FILED
                                                          United States Court of Appeals
                                PUBLISH                           Tenth Circuit

                UNITED STATES COURT OF APPEALS December 17, 2019
                                                             Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                      Clerk of Court
                      _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                    No. 18-1254
v.                                        (D.C. No. 1:15-CR-00360-RM-5)
                                                     (D. Colo.)
CARLOS FERNANDEZ-BARRON,

       Defendant - Appellant.
                   _________________________________

              Appeal from the United States District Court
                      for the District of Colorado
                   (D.C. No. 1:15-CR-00360-RM-5 )
                   _________________________________

Ty Gee, Haddon, Morgan and Foreman, P.C., Denver, Colorado, for
Defendant-Appellant.

Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-
Appellee.
                    _________________________________

Before BACHARACH, KELLY, and CARSON, Circuit Judges.
               _________________________________

BACHARACH, Circuit Judge.
               _________________________________

     This case involves a drug ring that repeatedly transported large

quantities of cocaine from El Paso to Denver. The government alleged that
Mr. Carlos Fernandez-Barron had participated, supporting this allegation

with evidence referring to two cars: a BMW and Chevrolet Impala.

      The government relied in part on a text message asking Mr.

Fernandez-Barron about the timetable for delivery of a “BMW.” An expert

witness for the government testified that “BMW” was code for a load

delivery of cocaine (rather than an actual BMW). Mr. Fernandez-Barron

denied that the message referred to cocaine, testifying that he had been in

the process of selling his BMW and arranging to deliver the car.

      The references to the Impala stemmed from testimony by another

participant in the drug ring, Ms. Martha Mota. Ms. Mota testified that

           she had driven cocaine to two men in Kansas City and

           the two men had arrived in a car that looked like an Impala.

She stated that one of the men was the same person depicted in a

photograph of Mr. Fernandez-Barron. But Ms. Mota couldn’t recognize this

man in the courtroom during the trial.

      Mr. Fernandez-Barron was ultimately convicted on charges of

conspiracy, distribution, and possession with intent to distribute cocaine. 1



1
      The convictions involved

           conspiracy to distribute and possess with intent to distribute 5
            kilograms or more of a mixture and substance containing a
            detectable amount of cocaine and


                                      2
At sentencing, the district court found that Mr. Fernandez-Barron had

committed perjury when testifying that he

              had sold a BMW in May 2014 and

              did not own an Impala.

For this finding, the district court determined that Mr. Fernandez-Barron

(1) had not sold a BMW until September 2014 and (2) had owned an

Impala. Based on the perjury, the court imposed a two-level enhancement

for obstruction of justice.

      Mr. Fernandez-Barron appeals, challenging the enhancement for

obstruction of justice. We conclude that the district court did not err in

applying the enhancement.

I.    The Finding of Perjury

      The sentencing guidelines call for a two-level enhancement if the

court finds obstruction of justice. U.S.S.G. § 3C1.1. This finding can be

based on perjury. 

n.4(B); see United States v. Dunnigan, 

, 94 (1993) (applying the definition of perjury in 18 U.S.C. § 1621

to review an enhancement for obstruction of justice under U.S.S.G.

§ 3C1.1). “To establish perjury, a district court must conclude the

defendant (1) gave false testimony under oath, (2) about a material matter,


           distribution and possession with intent to distribute 5 kilograms
            or more of a mixture and substance containing a detectable
            amount of cocaine.

                                      3
and (3) the false testimony was willful and not the result of confusion,

mistake or faulty memory.” United States v. Rodebaugh, 

,

1300 (10th Cir. 2015) (quoting United States v. Poe, 

, 1130

(10th Cir. 2009)).

       The district court found all of these elements and imposed a two-

level enhancement for obstruction of justice. Mr. Fernandez-Barron

challenges the findings on willful falsity 2 and materiality, and we reject

these challenges.

II.    The Standard of Review

       In assessing “the district court’s interpretation and application of the

Sentencing Guidelines, we review legal questions de novo and factual

findings for clear error.” United States v. Mollner, 

, 714 (10th

Cir. 2011).

