PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA,
Pl aintiff - Appellee,

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

________________ _________________ 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 Stat es Attorney (Jas on R. Dunn, United States Attorney, with hi m on the brief), Denver, Colorado, for PlaintiffAppellee.

________________ _________________ Before BACHARACH , KELLY , and CARSON , Circuit Judges.

________________ _________________ BACHARACH , Circuit Judge.

________________ _________________ This case involves a drug ring that repeat edly transported large quantities of cocaine from El Paso to Denver. Th e government al leged that FILED United States Court of Appeals Tenth Circuit 

### December 17, 2019
Elisabeth A. Shumaker Clerk of Court2 Mr. Carlos Fernandez-Ba rron had participated, s upporting this allegation with evidence referring to two ca rs: a BMW and Chevrolet Impala. The government relied in part on a text messag e asking Mr. Fernandez-Barron about th e timetable for delivery of a “BMW.” An expert witness for the governmen t 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 an d arranging to de liver the car. The references to the Impala st emmed from testimony by another participant in the drug ring, Ms. Mart ha Mota. Ms. Mota testified that

 she had driven cocaine to tw o men in Kansas City and

 the two men had arrive d in a car that looked like an Impala. She stated that one of the men wa s the same person depicted in a photograph of Mr. Fernandez-Barron. Bu t Ms. Mota couldn’t recognize this man in the courtroom during the trial. Mr. Fernandez-Barron was ultimat ely convicted on charges of conspiracy, distribution, and possession with intent to distribute cocaine. 1

1 The convictio ns involved

 conspiracy to distribute and posse ss with intent to distribute 5 kilograms or more of a mixtur e and substance containing a detectable amount of cocaine and3 At sentencing, the district court found that Mr. Fe rnandez-Barron had committed perjur y 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 BM W 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 dist rict court did not err in applying the enhancement.
I. The Finding of Perjury The sentencing guideli nes call for a two-leve l enhancement if the court finds obstruct ion of justice. U.S.S.G. § 3C1.1. This finding can be based on perjury. Id. at cmt. n.4(B); see United States v. Dunnigan , 507 U.S. 87, 94 (1993) (applying the definition of pe rjury in 18 U.S.C. § 1621 to review an enhancement for obst ruction of justi ce under U.S.S.G. § 3C1.1). “To establish perjury, a district court must conclude the defendant (1) gave false testimony under oath, (2) a bout a material matter,

 distribution and possessi on with intent to distribute 5 kilograms or more of a mixture and subs tance containing a detectable amount of cocaine.4 and (3) the false testimony was willfu l and not the result of confusion, mistake or faulty memory.” United States v. Rodebaugh , 798 F.3d 1281, 1300 (10th Cir. 2015) (quoting United States v. Poe , 556 F.3d 1113, 1130 (10th Cir. 2009)). The district court found all of these elements and imposed a twolevel enhancement for ob struction of justice. Mr. Fernandez-Barron challenges the findi ngs on willful falsity 2 and materiality, and we reject these challenges.
II. The Standard of Review In assessing “the distri ct court’s interpretation and application of the Sentencing Guidel ines, we review legal quest ions de novo and factual findings for clear error.” United States v. Mollner , 643 F.3d 713 , 714 (10th Cir. 2011). III. Perjury Regarding the BMW The district court concluded that (1) Mr. Fernandez-Barron had willfully given fals e testimony about when he sold his BMW and (2) this false testimony was material. On appe al, Mr. Fernandez-Ba rron argues that the testimony was immaterial and appa rently challenges the element of willful falsity.

2 In his opening brief, Mr. Fernandez-Barron as serts that his testimony about the Impala was not fa lse. But rather than deve lop this assertion, he argues that he did not willfully give false testimony because he was testifying based on his colloquial understanding of “ownership.”5 A. Materiality The threshold issue is the materi ality of Mr. Fe rnandez-Barron’s testimony about when he sold his BMW. 1. The Standard for Reviewing the District Cour t’s Conclusion on Materiality The element of materiality involv es “a mixed ques tion of law and fact.” United States v. Gaudin , 515 U.S. 506, 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 , 875 F.3d 548, 558 n.3 (10th Cir. 2017), cert. denied , 139 S. Ct. 102 (2018). Mr. Fernandez-Barron argues that materiality primarily involves a legal issue, which precludes deference to the district co urt’s decision. For the sake of argument, we assume th at 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 wh ether the false testimony bears “a natural tendency to infl uence or was capable of influencing the decision required to be made.” United States v. Allen , 892 F.2d 66, 67 (10th Cir. 1989). This standard is “conspicuously low.” United States v. Bedford , 446 F.3d 1320, 1326 (10th Ci r. 2006) (quoting United States v. Dedeker , 961 F.2d 164, 167 (11t h Cir. 1992)). The government’s eviden ce against Mr. Fernande z-Barron included text messages and records of te lephone calls between Mr. Fernandez-6 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 deliver y of cocaine, Mr. Molina-Villalobos texted Mr. Fernandez-Barr on (in Spanish): “Where do we pick up the BMW, Buddy?” R. vol. I, at 165.

