PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHELLE R. PAUP, Defendant - Appellant. No. 18-1114

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR -00233-PAB-1)

________________ _________________ Submitted on the briefs: * Veronica S. Rossman, Assistant Fe deral Public Defender, Denver, Colorado on behalf of Appellant. Michael C. Johnson, Assistant Un ited States Attorney, Denver, C olorado on behalf of Appellee.

________________ _________________ Before HARTZ , MURPHY , and CARSON , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties’ request fo r a decision on the briefs with out oral argument. See Fed. R. App. P. 34(f); 10th Cir. R . 34.1(G). The case is there fore submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### August 9, 2019
Elisabeth A. Shumaker Clerk of Court2 At a jury trial before a magistr ate judge, Defendant Michelle R . Paup was convicted of theft of government p roperty of a value less than $1,000, see 18 U.S.C. § 641, and removal of theft-detection devices, see id. § 13 (incorporating state law). The charges arose from a shoplifting incident at the Army and Air F orce Exchange Service store on Buckley Air Force Base i n Aurora, Colorado (the Exchan ge). The magistrate judge sentenced Defendant to conc urrent sentences on each count of 30-days’ imprisonment and one year of sup ervised release. The judge als o imposed a $1,000 fine and ordered restituti on equaling the full retail value of the s tolen merchandise ($734.41). Defendant appealed to the United States District Court for the District of Colorado, challenging, as relevant to this a ppeal, the amount of the rest itution award, the exclusion of her expert witness, and the ap plication of a two-level enhan cement of her offense level because of perjury. The district court upheld he r conviction a nd sentence of imprisonment but vacated the res titution award and remanded to the magistrate judge for further proceedings. Defendant t hen appealed to this court. We first hold that we have jurisdi ction because the district-co urt remand order did not disturb Defendant’s convictio n or sentence of imprisonment and all that remains to be determined on remand is the am ount of restitution. We then aff irm on the merits. The magistrate judge did not err in excluding Defenda nt’s expert orin imposing the offenselevel enhancement.3 I. DISCUSSION A. Jurisdiction Under 28 U.S.C. § 1291 the circu it courts have jurisdiction of appeals from “final decisions” of the federal distri ct courts. “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States , 302 U.S. 211, 212 (1937) (sentence was final judgme nt even though execution of se ntence was suspended and defendant was placed on pr obation). “A sentence . . . impo sed only after the whole process of the criminal trial a nd determination of guilt has be en completed, sufficiently satisfies conventional requireme nts of finality for purposes of appeal. The litigation is complete as to the fundamental matter at issue—the right to con vict the accused of the crime charged in the indictment.” Corey v. United States , 375 U.S. 169, 174 (1963) (internal quotation marks omitte d) (if defendant was committed to custody of attorney general (deemed to be for maximum possible prison sentence) und er now-repealed 18 U.S.C. § 4208(b) to permit Bure au of Prisons to prepare report within three or six months for court to use in setting ultim ate sentence, defendant could appeal after imposition of § 4208(b) sentence or after ultimate sentence). The district-court order challenge d by Defendant upheld her con viction 1 and sentence of imprisonment but als o remanded “for further proceed ings.” R., Vol. 1 at 480. Despite this seemingly broad lan guage, the order makes clear th at it only “vacate[d] the