III.   Perjury Regarding the BMW

       The district court concluded that (1) Mr. Fernandez-Barron had

willfully given false testimony about when he sold his BMW and (2) this

false testimony was material. On appeal, Mr. Fernandez-Barron argues that

the testimony was immaterial and apparently challenges the element of

willful falsity.


2
       In his opening brief, Mr. Fernandez-Barron asserts that his testimony
about the Impala was not false. But rather than develop this assertion, he
argues that he did not willfully give false testimony because he was
testifying based on his colloquial understanding of “ownership.”
                                       4
     A.    Materiality

     The threshold issue is the materiality of Mr. Fernandez-Barron’s

testimony about when he sold his BMW.

     1.    The Standard for Reviewing the District Court’s Conclusion
           on Materiality

     The element of materiality involves “a mixed question of law and

fact.” United States v. Gaudin, 

, 512 (1995) (citation

omitted). When a mixed question of law and fact primarily involves legal

principles, we engage in de novo review. Littlejohn v. Royal, 

,

558 n.3 (10th Cir. 2017), cert. denied, 

(2018).

     Mr. Fernandez-Barron argues that materiality primarily involves a

legal issue, which precludes deference to the district court’s decision. For

the sake of argument, we assume that Mr. Fernandez-Barron is right.

     2.    The Effect of the Testimony on the Government’s Theory
           Involving the Text Message

     The standard for materiality is whether the false testimony bears “a

natural tendency to influence or was capable of influencing the decision

required to be made.” United States v. Allen, 

, 67 (10th Cir.

1989). This standard is “conspicuously low.” United States v. Bedford, 

, 1326 (10th Cir. 2006) (quoting United States v. Dedeker, 

, 167 (11th Cir. 1992)).

     The government’s evidence against Mr. Fernandez-Barron included

text messages and records of telephone calls between Mr. Fernandez-

                                      5
Barron and other members of the conspiracy. Many of the messages and

calls corresponded with the arrival dates of cocaine deliveries. For

example, shortly before one delivery of cocaine, Mr. Molina-Villalobos

texted Mr. Fernandez-Barron (in Spanish): “Where do we pick up the

BMW, Buddy?” R. vol. I, at 165.




      The government’s expert witness explained that the text message

constituted code to pick up a car full of cocaine—not to pick up an actual

BMW. But the expert witness conceded that his explanation would be

undermined if Mr. Fernandez-Barron had been conducting a transaction

involving an actual BMW. 3

      Mr. Fernandez-Barron later testified that


3
      The expert witness testified:

      Q.    Well, let’s put it in a more practical context. So if I
      understand what you are saying, if you had more information that
      delineated a -- the existence of this car, and some background or
      basis for the car, it was a real car, it was being bought and sold,
      that could influence your conclusion, couldn’t it?

      A.     Sure. regarding this specific exchange, if there was, in
      fact, a BMW that was transacted between these individuals, at
      that time, that would absolutely affect that specific text-message
      exchange. Yes.

R., vol. III, at 1270.

                                      6
          he had owned a BMW,

          he had sold it to Mr. Lucio Lozano in May 2014, and

          the text message had related to this sale, not to a delivery of
           cocaine.

This testimony directly rebutted the government’s evidence linking Mr.

Fernandez-Barron to the delivery of cocaine in May 2014.

     The district court ultimately found that Mr. Fernandez-Barron’s

testimony was false because he hadn’t sold his BMW until September

2014, and the sale was to a dealership rather than to Mr. Lozano. The court

regarded the circumstances of the sale as material, reasoning that Mr.

Fernandez-Barron’s testimony could influence the jury’s interpretation of

the text message.

     3.    Mr. Fernandez-Barron’s Arguments

     Mr. Fernandez-Barron contends that the circumstances of the sale

were immaterial, pointing to (1) the weakness of the government’s

evidence on code words and (2) the district court’s later findings.

     a.    Weakness of the Government’s Evidence on Code Words

     Mr. Fernandez-Barron contends that the government’s evidence on

code words was so weak that his testimony could not have influenced the

jury. This contention overstates the burden for materiality. “[F]or

testimony to be material, ‘it need not have an actual effect; it merely must

be capable of influencing the [jury].’” United States v. Hasan, 

1121, 1140 (10th Cir. 2010) (quoting United States v. Girdner, 

, 259 (10th Cir. 1985)). Regardless of the strength of the expert

witness’s testimony, it linked Mr. Fernandez-Barron to the conspiracy. And

if the court had credited Mr. Fernandez-Barron’s testimony about the sale

of his BMW, that testimony would have pulverized this link to the

conspiracy. Mr. Fernandez-Barron’s testimony could thus affect the jury’s

finding on when he had entered the conspiracy.

