                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



                                          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    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.




                                               28
                                           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
