d). Additionally, Cole was convicted of using and
carrying a firearm during and in relation to a crime of
violence, see 18 U.S.C. § 924(c)(1)(A), and unlawfully
possessing a firearm, see 18 U.S.C. § 922(g)(1). Appellants
raise numerous challenges to their convictions, and Cole
challenges his sentence. For the reasons that follow, we reject
their arguments and affirm their convictions and sentences.
I.
On June 27, 2011, two masked men robbed at gunpoint the
Arlington Boulevard branch of the BB&T bank in Fairfax,
Virginia. BB&T’s video surveillance system recorded the
robbery. Based on surveillance photos and the testimony of BB&T
employees present during the robbery, the facts of the robbery
itself are not a matter of dispute. At approximately 2:00 p.m.,
an African-American male with long dreadlocks entered the bank,
approached the teller line, and “stated that he wanted to make a
withdrawal.” J.A. 205. He was wearing sunglasses, a white
painter’s mask, and white gloves. A second suspect, also
African American, entered the bank immediately after the first,
wearing a similar mask and sunglasses and carrying a black gun.
3
He was stocky, wore light jeans, light gray tennis shoes and
black gloves. While the second suspect pointed the gun at BB&T
employees, the first suspect jumped over the tellers’ counter
and took cash from the drawers.
The bank robbers fled the building with approximately
$9,860, but BB&T employees managed to obtain the District of
Columbia license plate number of a Plymouth Voyager leaving the
scene. The police located the Voyager within 10 minutes of the
robbery, abandoned in a nearby neighborhood. The vehicle was
running without keys and the ignition column had been punched
out. Police later discovered that the Voyager had been stolen
earlier that day from the intersection of First Street, NW, and
North Streets in Washington, D.C.
Approximately one hour before the bank robbery occurred,
Allan Luai, who worked in an office across the street from the
BB&T, noticed two African-American males sitting in a BMW that
was parked in Luai’s lot. The BMW displayed Maryland plates and
the occupants were watching the BB&T. Noticing that the BMW
remained situated like this for 15-20 minutes, Luai became
suspicious and wrote down the license plate number which he gave
to police shortly after the robbery. The BMW’s license plates,
in turn, led the police to Cole. Although the car was
registered to Cole’s sister, Cole owned and operated the
vehicle.
4
After the responding law enforcement officers connected the
BMW tag number to Cole, they notified Sergeant David Blazer that
Cole’s car had been spotted by a witness near the scene of an
armed bank robbery and asked him to conduct surveillance of
Cole. Sergeant Blazer was familiar with Cole because he had
previously investigated Cole’s involvement in unrelated criminal
activities, including a 2010 armed robbery of a check cashing
establishment for which Cole had been charged. The surveillance
photos from BB&T’s security system were forwarded to Sergeant
Blazer, who observed that the second bank robber entering the
bank matched Cole’s stocky build. He also observed that the
stockier suspect was wearing light-colored jeans and light-
colored, gray tennis shoes. Sergeant Blazer noted that the
first suspect was wearing white gloves.
Sergeant Blazer observed Cole arriving at the residence of
his mother not long after the robbery, driving the same BMW that
Luai saw near the bank shortly before the robbery. He further
observed that Cole was wearing light-colored jeans like those
worn by the gunman in the surveillance photographs.
About 6:30 p.m. that evening, Cole departed from his
mother’s home in the same BMW. At Sergeant Blazer’s direction,
Officer Lawrence conducted a traffic stop of Cole’s BMW.
Officer Lawrence told Cole that he had been stopped for failure
to wear a seatbelt. While officers performed the traffic stop,
5
Sergeant Blazer noticed that although Cole had changed his
pants, he was wearing gray tennis shoes similar to those worn by
one of the bank robbers in the surveillance photos sent to him.
Sergeant Blazer also noticed white latex gloves in the open
center console of Cole’s car, a detail he found significant
because in the surveillance photos “one of the individuals
appeared to be wearing white latex gloves in the bank robbery.”
J.A. 271. Sergeant Blazer then arrested Cole for the BB&T
robbery. Cole had $802 in his pocket.