     Given this potential effect on the findings, Mr. Fernandez-Barron’s

testimony was material regardless of the alleged weakness of the

government’s evidence involving the text message.

     b.    Impact of the Court’s Findings on Materiality

     Mr. Fernandez-Barron also relies on the court’s later findings to

prove immateriality of his testimony about the BMW. Those findings

related to the timing of Mr. Fernandez-Barron’s entry into the conspiracy.

     The district court ultimately found, for sentencing purposes, that Mr.

Fernandez-Barron hadn’t joined the conspiracy until March 2015—nearly a

year after he received the text message about the BMW. Mr. Fernandez-

Barron argues that the district court’s finding rendered the BMW testimony

immaterial. We disagree.

     Materiality is based on the circumstances existing when the

defendant gave the false testimony, not the circumstances that developed

later. United States v. Allen, 

, 68 (10th Cir. 1989). When Mr.

                                     8
Fernandez-Barron testified, neither the jury nor the judge had made a

finding on Mr. Fernandez-Barron’s participation in the conspiracy. Without

a finding, the jury was free to consider whether he had entered into the

conspiracy any time from December 2013 to September 2015. So when Mr.

Fernandez-Barron testified that he had sold the BMW in May 2014, this

testimony could have led the jury to find that he hadn’t yet joined the

conspiracy; 4 the court’s later finding could not diminish the materiality of

Mr. Fernandez-Barron’s BMW testimony when it was given.

      B.    Willful Falsity

      Mr. Fernandez-Barron also argues that if his explanation had been a

lie, it would have foolishly tied him more closely to the ringleader of the

drug ring, Mr. Lozano. For this argument, Mr. Fernandez-Barron does not

specify which element he is rebutting; we assume that the argument relates

to willfulness.

      However the argument is framed, it mistakenly assumes that Mr.

Fernandez-Barron hadn’t already exposed his connection to Mr. Lozano.

But before Mr. Fernandez-Barron testified, defense counsel had already


4
      Mr. Fernandez-Barron argues that the load in May 2014 was not a
material issue at trial because the government had not lodged a charge
based on that load. But Mr. Fernandez-Barron’s involvement in that load
could have affected the timing of his entry into the conspiracy, and the
superseding indictment alleged that he had entered into the conspiracy in
December 2013. So Mr. Fernandez-Barron’s involvement in a load in May
2014 could support the government’s allegation that he had entered into
the conspiracy as early as May 2014.
                                      9
said in his opening statement that Mr. Lozano was a client of Mr.

Fernandez-Barron’s car-repair business:

           Now, understanding that during this time Mr. Licon is also
     kind of going back and forth to Mexico, and so when he is back
     here, they are connecting. And so, at this -- and then Licon also
     owned a transmission shop in 2010 about this time, and [Mr.
     Fernandez-Barron] would work out of that shop, and it was at
     that shop that he met Mr. Lozano. And Mr. Lozano. would come
     in, he would check out cars, and eventually he asked [Mr.
     Fernandez-Barron] to do work for him.

           He asked [Mr. Fernandez-Barron] to help him fix cars, and
     [Mr. Fernandez-Barron] saw that as a good business opportunity.
     Lozano was a good client. So he helped him with his cars.

R., vol. III, at 1281. 5 So Mr. Fernandez-Barron’s testimony did not suggest

a stronger connection to Mr. Lozano than defense counsel had already

highlighted in his opening statement.

     Nor did Mr. Fernandez-Barron’s explanation suggest any criminality.

To the contrary, his explanation distanced himself from the conspiracy as

someone who had just worked on Mr. Lozano’s cars and sold him a BMW.

     We thus have little reason to disturb the district court’s findings

based on Mr. Fernandez-Barron’s argument that a lie would have foolishly

tied him more closely to Mr. Lozano.




