                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4186


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LONNIE LEROY CARTRETTE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00400-RBH-1)


Argued:   December 5, 2012                 Decided:   December 31, 2012


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Duncan and Judge Agee joined.


ARGUED: James P. Rogers, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant.   Thomas Ernest Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Columbia, South Carolina, Alfred W. Bethea, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence,
South Carolina; Lanny A. Breuer, Assistant Attorney General,
John D. Buretta, Acting Deputy Assistant Attorney General,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

     Lonnie Cartrette appeals his conviction of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

and a two-level obstruction of justice sentencing enhancement

imposed under United States Sentencing Guidelines § 3C1.1 after

the district court found he committed perjury on the witness

stand.   Cartrette     principally      argues       that       the    police   did   not

properly   impound      his     vehicle          after     he    was     arrested     for

shoplifting,     and   that    the    subsequent         inventory      search   (which

revealed   the   weapon)      was    thus       invalid.    He   also    contends     the

district court improperly excluded certain photographic evidence

and improperly applied the obstruction of justice enhancement.

     For the following reasons, we affirm the judgment of the

district court.



                                        I.

                                        A.

     Conway, South Carolina, Police Department (“CPD”) officers

Joshua Hardee and Chevis Ridgeway responded to a shoplifting

report at a local Wal-Mart around 8:30 p.m. on February 4, 2011.

Wal-Mart loss prevention employees had detained Cartrette after

he had attempted to shoplift a bottle of perfume. The officers

arrested Cartrette for shoplifting and took him out of the Wal-

Mart to their patrol car. They asked Cartrette where his car was

                                            3
in the parking lot, and he indicated the aisle in which his car

was located. 1 The officers determined that Cartrette’s license

was suspended and decided to have his car towed from the lot,

even though Cartrette told them that both his wife and brother

were not far away and could pick up the car. Indeed, Cartrette

told the officers his brother was at a restaurant next to the

Wal-Mart parking lot.

     Nonetheless, the officers opted to impound the vehicle and

conduct an inventory search. While the CPD has no written policy

addressing when vehicles should be impounded (as opposed to when

they should be searched after impoundment), Officers Ridgeway

and Hardee testified that the standard procedure is to impound a

vehicle   when   the   driver   is   arrested   and   no   other   driver   is

present to take custody of the vehicle. Thus, while Cartrette

remained in the police cruiser with Hardee, Officer Ridgeway

walked to Cartrette’s vehicle and began an inventory search.

     The CPD policy for inventory searches states:

     G. Automobile Inventories

     1
        Apparently,   the  Wal-Mart   employees  had  questioned
Cartrette before the officers’ arrival and the officers quickly
learned that Cartrette had a vehicle nearby. Cartrette confirmed
at oral argument that he makes no contention that the officers
learned of the car’s presence through custodial questioning by
the officers. Indeed, Cartrette apparently requested that the
officers place in his vehicle a container of dog food (which,
unlike the purloined perfume) he had paid for at the register in
the Wal-Mart. We are told they did as he requested.



                                      4
       1.    Officers   will  routinely   conduct  a   warrantless
             inventory of any lawfully impounded vehicle.
       2.    Warrantless inventories are done to:
             a.   Protect the owner’s property
             b.   Protect the Department against claims of lost
                  or stolen property
             c.   Make sure that no weapons or other dangerous
                  instruments fall into the hands of vandals or
                  thieves.
       3.    Officers will complete a Vehicle Impound Form on
             every impounded vehicle.

J.A. 82. Ridgeway found a machete and a BB gun in the vehicle’s

passenger   compartment.   He   then   opened   the   trunk   and   found,

wrapped in shirts or sweatshirts, a short-barrel, pump action

shotgun. Cartrette stipulated at trial that he had previously

been convicted of a crime punishable by imprisonment for a term

exceeding one year, and thus was ineligible to possess firearms.

                                  B.

     Cartrette was indicted in the United States District Court

for the District of South Carolina on March 22, 2011, on one

count of being a felon in possession of a firearm, 18 U.S.C. §§

922(g)(1), 924(a)(2), and 924(e). Cartrette filed a motion to

suppress the shotgun, arguing that the search of his car’s trunk

violated his rights under the Fourth Amendment. In a pre-trial

motions hearing and at trial, the arresting officers testified

to the CPD impoundment procedure. Officer Hardee testified that

the standard procedure is to impound a vehicle when no other

driver is present:



                                   5
       Q: And is that standard operating procedure with
       Conway Police Department, that if you arrest a suspect
       and there is no other driver present, that you would
       call a wrecker and impound the car?

