                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4563


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

COREY THOMAS JONES,

                Defendant - Appellant.



                            No. 12-4565


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WILLIAM LOUIS COLE, JR.,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:11-cr-00530-CMH-2; 1:11-cr-00530-CMH-1)


Argued:   May 17, 2013                    Decided:   July 18, 2013


Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.


ARGUED: Jerome Patrick Aquino, Springfield, Virginia; Maureen
Leigh White, Richmond, Virginia, for Appellants.       Patricia
Tolliver   Giles,  OFFICE   OF   THE UNITED   STATES  ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride,
United States Attorney, Rebeca H. Bellows, Assistant United
States   Attorney,  OFFICE   OF  THE UNITED   STATES  ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Appellants Corey Thomas Jones and William Louis Cole, Jr.,

were convicted by a jury of conspiracy to commit bank robbery,

see 18 U.S.C. § 371, and armed bank robbery, see 18 U.S.C. §

2113(a) and (d).         Additionally, Cole was convicted of using and

carrying    a    firearm      during    and        in    relation    to        a     crime    of

violence,       see    18     U.S.C.     §        924(c)(1)(A),          and        unlawfully

possessing a firearm, see 18 U.S.C. § 922(g)(1).                                    Appellants

raise   numerous        challenges      to        their       convictions,          and   Cole

challenges his sentence.          For the reasons that follow, we reject

their arguments and affirm their convictions and sentences.

                                             I.

     On June 27, 2011, two masked men robbed at gunpoint the

Arlington       Boulevard     branch     of        the    BB&T     bank        in     Fairfax,

Virginia.         BB&T’s      video     surveillance            system     recorded          the

robbery.    Based on surveillance photos and the testimony of BB&T

employees present during the robbery, the facts of the robbery

itself are not a matter of dispute.                     At approximately 2:00 p.m.,

an African-American male with long dreadlocks entered the bank,

approached the teller line, and “stated that he wanted to make a

withdrawal.”          J.A. 205.        He was wearing sunglasses, a white

painter’s   mask,       and   white     gloves.           A    second     suspect,        also

African American, entered the bank immediately after the first,

wearing a similar mask and sunglasses and carrying a black gun.

                                             3
He was stocky, wore light jeans, light gray tennis shoes and

black gloves.        While the second suspect pointed the gun at BB&T

employees, the first suspect jumped over the tellers’ counter

and took cash from the drawers.

       The    bank   robbers      fled    the       building     with   approximately

$9,860, but BB&T employees managed to obtain the District of

Columbia license plate number of a Plymouth Voyager leaving the

scene.       The police located the Voyager within 10 minutes of the

robbery, abandoned in a nearby neighborhood.                        The vehicle was

running without keys and the ignition column had been punched

out.     Police later discovered that the Voyager had been stolen

earlier that day from the intersection of First Street, NW, and

North Streets in Washington, D.C.

       Approximately one hour before the bank robbery occurred,

Allan Luai, who worked in an office across the street from the

BB&T, noticed two African-American males sitting in a BMW that

was parked in Luai’s lot.            The BMW displayed Maryland plates and

the occupants were watching the BB&T.                       Noticing that the BMW

remained      situated     like    this       for   15-20    minutes,    Luai   became

suspicious and wrote down the license plate number which he gave

to police shortly after the robbery.                     The BMW’s license plates,

in   turn,     led   the    police       to    Cole.        Although    the   car   was

registered      to   Cole’s       sister,         Cole   owned   and    operated    the

vehicle.

                                              4
     After the responding law enforcement officers connected the

BMW tag number to Cole, they notified Sergeant David Blazer that

Cole’s car had been spotted by a witness near the scene of an

armed   bank   robbery    and    asked     him    to     conduct   surveillance      of

Cole.      Sergeant Blazer was familiar with Cole because he had

previously investigated Cole’s involvement in unrelated criminal

activities, including a 2010 armed robbery of a check cashing

establishment for which Cole had been charged.                     The surveillance

photos from BB&T’s security system were forwarded to Sergeant

Blazer, who observed that the second bank robber entering the

bank matched Cole’s stocky build.                  He also observed that the

stockier    suspect    was     wearing     light-colored         jeans    and     light-

colored,    gray   tennis     shoes.       Sergeant       Blazer   noted    that    the

first suspect was wearing white gloves.

