US v. Jeffrey Edelen, No. 12-4239 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4239 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEFFREY EDELEN, Defendant Appellant. No. 12-4246 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KENDALL TAYLOR, a/k/a Shamsideen Salaam, Defendant Appellant. No. 12-4711 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DARRELL JOSE CARTER, a/k/a Shorty, Defendant Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District Judge. (8:11-cr-00288-DKC-2; 8:11-cr-00288-DKC-3; 8:11-cr00288-DKC-1) Argued: January 30, 2014 Before MOTZ and Circuit Judge. THACKER, Decided: Circuit Judges, and March 13, 2014 DAVIS, Senior Affirmed by unpublished per curiam opinion. ARGUED: Gerald Chester Ruter, Baltimore, Maryland; Julie L. B. Johnson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellants. Jerome M. Maiatico, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant Darrell Jose Carter. Steven H. Levin, Baltimore, Maryland, for Appellant Jeffrey Edelen. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: A Carter federal grand ( Appellant jury Carter ), indicted Kendall Appellants Taylor Darrell ( Appellant Taylor ), and Jeffrey Edelen ( Appellant Edelen ) (collectively Appellants ) for conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c), and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Following a jury trial, all three Appellants were convicted of the conspiracy charge. The jury was unable to reach a unanimous verdict on the firearms charge, and the district court declared a mistrial on that count. to 420 months The court sentenced Appellant Carter imprisonment, Appellant Taylor to 420 months imprisonment, and Appellant Edelen to 360 months imprisonment. On appeal, Appellants raise a host respective convictions and sentences. of challenges to their For the reasons below, we affirm. I. A. The relevant facts adduced at trial are as follows. On the evening of January 13, 2011, LaKendra McNair ( Ms. McNair ), a bank manager employed in Washington, D.C., left work and returned to her home in Fort Washington, Maryland. Appellants, who were lying in wait outside her home, accosted her and forced their way inside. 3 Ms. McNair testified that the men, who were carrying guns and wearing hoods, masks, and gloves, repeatedly threatened to kill her. Ms. McNair s twelve-year-old son, who was heard the commotion and locked himself in a bathroom. upstairs, He called his father and advised him that someone was breaking in, at which point his father called the police. Appellants, who were now inside the home, forced Ms. McNair to coax her son into the open. When she did so, Appellants bound his wrists and legs, covered his head, and separated him from his mother. Both victims testified that the men continued to point guns at them and threaten their lives. Having secured her son, Appellants led Ms. McNair into the kitchen, instructing her that they intended to hold the boy hostage until she complied with their demands. Specifically, they wanted Ms. McNair to go back to the bank to get money J.A. 337. 1 out of the vault. When she advised that she could not enter the bank vault without the assistance of a co-worker, one of the Appellants, apparently in an effort to impress upon her the gravity of the situation, recited various personal details about her friends and family. 1 Citations to the J.A. refer to the Joint Appendix filed by the parties in this appeal. 4 While numerous the police three officers men were arrived interrogating at the Ms. scene. McNair, Appellants directed Ms. McNair to answer the door and assuage the officers concerns. As she did so, Ms. McNair saw that her son had been left unattended in the living room. She seized the opportunity, took the boy, and fled through the front door. prolonged standoff that ensued, police Appellants moving throughout the home. Appellants police. walked out of the house During the officers observed Eventually, one by one, and surrendered to the of the None were carrying guns or wearing masks. Although police officers conducted a search premises on the night of the attack, they did not recover any firearms from the scene. McNair and her son In the ensuing months, however, Ms. continued to find various items hidden throughout their home, including a ski mask, a pair of gloves, a taser gun, a .40 caliber firearm, and a .45 caliber firearm. B. On May 23, 2011, a federal grand jury in the District of Maryland returned a two-count indictment charging Appellants with conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c), and use of a firearm during and in relation violence, in violation of 18 U.S.C. § 924(c). 2011, following a ten-day trial, a jury Appellants guilty of the conspiracy charge. 