       A: Yes, sir. We do that to cover ourselves. That way
       nothing happens to the gentleman’s vehicle.

J.A. 32.

       Officer Ridgeway testified that “[o]nce we place somebody

under arrest, any of their property that’s not able to go with

them    to   the   jail   becomes   our   responsibility,   to   include

vehicles.” J.A. 117. Officer Ridgeway also testified:

       Q: Now, the defense asked a question as to whether or
       not you have any discretion as to wait for another
       driver to come and get the vehicle.

       A: My understanding is that there is not – I mean I’ve
       never personally practiced it, and I don’t know that
       it is practiced in the department.

       Q: Standard procedure is you would impound the vehicle
       --

       A: Correct.

       Q: -- when someone’s arrested unless there is another
       driver present?

       A: Yes, sir.

J.A. 45-46. The court denied the motion to suppress, reasoning

that the search of the trunk was a proper inventory search after

police had reasonably impounded the vehicle because there was no




                                    6
known individual immediately available to take custody of the

vehicle. See J.A. 80-85. 2

     At trial, Cartrette testified that he, his brother, Richard

“Ricky” Loggins, and Loggins’ girlfriend had driven to the Wal-

Mart to get dog food, and that the brother and his girlfriend

went to a nearby restaurant while Cartrette went into Wal-Mart.

He paid for the dog food but admitted to shoplifting a bottle of

perfume, valued at $6, for his stepdaugther. 3 When Wal-Mart loss

prevention employees stopped him for shoplifting, they took him

to the loss prevention office in the back of the store. When the

police officers arrived, he said, they laid out his possessions

on a counter, noticed the keys, and asked him where the car was.

He allegedly responded, “the car’s setting in the parking lot,

but it’s not mine.” J.A. 62. Cartrette, denying any knowledge

that the shotgun was in the car, testified that the shotgun

belonged to another brother, Jason Mishoe, and that he had seen

it only once before.




     2
        The district court did, however, suppress Cartrette’s
statements to the officers regarding the shotgun after they
discovered  it,   finding  that,   contrary  to   the  officers’
testimony, Cartrette had not been advised of his right to remain
silent.
     3
       The value of the perfume is not in the record, but
Cartrette’s counsel indicated at oral argument it was worth $6.



                               7
      Mishoe,    however,          testified     that      while     the    gun     had

previously belonged to him, he had given up possession of it

before     the   night        of   Cartrette’s      arrest.     Specifically,       he

testified    that    the      shotgun    found   in    Cartrette’s     trunk      first

belonged to Lisa Pate, a former girlfriend of Mishoe’s who had

once lived with him. Mishoe said he had other guns in his house,

but after he was convicted for assault and battery and child

neglect,    he   was     no    longer    allowed      to   possess    firearms.     He

testified    that    his      father    therefore     took   the   guns,    and    that

Cartrette then took the guns from the father.

      On cross examination, defense counsel introduced a photo,

uploaded to Facebook in 2010, of Mishoe holding two shotguns –

one of them the shotgun later found in Cartrette’s trunk. Mishoe

said the photo was taken in 2009, before he was barred from

possessing firearms. When the prosecutor objected on relevancy

grounds to the introduction of additional photos showing Mishoe

with guns, the court excluded the other photos under Federal

Rule of Evidence 403, which allows a court to exclude relevant

evidence for reasons including undue delay, waste of time, and

the   needless      presentation        of   cumulative      evidence.     The    court

ultimately admitted the photo of Mishoe holding two shotguns,

and a Facebook printout of the same, but excluded the other

photos.



                                             8
     A jury found Cartrette guilty of one count of unlawfully

possessing a firearm after having been convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1). At sentencing, the court

applied   a   two-level        enhancement      for    obstruction      of   justice,

finding that Cartrette perjured himself at trial in that he “was

not credible in the opinion of The Court” and “g[a]ve false

testimony     on   a    material     matter     with     the   willful    intent    to

deceive.” J.A. 353. With a criminal history category of III and

an offense level of 22, including the two-level obstruction of

justice enhancement, the Guidelines range was 51 to 63 months.

Without the enhancement, the range would have been 41 to 51

months. The court sentenced Cartrette to 54 months’ imprisonment

and three years of supervised release.

     Cartrette         filed   a    timely      notice    of    appeal.      We    have

jurisdiction pursuant to 28 U.S.C. § 1291.