5
     Elsewhere in his opening statement, defense counsel discussed Mr.
Fernandez-Barron’s painting of Mr. Lozano’s Silverado and work with Mr.
Lozano on a Ford Raptor. R., vol. III, at 1282.

                                     10
IV.   Perjury Regarding the Impala

      The district court also found that Mr. Fernandez-Barron had

committed perjury when testifying about his Impala. The government

presented testimony suggesting that (1) an Impala had been involved in a

drug transaction in Kansas City and (2) Mr. Fernandez-Barron had an

Impala registered under his name. So when he testified, he was asked about

his connection to the Impala.

      On direct examination, Mr. Fernandez-Barron quickly admitted that

an Impala had been registered under his name; but he insisted that he did

not consider himself the owner because he had sold the car to Mr. Licon-

Gallegos. On cross-examination, Mr. Fernandez-Barron adhered to this

distinction between registration and ownership. The district court

ultimately disbelieved Mr. Fernandez-Barron and found that he had

committed perjury when denying ownership of the car.

      Mr. Fernandez-Barron argues that his testimony about the Impala was

neither willfully false nor material. We reject both arguments.

      A.   Willful Falsity

      The district court found that the testimony about the Impala was

willfully false based on doubts about Mr. Fernandez-Barron’s credibility

and his experience in buying and selling cars:

      My reaction to [Mr. Fernandez-Barron’s argument] is that it’s
      unmitigated nonsense. First, the plates to the Impala are in his
      name. The explanation for that, which isn’t an explanation, as to

                                     11
     how you go and get plates for a car, without a title, or a bill of
     sale or some indicia of ownership, I doubt that I could go to the
     D.M.V., Mr. McNeilly [government counsel], and say that I’m
     going to get plates for your car, without something indicating
     some right or title it to that car. But putting that to the side, the
     answer---the explanation was, it wasn’t an issue for him to ask
     me to get plates. That simply is not an answer.

          . . . If you are in the business in the dealing of automobiles,
     you know what titles are. You know how these documents work.
     You have to know, if you’re buying and selling them, as he is
     doing on a regular basis, as part of his job.

           The notion that, as he said at the trial, he didn’t know what
     perjury meant. Also said that he didn’t – he understood the word
     owner to mean the person who puts the plates on, drives the car
     and perhaps pays for it, that that’s what an owner meant to him.
     That is simply unbelievable that the documents he swears under
     penalty of perjury, that he is the owner, and comes up with these
     fanciful explanations for he didn’t really know what the word
     owner meant. He didn’t really know what the word perjury
     meant. . . . [I]t’s just too much. It’s beyond the pale.

R., vol. III, at 1652–53. We review this finding for clear error. United

States v. Hammers, No. 18-7051, ___ F.3d ___, 

, at *9

(10th Cir. Nov. 12, 2019).

     As Mr. Fernandez-Barron argues, he quickly admitted that the car

was registered in his name; this part of the testimony didn’t constitute

perjury. But Mr. Fernandez-Barron repeatedly insisted that he didn’t

consider himself the car’s owner.

     When pressed on cross-examination, Mr. Fernandez-Barron admitted

that he had signed documents swearing to ownership of the Impala after

allegedly selling the car to Mr. Licon-Gallegos. Mr. Fernandez-Barron also


                                      12
acknowledged that registration made him the legal owner. But Mr.

Fernandez-Barron explained that his colloquial concept of ownership had

created confusion about the documents and the questions posed in cross-

examination.

      Despite his assertion of confusion, Mr. Fernandez-Barron had signed

documents under penalty of perjury stating that he owned the Impala. And

he often bought and sold cars, which could suggest familiarity with state

laws governing ownership.

      Were we the fact-finder, we might have credited Mr. Fernandez-

Barron’s testimony that he’d been confused. But the question is not what

we would have found. The question is whether the district court committed

clear error. See Part IV(A), above. Given Mr. Fernandez-Barron’s sworn

statements about ownership and his experience in buying and selling cars,

the district court could reasonably find that Mr. Fernandez-Barron had

known that he was the owner and had been lying when he professed

confusion over the questions about ownership. The district court’s finding

on willful falsity thus did not constitute clear error.

      B.    Materiality

      The district court also regarded this testimony as material. Mr.