A subsequent search of the BMW yielded the white latex
gloves, a pair of black gloves from the trunk, and two cell
phones from the front seat. One of the cell phones was a Sprint
HTC phone belonging to Cole. Law enforcement agents conducted a
forensic examination of Cole’s phone and were able to recover
numerous text messages between Cole’s phone and the cell phone
used by Jones. The forensic examination included historical
cellsite analysis to determine the physical location of Cole’s
and Jones’s cell phones at the time calls were made by them.
This analysis showed that four days before the robbery,
Cole texted Jones that “I got a lil situation for about 5 stacks
in about an [hour] if [you] want in on it. [It’s] real light
work with no uniforms involved.” J.A. 585. The BB&T branch on
Arlington Boulevard had no uniformed security guards. In
response, Jones texted “Sweet.” J.A. 585. FBI investigators
6
were able to pinpoint the location of Cole’s cell phone that
same day on Arlington Boulevard in Fairfax, near the BB&T. On
the day before the robbery, Jones texted Cole to ask “[what’s]
that robbery site?” J.A. 549. Cole responded “[You] have to go
under commercial armed robberies in whatever county [you]
looking for.” Id.Early on the morning of the robbery, Jones sent Cole a text
inquiring whether Cole was coming to get Jones or if Cole wanted
Jones to get a ride from his girlfriend. The evidence showed
that at 10:30 a.m., the phones for both Cole and Jones were
located in northwest Washington, D.C., near the spot where the
Plymouth Voyager used as the getaway vehicle was stolen. Around
11:00 a.m., Jones’s cell phone was used to call Cole’s number
from near the BB&T back in Fairfax.
Cole and Jones were both indicted for armed bank robbery,
conspiracy to commit armed bank robbery, and using and carrying
a firearm during and in relation to a crime of violence. Cole
alone was indicted for unlawfully possessing a firearm as a
felon.
Prior to trial, Cole moved to suppress the evidence
recovered from his BMW on the basis that law enforcement had no
justification for performing the initial traffic stop or
probable cause for arresting him during the stop. Jones filed a
pretrial motion to strike the jury panel because it did not
7
include any African-Americans. The district court denied both
motions, and the case went to trial. The jury found Cole guilty
on all four counts. The jury found Jones guilty of armed bank
robbery and conspiracy to commit armed bank robbery, but
acquitted him of using and carrying a firearm during a crime of
violence.
Approximately two weeks after trial, Jones moved for
discovery regarding the Eastern District of Virginia’s method of
selecting jury panels to determine if the lack of African
Americans on the jury panel was an anomaly or the result of
systematic discrimination. The court denied the motion, finding
nothing to show any systematic discrimination.
Cole was sentenced to 60 months each for the armed robbery,
conspiracy, and felon-in-possession counts, to run concurrently,
and a consecutive term of 84 months for using and carrying a
firearm during and in relation to a crime of violence. Cole
challenges the district court’s imposition of an obstruction
enhancement in determining Cole’s advisory guideline range.
Jones does not challenge his sentence.
II.
Cole challenges the district court’s denial of his pretrial
motion to suppress evidence recovered from a search of his BMW
following his traffic stop and arrest. When considering the
denial of a motion to suppress, our review of the district
8
court’s factual findings is for clear error and our review of
its legal conclusions is de novo. See United States v. Lewis,
606 F.3d 193, 197 (4th Cir. 2010). “Since the district court
denied the defendant’s motion below, we construe the evidence in
the light most favorable to the government.” United States v.
Branch, 537 F.3d 328, 337 (4th Cir. 2008).
Cole first contends that the police had no justifiable
basis for making the initial traffic stop. “Temporary detention
of individuals during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of [the
Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-
10 (1996). A traffic stop, generally speaking, is permissible
if the officer has “probable cause to believe that a traffic
violation has occurred.” Id. at 810.
At the suppression hearing, Officer Lawrence testified that
he followed Cole in his BMW at a distance of about 10-15 feet.
Because it was still daylight and the weather was clear, Officer
Lawrence could see that Cole was not wearing his shoulder
restraint and that the belt buckle was near the door jamb and
therefore could not have been fastened. After Officer Lawrence
noticed the infraction, he activated his lights and stopped
Cole.
