UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4410
MARCELINE LUM NKWENTI,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-02-612-A)
Submitted: December 19, 2003
Decided: January 23, 2004
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas D. Hughes, IV, LAW OFFICES OF THOMAS D. HUGHES,
IV, P.C., Alexandria, Virginia, for Appellant. Paul J. McNulty, United
States Attorney, Thadd A. Prisco, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. NKWENTI
OPINION
PER CURIAM:
Marceline Lum Nkwenti appeals her convictions and sentence for
conspiracy to commit offenses against the United States, in violation
of 18 U.S.C. § 371 (2000), and encouraging or inducing an alien to
enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv)
(2000). Nkwenti contends that there was insufficient evidence at trial
to find her guilty beyond a reasonable doubt, the district court erred
in limiting her cross-examination of a Government witness, and the
district court erred in applying a two-level sentencing enhancement
for obstruction of justice. Finding no reversible error, we affirm.
We must uphold Nkwenti’s convictions on appeal if there is sub-
stantial evidence in the record to support it. See Glasser v. United
States, 315 U.S. 60, 80 (1942). In determining whether the evidence
in the record is substantial, we view the evidence in the light most
favorable to the government and inquire whether there is "evidence
that a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc).
To prove a conspiracy under 18 U.S.C. § 371, the Government had
to establish: (1) an agreement to commit an offense against the United
States; (2) willing participation in the conspiracy by the defendant;
and (3) an overt act in furtherance of the agreement. See United States
v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999). Knowledge and par-
ticipation in the conspiracy may be proved by circumstantial evi-
dence. See United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir.
1987). In addition, 8 U.S.C. § 1324(a)(1)(A)(iv) prohibits anyone
from encouraging or inducing "an alien to come to, enter, or reside
in the United States, knowing or in reckless disregard of the fact that
such coming to, entry, or residence is or will be in violation of law."
We have reviewed the record and conclude that Nkwenti is not
entitled to relief. In support of the conspiracy charge, the Government
presented evidence showing that Sylvester Seghanka attempted to
enter the country using a passport, permanent resident identification
UNITED STATES v. NKWENTI 3
card, and other documents that belonged to his brother Valentine Seg-
hanka. The Government showed that Nkwenti accompanied Sylvester
Seghanka and carried a stamp in her suitcase that resembled an offi-
cial immigration permit stamp. Nkwenti’s palm pilot, which con-
tained an entry for Valentine Seghanka in the address book, indicated
that Nkwenti knew Valentine Seghanka. We find that this evidence
was sufficient for a jury to conclude that Nkwenti was part of a con-
spiracy to commit offenses against the United States.
With regard to the charge of encouraging or inducing an alien to
enter the United States, the Government, in addition to the evidence
described above, showed that Sylvester carried Nkwenti’s credit cards
in his suitcase. Also, Nkwenti admitted that she had traveled outside
the United States on two occasions prior to her trip to Germany and
was familiar with immigration procedures. Nkwenti further admitted
that she knew Sylvester since 1993 and that they were about to get
married, knew that he was originally from Cameroon, and knew that
he had never been to the United States before. Thus, we conclude
there was sufficient evidence for a jury to conclude that Nkwenti
encouraged or induced Sylvester to enter the United States and either
knew or recklessly disregarded the fact that his entry would be unlaw-
ful.
Nkwenti further contends that the district court’s ruling precluding
her from asking Inspector Norman Bird about the Government’s
investigation into Sylvester or Valentine Seghanka prevented her
from arguing her theory of the case. Nkwenti argues that she could
have shown that a more thorough investigation would have produced
incriminating evidence linking Sylvester and Valentine Seghanka,
thus showing that the conspiracy involved only Sylvester and Valen-
tine Seghanka. Because Nkwenti did not specifically object to the
court’s ruling and did not attempt to make a proffer as to what Inspec-
tor Bird’s testimony would show, this claim is reviewed for plain
error. See Fed. R. Evid. 103(a). Because the trial transcripts indicate
that Nkwenti was able to argue her defense theory throughout the
trial, including on cross-examination of Inspector Bird, we conclude
that Nkwenti failed to show that any error on the part of the district
court "seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings." See United States v. Olano, 507 U.S. 725,
732 (1993) (internal quotation marks omitted).
4 UNITED STATES v. NKWENTI
Finally, Nkwenti contends that the district court erred in applying
a two-level sentencing enhancement for obstruction of justice. The
district court’s factual findings are reviewed for clear error, and its
application of the sentencing guidelines is reviewed de novo. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). The district
court determines issues related to sentencing by a preponderance of
the evidence. United States v. Engleman, 916 F.2d 182, 184 (4th Cir.
1990).
The presentence investigation report recommended a two-level
sentencing enhancement for obstruction of justice because evidence
obtained by immigration authorities indicated that Nkwenti’s testi-
mony at trial was false. Obstruction of justice includes "committing,
suborning, or attempting to suborn perjury," and "providing materi-
ally false information to a judge or magistrate." U.S. Sentencing
Guidelines Manual § 3C1.1, comment. (n. 4) (2002). Material infor-
mation means information that "would tend to influence or affect the
issue under determination." USSG § 3C1.1, comment. (n. 6).
We conclude that the district court did not err in applying a two-
level sentencing enhancement for obstruction of justice. Nkwenti’s
testimony at trial, that she did not know Valentine Seghanka, was
clearly inconsistent with the information obtained from her palm pilot
and telephone records showing that she spoke with Valentine on sev-
eral occasions. Further, this statement was material because it "would
tend to influence or affect" the issue of whether Nkwenti knew of the
conspiracy to violate the immigration laws. Because this statement
provides a sufficient basis for a finding of obstruction of justice, we
find it unnecessary to review Nkwenti’s arguments relating to her
other statements at trial.
Accordingly, we affirm Nkwenti’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED