                 Rehearing granted, February 13, 2006

                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 04-4064



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

             versus


LESLIE FOUNTRESA FREEMAN,

                                                  Defendant - Appellant.


Appeal from the United States District           Court for the Western
District of North Carolina, at Charlotte.        Graham C. Mullen, Chief
District Judge. (CR-02-191-MU)


Submitted:    August 25, 2004                 Decided:   December 9, 2004


Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:

            Leslie Fountresa Freeman appeals her convictions and

sentence for possession with intent to distribute 500 grams or more

of cocaine under 21 U.S.C. § 841(a)(1) (2000), and importation of

500 grams or more of cocaine into the United States under 21 U.S.C.

§ 952(a) (2000).

            On July 26, 2002, Freeman arrived in Charlotte, North

Carolina, from Montego Bay, Jamaica. After going through an initial

inspection with the customs agent, Freeman was sent for a secondary

inspection because she appeared to be nervous.              A search of her

suitcases revealed 2.07 pounds of powdered cocaine concealed in the

side rails.      Special Agent Jennifer Havies testified that Freeman

was    questioned     regarding    the   cocaine    and   gave    inconsistent

statements as to the number of suitcases she had taken to Jamaica

and the name of the person who paid for her ticket (Antwan Freeman

or Antwan Stanley).      Freeman testified and denied any knowledge of

the cocaine in her suitcase.       She stated that she had made a mistake

when she told the customs agent that Antwan Freeman had purchased

her ticket.

            At the close of the Government’s case, Freeman moved for

a     judgment   of   acquittal,    asserting      that   the    evidence   was

insufficient to support the charges because the evidence at trial

showed Freeman possessed less than 500 grams but the indictment

alleged more than 500 grams of cocaine. The district court deferred

ruling on the motion.     At the close of the case, Freeman renewed her

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motion for a judgment of acquittal, which the court denied. Freeman

also raised the possibility that failure to submit the drug amount

to the jury would violate the ruling in Apprendi v. New Jersey, 530

U.S. 466 (2000). However, the court explained that Apprendi was not

an issue because the drug quantity in this case would not increase

the maximum penalty. Consequently, in its instructions to the jury,

the district court explained that the evidence at trial revealed

less than 500 grams of cocaine and that the jury should not consider

the specific quantity in making its determination because it was not

an essential element of the offense.       The jury found Freeman guilty

on both counts.

             At   sentencing,   the   district   court   sustained   the

Government’s objections to the presentence investigation report’s

(“PSR”) finding that a two-level enhancement for obstruction of

justice was not warranted.      With the two-level enhancement, Freeman

was sentenced to fifty-one months of imprisonment on each count, to

be served concurrently, and a three-year term of supervised release.

             Freeman contends that the district court erred in denying

her motion for a judgment of acquittal.       This court reviews de novo

a district court’s decision to deny a motion for judgment of

acquittal.    United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.

2001).   When, as here, the motion challenges the sufficiency of the

evidence at trial, the relevant question is whether, taking the view

most favorable to the Government, there is substantial evidence to

support the jury verdict.       See Glasser v. United States, 315 U.S.

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60,   80   (1942).    “[S]ubstantial     evidence      is   evidence   that   a

reasonable finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”    United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).

             The offense of possession with the intent to distribute

drugs requires that the Government prove beyond a reasonable doubt

that the defendant: (1) knowingly, (2) possessed the drugs, (3) with

the intent to distribute them.      Id. at 873.       An intent to distribute

can be inferred if the amount of drugs found exceeds an amount

associated with personal consumption.          See United States v. Wright,

991 F.2d 1182, 1187 (4th Cir. 1993).               To prove that Freeman

unlawfully imported cocaine under 21 U.S.C. § 952(a), the Government

had to show that Freeman: (1) knowingly, (2) imported a narcotic

controlled substance into the United States, (3) from any place

outside of the United States.      21 U.S.C. § 952(a); United States v.

Restrepo-Granda,     575   F.2d   524   (5th   Cir.    1978)   (holding   that

knowledge that a substance is a controlled substance is an element

of § 952).

             We find that there was sufficient evidence to support both

convictions.    The evidence at trial showed that Freeman arrived in

Charlotte, North Carolina, from Montego Bay, Jamaica, carrying 386

grams of powdered cocaine in her suitcase (an amount exceeding any

amount associated with personal consumption).            Freeman appeared to

be nervous at the customs inspection, gave inconsistent statements

as to the number of suitcases she had taken to Jamaica and the name

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of the person who paid for her ticket, and gave evasive answers.

