United States v. Jeffrey Edelen

UNPUBLISHED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-cr-
00288-DKC-1)

Argued: January 30, 2014 Decided: March 13, 2014

Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 federal grand jury indicted Appellants Darrell

Carter (“Appellant Carter”), Kendall Taylor (“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. The court sentenced Appellant Carter

to 420 months imprisonment, Appellant Taylor to 420 months

imprisonment, and Appellant Edelen to 360 months imprisonment.

On appeal, Appellants raise a host of challenges to their

respective convictions and sentences. 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. Ms. McNair testified that the

3
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 upstairs,

heard the commotion and locked himself in a bathroom. 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

out of the vault.” J.A. 337. 1 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 the three men were interrogating Ms. McNair,

numerous police officers arrived at the scene. 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. During the

prolonged standoff that ensued, police officers observed

Appellants moving throughout the home. Eventually, one by one,

Appellants walked out of the house and surrendered to the

police. None were carrying guns or wearing masks.

Although police officers conducted a search of the

premises on the night of the attack, they did not recover any

firearms from the scene. In the ensuing months, however, Ms.

McNair and her son 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 to a crime of

violence, in violation of 18 U.S.C. § 924(c). On November 23,

2011, following a ten-day trial, a jury found all three

Appellants guilty of the conspiracy charge. The jury was unable

5
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 two prior convictions for robbery in

Virginia state court. Nevertheless, his offense level remained

38 because the guideline range produced by the career offender

6
designation, 37, was lower. See U.S.S.G. § 4B1.1(b). Although

the career offender designation did raise 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 court also determined that Appellant Edelen

qualified as a career offender based on his 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 consolidated appeals followed. We possess

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291.

II.

On appeal, Appellants raise eight issues relating to

their convictions and sentences, three of which warrant

discussion. 2 First, Appellant Taylor contends the district court

abused its discretion in accepting his pre-trial waiver of the

right to conflict-free counsel. Second, all three Appellants

2
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. Third, Appellants Taylor and Carter

contend the district 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 Taylor knowingly, intelligently, and voluntarily

waived his right to conflict-free representation, 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. On October 26, 2011,

thirteen days before the jury trial was set to begin, the

Government filed a letter alerting the district court to a

potential conflict of interest on the part of Mr. Reynolds,

i.e., that Mr. Reynolds represented an “unindicted co-

conspirator,” William “Puffy” Cole (“Mr. Cole”), who had

“provided information to [Appellants], which resulted in

[Appellants’] targeting of [Ms. McNair].” 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 concluded that the

situation presented a “potential conflict.” Id. at 69. 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. Appellant Taylor affirmed at all times that he

understood, declined the court’s offer of an opportunity to

consult with independent counsel, and finally, affirmatively

10
stated that he was “giving up th[e] right” to conflict-free

counsel. Id. at 74. 3

During trial, the Government elicited testimony from

Ms. McNair regarding her relationship with Mr. Cole and

presented evidence of a text message sent by a contact

identified as “Puffy” to Appellant Edelen’s cell phone on

January 12, 2011, the day before the attack. Counsel for all

three Appellants cross-examined Ms. McNair as to her

relationship with Mr. Cole. At the close of the second day of

trial, counsel for 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 concurrent representation of Mr. Cole. Appellant

Taylor contends the district court’s inquiry “was

3
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 inadequate to guarantee [his] waiver was

knowingly and intelligently made.” Appellants’ Br. 45. 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 . . . even if [he] does not know each

detail concerning the conflict.” Brown, 202 F.3d at 698

(emphasis omitted).

12
 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 ask and how to represent [Appellant Taylor] at

. . . trial.” J.A. 72. 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’ cross-

examination 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 pre-

trial 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, Appellant Taylor fails to identify any

areas in which the district court’s inquiry, or his own

knowledge, was lacking. 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 hearing” to

determine the scope of an attorney’s conflict. Appellants’ Br.

45. 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. 564 F.3d at 681-82. The district

court conducted an evidentiary hearing, found a “great

likelihood” that the allegations against defense counsel were

true, and, in a decision that we ultimately upheld, actually

disqualified the attorney over the defendant’s strenuous

objection. Id. at 682-83, 686-87. Quite 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 (1938) (“The determination of whether there has been an

intelligent waiver of right to counsel must depend, in 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 conclude the court acted well within its

substantial discretion in accepting the waiver and 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.” Wheat v. United States, 486 U.S.

153, 160 (1988). Accordingly, district courts are “allowed

substantial latitude in refusing” -- and in accepting --

“waivers of conflicts of interest.” Id. at 163; cf. Hoffman,

903 F.2d at 288 (“We recognize that a trial court has broad

latitude to permit or prohibit multiple representation.”

(internal quotation marks and citation omitted)). “The

15
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 Taylor has alleged, at most, that Mr.