5 to a crime of On November 23, found all three The jury was unable to reach a unanimous verdict as to the firearms charge, and the district court declared a mistrial on that count. The district court sentenced Appellants Taylor and Edelen on March 26, 2012, and Appellant Carter on September 5, 2012. For all three Appellants, the court found a base offense level of 32, pursuant to United States Sentencing Guidelines ( U.S.S.G. or Guidelines ) §§ 2X1.1(a) and 2A4.1(a), and applied two enhancements -- the two-level weapons enhancement under U.S.S.G. § 2A4.1(b)(3) and the two-level vulnerable victim enhancement under U.S.S.G. § 3A1.1(b). With respect to Appellants Taylor and Carter, the district court also applied the two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1. Prior to any Chapter Four enhancements, then, Appellants Taylor and Carter had an adjusted offense level of 38, and Appellant Edelen had an adjusted offense level of 36. Inasmuch as Appellant Taylor did not qualify as a career offender, the district court determined that his total offense level was 38 and his criminal history category was III. Although this resulted in a guideline range of 292 to 365 months, the court varied upward and sentenced him to 420 months. Appellant Carter, on the other hand, did qualify as a career offender based on his Virginia state court. two prior convictions for robbery in Nevertheless, his offense level remained 38 because the guideline range produced by the career offender 6 designation, 37, was lower. the career offender See U.S.S.G. § 4B1.1(b). designation did raise Although Appellant Carter s criminal history score from V to VI, this change did not affect his guideline range, which remained 360 months to life in prison; ultimately, the court sentenced him to 420 months in prison. The qualified as court a also career determined offender that based Appellant on his Edelen prior drug distribution and armed robbery convictions in Washington, D.C. Consequently, his guidelines were governed by U.S.S.G. § 4B1.1, which resulted in an offense level of 37, a criminal history category of VI, and guideline range of 360 months to life in prison. The court sentenced him to 360 months in prison. These jurisdiction consolidated pursuant to 18 appeals U.S.C. followed. § 3742(a) We and 28 possess U.S.C. § 1291. II. On appeal, Appellants raise eight issues relating to their convictions discussion. 2 and sentences, three of which warrant First, Appellant Taylor contends the district court abused its discretion in accepting his pre-trial waiver of the right to conflict-free counsel. 2 Second, all three Appellants We have fully considered the other five issues raised by Appellants and conclude that each lacks merit. 7 contend the district court erred by admitting a text message into evidence at trial. contend the district Third, Appellants Taylor and Carter court erred by applying the two-level obstruction of justice enhancement contained in U.S.S.G. § 3C1.1 to their respective sentences. We address each of these issues in turn. A. We turn first to Appellant Taylor s argument that the district court abused its discretion in accepting his pre-trial waiver of the right to conflict-free counsel. This challenge presents two separate, but interrelated, inquiries: (1) whether Appellant waived Taylor his right knowingly, to intelligently, conflict-free and representation, voluntarily which we review de novo, see United States v. Brown, 202 F.3d 691, 697 (4th Cir. 2000); and (2) whether the district court properly exercised its discretion in permitting Appellant Taylor to waive his attorney s conflict and proceed to trial, which we review for abuse of discretion, see United States v. Williams, 81 F.3d 1321, 1324 (4th Cir. 1996). We answer both of these questions in the affirmative. 1. On July 12, 2011, over a month after Appellant Taylor s initial appearance, Arthur McKinley Reynolds, Jr. ( Mr. Reynolds ) filed a Notice of Appearance indicating he had been 8 retained as Appellant Taylor s counsel. thirteen days before Government filed potential conflict i.e., that conspirator, provided Mr. a the letter of information on was the the Cole set part an ( Mr. [Appellants], [Appellants ] targeting of [Ms. McNair]. to district represented Puffy to trial alerting interest Reynolds William jury On October 26, 2011, of begin, court Mr. the to Reynolds, unindicted Cole ), which a who resulted cohad in J.A. 61. The district court took up the issue at a pretrial motions hearing on November 1, 2011. During that hearing, the Government elaborated: I believe that Mr. Reynolds represents or has represented William Cole in state court on robbery charges in Prince George s County. Mr. Cole is believed to be the unindicted co-conspirator in this case. The government provided discovery back in June and I believe Mr. Reynolds also has the state discovery and in that there are text messages and phone records which indicate that Mr. Cole was in contact with [Appellants] while they were in the house during this attempted kidnapping and, indeed, there s a text message from the previous day that s sent from William Cole to [Appellant] Edelen to the effect that We have to do something about this. The woman is not home. We ve got to do something about this. I m trying not to use the profanity that was in the text message. And it contains information that was only known about the victim by a few people and, based on that information, we intend to present to the jury the information about how Mr. William Cole knew information about the victim and they targeted this victim based on his information about her. And I believe Mr. Reynolds represents William Cole and also represents the co-conspirator here, Mr. Taylor. J.A. 66. 9 Mr. Reynolds affirmed that he had been retained to represent Mr. Cole in an unrelated state robbery case, which he described as in dormant status because Mr. Cole was in custody on federal bank robbery charges. J.A. 67. After confirming that neither the Government nor the defense intended to call Mr. Cole as a witness, the district court situation presented a potential conflict. concluded that Id. at 69. the The court then conducted a colloquy with Appellant Taylor to ensure he understood the potential conflict and desired to keep Mr. Reynolds as his attorney. The court advised Appellant Taylor, inter alia, the fact that [Mr. Reynolds] represents [Mr. Cole] may inhibit or prevent [Mr. Reynolds] from being or feeling completely free to represent you when [Mr. Cole s] participation comes up. . . . And this can affect his decisions in terms of what questions to ask and how to represent you at a trial. It may also affect him in his advice to you concerning how to approach the charges here, whether to talk about a plea, whether to go to trial, all of those matters that are very important for an attorney to talk with a client about. Id. at 72-73. understood, consult Appellant Taylor affirmed at all times that he declined with the independent court s counsel, 10 offer and of an finally, opportunity to affirmatively stated that he was giving up th[e] right to conflict-free Id. at 74. 3 counsel. During trial, the Government elicited testimony from Ms. McNair presented regarding evidence identified as her of a Puffy to relationship text with sent message Appellant Mr. by Edelen s January 12, 2011, the day before the attack. three Appellants cross-examined relationship with Mr. Cole. trial, counsel for Ms. Cole a cell and contact phone on Counsel for all McNair as to her At the close of the second day of Appellants Taylor and Carter advised the court, and Mr. Reynolds, that they intended to call Mr. Cole as a witness. Nevertheless, for reasons that are not apparent on the record, neither attorney pursued this course of action. 2. We first examine the adequacy of Appellant Taylor s conflict of interest waiver insofar as it relates to his trial counsel s Taylor concurrent contends representation the district 3 of Mr. court s Cole. Appellant inquiry was Specifically, at the close of the court s colloquy, it inquired, Are you giving up, waiving your right to have an attorney represent you who is completely free of any potential conflict of interest? and went on to explain, In order to have Mr. Reynolds continue, in effect it means that you are giving up your right to have an attorney who doesn t have another client who may interfere with his representation. J.A. 73-74. Appellant Taylor responded, I'm giving up that right. Id. at 74. 11 constitutionally knowingly and inadequate intelligently to guarantee made. [his] Appellants waiver Br. 45. was We disagree. A defendant may waive his Sixth Amendment right to an attorney who is free from conflicts of interest, Wood v. Georgia, 450 U.S. 261, 271 (1981), so long as his waiver is knowing, intelligent, and voluntary. Brown, 202 F.3d at 697 (quoting United States v. Gilliam, 975 F.2d 1050, 1053 (4th Cir. 1992)); see also Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978). A waiver is only knowing and intelligent if made with sufficient awareness of the relevant circumstances and likely consequences, Brady v. United States, 397 U.S. 742, 748 (1970), and as such, a defendant must know the basis for, and potential consequences of, his chosen counsel s alleged conflict in order to make an intelligent choice whether to waive the conflict. United States v. Duklewski, 567 F.2d 255, 257 (4th Cir. 1977); see also Hoffman v. Leeke, 903 F.2d 280, 289 (4th Cir. 1990) ( A defendant cannot knowingly and intelligently waive what he does not know. ). In practical terms, this means that a defendant s conflict of interest waiver is valid if he waives the conflict with knowledge of the crux of the conflict and an understanding of its implications . . . detail concerning the even if [he] does not know each conflict. (emphasis omitted). 12 Brown, 202 F.3d at 698 Here, the district court warned Appellant Taylor about the exact scenario that arose during trial -- the Government s presentation of evidence regarding Mr. Cole s involvement in the case. Per the district court s colloquy, Appellant Taylor was aware that Mr. Reynolds representation of Mr. Cole may inhibit or prevent [Mr. Reynolds] from being or feeling completely free to represent [Appellant Taylor] when [Mr. Cole s] participation c[ame] up or affect [Mr. Reynolds ] decisions in terms of what questions to . . . trial. ask and how J.A. 72. to represent [Appellant Taylor] at He nonetheless elected to waive this conflict and proceed with Mr. Reynolds as his counsel. Indeed, the primary assignments of error Appellant Taylor set forth on appeal -- that Mr. Reynolds concurrent representation of Mr. Cole may have impacted Mr. Reynolds decision not to call Mr. Cole as a witness and the vigorousness of Mr. Reynolds crossexamination of Ms. McNair -- fall squarely within the ambit of the district court s warning. Cf. United States v. Akinseye, 802 F.2d 740, 745-46 (4th Cir. 1986) (concluding that a pretrial waiver of a potential conflict of interest waives the actual conflict of interest that ripens, as the defendant was warned, from that potential during trial). Tellingly, areas in which the Appellant Taylor district knowledge, was lacking. court s fails to inquiry, identify or his any own He instead points generally to United 13 States v. Urutyan, 564 F.3d 679 (4th Cir. 2009), in which the district court conducted a full evidentiary determine the scope of an attorney s conflict. 