     Sergeant Blazer observed Cole arriving at the residence of

his mother not long after the robbery, driving the same BMW that

Luai saw near the bank shortly before the robbery.                         He further

observed that Cole was wearing light-colored jeans like those

worn by the gunman in the surveillance photographs.

     About     6:30    p.m.    that    evening,        Cole   departed      from    his

mother’s home in the same BMW.                 At Sergeant Blazer’s direction,

Officer     Lawrence    conducted      a       traffic    stop     of    Cole’s    BMW.

Officer Lawrence told Cole that he had been stopped for failure

to wear a seatbelt.           While officers performed the traffic stop,

                                           5
Sergeant     Blazer      noticed       that    although         Cole      had     changed     his

pants, he was wearing gray tennis shoes similar to those worn by

one of the bank robbers in the surveillance photos sent to him.

Sergeant     Blazer      also    noticed       white      latex      gloves       in   the   open

center     console      of    Cole’s    car,       a   detail       he    found    significant

because     in    the    surveillance         photos         “one    of    the     individuals

appeared to be wearing white latex gloves in the bank robbery.”

J.A.   271.      Sergeant       Blazer      then       arrested      Cole     for      the    BB&T

robbery.      Cole had $802 in his pocket.

       A   subsequent        search    of     the      BMW   yielded       the    white      latex

gloves, a pair of black gloves from the trunk, and two cell

phones from the front seat.                 One of the cell phones was a Sprint

HTC phone belonging to Cole.                 Law enforcement agents conducted a

forensic examination of Cole’s phone and were able to recover

numerous text messages between Cole’s phone and the cell phone

used by Jones.               The forensic examination included historical

cellsite analysis to determine the physical location of Cole’s

and Jones’s cell phones at the time calls were made by them.

       This analysis showed that four days before the robbery,

Cole texted Jones that “I got a lil situation for about 5 stacks

in about an [hour] if [you] want in on it.                                [It’s] real light

work with no uniforms involved.”                       J.A. 585.         The BB&T branch on

Arlington        Boulevard      had    no     uniformed        security          guards.        In

response, Jones texted “Sweet.”                        J.A. 585.          FBI investigators

                                               6
were able to pinpoint the location of Cole’s cell phone that

same day on Arlington Boulevard in Fairfax, near the BB&T.                         On

the day before the robbery, Jones texted Cole to ask “[what’s]

that robbery site?”         J.A. 549.      Cole responded “[You] have to go

under     commercial      armed     robberies    in   whatever     county     [you]

looking for.”       Id.

        Early on the morning of the robbery, Jones sent Cole a text

inquiring whether Cole was coming to get Jones or if Cole wanted

Jones to get a ride from his girlfriend.                   The evidence showed

that at 10:30 a.m., the phones for both Cole and Jones were

located in northwest Washington, D.C., near the spot where the

Plymouth Voyager used as the getaway vehicle was stolen.                     Around

11:00 a.m., Jones’s cell phone was used to call Cole’s number

from near the BB&T back in Fairfax.

     Cole and Jones were both indicted for armed bank robbery,

conspiracy to commit armed bank robbery, and using and carrying

a firearm during and in relation to a crime of violence.                        Cole

alone    was   indicted    for     unlawfully    possessing    a   firearm    as    a

felon.

     Prior     to    trial,       Cole   moved   to   suppress     the   evidence

recovered from his BMW on the basis that law enforcement had no

justification       for    performing      the   initial      traffic    stop      or

probable cause for arresting him during the stop.                  Jones filed a

pretrial motion to strike the jury panel because it did not

                                          7
include any African-Americans.                  The district court denied both

motions, and the case went to trial.                 The jury found Cole guilty

on all four counts.            The jury found Jones guilty of armed bank

robbery     and     conspiracy      to     commit    armed        bank        robbery,   but

acquitted him of using and carrying a firearm during a crime of

violence.

     Approximately           two   weeks     after       trial,      Jones       moved    for

discovery regarding the Eastern District of Virginia’s method of

selecting      jury     panels     to    determine       if   the    lack       of   African

Americans on the jury panel was an anomaly or the result of

systematic discrimination.               The court denied the motion, finding

nothing to show any systematic discrimination.