The government’s expert witness explained th at the text message constituted code to pick up a car full of cocaine—not to pick up an actual BMW. But the expert witness conced ed that his explanation would be undermined if Mr. Ferna ndez-Barron had been c onducting 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 mo re practical context. So if I understand what you are saying, if you had more information that delineated a -- the exis tence of this car, an d some background or basis for the car, it was a real car, it was being bought and sold, that could influe nce your conclusion, couldn’t it? A. Sure. regarding this specifi c 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 1270.7  he had owned a BMW,

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

 the text message had related to th is sale, not to a delivery of cocaine. This testimony directly rebutted th e government’s evidence linking Mr. Fernandez-Barron to the delivery of co caine in May 2014. The district court ultimately found that Mr. Fern andez-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. Lo zano. The court regarded the circumstance s of the sale as material, reasoning that Mr. Fernandez-Barron’s testim ony could influence the ju ry’s interpretation of the text message. 3. Mr. Fernandez-Barron’s Arguments Mr. Fernandez-Barron contends th at 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 th at the government’s evidence on code words was so weak that his testimony could not have influenced the jury. This contention ov erstates the bu rden for materiality. “[F]or testimony to be material, ‘it need not ha ve an actual effect; it merely must be capable of influencing the [jury].’” United States v. Hasan , 609 F.3d8 1121, 1140 (10th Ci r. 2010) (quoting United States v. Girdner , 773 F.2d 257, 259 (10th Cir. 1985)). Regardless of the st rength of the expert witness’s testimony, it li nked Mr. Fernandez-Barron to the conspiracy. And if the court had credited Mr. Fernande z-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 th us affect the jury’s finding on when he had entered the conspiracy. Given this potential effect on th e findings, Mr. Fe rnandez-Barron’s testimony was material regardless of the a lleged weakne ss 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 entr y into the conspiracy. The district court ultimately found, for sentencing pu rposes, that Mr. Fernandez-Barron hadn’t joined the conspiracy until March 2015—nearly a year after he received the text me ssage about the BM W. Mr. FernandezBarron argues that the di strict court’s finding re ndered the BMW testimony immaterial. We disagree. Materiality is based on the ci rcumstances existing when the defendant gave the false testimony, not the circum stances that developed later. United States v. Allen , 892 F.2d 66, 68 (10th Cir. 1989). When Mr.9 Fernandez-Barron testifie d, neither the jury no r 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 Septem ber 2015. So when Mr. Fernandez-Barron testifie d that he had sold th e 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 find ing could not diminish the materiality of Mr. Fernandez-Barron’s BMW testimony when it was given. B. Willful Falsity Mr. Fernandez-Barron also argues th at if his explanation had been a lie, it would have foolishly tied him mo re 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 th at the argument relates to willfulness. However the argument is framed, it mistakenly a ssumes that Mr. Fernandez-Barron hadn’t already exposed his c onnection to Mr. Lozano. But before Mr. Fernandez- Barron testified, defe nse counsel had already

4 Mr. Fernandez-Barron argues th at 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 hi s entry into the conspiracy, and the superseding indictment alleged that he had entered into the conspiracy in December 2013. So Mr. Fern andez-Barron’s involvemen t in a load in May 2014 could support the gov ernment’s allegation that he had entered into the conspiracy as early as May 2014.10 said in his opening statement that Mr. Lozano was a client of Mr. Fernandez-Barron’s ca r-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] woul d 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 c ounsel had already highlighted in his opening statement. Nor did Mr. Fernandez-Barron’s ex planation suggest any criminality. To the contrary, his explanation distan ced himself from the conspiracy as someone who had just worked on Mr. Lozano’s cars and so ld him a BMW. We thus have little r eason to disturb the di strict court’s findings based on Mr. Fernandez-Barron’s argum ent that a lie woul d have foolishly tied him more closely to Mr. Lozano.

