                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                  No. 01-4550
MICHAEL EUGENE JONES, a/k/a BIG
MIKE,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
    for the Northern District of West Virginia, at Martinsburg.
              W. Craig Broadwater, District Judge.
                            (CR-00-27)

                      Argued: September 25, 2002

                      Decided: October 28, 2002

    Before WILKINS, WILLIAMS, and KING, Circuit Judges.



Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Wilkins and Judge King joined.


                             COUNSEL

ARGUED: Elgine Heceta McArdle, MCARDLE LAW OFFICES,
Wheeling, West Virginia, for Appellant. Thomas Oliver Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee. ON BRIEF: Thomas E. Johnston, United States Attorney,
Martinsburg, West Virginia, for Appellee.
2                       UNITED STATES v. JONES
                              OPINION

WILLIAMS, Circuit Judge:

   Michael Jones appeals from the district court’s application of a
two-level enhancement for obstruction of justice under U.S. Sentenc-
ing Guidelines Manual § 3C1.1 (2000). For the reasons set forth
below, we affirm.

                                   I.

   On March 16, 2000, the grand jury indicted Jones for his role in
a drug trafficking conspiracy that was responsible for distributing
cocaine base in Jefferson County, West Virginia, from 1996 through
1998. On April 14, 2000, while Jones was on pretrial release, he
allegedly discharged a firearm in the direction of Jerome Scott during
a domestic dispute. Based upon this shooting incident, the Govern-
ment moved for pretrial detention of Jones, arguing that he was a dan-
ger to the community. At the detention hearing, Jones testified and
denied possessing or discharging a firearm on April 14, 2000, "at or
near" Scott. (J.A. at 97.) Upon considering this testimony and the tes-
timony of several other witnesses, the magistrate judge concluded that
the Government had not met its burden of proving by clear and con-
vincing evidence that Jones posed a danger to the community and
denied the Government’s motion for pretrial detention.

   On August 2, 2000, the grand jury returned a seven count indict-
ment superseding the March 16, 2000, indictment charging Jones with
one count of conspiracy to possess with intent to distribute and to dis-
tribute more than 50 grams of cocaine base, in violation of 21
U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999) (Count One), four
counts of distribution of in excess of 50 grams of cocaine base, in vio-
lation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999) (Counts
Two, Three, Four, and Six), one count of possession with intent to
distribute in excess of 50 grams of cocaine base (Count Five), and one
count of aiding and abetting the distribution of approximately 2.94
grams of cocaine base, in violation of 21 U.S.C.A. § 841 (West 1999)
and 18 U.S.C.A. § 2 (West 1999) (Count Seven). Following a two-
day jury trial, Jones was found guilty of Counts One through Six; the
Government voluntarily dismissed Count Seven.
                         UNITED STATES v. JONES                          3
   In the presentence report, the probation officer found that Jones
shot at Jerome Scott on April 14, 2000, and thus, concluded that Jones
committed perjury during the detention hearing on April 27, 2000,
when he testified and denied possessing or discharging a firearm on
April 14, 2000, "at or near" Scott. (J.A. at 97.) Based on this perjury,
the probation officer applied the enhancement for obstruction of jus-
tice pursuant to U.S.S.G. § 3C1.1. At the sentencing hearing, Jones
argued that the Government had not proved that Jones committed per-
jury by a preponderance of the evidence and that § 3C1.1 did not
apply because the shooting incident was not related to the offenses
charged. After hearing additional evidence to determine whether
Jones committed perjury, the district court found that Jones did com-
mit perjury and that the § 3C1.1 enhancement applied.

   On appeal, Jones contends that the district court erred by enhancing
his sentence for obstruction of justice pursuant to U.S.S.G. § 3C1.1
and by conducting an evidentiary hearing to determine whether the
enhancement was warranted.1 We address each issue in turn, review-
ing the district court’s interpretation and application of the Sentencing
Guidelines de novo. United States v. Dawkins, 202 F.3d 711, 714 (4th
Cir. 2000) ("We review the factual findings of the district court for
clear error, and we review its legal interpretation of the Sentencing
Guidelines de novo.").

                                    II.

   Jones argues that his conduct does not satisfy § 3C1.1 because the
content of the alleged perjury was not related to the investigation,
prosecution, and/or sentencing of his drug convictions but instead
related to a domestic dispute. (J.A. at 453-54 (detailing sentencing
  1
    In a letter styled as notice of supplemental authority submitted pursu-
ant to Federal Rule of Appellate Procedure 28(j), Jones argued for the
first time that his sentence is erroneous under Apprendi v. New Jersey,
530 U.S. 466 (2000). Because this argument was not presented in Jones’s
opening brief, it is waived. Carter v. Lee, 283 F.3d 240, 252 n.11 (4th
Cir. 2002). Even if we were to consider the argument, however, we
would conclude that it is without merit, in that Jones’s sentence is within
the applicable statutory maximum for the drug quantity charged in his
superseding indictment.
4                         UNITED STATES v. JONES
hearing testimony that the shooting incident was not drug-related and
was unrelated to the investigation, prosecution, or sentencing of the
offenses charged in Jones’s indictment)). We reject Jones’s argument
as contrary to § 3C1.1’s text, commentary, and the relevant case law.