     Cole was sentenced to 60 months each for the armed robbery,

conspiracy, and felon-in-possession counts, to run concurrently,

and a consecutive term of 84 months for using and carrying a

firearm during and in relation to a crime of violence.                                   Cole

challenges     the      district    court’s      imposition         of    an    obstruction

enhancement        in   determining       Cole’s     advisory        guideline        range.

Jones does not challenge his sentence.

                                           II.

     Cole challenges the district court’s denial of his pretrial

motion to suppress evidence recovered from a search of his BMW

following his traffic stop and arrest.                        When considering the

denial    of   a    motion    to   suppress,       our    review         of    the   district

                                            8
court’s factual findings is for clear error and our review of

its legal conclusions is de novo.                   See United States v. Lewis,

606 F.3d 193, 197 (4th Cir. 2010).                   “Since the district court

denied the defendant’s motion below, we construe the evidence in

the light most favorable to the government.”                    United States v.

Branch, 537 F.3d 328, 337 (4th Cir. 2008).

     Cole    first   contends      that   the       police   had     no   justifiable

basis for making the initial traffic stop.                   “Temporary detention

of individuals during the stop of an automobile by the police,

even if only for a brief period and for a limited purpose,

constitutes a ‘seizure’ of ‘persons’ within the meaning of [the

Fourth Amendment].”        Whren v. United States, 517 U.S. 806, 809-

10 (1996).       A traffic stop, generally speaking, is permissible

if the officer has “probable cause to believe that a traffic

violation has occurred.”          Id. at 810.

     At the suppression hearing, Officer Lawrence testified that

he followed Cole in his BMW at a distance of about 10-15 feet.

Because it was still daylight and the weather was clear, Officer

Lawrence    could    see   that    Cole       was    not   wearing    his       shoulder

restraint and that the belt buckle was near the door jamb and

therefore could not have been fastened.                    After Officer Lawrence

noticed    the   infraction,      he   activated       his   lights       and    stopped

Cole.



                                          9
       Cole testified at the suppression hearing, claiming that he

was wearing his seatbelt.               Cole also presented testimony from a

former     police       officer    that,       based     on    the    former       officer’s

training, he believed that it is difficult to observe whether a

driver is wearing a seatbelt from a rear vantage point.

       The     district     court       credited       the    testimony       of     Officer

Lawrence       and    concluded     that    he     was    justified      in    making       to

initial       traffic    stop.       We    give     particular        deference       “to   a

district court’s credibility determinations, for it is the role

of   the      district    court    to     observe      witnesses       and    weigh   their

credibility       during    a     pre-trial      motion       to   suppress.”         United

States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal

quotation marks omitted).                 Construing the record in the light

most favorable to the government, we perceive no error of law or

fact     in    the    district     court’s       determination         that    there     was

probable cause to make the initial traffic stop.

       Cole     further     argues      that    even     if    there    was    sufficient

justification for the initial stop, the police lacked probable

cause to support Cole’s arrest for the BB&T robbery.                            We cannot

agree.        “Probable cause to justify an arrest means facts and

circumstances within the officer’s knowledge that are sufficient

to warrant a prudent person, or one of reasonable caution, in

believing,       in   the   circumstances         shown,       that    the    suspect    has

committed, is committing, or is about to commit an offense.”

                                            10
United States v. Williams, 10 F.3d 1070, 1073-74 (4th Cir. 1993)

(internal quotation marks omitted).

     Viewing the evidence in the light most favorable to the

government, Sergeant Blazer knew at least the following facts:

1) a witness had seen Cole’s BMW near the scene of the robbery;

2) Cole’s stocky build matched that of the bank robber holding

the gun in the BB&T surveillance photos; 3) Cole was wearing

light-colored jeans like the bank robber in the surveillance

photos when he arrived at his mother’s house within hours of the

robbery; 4) Cole was wearing light-colored tennis shoes like the

robber who was holding the gun in the surveillance photos; and

5) the other bank robber wore white gloves in the surveillance

images and there were white gloves in the console of Cole’s car

at the time of the traffic stop.

     Although   the   subsequently-developed     cell    phone   evidence

significantly   strengthened   the      government’s    case,    “evidence

sufficient to convict is not required” for probable cause to

exist.   Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).           We

are satisfied that Officer Blazer had probable cause to arrest

Cole for the bank robbery when he took him into custody.