Freeman’s only argument on appeal is that the evidence at trial,

showing the drug quantity to be 386 grams, varied from the facts in

the indictment, alleging more than 500 grams of cocaine.          However,

because drug quantity is not an element of the offense, we find that

this argument is without merit.         See United States v. Angle, 254

F.3d 514, 517 (4th Cir. 2001).     Further, to the extent there was a

variance, there is no evidence that Freeman was convicted of an

offense other than that charged in the indictment or that the

alleged variance infringed Freeman’s substantial rights and resulted

in actual prejudice.   See United States v. Kennedy, 32 F.3d 876, 883

(4th Cir. 1994); United States v. Schnabel, 939 F.2d 197, 203 (4th

Cir. 1991).   Therefore, the district court did not err in denying

Freeman’s motion for a judgment of acquittal.

           Freeman   maintains   that    the   district   court   erred   in

applying a two-level sentencing enhancement for obstruction of

justice.   Such an enhancement is allowed when a defendant willfully

obstructs or impedes the administration of justice during the

investigation, prosecution, or sentencing of an offense.              U.S.

Sentencing Guidelines Manual § 3C1.1 (2002).        The district court’s

factual findings are reviewed for clear error, and its application

of the sentencing guidelines is reviewed de novo.         United States v.

Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).         The district court

determines issues related to sentencing by a preponderance of the

evidence standard.     United States v. Engleman, 916 F.2d 182, 184

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(4th Cir. 1990).

              The PSR did not recommend an obstruction of justice

enhancement.       The Government objected to the PSR and argued that an

enhancement was warranted because Freeman testified at trial and

denied involvement in the criminal activities for which she was

found guilty. The district court, citing United States v. Dunnigan,

507   U.S.    87   (1993),   concluded   that   an   obstruction   of   justice

enhancement was required because Freeman denied any involvement with

drugs at trial.      Freeman objected to the enhancement on the grounds

that she did not receive notice of the possible enhancement.

              Obstruction of justice includes “committing, suborning,

or attempting to suborn perjury,” and “providing materially false

information to a judge or magistrate.”               USSG § 3C1.1, comment.

(n. 4).      Material information means information that “would tend to

influence or affect the issue under determination.”            USSG § 3C1.1,

comment. (n. 6).       This court has held that perjury is established

when the sentencing court finds by a preponderance of the evidence

that a witness who testifies under oath or affirmation: (1) gives

false testimony; (2) concerning a material matter; (3) with the

willful intent to deceive, rather than as a result of confusion or

mistake.      United States v. Jones, 308 F.3d 425, 428 n.2 (4th Cir.

2002) (citing Dunnigan, 507 U.S. at 92-98), cert. denied, 537 U.S.

1241 (2003).

              Because not every accused who testifies at trial and is

convicted is subject to the sentencing enhancement, a district court

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must review the evidence and make the independent findings necessary

to establish a willful impediment to or obstruction of justice, or

an attempt to do the same.       Dunnigan, 507 U.S. at 95.       When making

the findings, it is preferable for a district court to address each

element of the alleged perjury in a separate and clear finding.

“The district court’s determination that enhancement is required is

sufficient, however, if . . . the court makes a finding of an

obstruction of, or impediment to, justice that encompasses all of

the factual predicates for . . . perjury.”            Id.; see also United

States v. Stotts, 113 F.3d 493, 498 (4th Cir. 1997) (requiring the

district court to address each element of the alleged perjury in a

separate finding or make a global finding that encompasses each

factual predicate for a perjury finding).

      We first agree with the district court that Freeman received

adequate notice of the enhancement as required by Fed. R. Crim. P.

32.    Defense   counsel   was   first     notified   of   the   Government’s

objection by letter on August 13, 2003.        On September 11, 2003, the

probation officer’s addendum to the PSR stated that the objection

had been reviewed and that the court would rule on unresolved issues

at sentencing, which was held on November 18, 2003.          At sentencing,

the district court gave defense counsel and the defendant the

opportunity to be heard on the enhancement.

      At sentencing, the court did not expressly address the three

elements required for an obstruction of justice enhancement. Rather,

the court stated that Freeman’s case required an obstruction of

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justice enhancement because she took the stand and denied any

involvement in any criminal activity.          The main issue in the case

was whether Freeman knowingly possessed cocaine in her suitcase.

Because Freeman testified under oath that she did not know that

there was cocaine in her suitcase, and the jury found that she

knowingly possessed with intent to distribute cocaine and knowingly

imported   cocaine,   we   uphold    the    district   court’s   finding   of

obstruction as it “sufficiently encompassed all of the factual

predicates for a perjury finding.”          Stotts, 113 F.3d at 498; see

also United States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001).

           We therefore deny Freeman’s request for appointment of new

counsel and affirm her convictions and sentence.          We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.



                                                                   AFFIRMED




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