9
Cole testified at the suppression hearing, claiming that he
was wearing his seatbelt. Cole also presented testimony from a
former police officer that, based on the former officer’s
training, he believed that it is difficult to observe whether a
driver is wearing a seatbelt from a rear vantage point.
The district court credited the testimony of Officer
Lawrence and concluded that he was justified in making to
initial traffic stop. We give particular deference “to a
district court’s credibility determinations, for it is the role
of the district court to observe witnesses and weigh their
credibility during a pre-trial motion to suppress.” United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted). Construing the record in the light
most favorable to the government, we perceive no error of law or
fact in the district court’s determination that there was
probable cause to make the initial traffic stop.
Cole further argues that even if there was sufficient
justification for the initial stop, the police lacked probable
cause to support Cole’s arrest for the BB&T robbery. We cannot
agree. “Probable cause to justify an arrest means facts and
circumstances within the officer’s knowledge that are sufficient
to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.”
10
United States v. Williams, 10 F.3d 1070, 1073-74 (4th Cir. 1993)
(internal quotation marks omitted).
Viewing the evidence in the light most favorable to the
government, Sergeant Blazer knew at least the following facts:
1) a witness had seen Cole’s BMW near the scene of the robbery;
2) Cole’s stocky build matched that of the bank robber holding
the gun in the BB&T surveillance photos; 3) Cole was wearing
light-colored jeans like the bank robber in the surveillance
photos when he arrived at his mother’s house within hours of the
robbery; 4) Cole was wearing light-colored tennis shoes like the
robber who was holding the gun in the surveillance photos; and
5) the other bank robber wore white gloves in the surveillance
images and there were white gloves in the console of Cole’s car
at the time of the traffic stop.
Although the subsequently-developed cell phone evidence
significantly strengthened the government’s case, “evidence
sufficient to convict is not required” for probable cause to
exist. Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002). We
are satisfied that Officer Blazer had probable cause to arrest
Cole for the bank robbery when he took him into custody.
III.
Appellants assert that there was insufficient evidence to
support their convictions. On a challenge to the sufficiency of
the evidence, we view the evidence “in the light most favorable
11
to the prosecution” and ask whether “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Collins, 412 F.3d 515, 519
(4th Cir. 2005) (internal quotation marks omitted). We review
both direct and circumstantial evidence, according the
government all reasonable inferences from the facts shown to
those sought to be established. See United States v. Harvey,
532 F.3d 326, 333 (4th Cir. 2008). We assume that the jury
resolved all contradictions in the testimony in favor of the
government. See United States v. Kelly, 510 F.3d 433, 440 (4th
Cir. 2007).
To prove armed bank robbery, the government must prove that
“(1) the defendant took . . . money belonging to a bank . . .;
(2) by using force and violence, or intimidation; (3) the
[bank’s] deposits . . . were federally insured; and (4) in
committing . . . the offense, the defendant assaulted any
person, or put in jeopardy the life of any person by the use of
a dangerous weapon or device.” United States v. Davis, 437 F.3d
989, 993 (10th Cir. 2006).
As for conspiracy, the essence of the crime “is an
agreement to effectuate a criminal act.” United States v.
Laughman, 618 F.2d 1067, 1074 (4th Cir. 1980). “Sustaining a
conspiracy conviction under 18 U.S.C. § 371 requires that the
government prove: (1) an agreement between two or more people to
12
commit a crime, and (2) an overt act in furtherance of the
conspiracy.” United States v. Ellis, 121 F.3d 908, 922 (4th
Cir. 1997).
The evidence previously summarized shows there was clearly
sufficient evidence to convict both defendants for armed bank
robbery and conspiracy to commit armed bank robbery. The jury
could conclude, based on this evidence, that the defendants
acted together, planned the robbery, scouted out the location in
advance, stole the getaway car, and committed the robbery. The
cell phone evidence placed them at the scene of the robbery and
reflected text messages explicitly mentioning robbery and that
the target bank did not use uniformed security personnel.
To secure a conviction under 18 U.S.C. § 922(g)(1), the
government must establish that (1) the defendant was a convicted
felon; (2) he knowingly possessed the firearm; and (3) the
firearm traveled in interstate commerce. See United States v.
Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). The bank
surveillance photos showed the gun being wielded by the stockier
of the two robbers. Since the evidence was sufficient to allow
a conviction of the defendants on the robbery and conspiracy
counts, the jury reasonably could have determined that, as
between Cole and Jones, Cole had to be the gunman as he was
stockier and generally fit the description of the bank robber
who was using the gun. And like the man with the gun, Cole wore
13
light-colored jeans not long after the robbery and was wearing
gray tennis shoes when arrested. Thus, we reject the
sufficiency challenges and affirm the convictions. 1
IV.
Defendants argue that in its closing argument, the
government referred to facts not in evidence when it suggested
that Jones, who did not have dreadlocks at the time of the
robbery, wore a dreadlock wig as a disguise. Because the
defendants did not object to the government’s closing argument,
we review for plain error. Under the plain error standard, a
defendant must show “(1) that an error occurred, (2) that the
error was plain, and (3) that it affected his substantial
rights.” United States v. Penniegraft, 641 F.3d 566, 575 (4th
Cir. 2011). Even if the defendant meets these requirements, we
will exercise our discretion to correct the error “only when
failure to do so would result in a miscarriage of justice, such
as when the defendant is actually innocent or the error
1
Cole also argues that the government failed to offer
evidence that the firearm traveled in interstate commerce.
Because this claim is raised for the first time in his reply
brief, Cole has waived consideration of it. See Yousefi v. INS,
260 F.3d 318, 326 (4th Cir. 2001) (per curiam). Although §
922(g)(1)’s interstate commerce element is often described as
jurisdictional, “it is ‘jurisdictional’ only in the shorthand
sense that without that nexus, there can be no federal crime”;
it does not affect a court’s “power to adjudicate a case.”
United States v. Martin, 526 F.3d 926, 933 (6th Cir. 2008).
Cole’s argument presents nothing more than an untimely challenge
to the sufficiency of the evidence that is subject to waiver.
14
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
alteration omitted).
Defendants raise their claim pursuant to United States v.
Wilson, 135 F.3d 291, 299 (4th Cir. 1998), which asks whether a
prosecutor’s improper remarks “so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” United States v. Caro, 597 F.3d 608, 624 (4th Cir.
2010) (internal quotation marks omitted). To prevail, “the
defendant must show that the prosecutor’s remarks or conduct
were improper and . . . that such remarks or conduct
prejudicially affected his substantial rights so as to deprive
him of a fair trial.” United States v. Scheetz, 293 F.3d 175,
185 (4th Cir. 2002).
During closing argument, the government is permitted to
draw reasonable inferences from the evidence adduced during the
trial. See United States v. Francisco, 35 F.3d 116, 120 (4th
Cir. 1994) (per curiam). However, the prosecutor must adhere to
the “fundamental rule, known to every lawyer, that argument is
limited to the facts in evidence.” United States v. Lighty, 616
F.3d 321, 361 (4th Cir. 2010) (internal quotation marks
omitted). In this case, the prosecution was suggesting that the
jury make a reasonable inference. The evidence connected Cole
and Jones with the incriminating text messages and put them near
15
the BB&T close to the time of the robbery and in Washington,
D.C., near the location where the getaway vehicle was stolen.
The surveillance shots showed two bank robbers that matched the
general physical build of Cole and Jones. Thus, the government
was asking the jury to make a reasonable inference that Jones
was wearing a wig, like his mask, to disguise himself.
This is not the type of misstatement that “so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” Caro, 597 F.3d at 624. Moreover,
defense counsel actually addressed the government’s theory about
the wig during summation for the defense, challenging its
validity and pointing out for the jury that the government
failed to produce any evidence that Jones wore a wig. Thus,
applying a plain error standard of review, we conclude that
defendants’ challenge to the government’s closing argument does
not avail them. The district court committed no error, plain or
otherwise.
V.
Jones and Cole also challenge the district court’s denial
of their post-trial motion for discovery regarding the jury
selection procedure used by the United States Courts in the
Southern District of Virginia. For the reasons that follow,
this challenge is unavailing as well.