                                 III.

     Appellants assert that there was insufficient evidence to

support their convictions.     On a challenge to the sufficiency of

the evidence, we view the evidence “in the light most favorable

                                  11
to the prosecution” and ask whether “any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.”              United States v. Collins, 412 F.3d 515, 519

(4th Cir. 2005) (internal quotation marks omitted).                              We review

both    direct       and        circumstantial           evidence,        according         the

government all reasonable inferences from the facts shown to

those sought to be established.                       See United States v. Harvey,

532 F.3d 326, 333 (4th Cir. 2008).                          We assume that the jury

resolved all contradictions in the testimony in favor of the

government.        See United States v. Kelly, 510 F.3d 433, 440 (4th

Cir. 2007).

       To prove armed bank robbery, the government must prove that

“(1) the defendant took . . . money belonging to a bank . . .;

(2)    by   using    force       and      violence,      or   intimidation;          (3)    the

[bank’s]    deposits        .    .    .   were    federally        insured;    and    (4)    in

committing     .    .   .       the   offense,        the   defendant     assaulted         any

person, or put in jeopardy the life of any person by the use of

a dangerous weapon or device.”                    United States v. Davis, 437 F.3d

989, 993 (10th Cir. 2006).

       As   for     conspiracy,           the    essence      of    the   crime      “is     an

agreement     to    effectuate            a   criminal      act.”     United    States      v.

Laughman, 618 F.2d 1067, 1074 (4th Cir. 1980).                             “Sustaining a

conspiracy conviction under 18 U.S.C. § 371 requires that the

government prove: (1) an agreement between two or more people to

                                                 12
commit a crime, and (2) an overt act in furtherance of the

conspiracy.”           United States v. Ellis, 121 F.3d 908, 922 (4th

Cir. 1997).

     The evidence previously summarized shows there was clearly

sufficient evidence to convict both defendants for armed bank

robbery and conspiracy to commit armed bank robbery.                             The jury

could    conclude,       based    on    this     evidence,      that   the   defendants

acted together, planned the robbery, scouted out the location in

advance, stole the getaway car, and committed the robbery.                               The

cell phone evidence placed them at the scene of the robbery and

reflected text messages explicitly mentioning robbery and that

the target bank did not use uniformed security personnel.

     To secure a conviction under 18 U.S.C. § 922(g)(1), the

government must establish that (1) the defendant was a convicted

felon;    (2)    he     knowingly       possessed    the       firearm;    and    (3)    the

firearm traveled in interstate commerce.                        See United States v.

Gallimore,       247    F.3d     134,    136     (4th    Cir.     2001).         The    bank

surveillance photos showed the gun being wielded by the stockier

of the two robbers.            Since the evidence was sufficient to allow

a conviction of the defendants on the robbery and conspiracy

counts,    the    jury     reasonably       could       have    determined       that,   as

between Cole and Jones, Cole had to be the gunman as he was

stockier and generally fit the description of the bank robber

who was using the gun.            And like the man with the gun, Cole wore

                                            13
light-colored jeans not long after the robbery and was wearing

gray       tennis       shoes     when      arrested.            Thus,     we    reject    the

sufficiency challenges and affirm the convictions. 1

                                               IV.

       Defendants           argue     that      in    its       closing     argument,      the

government referred to facts not in evidence when it suggested

that Jones, who did not have dreadlocks at the time of the

robbery,      wore      a   dreadlock         wig    as    a    disguise.        Because   the

defendants did not object to the government’s closing argument,

we review for plain error.                    Under the plain error standard, a

defendant must show “(1) that an error occurred, (2) that the

error      was    plain,        and   (3)     that    it       affected    his   substantial

rights.”         United States v. Penniegraft, 641 F.3d 566, 575 (4th

Cir. 2011).            Even if the defendant meets these requirements, we

will exercise our discretion to correct the error “only when

failure to do so would result in a miscarriage of justice, such

as     when      the    defendant        is    actually         innocent    or    the     error

       1
       Cole also argues that the government failed to offer
evidence that the firearm traveled in interstate commerce.
Because this claim is raised for the first time in his reply
brief, Cole has waived consideration of it. See Yousefi v. INS,
260 F.3d 318, 326 (4th Cir. 2001) (per curiam).       Although §
922(g)(1)’s interstate commerce element is often described as
jurisdictional, “it is ‘jurisdictional’ only in the shorthand
sense that without that nexus, there can be no federal crime”;
it does not affect a court’s “power to adjudicate a case.”
United States v. Martin, 526 F.3d 926, 933 (6th Cir. 2008).
Cole’s argument presents nothing more than an untimely challenge
to the sufficiency of the evidence that is subject to waiver.


