US v. Lonnie Cartrette

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 4:11-cr-00400-RBH-1 Copies to all parties and the district court/agency. [999012264].. [12-4186]

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UNPUBLISHED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Affirmed by unpublished opinion.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.

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Unpublished opinions are not binding precedent in this circuit.

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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

properly

impound

shoplifting,
revealed

the

and

principally
his
that

weapon)

argues

vehicle
the
was

after

subsequent
thus

that

the

he

police

was

inventory

invalid.

He

also

did

arrested
search

not
for

(which

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

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1.
2.

3.

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Officers
will
routinely
conduct
a
warrantless
inventory of any lawfully impounded vehicle.
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.
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:

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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

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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 WalMart 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.

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testified

that

while

the

gun

had

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

the

testified

night

that

of

the

Cartrette’s

shotgun

found

arrest.
in

Specifically,

Cartrette’s

trunk

he

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,
testified

he

was

that

no

his

longer
father

allowed
therefore

to

possess

took

the

firearms.

guns,

and

He

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.

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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 twolevel

sentencing

enhancement

for

address each issue in turn.
9

obstruction

of

justice.

We

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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 welldelineated

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)).

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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,
inventory

it
the

is

reasonable

vehicle’s

for

contents

the
so

police

long

as

to

secure

there

and

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
11

discretion

of

the

searching

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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
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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
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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.

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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

impoundment

Conway
policy

Police

Department’s

renders

the

lack

impoundment

of

a

unlawful.

written
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)
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We also find that the inventory search conducted subsequent
to the impoundment was a lawful search that followed the CPD’s
inventory
vehicle

search
was

procedure,

policy.

lawfully

and

the

We

therefore

impounded

inventory

hold

pursuant

search

that
to

was

Cartrette’s

standard

lawfully

CPD

conducted

pursuant to a written policy.
B.
1.
Cartrette
declining
holding

to

next
admit

argues

various

certain
firearms.

that

the

photos
“We

district
of

his

review

court
brother,

rulings

erred

in

Mishoe,
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.

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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

Facebook

photos

of

printouts

Mishoe

showing

with

those

guns,
photos,

and

eight

citing

pages

the

of

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 sawedoff

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
photos,

of

the

uploaded

to

photo

that

Facebook

was

in

admitted:

2010,

that

All
show

are

undated

Mishoe

with

various firearms. (One excluded photo depicts Mishoe making an
obscene gesture, but does not show a firearm.)

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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

admissibility.

In

challenging

Rule

a

afforded

explaining
403

on
the

decision

questions
high
by

bar
a

of

for

evidence

successfully

district

court,

the

District of Columbia Circuit stated, “Rule 403 contemplates the
thoughtful
admission

consideration
of

evidence

to

of

the

the

trial

sound

court

and

discretion

of

leaves
the

the

trial

judge.” United States v. Boney, 977 F.2d 624, 631 (D.C. Cir.
1992). The Third Circuit further observed, “If judicial selfrestraint is ever desirable, it is when a Rule 403 analysis of a
trial court is reviewed by an appellate tribunal.” United States

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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
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[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

suborning, or attempting to suborn perjury.”
cmt.

n.4(b).

When

a

defendant

objects

to

“committing,

U.S.S.G. § 3C1.1
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

20

how

district

courts

are

to

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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

testimony

–
on

the
a

court

material

stated,
matter
21

“I

think

with

the

he

did

willful

give

false

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

photos

of

district

not

abuse

Cartrette’s
court

its

discretion

brother

properly

in

holding

applied

a

excluding

firearms;

two-level

cumulative

and

(3)

obstruction

the
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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