United States v. Corey Jones

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

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 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,

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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

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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.

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 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

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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”).

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 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

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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