                                                14
seriously affects the fairness, integrity or public reputation

of judicial proceedings.”                  Id. (internal quotation marks and

alteration omitted).

       Defendants raise their claim pursuant to United States v.

Wilson, 135 F.3d 291, 299 (4th Cir. 1998), which asks whether a

prosecutor’s      improper         remarks        “so    infected     the    trial     with

unfairness as to make the resulting conviction a denial of due

process.”       United States v. Caro, 597 F.3d 608, 624 (4th Cir.

2010)    (internal     quotation          marks     omitted).        To    prevail,   “the

defendant must show that the prosecutor’s remarks or conduct

were     improper      and     .    .     .    that      such   remarks      or   conduct

prejudicially affected his substantial rights so as to deprive

him of a fair trial.”              United States v. Scheetz, 293 F.3d 175,

185 (4th Cir. 2002).

       During    closing     argument,         the      government    is    permitted    to

draw reasonable inferences from the evidence adduced during the

trial.     See United States v. Francisco, 35 F.3d 116, 120 (4th

Cir. 1994) (per curiam).                However, the prosecutor must adhere to

the “fundamental rule, known to every lawyer, that argument is

limited to the facts in evidence.”                      United States v. Lighty, 616

F.3d     321,    361    (4th       Cir.       2010)     (internal     quotation       marks

omitted).       In this case, the prosecution was suggesting that the

jury make a reasonable inference.                       The evidence connected Cole

and Jones with the incriminating text messages and put them near

                                               15
the BB&T close to the time of the robbery and in Washington,

D.C., near the location where the getaway vehicle was stolen.

The surveillance shots showed two bank robbers that matched the

general physical build of Cole and Jones.                           Thus, the government

was asking the jury to make a reasonable inference that Jones

was wearing a wig, like his mask, to disguise himself.

       This is not the type of misstatement that “so infected the

trial    with      unfairness    as       to    make       the   resulting    conviction    a

denial of due process.”                   Caro, 597 F.3d at 624.                   Moreover,

defense counsel actually addressed the government’s theory about

the    wig    during       summation       for       the    defense,       challenging    its

validity      and    pointing       out    for       the    jury    that    the   government

failed to produce any evidence that Jones wore a wig.                                    Thus,

applying      a    plain    error    standard         of     review,   we    conclude     that

defendants’ challenge to the government’s closing argument does

not avail them.            The district court committed no error, plain or

otherwise.

                                                V.

        Jones and Cole also challenge the district court’s denial

of    their   post-trial       motion          for   discovery       regarding     the    jury

selection         procedure   used    by       the    United       States   Courts   in    the

Southern District of Virginia.                       For the reasons that follow,

this challenge is unavailing as well.



                                                16
      African-Americans make up 11.6% of the population in the

Northern Virginia community; however, the 45-person pool from

which defendants' jury was drawn did not include any African-

Americans.     Jones moved before trial to strike the jury panel,

arguing that his Sixth Amendment right to a jury drawn from a

panel   reflecting        a   fair    cross-section     of    the    community     was

violated.      See Taylor v. Louisiana, 419 U.S. 522, 537 (1975)

(“[T]he   Sixth      Amendment       affords   the   defendant       in   a   criminal

trial   the    opportunity       to    have    the   jury    drawn    from    venires

representative of the community . . . .”).                      To prevail on a

Sixth Amendment fair cross-section claim, a defendant must show

that a “‘distinctive’” group is underrepresented, generally and

on his particular venire, “in relation to the number of such

persons in the community,” and that such underrepresentation “is

due to systematic exclusion of the group in the jury-selection

process.”      Duren v. Missouri, 439 U.S. 357, 364 (1979).                        That

is, defendant must demonstrate that the underrepresentation was

“inherent     in    the   particular      jury-selection      process     utilized.”