45. hearing to Appellants Br. In Urutyan, however, the district court was faced with the possibility that a defendant s counsel of choice had been hired and paid by a third party who was a member of the defendant s alleged criminal enterprise. court conducted an 564 F.3d at 681-82. evidentiary hearing, The district found a great likelihood that the allegations against defense counsel were true, and, in a decision that we ultimately upheld, actually disqualified objection. the Id. attorney at over 682-83, the defendant s 686-87. Quite strenuous simply, Urutyan involved a different and more complex factual scenario than that presented here and, in any event, does not represent a Sixth Amendment floor. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 determination (1938) intelligent ( The waiver of right of to whether counsel there must has depend, been in an each case, upon the particular facts and circumstances surrounding that case[.] ). In sum, the record of the colloquy in this case plainly demonstrates that the court advised Appellant Taylor of both the crux of the conflict and its potential implications for his defense. Brown, 202 F.3d at 698. Therefore, we conclude Appellant Taylor was fully aware of the basis for, and 14 the potential implications of, Mr. Reynolds concurrent representation of unindicted co-conspirator Mr. Cole at the time he waived his right to conflict-free counsel. Consequently, his waiver is valid as to that conflict. 3. Appellant Taylor next argues that the district court had an obligation, notwithstanding his waiver, to disqualify Mr. Reynolds because his conflict of interest was so severe as to be unwaivable. We substantial conclude discretion the in court accepting acted the well waiver within and its allowing Appellant Taylor to proceed to trial with the counsel of his choice. It is well-established that a defendant s presumptive right to be represented by the attorney of his choice may be overcome by the district court s independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. 153, 160 (1988). substantial Wheat v. United States, 486 U.S. Accordingly, latitude in district refusing waivers of conflicts of interest. -- courts and in are allowed accepting -- Id. at 163; cf. Hoffman, 903 F.2d at 288 ( We recognize that a trial court has broad latitude (internal to permit quotation or marks prohibit and 15 multiple citation representation. omitted)). The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court. Wheat, 486 U.S. at 164. Although we have never specified the circumstances in which a district court must override a defendant s otherwise valid conflict of interest waiver, the decisions of our sister circuits provide some guidance. The Second Circuit, for example, holds that an actual conflict of interest so egregious that no rational defendant would knowingly and voluntarily desire the attorney s representation cannot be waived. United States v. Lussier, 71 F.3d 456, 461 (2d Cir. 1995); see also United States v. Martinez, 143 F.3d 1266, 1270 (9th Cir. 1998) (citing Lussier with approval). Similarly, the Fifth Circuit frames the issue in terms of a conflict that is so severe as to render a trial inherently unfair. United States v. Vaquero, 997 F.2d 78, 90 (5th Cir. 1992). We need not settle on a precise formulation of the controlling principle for the purposes of this case; the facts alleged by Appellant Taylor fail to demonstrate the existence of a conflict approaching either of these standards. Appellant Reynolds Taylor concurrent has alleged, representation of at most, Mr. Cole that may Mr. have affected certain aspects of his trial strategy, i.e., his choice of witnesses and the vigor of one of his cross-examinations. 16 Even if we take these allegations at face value, they demonstrate a situation that, while concerning, is far from an actual conflict so egregious that no rational defendant would knowingly and voluntarily desire the attorney s representation, Lussier, 71 F.3d at 461, or one so severe as to render [the] trial inherently unfair, discussed in detail Vaquero, 997 F.2d at 90. supra, Appellant Taylor was Indeed, as specifically advised of the potential for Mr. Reynolds to make each and every allegedly deleterious decision of which he now complains, and he nonetheless sought to proceed with Mr. Reynolds representation. The district court acted well within its substantial latitude when it granted Appellant Taylor s request. B. We turn now to Appellants argument that the district court erred by admitting into evidence an incoming text message recovered from Appellant Edelen s cell phone. We review the court s decision to admit this evidence for abuse of discretion and will only overturn an evidentiary ruling that is arbitrary and irrational. Cir. 2013) Appellants United States v. Cone, 714 F.3d 197, 219 (4th (internal contend quotation the text marks message 17 and citations constitutes omitted). inadmissible hearsay under Federal Rule of Evidence 802 testimony of text message, Detective which Joseph was Bunce, introduced was it was We disagree. 4 offered for the truth of the matter asserted. The because sent through to the Appellant Edelen s cell phone on January 12, 2011, the day before the attack, by a contact identified as Puffy. The message read as follows: This bitch is at crystal house cuz her father died today so I have no idea when she is gonna be going home Ahk. we got to try something man[.] J.A. 935-36, 1333. Notably, Ms. McNair had earlier testified that Mr. Cole, a/k/a Puffy, had been inquiring about her whereabouts around the time of the attack and that, on January 12, 2011, she had advised him that 4 Although Appellants argue in their joint brief that Defendants attorneys objected to the introduction of the text message on hearsay grounds, Appellants Br. 17, this statement is accurate only insofar as it relates to Appellants Taylor and Carter. We have found nothing in the record to indicate that counsel for Appellant Edelen objected to the evidence in question; to the contrary, his attorney went so far as to admit, I ve tried for months to figure out a way to keep [the text message] out, and I can t. J.A. 905. Although this awkward presentation begs the question of whether Appellant Edelen can rely on the objections of Appellants Taylor and Carter in order to avoid plain error review, see Fed. R. Crim. P. 52(b), we need not decide this issue in order to resolve the instant appeal. For the reasons discussed infra, even if we assume that Appellant Edelen preserved this issue, his claim fails on abuse of discretion review. See, e.g., United States v. Palacios, 677 F.3d 234, 245 n.6 (4th Cir. 2012) (assuming that defendant preserved evidentiary objections where arguments failed even under preserved error standard). 18 she was at her friend Crystal s house because Crystal s father had passed away. Hearsay is a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in statement the is an statement. oral or Fed. written R. Evid. assertion, 801(c). Fed. R. A Evid. 801(a), and the matter asserted is the fact being asserted by the declarant Lewis, 594 determine in F.3d whether uttering 1270, an the 1282 statement, (10th out-of-court Cir. United 2010). statement In States v. order to qualifies as inadmissible hearsay under this Rule, the district court must identify[] the actual purpose for which a party is introducing the statement at issue. United States v. Gonzales-Flores, 701 F.3d 112, 117 (4th Cir. 2012). A statement is not hearsay if it is offered for some purpose other than to prove the truth of the assertion contained within the statement. See United States v. Pratt, 239 F.3d 640, 644 (4th Cir. 2001). The district court concluded the text message was not hearsay because it s not being offered for the truth. . . . [It] [d]oesn t matter whether [the text message is] true or not. It only matters that somebody in the house had access to the information. 901. The Circumstantial evidence of communication. Government likewise 19 contends the statement J.A. was offered to show the fact and timing of communication between coconspirators, and its effect on [Appellant] Edelen s knowledge and state of mind. Appellee Br. 29-30. Appellants, on the other hand, paint these justifications as mere pretext, arguing that the true purpose behind the Government s introduction of the text message was to prove the truth of the matter asserted therein, i.e., that [Appellants] had access to information that was truthful regarding Ms. details about her life. McNair s whereabouts and personal Appellants Br. 23. At the outset, we note that the text message, like most statements, had the potential to serve either hearsay or non-hearsay purposes. In this vein, the district court offered to instruct the jury that it could not consider the text message for the truth of its contents. See J.A. 901 ( [The text message] is not being offered for the truth. . . . I can tell the jury that if you wish me to. ). offer, and in so doing, explicitly Appellants refused this waived an opportunity limit the text message to its permissible purposes. Evid. 105. to See Fed. R. As observed by the Seventh Circuit, the defendants cannot have it both ways -- [they] cannot refuse a limiting instruction and then claim unfairly prejudicial. on appeal that the evidence was Goetz v. Cappelen, 946 F.2d 511, 514 (7th Cir. 1991); cf. United States v. Tedder, 801 F.2d 1437, 1445 (4th Cir. 1986) ( By refusing 20 a proffered curative instruction, defense counsel made a tactical decision to forego a remedy that we have repeatedly