16
African-Americans make up 11.6% of the population in the
Northern Virginia community; however, the 45-person pool from
which defendants' jury was drawn did not include any African-
Americans. Jones moved before trial to strike the jury panel,
arguing that his Sixth Amendment right to a jury drawn from a
panel reflecting a fair cross-section of the community was
violated. See Taylor v. Louisiana, 419 U.S. 522, 537 (1975)
(“[T]he Sixth Amendment affords the defendant in a criminal
trial the opportunity to have the jury drawn from venires
representative of the community . . . .”). To prevail on a
Sixth Amendment fair cross-section claim, a defendant must show
that a “‘distinctive’” group is underrepresented, generally and
on his particular venire, “in relation to the number of such
persons in the community,” and that such underrepresentation “is
due to systematic exclusion of the group in the jury-selection
process.” Duren v. Missouri, 439 U.S. 357, 364 (1979). That
is, defendant must demonstrate that the underrepresentation was
“inherent in the particular jury-selection process utilized.”
Id. at 366. Noting that the jury pool was drawn through the use
of voter registration lists, the district court denied the
motion to strike the panel. See United States v. Cecil, 836
F.2d 1431, 1454 (4th Cir. 1988) (en banc) (“We are reasonably
confident that every jury plan in this Circuit, as well as those
in most of the other Circuits, provides for the use of voter
17
registration lists in the jury selection process . . . [which]
have been approved, as satisfying the fair cross-section
requirement of the statute and the Constitution.”).
Two weeks after trial, defendants filed a post-trial motion
seeking discovery into the jury selection process for the
Eastern District of Virginia. The district court held a hearing
and denied the motion for discovery, noting that “[w]e have a
random system of selecting juries”—voter registration lists—and
that defendants were on a “fishing expedition” in hopes of
finding evidence to show that the absence of African Americans
on their jury panel was due to systematic, inherent
discrimination. J.A. 698.
On appeal, defendants challenge the denial of the motion
for discovery, but not the denial of the motion to strike the
jury panel. It is not completely clear whether defendants moved
below for discovery under the Jury Selection and Service Act
(“JSSA”) or the Sixth Amendment. Either way, the motion was
untimely and we affirm its denial.
The JSSA codifies the Sixth Amendment right to have a jury
selected from a fair cross section of the community, stating
that federal litigants “have the right to grand and petit juries
selected at random from a fair cross section of the community in
the district or division wherein the court convenes.” 28 U.S.C.
§ 1861. The JSSA requires each United States district court to
18
"place into operation a written plan for random selection of . .
. petit jurors that shall be designed to achieve" a fair cross
section of the community. 28 U.S.C. § 1863(a). Congress
specifically determined that the principal source of names for
the random selection should be either “the voter registration
lists or the lists of actual voters.” 28 U.S.C. § 1863(b)(2).
The JSSA provides procedures for challenging the required
written plan for jury selection. The JSSA allows a defendant to
“move to dismiss the indictment or stay the proceedings” in
order to challenge the district’s jury selection plan required
by the JSSA. 28 U.S.C. § 1867(a). In criminal cases, the
defendant must file the motion “before the voir dire examination
begins, or within seven days after the defendant discovered or
could have discovered . . . the grounds [for the motion],
whichever is earlier.” Id. The JSSA allows the defendant to
have discovery of records relating to jury selection process
“during the preparation and pendency” of a motion to stay the
proceedings or dismiss the indictment under the statute. 28
U.S.C. § 1867(f). To the extent Defendants were seeking relief
under the JSSA, they failed to do so until two weeks after the
trial, which made their claim clearly untimely. The government
did not raise timeliness as an issue below, but the timeliness
requirement “is to be strictly construed, and failure to comply
19
precisely with its terms forecloses a challenge under the Act.”
United States v. Bearden, 659 F.2d 590, 595 (5th Cir. 1981).
Federal Rule of Criminal Procedure 12(b)(3)—formerly Rule
12(b)(2)—governs motions raising a Sixth Amendment fair cross-
section challenge, and, like JSSA motions, such motions must be
filed before trial. See Davis v. United States, 411 U.S. 233,
241 (1973); United States v. Ballard, 779 F.2d 287, 295 (5th
Cir. 1986). Failure to file the motion before trial amounts to
waiver of the fair cross-section claim, but a court may grant
relief from that waiver for good cause shown. See Fed. R. Crim.