                                         II.

     Cartrette argues on appeal that (1) the impoundment of his

vehicle     was    unlawful,       and   thus    the     shotgun    found     in   the

subsequent inventory search should have been suppressed; (2) the

district court erred in excluding certain photos of his brother

holding firearms; and (3) the court erred in applying a two-

level   sentencing       enhancement      for    obstruction       of   justice.    We

address each issue in turn.

                                          9
                                      A.

                                      1.

     Cartrette      first   argues   the    district   court   erred   in    its

denial of his motion to suppress the shotgun found in the trunk

of his car. We review a district court’s factual findings on a

suppression motion for clear error and its legal conclusions de

novo. United States v. Hernandez–Mendez, 626 F.3d 203, 206 (4th

Cir. 2010), cert. denied, 131 S.Ct. 1833 (2011).

                                      2.

     The Fourth Amendment protects the “right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. As a

general rule, the Fourth Amendment requires police to obtain a

warrant before conducting a search. See Maryland v. Dyson, 527

U.S. 465, 466 (1999). “Any evidence obtained in violation of the

Fourth Amendment may be suppressed under the exclusionary rule.”

United States v. Banks, 482 F.3d 733, 738 (4th Cir. 2007). The

Supreme    Court,   however,   has   held    warrantless    searches    to   be

valid if the search “‘falls within one of the narrow and well-

delineated    exceptions’      to    the    Fourth     Amendment’s     warrant

requirement.” United States v. Currence, 446 F.3d 554, 556 (4th

Cir. 2006) (quoting Flippo v. West Virginia, 528 U.S. 11, 13

(1999)).



                                      10
       An inventory search is a well-recognized exception to the

warrant requirement. See South Dakota v. Opperman, 428 U.S. 364,

369-72 (1976). Opperman held that when vehicles are lawfully

impounded,      it    is    reasonable      for    the    police        to   secure     and

inventory      the    vehicle’s     contents      so   long      as    there    exists    a

“standard police procedure” for doing so. Id. at 372. The Court

gave    three    reasons     for    allowing      inventory       searches:       (1)    to

protect the vehicle owner’s property while it remains in police

custody; (2) to protect the police against claims or disputes

over lost or stolen property; and (3) to protect the police from

potential danger. Id. at 369.

       We have stated: “A proper inventory search is merely an

incidental      administrative       step    following         arrest    and    preceding

incarceration, conducted to protect the arrestee from theft of

his possessions, to protect the police from false accusations of

theft, and to remove dangerous items from the arrestee prior to

his jailing.” United States v. Murphy, 552 F.3d 405, 412 (4th

Cir. 2009) (quoting United States v. Banks, 482 F.3d 733, 739

(4th Cir. 2007)). The vehicle must be in the lawful custody of

the police at the time of the search, United States v. Brown,

787    F.2d    929,   932    (4th   Cir.    1986),       and    the    search    must    be

conducted pursuant to standard criteria, Colorado v. Bertine,

479 U.S. 367, 374 n.6 (1987). For an inventory search policy to

be    valid,    “it   must    curtail      the    discretion      of     the    searching

                                            11
officer so as to prevent searches from becoming a ‘ruse for a

general rummaging in order to discover incriminating evidence.’”

Banks, 482 F.3d at 739 (quoting Florida v. Wells, 495 U.S. 1, 4

(1990)).     Officers      must       administer        the     search   in   good   faith.

Bertine, 479 U.S. at 374.

       For   the     police      to    lawfully        impound    a   vehicle      after   an

arrest, the officer must reasonably believe that “there was no

known individual immediately available to take custody of the

car, or [that] the car could have constituted a nuisance in the

area    in   which    it       was    parked.”        Brown,    787   F.2d    at   932.    The

Supreme Court has stated that the impoundment of a vehicle is a

valid     “community       caretaking”            function       of   police.      Cady    v.

Dombrowski, 413 U.S. 433, 441-43 (1973). And while the Court has

been    consistent        in    holding      that       inventory     searches     must    be

conducted according to standardized criteria, see Bertine, 479

U.S. at 374 n.6, the Court has afforded police more discretion

when it comes to the decision to impound vehicles. The Bertine

Court stated that “[n]othing in Opperman or Lafayette prohibits

the     exercise     of    police          discretion      [in    the    impoundment       of

vehicles] so long as that discretion is exercised according to

standard     criteria      and        on   the    basis    of    something     other      than

suspicion of evidence of criminal activity.” Id. at 375.