   Section 3C1.1 of the Sentencing Guidelines provides for a two-
level enhancement of the defendant’s base offense level where

        (A) the defendant willfully obstructed or impeded, or
        attempted to obstruct or impede, the administration of jus-
        tice during the course of the investigation, prosecution, or
        sentencing of the instant offense of conviction, and (B) the
        obstructive conduct related to (i) the defendant’s offense of
        conviction . . . ; or (ii) a closely related offense.

U.S.S.G. § 3C1.1. The commentary to § 3C1.1 makes clear that the
phrase "obstruct[ ] or impede[ ] . . . the administration of justice" in
clause (A) of § 3C1.1 includes committing, suborning, or attempting
to suborn perjury.2 U.S.S.G. § 3C1.1 cmt. n.4(b) ("The following is
a non-exhaustive list of examples of the types of conduct to which
this adjustment applies: . . . (b) committing, suborning, or attempting
to suborn perjury . . . ."); see also United States v. Dunnigan, 507
U.S. 87, 92 (1993) ("Both parties assume the phrase ‘impede or
    2
    For a sentencing court to apply the obstruction of justice enhancement
based upon perjury, it must find, by a preponderance of the evidence,
that the defendant when testifying under oath (1) gave false testimony;
(2) concerning a material matter; (3) with the willful intent to deceive
(rather than as a result of confusion, mistake, or faulty memory). United
States v. Dunnigan, 507 U.S. 87, 92-98 (1993); United States v. Sun, 278
F.3d 302, 314 (4th Cir. 2002); United States v. Alexander, 292 F.3d
1226, 1233 (10th Cir. 2002). The sentencing court also must specifically
identify the perjurious statements and make a finding either as to each
element of perjury or "‘that encompasses all of the factual predicates for
a finding of perjury.’" United States v. Akinkoye, 185 F.3d 192, 205 (4th
Cir. 1999) (quoting Dunnigan, 507 U.S. at 95). Jones does not argue that
the district court failed to make the requisite findings or that his state-
ments do not constitute perjury. Instead, Jones apparently assumes for
purposes of the appeal that he committed perjury at the detention hearing
but argues that § 3C1.1 is inapplicable because his alleged perjurious
statements did not relate to his offense of conviction.
                        UNITED STATES v. JONES                          5
obstruct the administration of justice’ includes perjury, and the com-
mentary to § 3C1.1 is explicit in so providing."). This is true regard-
less of whether the perjurious testimony is given during trial or during
a pre-trial proceeding. United States v. Akinkoye, 185 F.3d 192, 205
(4th Cir. 1999) ("We have held that perjurious testimony given in pre-
trial proceedings may be considered in determining whether to apply
the enhancement."); see also United States v. Adam, 296 F.3d 327,
334 (5th Cir. 2002) (holding that obstruction of justice enhancement
was warranted for perjury committed during hearing on defendant’s
motion to withdraw guilty plea); United States v. Martinez, 169 F.3d
1049, 1056 (7th Cir. 1999) (same); United States v. Hover, 293 F.3d
930, 935 (6th Cir. 2002) (holding that obstruction of justice enhance-
ment was warranted for perjury given in prior trial).

   In a case involving § 3C1.1 prior to its amendment in 1998,3 this
court concluded that the perjurious statements need not be about the
offense of conviction; it is enough if the perjurious statements were
given "‘during the investigation, prosecution, or sentencing of the
instant offense.’" United States v. Romulus, 949 F.2d 713, 717 (4th
Cir. 1991) (quoting U.S.S.G. § 3C1.1 and holding that § 3C1.1
enhancement was appropriate for defendant who gave false testimony
regarding his age and identity during his initial appearance before
magistrate judge for the purpose of avoiding pretrial detention). Jones
argues that the addition of clause (B) narrows the scope of § 3C1.1
by adding a requirement that the perjury bear some relation to the
offense of conviction. We disagree.