P. 12(e). Defendants did not move for discovery with respect to
the jury selection process until 13 days after the verdict. The
Eastern District of Virginia has used voter registration lists
as the source for jury pool selection for some time. Defendants
have not articulated any reason why they failed to seek
discovery prior to trial, before the court spent time and
resources on jury selection and trial. Likewise, defendants
have not articulated any reason to support their assertion that
African Americans are being systematically excluded during the
jury selection process. See United States v. Ovalle, 136 F.3d
1092, 1108 (6th Cir. 1998) (rejecting jury selection claim where
defendants “did not raise such a claim until the trial was
completed and they began their direct appeal”).
20
Accordingly, we affirm the denial of defendants’ post-trial
motion for discovery as to the fairness of the jury selection
process.
VI.
Finally, Cole objects to the two-level sentencing
enhancement imposed by the district court for obstruction of
justice under U.S.S.G. § 3C1.1. Section 3C1.1 provides for a
two-level increase in the base offense level if “the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense
of conviction,” if “the obstructive conduct related to . . . the
defendant’s offense of conviction.” U.S.S.G. § 3C1.1.
The Presentence Report (“PSR”) recommended application of
the enhancement because Cole presented a fabricated alibi
defense which the jury rejected. At trial, Cole called two
witnesses to substantiate his alibi defense. First, Cole called
Michelle Roberts, an employee at Fort Stanton apartments in
Washington, D.C. Roberts testified that when prospective
residents come to inquire about the apartments, they are asked
to fill out a visitation card. Roberts indicated that her files
contained a visitation card bearing Cole’s name, and the
government stipulated that the handwriting on the card in fact
belonged to Cole. In addition to his name, Cole wrote the date
21
and the time of day—purportedly 2:10 p.m. on the day of the
robbery which was approximately the time that the bank robbers
were fleeing the BB&T. Roberts testified that when a prospect
fills out the front side of the visitation card, an employee
fills out the reverse side. Cole’s card had not been completed
by a Fort Stanton employee. Roberts, who was not there when the
card was filled out, was therefore unable to verify its
accuracy. Cell phone analysis placed Cole near Fort Stanton
around 2:40 p.m.
Second, Cole called Charles Ashford, the owner of an
automobile service shop. He testified that Cole appeared at
1:44 p.m. on the day of the robbery to pick up his girlfriend’s
car. On cross-examination, however, Ashford admitted that about
two weeks before trial, he told police that he could not
remember who picked up the car.
The PSR recommended assessing an enhancement under U.S.S.G.
§ 3C1.1 on the basis that “Cole . . . presented material[ly]
false information in the form of false and fabricated alibis,
which was a willful attempt to obstruct or impede the
administration of justice with respect to the investigation and
prosecution of the instant offense.” J.A. 744. Cole objected
to the PSR’s recommendation that an enhancement be imposed. The
district court concluded that “the guideline factors [are]
properly assessed,” J.A. 710, and sentenced Cole within the
22
guidelines range to a term of 144 months. The district court
issued its judgment and a Statement of Reasons, filed under
seal, expressly “adopt[ing] the presentence investigation report
without change.”
Cole contends that the district court failed to make the
requisite findings of fact to support the U.S.S.G. § 3C1.1
enhancement. We disagree. The court adopted the PSR, which set
forth sufficient factual findings to satisfy U.S.S.G. § 3C1.1.
See U.S.S.G. § 3C1.1 cmt. 4(B) (explaining that “producing or
attempting to produce a false, altered, or counterfeit document
or record during an official investigation or judicial
proceeding” is covered conduct under U.S.S.G. § 3C1.1); United
States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994) (recognizing
that the district court may satisfy the duty to make factual
findings by adopting the findings in the PSR). Accordingly, we
reject this argument.
VII.
For the foregoing reasons, we affirm the convictions and
sentences of the defendants. 2
AFFIRMED
2
Jones filed a motion for leave to submit a supplemental
pro se reply brief and a motion to supplement that brief. We
grant the motions but, having considered the issues raised
therein, deny him relief on that basis as well.
23