Fernandez-Barron argues that the testimony was not material because

           he had been extensively cross-examined on his connection to
            the Impala,


                                       13
           the Impala evidence was so weak that any false testimony could
            not have influenced the jury,

           his ownership of the car had little bearing on his guilt, and

           the district court’s later findings rendered the testimony
            immaterial.

We reject each argument. 6

      1.    Extent of Cross-Examination

      As discussed above, the government pressed Mr. Fernandez-Barron

on cross-examination about his denial of ownership. In his reply brief, he

contends that this cross-examination drained the impact from his



6
      The parties have briefed materiality of the Impala for two separate
incidents. The first incident involves Ms. Mota’s identification of Mr.
Fernandez-Barron in Kansas City. The second incident involves Mr.
Fernandez-Barron’s presence at a stash house near Denver. The district
court’s explanation of materiality relied on the second incident.

      But Mr. Fernandez-Barron urges us to treat materiality as a question
of law with no deference to the district court’s decision. See Part III(A)(1),
above. We can thus base materiality on the Kansas City incident even
though the district court had discussed materiality for a different incident.
See United States v. Haas, 

, 268 (5th Cir. 1999) (“Although
the district court made no explicit findings as to the materiality of the
perjurious statements, it is clear to us, as a matter of law, that those
statements were material.”); United States v. May, 

, 607 (6th
Cir. 2009) (“While the district court did not rule that each of these
statements was material [for purposes of the enhancement in § 3C1.1], we
will not remand a case back to the district court solely for a finding as to
materiality because we may answer such a question for ourselves.”).

      Based on the Kansas City incident, we conclude that the false
testimony was material. We thus need not discuss the district court’s
reliance on the incident at the stash house.

                                     14
distinction between registration and ownership. This contention was

waived and is invalid.

      Mr. Fernandez-Barron waived the argument by omitting it in his

opening brief. He did present this argument in his reply brief. There he

stated that he was continuing an argument from pages 18–19 of his opening

brief. But on those pages in the opening brief, he was simply quoting trial

testimony with no legal argument. This argument does not appear in the

opening brief, and raising the argument in the reply brief was too late.

United States v. Duran, 

, 

, at *5 n.3 (10th

Cir. 2019).

      Even if Mr. Fernandez-Barron had properly presented this argument

in his opening brief, it would be invalid because it uses the wrong time

period to gauge materiality. We gauge the materiality of false testimony

when it was given, not with the gloss of later information. See United

States v. Allen, 

, 68 (10th Cir. 1989) (“The materiality test is

determined at the time and for the purpose for which the allegedly false

statement was made.”). So if someone lies on direct examination and

admits the lie on cross-examination, the original lie doesn’t become

immaterial with the later admission. See United States v. Norris, 

, 574 (1937) (concluding that perjury is not cured by a later truthful

disclosure because “the oath administered to the witness calls on him

freely to disclose the truth in the first instance and not to put the court and

                                      15
the parties to the disadvantage, hinderance, and delay of ultimately

extracting the truth by cross-examination”).

      For this argument, Mr. Fernandez-Barron cites United States v.

Langston, 

(10th Cir. 1992). The issue there was the effect of

the government’s failure to correct a witness’s false testimony on direct

examination. In addressing this issue, we concluded that the allegedly false

testimony was immaterial because the witness had fully acknowledged the

facts on cross-examination. 

–701.

      Drawing on this conclusion, Mr. Fernandez-Barron argues that any

false testimony about the Impala became immaterial because of his

statements on cross-examination. But Langston does not support this

argument. The Langston court examined whether the defendant had been

deprived of due process, and the test for materiality was identical to the

test for harmless constitutional error. 

      One could conceivably apply Langston to conclude that Mr.

Fernandez-Barron’s false testimony about the Impala had not contributed

to the conviction because his underlying lie had been exposed on cross-

examination. But in assessing whether the district court had erred in

applying the enhancement, the Court doesn’t gauge materiality by

determining whether the false testimony had contributed to the verdict. See

Part III(A)(3), above. So Langston sheds little light on the materiality of

Mr. Fernandez-Barron’s testimony.

                                      16
     When he testified falsely about the Impala, his connection to the car

hadn’t been decided. If his connection to the Impala was material at that

time, the perjury wouldn’t vanish with a later revelation during cross-

examination.