   Clause (B) provides that the obstructive conduct must either "re-
late[ ] to (i) the defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense." According to the Sentenc-
ing Commission, the amendment was designed to "resolve[ ] a circuit
conflict on the issue of whether the adjustment applies to obstructions
that occur in cases closely related to the defendant’s case or only
those specifically related to the offense of which the defendant [is] con-
  3
   Before its amendment, § 3C1.1 provided for a two-level increase in
a defendant’s offense level "[i]f the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense." U.S.S.G. § 3C1.1 (1997).
6                        UNITED STATES v. JONES
        4
victed." U.S.S.G. Supp. to app. C, amend. 581 (1998). "The amend-
ment, which adopts the majority view, instructs that the obstruction
must relate either to the defendant’s offense of conviction (including
any relevant conduct) or to a closely related case." Id. In light of the
stated purpose of the amendment, other circuits have rejected the
argument that the addition of clause (B) rendered § 3C1.1 more rigor-
ous and have instead construed the amendment as expanding the types
of obstructive conduct warranting an enhancement. United States v.
Verdin, 243 F.3d 1174, 1180 (9th Cir. 2001) ("The purpose of the
[1998] amendment . . . is not to restrict the types of obstructive con-
duct warranting an enhancement . . . but to expand them to include
obstructions in a closely related case, such as that of a co-
defendant."); United States v. O’Dell, 204 F.3d 829, 836 n.4 (8th Cir.
2000) ("[S]ection 3C1.1 was amended to make it clear that it applies
to those situations in which the obstruction occurs in a case closely
related to the defendant’s case, such as that of a codefendant."). We
agree that clause (B) did not narrow the scope of § 3C1.1. The
amendment merely made plain that the broad reading of § 3C1.1 was
correct. Therefore, although Jones’s perjurious statement was not
about the offense of conviction, his conduct falls within § 3C1.1
because it occurred during the detention hearing that related to
Jones’s offense of conviction. Romulus, 949 F.2d at 717; United
States v. Crousore, 1 F.3d 382, 385 (6th Cir. 1993) ("Therefore, the
test is not whether the false statement was about the actual crime
charged, but whether it was made during the investigation, prosecu-
tion, or sentencing of the instant offense." (internal quotation marks
omitted)); see O’Dell, 204 F.3d at 836-37 (concluding that enhance-
ment for obstruction of justice was warranted where defendant com-
mitted perjury during pretrial bond revocation hearing); United States
v. Kirk, 70 F.3d 791, 797-98 (5th Cir. 1995) (applying enhancement
for obstruction of justice where defendant impeded the government’s
    4
   Prior to the amendment, several circuits had taken the view that the
enhancement applied if the defendant obstructed or attempted to obstruct
justice in a closely related case. See, e.g., United States v. Acuna, 9 F.3d
1442, 1446 (9th Cir. 1993). Other circuits had taken a narrower view,
holding that the adjustment did not apply to obstructive conduct outside
the scope of the charged offense. See, e.g., United States v. Perdomo,
927 F.2d 111, 118 (2d Cir. 1991), superseded by regulation as stated in
United States v. McKay, 183 F.3d 89, 94 (2d Cir. 1999).
                        UNITED STATES v. JONES                         7
investigation of activities that were material to, but not included in,
the offense of conviction); cf. also United States v. Charles, 138 F.3d
257, 267 (6th Cir. 1998) ("We concur with the district judge’s conclu-
sion that [the defendant] used a false identification in order to deceive
the magistrate judge and receive pre-trial release, and that this behav-
ior constitutes obstruction of justice as defined by the sentencing
guidelines.").

   Because clause (B) does not narrow the types of conduct that qual-
ify for application of the enhancement, we find Jones’s challenge to
the district court’s calculation of his base offense level to be without
merit. Consequently, we hold that when a defendant commits perjury
"to gain an unwarranted release from custody," Romulus, 949 F.2d at
717, an obstruction of justice enhancement is required.

                                  III.

   Jones next contends that the district court should not have held an
evidentiary hearing on the obstruction of justice enhancement but
should have instead deferred to the magistrate judge’s earlier findings
crediting Jones’s testimony. At the outset, we note that Jones has mis-
apprehended the magistrate judge’s earlier credibility findings. The
magistrate judge did not, as Jones suggests, accept Jones’s testimony
as credible. To the contrary, the magistrate judge stated that he had
doubts about Jones’s truthfulness but denied the Government’s
motion for pretrial detention because the Government failed to satisfy
its burden of showing "clear and convincing evidence" that Jones
posed a danger to the community. (J.A. at 108 ("[F]rankly, [there are]
parts of his testimony that I find not particularly credible either.").)

   In any event, the Sentencing Guidelines provide that the district
court has the discretion to conduct an evidentiary hearing at sentenc-
ing when "any factor important to the sentencing determination is rea-
sonably in dispute." U.S.S.G. § 6A1.3; see also Fed. R. Crim. P.
32(c)(1) ("The court may, in its discretion, permit the parties [at the
sentencing hearing] to introduce testimony or other evidence on
objections."); Dunnigan, 507 U.S. at 95 ("[I]f a defendant objects to
a sentence enhancement resulting from her trial testimony, a district
court must review the evidence and make independent findings neces-
sary to establish a willful impediment to or obstruction of justice, or
8                       UNITED STATES v. JONES
an attempt to do the same, under the perjury definition we have set
out."). Thus, the district court clearly was within its authority to con-
duct an evidentiary hearing to resolve Jones’s challenge to the proba-
tion officer’s recommendation that Jones receive a § 3C1.1
enhancement.

                                  IV.

    For the foregoing reasons, we affirm Jones’s sentence.

                                                            AFFIRMED
