                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 01-4509
BRIAN WENDELL SMITH,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Western District of Virginia, at Roanoke.
              Samuel G. Wilson, Chief District Judge.
                          (CR-00-123)

                  Submitted: September 28, 2001

                      Decided: November 14, 2001

 Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Ruth E. Plagenhoff, United States
Attorney, Anthony P. Giorno, Assistant United States Attorney, Roa-
noke, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. SMITH
                              OPINION

PER CURIAM:

   Brian W. Smith was charged with two counts of impersonating a
federal officer in violation of 18 U.S.C. § 912 (1994). Smith entered
a plea of guilty on count 1 on March 20, 2001. The Government dis-
missed Count 2.

   The charges against Smith arose from his impersonation of a dep-
uty United States Marshal. Smith convinced the victim, Theresa
Craighead, that he was a deputy marshal trying to protect her from
drug dealers, including her ex-husband. Under this pretext, Smith
convinced Craighead to let him move in with her, to give him cash,
and to rent cars for him. Smith also stole cash from Craighead and
forged one of her checks.

   On appeal, Smith first argues that his indictment should be dis-
missed without prejudice because he was not afforded a preliminary
appearance within ten days of his initial appearance, as required by
18 U.S.C. § 3060 (1968). We review de novo a challenge by a defen-
dant to the lawfulness of an indictment. See United States v. Mancuso,
42 F.3d 836, 847 (4th Cir. 1994). Smith’s initial appearance following
his arrest occurred on November 16, 2000. A grand jury indicted
Smith on December 12, 2000. We conclude that this indictment obvi-
ated the remedy Smith could have obtained from the denial of his pre-
liminary hearing.

   The exclusive purpose of a preliminary hearing is to permit a deter-
mination of probable cause. Normally, a magistrate judge will make
this finding in a preliminary hearing, yet federal courts have long rec-
ognized that "an indictment, fair upon its face, returned by a properly
constituted grand jury, conclusively determines the existence of prob-
able cause . . . ." Gerstein v. Pugh, 420 U.S. 103, 103 n.19 (1975).
See also United States v. Parrish, 372 F.2d 453, 466 (4th Cir. 1967)
("[O]rdinarily, the return on an indictment constitutes a determination
of probable cause and obviates the necessity for a preliminary hear-
ing.").
                        UNITED STATES v. SMITH                         3
  Under § 3060, Smith was entitled to discharge following the tenth
day of his detention, "without prejudice to the filing of further crimi-
nal proceedings," United States v. Aranda-Hernandez, 95 F.3d 977
(10th Cir. 1996), in this case, the grand jury’s indictment. Once the
grand jury returned an indictment against Smith, his right to discharge
pursuant to § 3060 ceased.

   Smith also argues the district court erred in sentencing him. On
issues arising under the United States Sentencing Guidelines, we
review the district court’s factual findings for clear error and legal
interpretations de novo. See United States v. Colton, 231 F.3d 890,
911 (4th Cir. 2000). Under U.S. Sentencing Guidelines Manual
§ 2J1.4 (2000), the corresponding offense guideline to 18 U.S.C.
§ 912, the district court utilized a cross reference* and determined
that Smith’s impersonation was an attempt to commit the offense of
fraud. Upon Smith’s plea of guilty to Count 1, the court accordingly
sentenced Smith to 24 months imprisonment under U.S. Sentencing
Guidelines Manual § 2F1.1 (2000), the fraud guideline.

   Smith argues the district court erred in its sentence because the
statutory provisions’ portion of section 2F1.1’s commentary lists a
large number of offenses covered by section 2F1.1, but does not
include § 912. However, the district court properly employed the stat-
utory index of USSG App. A to determine § 912’s applicable offense
guideline, § 2J1.4. After making the initial determination to apply
§ 2J1.4, the district court then applied the section’s cross reference.
There can be no dispute that the district court correctly chose § 2J1.4
as the applicable offense guideline according to the statutory index of
USSG App. A. Once the applicable guideline is established, U.S. Sen-
tencing Guidelines Manual § 1B1.1 (2000) instructs the court in perti-
nent part to determine the base offense level and apply any
appropriate cross references. Moreover, in accordance with § 1B1.3,
which delineates relevant conduct, "cross references in Chapter Two
. . . shall be determined on the basis of . . . all acts and omissions

   *According to § 2J1.4(c)(1), "[i]f the impersonation was to facilitate
another offense, [the district court should] apply the guideline for an
attempt to commit that offense, if the resulting offense level is greater
than the offense level determined [under § 2J1.4]."
4                       UNITED STATES v. SMITH
. . . committed . . . that occurred during the commission of the offense
of conviction . . . ." USSG § 1B1.3(a). The district court in this case
properly determined section 2J1.4’s cross reference on the basis of
Smith’s attempt to defraud Craighead and by use of that cross refer-
ence, incorporated section 2F1.1 and all appropriate specific offense
characteristics to calculate the applicable guideline range under
§ 2J1.4. See United States v. Carroll, 3 F.3d 98, 101 (4th Cir. 1993)
("Under the sentencing guidelines, the offense of conviction dictates
selection of the proper chapter two guideline, while the relevant con-
duct guideline, U.S.S.G. § 1B1.3, captures the real offense behavior
and the characteristics of the defendant through specific offense char-
acteristics and cross references.") (internal citations omitted).

   Smith further contends the statutory provision portion of the
offense guideline commentary for section 2F1.1, the fraud guideline,
precludes the application of the fraud guideline to § 912 because
§ 912 is not an enumerated statute within the statutory provisions por-
tion of the commentary to § 2F1.1. In support of this position, he
relies upon United States v. Saavedra, 148 F.3d 1311, 1315 (11th Cir.
1998), for the proposition that under "the doctrine of expressio unius
est exclusio alterius, the express indication that an offense guideline
applies to several statutes of conviction ‘strongly suggests’ that it
does not apply to a statute that is not listed." (Internal citation omit-
ted).

   This argument misapprehends the entire purpose of using a cross
reference to earmark relevant conduct. As Saavedra itself recognizes,
the statutory provisions portion of an offense guideline commentary
lists statutes of conviction, for which the district court immediately
selects the corresponding offense guideline. However, the statutory
provisions portion of an offense guideline commentary does not take
cross references into account. When the offense of conviction’s corre-
sponding offense guideline contains a cross reference, the district
court must substitute the applicable cross referenced offense guideline
in order to calculate the statute of conviction’s offense guideline
range. In Smith’s case, he was never convicted of any criminal statute
except § 912. However, in considering Smith’s relevant conduct, the
district court properly cross referenced section 2F1.1 to take into
account Smith’s fraudulent conduct in determining the proper guide-
line range under section 2J1.4. See Carroll, 3 F.3d at 102 ("[A]ll
                       UNITED STATES v. SMITH                        5
guideline cross references . . . are no more than devices for measuring
the seriousness of the offense and the conduct for which the sentence
is imposed . . . .").

  Accordingly, we affirm the district court’s judgment. We dispense
with oral argument, because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

                                                          AFFIRMED