held to be adequate. waiver does not entitle defendants to a new trial. ). view, Appellants court s offer entitled to strategic severely relief decision undermines because to their the jury refuse claim the that This In our district they are impermissibly, and prejudicially, considered the text message for its truth. See generally United States v. Day, 700 F.3d 713, 727 n.1 (4th Cir. 2012) ( [A] defendant in a criminal case cannot complain of error which he himself has invited. (quoting Shields v. United States, 273 U.S. 583, 586 (1927))). Appellants readily apparent theory, flaw - the in any matter event, suffers asserted in from the a text message was not, as Appellants contend, that they had access to information that was truthful regarding Ms. McNair s whereabouts and personal details about her life. Appellants Br. 23. To the contrary, the only factual assertion contained in the text message today. was bitch J.A. 1333. is at crystal house cuz her father died Irrespective of the truth or falsity of this description of Ms. McNair s physical location on January 12, 2011, or the reason for her presence there, the text message (1) forms a link between Appellant Edelen and Puffy by the simple fact that it was made, United States v. Ayala, 601 F.3d 256, 272 (4th Cir. 2010) ( [E]vidence is not hearsay when it is 21 used only to prove that a prior statement was made[.] (quoting Anderson v. United States, 417 U.S. 211, 220 n.8 (1974)); and (2) serves to support an inference that Appellant Edelen had access to, and likely received, certain information about Ms. McNair prior to the commission of the offense, which is plainly probative of his underlying knowledge and intent in targeting her home. See United States v. Safari, 849 F.2d 891, 894 (4th Cir. 1988) (a statement is not hearsay if offered to show . . . [the listener s] Ibisevic, 675 parenthetically knowledge ); F.3d that 342, 349 statements see also (4th offered United Cir. to States 2012) prove v. (noting that they were made and that [the defendant] believed them to be true are not hearsay (quoting United States v. Kohan, 806 F.2d 18, 22 (2d Cir. 1986))). 5 Appellants argument to the contrary rests primarily upon the portion of Ms. McNair s testimony that corroborates the 5 Appellants pepper their reply brief with vague indictments against the text message on a variety of evidentiary grounds, i.e., that the text message was not relevant insofar as Appellant Edelen s state of mind was concerned and that the Government failed to properly authenticate the text message as having come from [Mr. Cole] or otherwise establish a proper foundation for the admission of the text message. Appellants Reply Br. 2, 4 n.2. We note that any such issues were neither preserved below nor properly presented on appeal. See United States v. Al Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) ( It is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned. ). 22 facts set forth in the text message. In essence, Appellants reason that because (a) hearsay is offered to prove the truth of the matter asserted and (b) independent evidence indicates a statement is, in fact, true, then (c) the statement must be hearsay. This simplistic deduction overlooks the critical step of identifying the actual purpose for which a party . . . introduce[s] the statement at issue. at 117 (emphasis supplied). to provide the context Gonzales-Flores, 701 F.3d Ms. McNair s testimony only served necessary for the jury to infer the identity of the text message s speaker ( Puffy = Mike Cole) and subject ( bitch = Ms. McNair); it did not alter the non-truthdependent purposes for which the text message was ultimately introduced. (2d Cir. Cf. United States v. Lieberman, 637 F.2d 95, 101 1980) (noting [record] for [a] evidence admitted that limited from it was proper non-hearsay which the to purpose, jury could we conclude receive with infer the other that the [record] spoke the truth ). For court s all decision these to reasons, admit the arbitrary [nor] irrational. quotation marks and text the message was district neither Cone, 714 F.3d at 219 (internal citations omitted). Consequently, the introduction of this evidence does not raise any Confrontation Clause concerns, see Ayala, 601 F.3d at 272, and we need not reach the Government s alternative 23 argument that the text message fell within the co-conspirator exclusion from the rule against hearsay under Federal Rule of Evidence 801(d)(2)(E). C. Finally, we address Appellants Carter and Taylor s challenge to the district court s application of the two-level obstruction § 3C1.1. of In justice evaluating enhancement contained whether district the in court U.S.S.G. properly applied this enhancement, we review its legal conclusions de novo, its factual findings for clear error, United States v. Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013), and any unpreserved arguments for plain error, United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). We will find clear error only if, after reviewing all the evidence, we are left with the definite committed. and firm conviction that a mistake has been United States v. Harvey, 532 F.3d 326, 336 37 (4th Cir. 2008) (quoting In re Mosko, 515 F.3d 319, 324 (4th Cir. 2008)). Section 3C1.1 provides for a two-level enhancement of the defendant s base offense level where (1) 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, and (2) the obstructive conduct related to (A) the defendant s offense of conviction and any relevant conduct; or (B) a closely related offense[.] 24 U.S.S.G. § 3C1.1. The comments further instruct that providing materially false information to a probation officer in respect to a presentence or other investigation for the court is a type[] of conduct to § 3C1.1 cmt. n.4(H). which this enhancement applies. Id. Material information, as used in § 3C1.1, means information that, if believed, would tend to influence or affect the issue under determination. In order to obstructive qualify conduct for must this be Id. § 3C1.1 cmt. n.6. enhancement, willful in the a defendant s sense that he consciously act[ed] with the purpose of obstructing justice. United States v. Thorson, 633 F.3d 312, 320 (4th Cir. 2011) (alteration in original) (quoting United States v. Romulus, 949 F.2d 713, 717 (4th Cir. 1991)). 1. Subsequent to the jury trial, Appellants Carter and Taylor met interviewed presentence with probation in connection reports officers, with ( PSRs ). the During without counsel, 6 preparation these to of interviews, be their both Appellants told the probation officers a variation of the same 6 Although the record contains no explanation for the absence of Appellant Carter s counsel, it is clear that Appellant Taylor s counsel, Mr. Reynolds, advised the probation officer that he did not want to be present during the interview, and Appellant Taylor, in turn, advised that he had no problem proceeding in the absence of counsel. J.A. 1464. 25 story, i.e., that they had broken into Ms. McNair s home because someone had told them that money and drugs were hidden inside; that no one had brought any weapons to the house because they did not expect anyone to be home ; and that their intent was to steal the money and drugs, not to kidnap anyone. 1629. Based on these statements, the J.A. 1613, probation officers recommended that the district court apply the obstruction of justice enhancement. In overruling Appellants objections, the district court found Appellant Carter had lied to the probation officer in a deliberate attempt to minimize[] his own responsibility and . . . the sentence that he faces, id. at 1513, while Appellant Taylor had done the same with an intent or in an attempt [G]uidelines[.] to lessen the responsibility under the Id. at 1470. 2. Appellants Carter and Taylor challenge the obstruction of justice enhancement on two fronts. First, they contend that the district court s reliance on their presentence interviews violated their incrimination and Fifth their Amendment Sixth privilege Amendment against right to self- counsel. Second, they claim that their interview statements were mere denials of guilt to which the enhancement is not intended to apply. Appellants Br. 65. 26 a. We begin with Appellants Fifth and Sixth Amendment claims. Because these issues were not raised below, our review is for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). Consequently, Appellants must show (1) there was error; (2) the error was plain; and (3) the error affected their substantial rights. 732. Olano, 507 U.S. at When these conditions are satisfied, we may exercise our discretion to notice the error only if it seriously affect[s] the fairness, integrity proceedings. or public reputation of judicial Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). Both of Appellants claims founder on the first prong of this inquiry. i. Appellants contend their Fifth Amendment rights were violated during their presentence interviews because they were not advised in advance . . . that their statements might be used against them. acknowledge, as they Appellants Br. 68. must, that Although Appellants Miranda warnings are not required prior to routine presentence interviews, United States v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991), they contend that their interviews were not routine in light of mistrial and outstanding 18 U.S.C. § 924(c) charge. the partial By focusing on the specter of a potential re-trial, however, Appellants miss 27 a very basic point - the issue on appeal is simply whether this evidence can be considered in a sentencing hearing. See, e.g., United States v. Tucker, 404 U.S. 443, 446 (1972) (A sentencing judge s inquiry is broad in scope and largely unlimited either as to the kind of information he may consider, or the source from which it may come. ). It is well-established in our circuit that a sentencing court may consider statements obtained in violation of Miranda, if they are otherwise voluntary and reliable. United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006). Consequently, it is largely irrelevant for our purposes whether or not Appellants were entitled to a Miranda warning prior to their presentence interviews; so long as their statements were reliable and voluntary, evaluate them. demonstrates the sentencing See id. at 443-44. that Appellants court was free to Here, the record clearly voluntarily participated in the presentence interviews and voluntarily made the statements at issue. Indeed, Appellants have raised involuntariness or actual coercion on appeal. no claim of As a result, we have little trouble concluding the district court did not err, much less plainly err, by relying on statements in its sentencing determination. 