5 Elsewhere in his opening statem ent, defense counsel discussed Mr. Fernandez-Barron’s painti ng of Mr. Lozano’s Silver ado and work with Mr. Lozano on a Ford Raptor. R., vol. III, at 1282.11 IV. Perjury Regarding the Impala The district court also found th at Mr. Fernande z-Barron had committed perjur y when testifying about hi s Impala. The government presented testimony suggesti ng that (1) an Impala had been involved in a drug transaction in Kansas City and (2) Mr. Fernan dez-Barron had an Impala registered under his name. So wh en he testified, he was asked about his connection to the Impala. On direct examination, Mr. Fernandez-Barron quickly admitted that an Impala had been regist ered under his name; but he insisted that he did not consider himself the owner because he had sold the car to Mr. LiconGallegos. On cross-examination, Mr. Fernandez-Barron adhered to this distinction between registration an d ownership. The district court ultimately disbelieved Mr. Fernan dez-Barron and f ound that he had committed perjur y when denying ownership of the car. Mr. Fernandez-Barron argues that his testimony about the Impala was neither willfully false nor materi al. We reject both arguments. A. Willful Falsity The district court found that th e testimony about the Impala was willfully false based on doubts about Mr. Fernande z-Barron’s credibility and his experience in buying and selling cars: My reaction to [Mr. Fernandez-Ba rron’s argument] is that it’s unmitigated nonsense. Fi rst, the plates to th e Impala are in his name. The explanation for that, whic h isn’t an explanation, as to12 how you go and get plates for a car, without a title, or a bill of sale or some indicia of ownershi p, I doubt that I could go to the D.M.V., Mr. McNeilly [governmen t counsel], and say that I’m going to get plates for your car, without so mething indicating some right or title it to that car. But putting that to th e side, the answer---the explanation was, it wa sn’t an issue for him to ask me to get plates. That si mply is not an answer. . . . If you are in the business in the dealing of automobiles, you know what titles are. You know how these do cuments work. You have to know, if you’re buying and selli ng 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 owne r meant to him. That is simply unbelie vable that the docu ments he swears under penalty of perjury, that he is the owner, and comes up with these fanciful explanations for he di dn’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 be yond the pale. R., vol. III, at 1652–53. We review this find ing for clear error. United
States v. Hammers , No. 18-7051 , ___ F.3d ___, 2019 WL 5876843, at *9 (10th Cir. Nov. 12, 2019). As Mr. Fernandez-Barron argues, he quickly admitte d that the car was registered in his name ; this part of the test imony didn’t constitute perjury. But Mr. Fernandez-Barron repeatedly insisted that he didn’t consider himself the car’s owner. When pressed on cross-examinati on, Mr. Fernande z-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 also13 acknowledged that regist ration made him the legal owner. But Mr. Fernandez-Barron explaine d that his colloquial co ncept of ownership had created confusion about the documents a nd the questions posed in crossexamination. Despite his assertion of confusion, Mr. Fernan dez-Barron had signed documents under penalty of perjury st ating that he owne d the Impala. And he often bought and sold car s, which could suggest familiarity with state laws governing ownership. Were we the fact-finder, we mi ght have credited Mr. FernandezBarron’s testimony that he’d been confused. But th e 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 ownershi p 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 ha d been lyin g when he professed confusion over the questi ons 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,14  the Impala evidence was so weak that any false testimony could not have influe nced the jury,

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

 the district court’s later fi ndings rendered the testimony immaterial. We reject each argument. 6
1. Extent of Cross-Examination As discussed above, the governmen t pressed Mr. Fe rnandez-Barron on cross-examination about his denial of ow nership. In his reply brief, he contends that this cr oss-examination drained the impact from his