Id. at 366.        Noting that the jury pool was drawn through the use

of   voter    registration       lists,    the   district      court      denied   the

motion to strike the panel.                See United States v. Cecil, 836

F.2d 1431, 1454 (4th Cir. 1988) (en banc) (“We are reasonably

confident that every jury plan in this Circuit, as well as those

in most of the other Circuits, provides for the use of voter

                                          17
registration lists in the jury selection process . . . [which]

have    been   approved,     as     satisfying      the   fair    cross-section

requirement of the statute and the Constitution.”).

       Two weeks after trial, defendants filed a post-trial motion

seeking    discovery     into     the    jury   selection   process     for    the

Eastern District of Virginia.            The district court held a hearing

and denied the motion for discovery, noting that “[w]e have a

random system of selecting juries”—voter registration lists—and

that    defendants    were   on    a    “fishing    expedition”   in   hopes    of

finding evidence to show that the absence of African Americans

on     their   jury     panel      was    due      to   systematic,     inherent

discrimination.       J.A. 698.

       On appeal, defendants challenge the denial of the motion

for discovery, but not the denial of the motion to strike the

jury panel.    It is not completely clear whether defendants moved

below for discovery under the Jury Selection and Service Act

(“JSSA”) or the Sixth Amendment.                Either way, the motion was

untimely and we affirm its denial.

       The JSSA codifies the Sixth Amendment right to have a jury

selected from a fair cross section of the community, stating

that federal litigants “have the right to grand and petit juries

selected at random from a fair cross section of the community in

the district or division wherein the court convenes.”                  28 U.S.C.

§ 1861.    The JSSA requires each United States district court to

                                         18
"place into operation a written plan for random selection of . .

. petit jurors that shall be designed to achieve" a fair cross

section      of   the   community.           28   U.S.C.       §     1863(a).     Congress

specifically determined that the principal source of names for

the random selection should be either “the voter registration

lists or the lists of actual voters.”                   28 U.S.C. § 1863(b)(2).

     The JSSA provides procedures for challenging the required

written plan for jury selection.                  The JSSA allows a defendant to

“move   to    dismiss   the    indictment         or    stay       the   proceedings”   in

order to challenge the district’s jury selection plan required

by the JSSA.         28 U.S.C. § 1867(a).                 In criminal cases, the

defendant must file the motion “before the voir dire examination

begins, or within seven days after the defendant discovered or

could   have      discovered   .    .    .    the      grounds      [for    the   motion],

whichever is earlier.”             Id.       The JSSA allows the defendant to

have discovery of records relating to jury selection process

“during the preparation and pendency” of a motion to stay the

proceedings or dismiss the indictment under the statute.                                28

U.S.C. § 1867(f).        To the extent Defendants were seeking relief

under the JSSA, they failed to do so until two weeks after the

trial, which made their claim clearly untimely.                            The government

did not raise timeliness as an issue below, but the timeliness

requirement “is to be strictly construed, and failure to comply



                                             19
precisely with its terms forecloses a challenge under the Act.”

United States v. Bearden, 659 F.2d 590, 595 (5th Cir. 1981).

       Federal Rule of Criminal Procedure 12(b)(3)—formerly Rule

12(b)(2)—governs motions raising a Sixth Amendment fair cross-

section challenge, and, like JSSA motions, such motions must be

filed before trial.         See Davis v. United States, 411 U.S. 233,

241 (1973); United States v. Ballard, 779 F.2d 287, 295 (5th

Cir. 1986).     Failure to file the motion before trial amounts to

waiver of the fair cross-section claim, but a court may grant

relief from that waiver for good cause shown.                   See Fed. R. Crim.

P. 12(e).     Defendants did not move for discovery with respect to

the jury selection process until 13 days after the verdict.                       The

Eastern District of Virginia has used voter registration lists

as the source for jury pool selection for some time.                      Defendants

have    not   articulated     any    reason     why     they     failed    to     seek

discovery     prior   to    trial,   before     the     court    spent     time   and

resources on jury selection and trial.                    Likewise, defendants

have not articulated any reason to support their assertion that

African Americans are being systematically excluded during the

jury selection process.         See United States v. Ovalle, 136 F.3d

1092, 1108 (6th Cir. 1998) (rejecting jury selection claim where

defendants    “did    not   raise    such   a   claim    until    the     trial   was

completed and they began their direct appeal”).