       In Cabbler v. Superintendent, Virginia State Penitentiary,

528 F.2d 1142 (4th Cir. 1975), we upheld the impoundment and

                                                 12
inventory search of a vehicle left in the driveway of a hospital

emergency department. The police followed Cabbler’s car to a

Roanoke, Virginia, hospital, where Cabbler parked the car in the

driveway and went into the hospital. Id. at 1144. Police entered

the hospital and arrested Cabbler on an outstanding warrant. Id.

While being placed in the police car, Cabbler gave the officers

the keys to his car and asked them to roll up the windows. Id.

In so doing, the officers found a pistol in the back seat. Id.

Cabbler was taken away, and the officers impounded his car and

conducted an inventory search. Id. We upheld the search, noting

the “overwhelming” evidence that the purpose of the impoundment

was to protect the car and its contents. Id. at 1145. We also

observed that the car was a “nuisance” where it was parked – a

hospital driveway. Id. at 1145-46. We thus held that “the police

do not violate the Fourth Amendment when they impound a vehicle

to protect it or to remove a nuisance after arresting the driver

away from his home, and he has no means immediately at hand for

the safekeeping of the vehicle.” Id. at 1146.

     We reaffirmed our Cabbler holding in Brown, 787 F.2d 929.

In Brown, a police officer noticed Brown’s car weaving down the

highway   and   striking   a   parked   car.   Id.   at   930.   The   officer

stopped Brown and administered a field breath test, confirming

that Brown was intoxicated. Id. The officer then determined that

the passengers in the car had also been drinking, making them

                                    13
unavailable to take custody of the vehicle. Id. at 931. The

officer impounded the car, drove it to a police station, and

conducted an inventory search, finding a short-barreled rifle

under the driver’s seat. Id. Brown challenged the impoundment

and search, arguing that the car should have been left in the

custody of his girlfriend, who lived above the business in whose

parking lot the car was located. Id. at 932. We upheld the

impoundment and subsequent search, stating that the question was

not whether there was a need for police to impound the vehicle,

but whether the officer’s decision to impound the vehicle “was

reasonable under the circumstances.” Id. We observed that while

the officer could have tried to reach the girlfriend and leave

the vehicle with her, the decision to not do so did not render

the impoundment unreasonable. Id. We noted that the parking lot

where the vehicle was located was for both apartment dwellers

and business patrons, and so the officers could have reasonably

concluded that the car would have been a nuisance if left in the

lot. Id. Therefore, we held, the police “could reasonably have

impounded   Brown’s   vehicle   either   because   there   was   no   known

individual immediately available to take custody of the car, or

because the car could have constituted a nuisance in the area in

which it was parked.” Id.




                                   14
                                             3.

       In the instant case, no one was immediately available to

take custody of Cartrette’s vehicle, and a reasonable officer

could have concluded that it constituted a nuisance where it was

parked, in a Wal-Mart parking lot. Even if we credit Cartrette’s

testimony that his brother was nearby – testimony the district

court did not find credible, see J.A. 353 – the police were not

required         to    stay    on   the   scene   and   wait    for   the   brother   to

return. See Brown, 787 F.2d at 932 (impoundment reasonable when

no known individual is “immediately available to take custody of

the car”).

       Furthermore, we are not persuaded by Cartrette’s argument

that       the        Conway    Police     Department’s        lack   of    a   written

impoundment           policy    renders    the    impoundment     unlawful.     Bertine

requires standard criteria for impounding vehicles, 479 U.S. at

375, but it does not require the criteria to be in writing.

Here, the testimony of Officers Ridgeway and Hardee indicates

there was a standard procedure to impound vehicles when no one

is immediately available to take custody of the vehicle, and

that they understood and followed that procedure. The district

court was entitled to credit that testimony. 4


       4
        Even apart from its non-precedential status, our
unpublished opinion in United States v. Johnson, Nos. 11-5049,
11-5050, 2012 WL 3538876 (4th Cir. Aug. 17, 2012) (per curiam),
(Continued)
                                             15
     We also find that the inventory search conducted subsequent

to the impoundment was a lawful search that followed the CPD’s

inventory    search    policy.       We   therefore       hold     that     Cartrette’s

vehicle     was   lawfully      impounded        pursuant         to     standard      CPD

procedure,    and     the    inventory      search     was     lawfully        conducted

pursuant to a written policy.

                                          B.

                                          1.