6 The parties have briefed materialit y of the Impala for two separate incidents. The first incident involv es Ms. Mota’s identification of Mr. Fernandez-Barron in Ka nsas City. The second incident involves Mr. Fernandez-Barron’s presence at a st ash 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 mate riality for a different incident. See United States v. Haas , 171 F.3d 259, 268 (5th Cir. 1999) (“Although the district court made no explicit find ings 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 , 568 F.3d 597, 607 (6th Cir. 2009) (“While the di strict court did not ru le 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 sole ly for a finding as to materiality because we may answer such a ques tion 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 in cident at the stash house.15 distinction between registration an d ownership. This contention was waived and is invalid. Mr. Fernandez-Barron waived the argument by omitting it in his opening brief. He did pr esent this argument in hi s reply brief. There he stated that he was cont inuing an argument from pa ges 18–19 of his opening brief. But on those pages in the openi ng brief, he was simply quoting trial testimony with no legal argum ent. This argument do es not appear in the opening brief, and raising the argume nt in the reply brief was too late. United States v. Duran , 941 F.3d 435, 2019 WL 5212198 , at *5 n.3 (10th Cir. 2019). Even if Mr. Fernandez-Barron had properly presented this argument in his opening brief, it would be invali d because it uses the wrong time period to gauge materiality. We gauge the materiality of false testimony when it was given, not with th e gloss of later information. See United States v. Allen , 892 F.2d 66, 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 , 300 U.S. 564, 574 (1937) (concl uding that perjury is not cured by a late r truthful disclosure because “the oath admini stered to the witn ess calls on him freely to disclose the truth in the firs t instance and not to put the court and16 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 , 970 F.2d 692 (10th Cir. 1992). The issu e there was th e effect of the government’s failure to correct a witn ess’s false testimony on direct examination. In addressing this issue, we conclude d that the allegedly false testimony was immaterial because the witness had fully acknowledged the facts on cross-examination. Langston , 970 F.2d at 700–701. Drawing on this conclusion, Mr. Fe rnandez-Barron argues that any false testimony about the Impala b ecame 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 wa s identical to the test for harmless constitutional error. Id. at 700. One could conceivably apply Langston to conclude that Mr. Fernandez-Barron’s false testimony about the Impa la had not contributed to the conviction because his underly ing lie had been exposed on crossexamination. But in asse ssing whether the district court had erred in applying the enhancemen t, 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.17 When he testified fals ely about the Impala, hi s connection to the car hadn’t been decided. If his connection to the Impala was material at that time, the perjury wouldn’t vanish wi th a later revela tion during crossexamination. 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 th at any false testimony co uld not have influenced the jury. To evaluate this argument, we cons ider the government’s evidence tying Mr. Fernandez- Barron to the Impala. The government argu ed that one of the load drivers, Ms. Martha Mota, had seen Mr. Ferna ndez-Barron in Kansas City when he drove up in an Impala. According to the governm ent, Mr. Fernand ez-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-Ba rron as one of the men th at she had seen in the Impala. She was equally un sure about whet her the car was an Impala. She thought that it look ed like a police ca r and guessed that the car was an Impala.18 But the government continued to adva nce 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 argum ent). So when Mr. Fernandez-Barron testifie d, he had no way of knowin g what the jury would ultimately find. See Part III(A)(3)(a), above. Gi ven 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 th e 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 cl osely to the Impala, and his efforts to distance himself from the car weak ened the government’s th eory that he had met Ms. Mota in Kansas City. Indeed, in his op ening statement, defense counsel had underscored the eventual distinction that Mr. Fernande z-Barron would late r draw in his testimony between registrati on and his colloquial co ncept 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 be lief that Licon-Galle gos didn’t have a license, and so he couldn’t regist er the car, so he registered it for him. R., vol. III, at 1284. And, of cour se, Mr. Fernandez- Barron pointedly testified on direct examination that he had relinquished ownership of the19 Impala in February 2013— long before Ms. Mota saw the car in Kansas City. So if Mr. Fernandez-Barron lie d about ownership, he would have been lying about a fact ual issue that his own counsel thought material enough to inject in to the trial. 4. The District Court’s Later Findings Mr. Fernandez-Barron also challe nges the finding of materiality based on the district cour t’s later finding that he had joined the conspiracy in March 2015, long afte r the Kansas City inci dent with Ms. Mota. According to Mr. Fernande z-Barron, the later find ing 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 findi ng 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 jus tice. Mr. Fernandez-Barron’s false testimony about the BMW directly cont radicted the govern ment’s theory tying him to the conspira cy in May 2014. The cour t thus did not err in determining that his testimony about the BMW was willfully false and material.20 Nor did the court err in finding pe rjury for his testimony about the Impala. Ms. Mota testifie d that the man she had se en had a car that looked like an Impala and identified Mr. Fern andez-Barron from a photograph. To counter this identificatio n, Mr. Fernandez-Barron testified that he hadn’t even owned an Impala. Given his test imony 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 tes timony. Given these conclusions, we affirm the sentence.