                                       20
      Accordingly, we affirm the denial of defendants’ post-trial

motion for discovery as to the fairness of the jury selection

process.

                                          VI.

      Finally,      Cole       objects        to    the     two-level        sentencing

enhancement imposed by the district court for obstruction of

justice under U.S.S.G. § 3C1.1.                    Section 3C1.1 provides for a

two-level increase in the base offense level if “the defendant

willfully obstructed or impeded, or attempted to obstruct or

impede,    the    administration         of     justice     with     respect     to    the

investigation, prosecution, or sentencing of the instant offense

of conviction,” if “the obstructive conduct related to . . . the

defendant’s offense of conviction.”                 U.S.S.G. § 3C1.1.

      The Presentence Report (“PSR”) recommended application of

the   enhancement        because    Cole        presented     a     fabricated        alibi

defense which the jury rejected.                     At trial, Cole called two

witnesses to substantiate his alibi defense.                      First, Cole called

Michelle    Roberts,      an   employee       at    Fort   Stanton     apartments       in

Washington,       D.C.      Roberts       testified        that     when   prospective

residents come to inquire about the apartments, they are asked

to fill out a visitation card.                Roberts indicated that her files

contained     a    visitation      card       bearing      Cole’s    name,     and     the

government stipulated that the handwriting on the card in fact

belonged to Cole.         In addition to his name, Cole wrote the date

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and the time of day—purportedly 2:10 p.m. on the day of the

robbery which was approximately the time that the bank robbers

were fleeing the BB&T.             Roberts testified that when a prospect

fills out the front side of the visitation card, an employee

fills out the reverse side.               Cole’s card had not been completed

by a Fort Stanton employee.              Roberts, who was not there when the

card    was     filled      out,   was    therefore       unable        to     verify     its

accuracy.        Cell phone analysis placed Cole near Fort Stanton

around 2:40 p.m.

       Second,       Cole   called   Charles          Ashford,    the        owner   of   an

automobile service shop.             He testified that Cole appeared at

1:44 p.m. on the day of the robbery to pick up his girlfriend’s

car.    On cross-examination, however, Ashford admitted that about

two    weeks    before      trial,   he     told      police     that    he     could     not

remember who picked up the car.

       The PSR recommended assessing an enhancement under U.S.S.G.

§ 3C1.1 on the basis that “Cole . . . presented material[ly]

false information in the form of false and fabricated alibis,

which    was     a     willful     attempt       to     obstruct        or    impede      the

administration of justice with respect to the investigation and

prosecution of the instant offense.”                    J.A. 744.            Cole objected

to the PSR’s recommendation that an enhancement be imposed.                               The

district       court    concluded    that        “the    guideline       factors        [are]

properly      assessed,”      J.A.   710,    and      sentenced     Cole       within     the

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guidelines range to a term of 144 months.                        The district court

issued   its    judgment    and    a    Statement     of   Reasons,    filed     under

seal, expressly “adopt[ing] the presentence investigation report

without change.”

     Cole contends that the district court failed to make the

requisite      findings    of    fact    to     support    the    U.S.S.G.   §   3C1.1

enhancement.      We disagree.          The court adopted the PSR, which set

forth sufficient factual findings to satisfy U.S.S.G. § 3C1.1.

See U.S.S.G. § 3C1.1 cmt. 4(B) (explaining that “producing or

attempting to produce a false, altered, or counterfeit document

or   record      during     an    official        investigation       or     judicial

proceeding” is covered conduct under U.S.S.G. § 3C1.1); United

States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994) (recognizing

that the district court may satisfy the duty to make factual

findings by adopting the findings in the PSR).                      Accordingly, we

reject this argument.

                                          VII.

     For the foregoing reasons, we affirm the convictions and

sentences of the defendants. 2

                                                                             AFFIRMED


     2
       Jones filed a motion for leave to submit a supplemental
pro se reply brief and a motion to supplement that brief.   We
grant the motions but, having considered the issues raised
therein, deny him relief on that basis as well.



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