28 Appellants voluntary ii. Appellants unmoored. Sixth Amendment claims are similarly We have held the right to counsel does not extend to routine presentence interview[s] because such interviews are not critical stage[s] of the criminal proceeding[]. 948 F.2d at 885 (citations omitted). Hicks, Even if, as Appellants contend, Hicks does not govern the presentence interviews at issue here, the record is simply devoid of any indicia that the Government deprived Appellants of their right to counsel. As we have already emphasized, Appellants voluntarily participated in their presentence interviews. F.3d 84, 96 (3d. Cir. See United States v. Tyler, 281 2002) (finding no Sixth Amendment violation where the defendant voluntarily participated in the presentence allege or counsel s investigation ). show they assistance were or Moreover, forced that to their they proceed counsel excluded from the presentence process. have failed without were in to their any way See id.; see also United States v. Cortes, 922 F.2d 123, 128 (2d Cir. 1990) (finding no Sixth Amendment violation where counsel was not excluded and defendant was not forced to proceed). 29 Indeed, the available evidence strongly militates in favor of the opposite conclusion. 7 We find no plain error here. b. Having found no constitutional prohibition against the use of Appellants Taylor and Carter s interview statements at sentencing, we turn to the applicability of the Guidelines themselves. Appellants argument on appeal focuses primarily on the so-called denial of guilt exception to the obstruction enhancement, U.S.S.G. § 3C1.1 cmt. n.2, which reads as follows: This provision [§ 3C1.1] is not intended to punish a defendant for the exercise of a constitutional right. A defendant s denial of guilt (other than a denial of guilt under oath that constitutes perjury) [or] refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision. Id. In Appellants view, their statements to the probation officers were simply denial[s] of guilt within the meaning of this exception and, as obstruction enhancement. such, cannot form the basis for an Again, we disagree. 7 As we observed supra, Mr. Reynolds actually advised the probation officer that he did not want to be present during the interview. J.A. 1464; see also United States v. Saenz, 915 F.2d 1046, 1049 (6th Cir. 1990) ( When a defendant s counsel makes a choice not to attend the presentence interview, the defendant cannot argue on appeal that the government deprived him of his Sixth Amendment right to counsel. (citing United States v. Dickson, 712 F.2d 952, 954 (5th Cir. 1983))). 30 While a defendant who exercises his Fifth Amendment privilege refusing against to self-incrimination answer a question is by denying undoubtedly his guilt protected or from enhancement under U.S.S.G. § 3C1.1, see, e.g., United States v. Lange, 918 F.2d 707, 709 (8th Cir. 1990), Appellants statements went far beyond a simple denial of guilt. Rather, as the district court found, Appellants concocted a false story and admitted guilt to a lesser crime in a concerted effort to secure a lower sentence. 8 Such behavior is more than a simple denial of guilt and c[an] be treated as an obstruction of justice. United States v. Johns, 27 F.3d 31, 35 (2d Cir. 1994) (internal quotation marks and citation omitted); see also United States v. Manning, 704 F.3d 584, 587 (9th Cir. 2012) (per curiam) (finding the denial of guilt exception inapplicable where the defendant didn t just deny having the guns; he concocted a story about what happened to them ); United States v. Gardiner, 955 F.2d 1492, 1500 n.16 (11th Cir. 1992) (finding the denial of guilt exception inapplicable where a defendant did slightly more than assert innocence; he went further and told the probation officer 8 Appellants have raised no cogent challenge to the factual findings underlying the district court s application of the obstruction of justice enhancement on appeal, and we readily conclude the district court did not clearly err in finding that Appellants Carter and Taylor acted willfully, U.S.S.G. § 3C1.1, in provid[ing] materially false information to [their] probation officer[s]. Id. § 3C1.1 cmt. n.4(H). 31 an alternative version of the events pertinent to this case ); United States v. McKay, 183 F.3d 89, 96 (2d Cir. 1999) (finding the denial of guilt exception inapplicable where defendant concocted a story that admitted guilt but reversed the roles he and another individual played in a crime ). The district court therefore did not err in applying the obstruction of justice enhancement to their respective sentences. III. For the foregoing reasons, the judgment of the district court is AFFIRMED. 32

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