     Cartrette      next    argues     that    the    district         court   erred    in

declining    to   admit      certain      photos     of     his    brother,     Mishoe,

holding     various        firearms.       “We       review       rulings       on     the

admissibility of evidence for abuse of discretion and will only

overturn     an     evidentiary        ruling        that     is       arbitrary       and




cited by Cartrette at oral argument, is of no help to him. In
Johnson, we upheld a vehicle impoundment and inventory search
where the driver was not properly licensed, the owner of the
vehicle was not present, and the vehicle presented a road
hazard. Id. at *1. We held the impoundment properly followed the
procedure spelled out in the Prince George’s County, Maryland,
Police Department General Order Manual, which provides for the
immediate impoundment of vehicles that are “impeding the
movement of traffic” or parked “in a manner constituting a
threat to public safety.” Id. at *3. The Prince George’s County
Police Department’s commendable decision to commit to writing
its impoundment policy does not require other departments to do
the same, nor are other departments required to follow its
standards. Here, it is sufficient that the CPD had a standard
procedure that comported with our holdings in Brown and Cabbler,
and that the district court found that the officers followed
this procedure.



                                          16
irrational.” United States v. DeLeon, 678 F.3d 317, 326 (4th

Cir. 2012) (citing United States v. Cole, 631 F.3d 146, 153 (4th

Cir. 2011)).

                                             2.

      The district court admitted a photo of Mishoe holding two

guns, one of them the shotgun found in Cartrette’s trunk. J.A.

244(a). The court also admitted a printout of Mishoe’s Facebook

page showing that photo. J.A. 244(b). But the court declined to

admit   six     photos      of    Mishoe     with    guns,      and    eight       pages   of

Facebook    printouts         showing    those      photos,     citing       the    marginal

relevance of the photos and principles underlying Federal Rule

of Evidence 403. Cartrette argues that the court’s refusal to

admit these additional photos prejudiced him in that he was not

able to show that Mishoe had a penchant for weapons. Cartrette

also argues that the other pictures “would have buttressed the

defendant’s contention that it was Mishoe who placed the sawed-

off   shotgun    in   the      trunk.”      Cartrette     Br.    11.    These       excluded

photos indeed show Mishoe with weapons, but they do not show him

with the vehicle in which the shotgun was found. The photos are

duplicative     of    the     photo     that   was    admitted:        All    are    undated

photos,    uploaded      to      Facebook    in   2010,    that       show    Mishoe   with

various firearms. (One excluded photo depicts Mishoe making an

obscene gesture, but does not show a firearm.)



                                             17
      Under Federal Rule of Evidence 402, “All relevant evidence

is   admissible,”        and     evidence       which         is   not     relevant       is    not

admissible. However, Rule 403 states:

      Although relevant, evidence may be excluded if its
      probative value is substantially outweighed by the
      danger of unfair prejudice, confusion of the issues,
      or misleading the jury, or by considerations of undue
      delay, waste of time, or needless presentation of
      cumulative evidence.

Fed. R. Evid. 403. The six additional photos excluded by the

district    court       were     cumulative.         The      court      admitted        a     photo

showing Mishoe with the shotgun found in Cartrette’s trunk, and

Cartrette cross-examined Mishoe about the photo. Cartrette has

not shown how the additional, undated photos would have aided

his defense.

      Nor has Cartrette shown the district court abused the broad

discretion        it        is    afforded          on        questions          of      evidence

admissibility.         In     explaining       the       high      bar     for    successfully

challenging       a    Rule      403    decision         by    a    district          court,    the

District of Columbia Circuit stated, “Rule 403 contemplates the

thoughtful    consideration             of   the     trial         court    and       leaves    the

admission    of       evidence     to    the    sound         discretion         of    the     trial

judge.” United States v. Boney, 977 F.2d 624, 631 (D.C. Cir.

1992). The Third Circuit further observed, “If judicial self-

restraint is ever desirable, it is when a Rule 403 analysis of a

trial court is reviewed by an appellate tribunal.” United States


                                               18
v. Long, 574 F.2d 761, 767 (3d Cir. 1978). The Seventh Circuit

added,    “Special   deference   also   is   due    the   district    court’s

assessment of the probative value of evidence because that court

is in the best position to balance probative value against the

danger of unfair prejudice.” United States v. Brown, 7 F.3d 648,

651 (7th Cir. 1993).

     We think these observations have significant salience here.