     2.    Weakness of the Government’s Evidence Tying Mr.
           Fernandez-Barron to the Impala

     Mr. Fernandez-Barron argues that the government’s evidence about

the Impala was so weak that any false testimony could not have influenced

the jury. To evaluate this argument, we consider the government’s

evidence tying Mr. Fernandez-Barron to the Impala.

     The government argued that one of the load drivers, Ms. Martha

Mota, had seen Mr. Fernandez-Barron in Kansas City when he drove up in

an Impala. According to the government, Mr. Fernandez-Barron owned the

Impala.

     Ms. Mota’s identification of Mr. Fernandez-Barron was weak. She

testified that the man she had seen in the Impala was the man depicted in a

photograph of Mr. Fernandez-Barron. But during the trial, she couldn’t

recognize Mr. Fernandez-Barron as one of the men that she had seen in the

Impala. She was equally unsure about whether the car was an Impala. She

thought that it looked like a police car and guessed that the car was an

Impala.




                                     17
      But the government continued to advance its theory that the car Ms.

Mota had seen was Mr. Fernandez-Barron’s Impala. R., vol. III, at 1558–

59, 1564 (government’s rebuttal closing argument). So when Mr.

Fernandez-Barron testified, he had no way of knowing what the jury would

ultimately find. See Part III(A)(3)(a), above. Given this uncertainty, his

false testimony about ownership of the Impala was material.

      3.   Use of the Impala

      Mr. Fernandez-Barron also contends that ownership doesn’t matter

because Ms. Mota’s testimony was based on use of the Impala (not

ownership). Even if Mr. Fernandez-Barron did not own the car, Ms. Mota

could have still seen him in Kansas City. But ownership tied Mr.

Fernandez-Barron more closely to the Impala, and his efforts to distance

himself from the car weakened the government’s theory that he had met

Ms. Mota in Kansas City.

      Indeed, in his opening statement, defense counsel had underscored

the eventual distinction that Mr. Fernandez-Barron would later draw in his

testimony between registration and his colloquial concept of “ownership”:

            The Impala is registered to Mr. Fernandez-Barron, but it’s
      actually owned by Licon-Gallegos, because at the time, Mr.
      Fernandez-Barron’s belief that Licon-Gallegos didn’t have a
      license, and so he couldn’t register the car, so he registered it
      for him.

R., vol. III, at 1284. And, of course, Mr. Fernandez-Barron pointedly

testified on direct examination that he had relinquished ownership of the

                                     18
Impala in February 2013—long before Ms. Mota saw the car in Kansas

City. So if Mr. Fernandez-Barron lied about ownership, he would have

been lying about a factual issue that his own counsel thought material

enough to inject into the trial.

      4.    The District Court’s Later Findings

      Mr. Fernandez-Barron also challenges the finding of materiality

based on the district court’s later finding that he had joined the conspiracy

in March 2015, long after the Kansas City incident with Ms. Mota.

According to Mr. Fernandez-Barron, the later finding renders the Impala

testimony immaterial.

      We disagree. When Mr. Fernandez-Barron testified, the date of his

entry into the conspiracy involved an open issue for the jury and the judge

to decide. So the court’s later finding couldn’t affect materiality of the

testimony when it was given. See Part III(A)(3)(b), above.

V.    Conclusion

      We conclude that the district court did not err in applying the

enhancement for obstruction of justice. Mr. Fernandez-Barron’s false

testimony about the BMW directly contradicted the government’s theory

tying him to the conspiracy in May 2014. The court thus did not err in

determining that his testimony about the BMW was willfully false and

material.



                                      19
     Nor did the court err in finding perjury for his testimony about the

Impala. Ms. Mota testified that the man she had seen had a car that looked

like an Impala and identified Mr. Fernandez-Barron from a photograph. To

counter this identification, Mr. Fernandez-Barron testified that he hadn’t

even owned an Impala. Given his testimony and Ms. Mota’s, the district

court did not err in determining that Mr. Fernandez-Barron had willfully

given false and material testimony about ownership of the Impala.

     We thus conclude that the district court did not err in finding perjury

for both the BMW and the Impala testimony. Given these conclusions, we

affirm the sentence.




                                     20