Reynolds’ concurrent representation of Mr. Cole may 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,” Vaquero, 997 F.2d at 90. Indeed, as

discussed in detail supra, Appellant Taylor was 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.” United States v. Cone, 714 F.3d 197, 219 (4th

Cir. 2013) (internal quotation marks and citations omitted).

Appellants contend the text message constitutes inadmissible

17
hearsay under Federal Rule of Evidence 802 because it was

offered for the truth of the matter asserted. We disagree. 4

The text message, which was introduced through the

testimony of Detective Joseph Bunce, was sent to 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 the statement.” Fed. R. Evid. 801(c). A

“statement” is an oral or written assertion, Fed. R. Evid.

801(a), and “the matter asserted” is “the fact being asserted by

the declarant in uttering the statement,” United States v.

Lewis, 594 F.3d 1270, 1282 (10th Cir. 2010). In order to

determine whether an out-of-court statement 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. Circumstantial evidence of communication.” J.A.

901. The Government likewise contends the statement “was

19
offered to show the fact and timing of communication between co-

conspirators, 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. McNair’s whereabouts and personal

details about her life.” 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.”). Appellants refused this

offer, and in so doing, explicitly waived an opportunity to

limit the text message to its permissible purposes. See Fed. R.

Evid. 105. As observed by the Seventh Circuit, “the defendants

cannot have it both ways -- [they] cannot refuse a limiting

instruction and then claim on appeal that the evidence was

unfairly prejudicial.” 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 a proffered curative

20
instruction, defense counsel made a tactical decision to forego

a remedy that we have repeatedly held to be adequate. This

waiver does not entitle defendants to a new trial.”). In our

view, Appellants’ strategic decision to refuse the district

court’s offer severely undermines their claim that they are

entitled to relief because the jury 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’ theory, in any event, suffers from a

readily apparent flaw –- the “matter asserted” in the 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 was “bitch is at crystal house cuz her father died

today.” J.A. 1333. 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] knowledge”); see also United States v.

Ibisevic, 675 F.3d 342, 349 (4th Cir. 2012) (noting

parenthetically that “statements offered to prove ‘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. Gonzales-Flores, 701 F.3d

at 117 (emphasis supplied). Ms. McNair’s testimony only served

to provide the context 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-truth-

dependent purposes for which the text message was ultimately

introduced. Cf. United States v. Lieberman, 637 F.2d 95, 101

(2d Cir. 1980) (noting that “it was proper to receive the

[record] for [a] limited non-hearsay purpose, with other

evidence admitted from which the jury could infer that the

[record] spoke the truth”).

For all these reasons, we conclude the district

court’s decision to admit the text message was neither

“arbitrary [nor] irrational.” Cone, 714 F.3d at 219 (internal

quotation marks and 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 argument that the text

23
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 of justice enhancement contained in U.S.S.G.

§ 3C1.1. In evaluating whether the district court 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 and firm conviction that a mistake has been

committed.’” 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[.]

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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 which this enhancement applies.” Id.

§ 3C1.1 cmt. n.4(H). Material information, as used in § 3C1.1,

means information “that, if believed, would tend to influence or

affect the issue under determination.” Id. § 3C1.1 cmt. n.6.

In order to qualify for this enhancement, a defendant’s

obstructive conduct must be “willful” in the 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 with probation officers, without counsel, 6 to be

interviewed in connection with the preparation of their

presentence reports (“PSRs”). During these interviews, 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. J.A. 1613,

1629. Based on these statements, the 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 to lessen the responsibility under the

[G]uidelines[.]” 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 Fifth Amendment privilege against self-

incrimination and their Sixth Amendment right to 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. Olano, 507 U.S. at

732. When these conditions are satisfied, we may exercise our

discretion to notice the error only if it “‘seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings.’” 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.” Appellants’ Br. 68. Although Appellants

acknowledge, as they must, that “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 the partial

mistrial and outstanding 18 U.S.C. § 924(c) charge. 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, the sentencing court was free to

evaluate them. See id. at 443-44. Here, the record clearly

demonstrates that Appellants voluntarily participated in the

presentence interviews and voluntarily made the statements at

issue. Indeed, Appellants have raised no claim of

involuntariness or actual coercion on appeal. As a result, we

have little trouble concluding the district court did not err,

much less plainly err, by relying on Appellants’ voluntary

statements in its sentencing determination.

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 ii.

Appellants’ Sixth Amendment claims are similarly

unmoored. 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[].” Hicks,

948 F.2d at 885 (citations omitted). 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. See United States v. Tyler, 281

F.3d 84, 96 (3d. Cir. 2002) (finding no Sixth Amendment

violation where the defendant “voluntarily participated in the

presentence investigation”). Moreover, they have failed to

allege or show they were forced to proceed without their

counsel’s assistance or that their counsel were in any way

excluded from the presentence process. 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). Indeed, the available

29
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 such, cannot form the basis for an

obstruction enhancement. 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 against self-incrimination by denying his guilt or

refusing to answer a question is undoubtedly protected 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