Because   the   additional   photographs     Cartrette    sought     to    admit

were cumulative of an already admitted photo and would have done

little to bolster Cartrette’s theory of defense, we decline to

find that the court abused its discretion in excluding them.

                                   C.

                                   1.

     Lastly, Cartrette argues that the district court erred in

adding    a   two-level   enhancement   under      U.S.S.G.   §    3C1.1    for

obstruction of justice. In assessing whether a district court

has properly applied the Sentencing Guidelines, we review legal

conclusions de novo and factual findings for clear error. United

States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).

                                   2.

     Cartrette argues that we should vacate the obstruction of

justice enhancement because he did not perjure himself. Under

the Sentencing Guidelines, a two level upward adjustment under §

3C1.1 is warranted

                                   19
       [i]f   (A)  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 (B) the obstructive
       conduct related to (i) the defendant’s offense of
       conviction and any relevant conduct; or (ii) a closely
       related offense.

U.S.S.G.    §     3C1.1      The      covered     conduct     includes        “committing,

suborning, or attempting to suborn perjury.”                        U.S.S.G. § 3C1.1

cmt.    n.4(b).       When   a     defendant      objects    to   an    obstruction        of

justice enhancement stemming from his testimony at trial, the

sentencing court “must review the evidence and make independent

findings    necessary        to       establish    [perjury].”      United       States    v.

Dunnigan, 507 U.S. 87, 95 (1993). Otherwise, imposition of the

enhancement would “be automatic whenever the convicted defendant

had exercised her constitutional right to testify in her own

behalf at trial.” United States v. Smith, 62 F.3d 641, 647–48

n.3 (4th Cir. 1995).

       For a sentencing court to apply the obstruction of justice

enhancement based on 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. Jones,

308 F.3d 425, 428 n.2 (4th Cir. 2002) (citing Dunnigan, 507 U.S.

at    92-98).    We    recently        clarified    how     district        courts   are   to


                                             20
apply U.S.S.G. § 3C1.1: “If a district court does not make a

specific finding as to each element of perjury, it must provide

a finding that clearly establishes each of the three elements.”

United States v. Perez, 661 F.3d 189, 193 (4th Cir. 2011). We

added, “With respect to willfulness, for example, it would, in

the usual case, be enough for the court to say, ‘The defendant

knew that his testimony was false when he gave it,’ but it could

not simply assert, ‘The third element is satisfied.’” Id. In

Perez,   we     held      the     district        court    improperly        applied       the

obstruction of justice enhancement because it did not indicate

that the false testimony concerned a material matter or that it

was willfully given. Id.

      In the instant case, the district court properly found all

three elements of the obstruction of justice enhancement had

been satisfied. As to the first element – that the defendant

gave false testimony – the court stated: “I listened to the

testimony      in   the    evidence     that        was     presented.       He    was     not

credible in the opinion of The Court. I didn’t believe him when

he   testified.     I     don’t    think     the     jury    believed    him        when    he

testified. I’m convinced that he did perjure himself.” J.A. 353.

As to the second and third elements – that the false testimony

concerned a material matter and was given with a willful intent

to   deceive    –   the    court     stated,       “I     think   he   did    give       false

testimony      on   a   material      matter       with     the   willful         intent    to

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deceive.” J.A. 353. The court repeated that statement later in

the sentencing hearing. See J.A. 354. The court also repeated

that it did not believe Cartrette’s testimony, and stated, “I

find that this enhancement applies not just by a preponderance

of the evidence but also beyond a reasonable doubt.” J.A. 354.

        Having made such a finding, the court imposed the two-level

enhancement, giving Cartrette a total offense level of 22 with a

criminal       history    category     of    III,       resulting    in    a     Guidelines

range of 51 to 63 months. The court sentenced Cartrette to 54

months’ imprisonment.

        We hold that the court properly made a specific finding as

to    each     element     of   perjury,          and   we     therefore       affirm    the

obstruction of justice enhancement.



                                            III.

        For the reasons stated, we hold that (1) the impoundment

and     inventory      search   of     Cartrette’s           vehicle      were     lawfully

conducted pursuant to standard police procedures, and therefore

were reasonable under the Fourth Amendment; (2) the district

court    did    not    abuse    its    discretion         in    excluding        cumulative

photos    of    Cartrette’s     brother       holding        firearms;     and     (3)   the

district       court     properly     applied       a    two-level     obstruction        of

justice sentencing enhancement after it made specific findings



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that Cartrette had committed perjury. Accordingly, the judgment

of the district court is

                                                      AFFIRMED.




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