1 The district-court order state s that “defendant’s conviction is affirmed in part and reversed in part.” R., Vol. 1 a t 479. But this was a mislocut ion, since nothing in that order disturbs Defend ant’s conviction.4 magistrate judge’s restitution award.” Id. at 479; cf. United State v. Shipp , 644 F.3d 1126, 1129 (10th Cir. 2011) (readi ng mandate “in light of [the] opinion that preceded the mandate”). The question before u s is thus whether the district court’s order is “final,” and therefore appealable, even though the amoun t of restitution owed by Defendant is undetermined. The Supreme Court has said tha t “strong arguments favor the app ealability of [an] initial judgment [imposing a sent ence of imprisonment and super vised release] irrespective of the delay in de termining the restitution amount .” Dolan v. United States , 560 U.S. 605, 617 (2010). The Court noted 18 U.S.C. § 3582(b), which states that a judgment of conviction that inc ludes “a sentence to imprisonmen t” is a “final judgment.”
See id . It also cited several circuit- court cases in which a defenda nt appealed a judgment imposing a sentence of imprisonmen t and then separately appeale d a later order setting the amount of restitution, thus ind icating that both orders wer e appealable judgments.
See id. at 618. Restricting appellate review until after restitution is set, th e Court explained, would frustrate a defe ndant’s need to promptly chall enge her conviction or sentence of imprisonment. See id . But the Court cautioned that it was “simply not[ing] the strength of the arguments” in favor of appealing a judgment deferring restitution “without deciding whether or when a party can, or must, appeal. We leave all such matters for another day.” Id. The Court took up th is issue again in Manrique v. United States , 137 S. Ct. 1266, 1270 (2017), where it addressed a notice of appeal filed after an initial judgment not setting the amount of restitution bu t before an amended judgmen t setting the amount.5 The Court held that the notice wa s not sufficient to invoke app ellate review of the restitution amount. Although the d efendant argued that only on e appealable judgment is at issue in a case where restitu tion is deferred but later impo sed, the Court disagreed, stating that “[o]ur analysis in Dolan makes clear that deferred restitution cases involve two appealable judgments, not one.” Id. at 1273. In light of this precedent, oth er circuits have declared that a sentence of imprisonment is a final judgmen t even though restitution has no t been resolved. See United States v. Tulsiram , 815 F.3d 114, 119 (2 d Cir. 2016) (“[W]e have no difficulty in reaching our holding today: a j udgment of conviction that impo ses a sentence including incarceration and restitution is ‘final’ within the meaning of 28 U.S.C. § 1291, even if the sentence defers determination o f the amount of restitution.”); United States v. Gilbert , 807 F.3d 1197, 1200 (9th Cir. 2015) (“[A] sentence of incarcera tion coupled with an unspecified amount of restituti on is a sufficiently final judgm ent to support a direct appeal”); United States v. Muzio , 757 F.3d 1243, 1250 (11th Cir. 2014) (“[F]ollowing the Supreme Court’s dicta in Dolan and applying its holding in Corey , we conclude that a judgment imposing a prison sent ence and restitution but leaving the specific amount of restitution unsettled is immediately appealable.”); United States v. Donohue , 726 F. App’x 333, 339 (6th C ir. 2018) (“There is no dispute that [unde r Manrique ] the court has jurisdiction to decide defendants’ challenges to their original judgments, which represent final appealable judgments und er 18 U.S.C. § 3742(a) (final sen tence) and 28 U.S.C. § 1291 (final judgment), even thou gh the district court had def erred determination of the restitution amount to a later date.”).6 True, the district court in this case vacated rather than defer red the restitution determination. But we believe S upreme Court precedent directs that a defendant sentenced to imprisonment need not wait until restitution is fi nally resolved (here, after reconsideration by the magistrat e judge and appeal to the distr ict court) before being allowed to challenge her convicti on and sentence on appeal to t his court. In our view, we have jurisdiction over Defendant’s appeal.
B. Standard of Review Appeal from a judgment in a criminal case entered by a magistra te judge is to the district court. See 18 U.S.C. § 3402. “The scope of t he appeal is the same as in a n appeal to the court of appeals from a judgment entered by a district j udge.” Fed. R. Crim. P. 58(g)(2)(D). When the district c ourt’s order is appealed, our court exercises a “second tier of appellate review” in which w e apply to the magistrate j udge’s order “the same standard” that the district court is to use in its own review. United States v. Pilati , 627 F.3d 1360, 1364 (11th Cir. 2010) (i nternal quotation marks omit ted); see United States v.
Peck , 545 F.2d 962, 964 (5th Cir. 1 977) (same). In other words, we review the magistrate judge’s order just as we would a judgment first ente red by the district court and then appealed to us.
C. Exclusion of Defendant’s Expert Defendant argues that the magis trate judge erred in excluding h er expert witness, who was to testify to her struggl e with mental illness. We rev iew the exclusion of expert testimony for abuse of discretion. See United States v. Adams , 271 F.3d 1236, 1243 (10th Cir. 2001).7 The procedural history supports the exclusion. On December 20, 2013, Defendant received a violation notice alleging that she had shoplifted fr om the Exchange. Her counsel entered his appearance in May 2014, but no information was filed against Defendant until August 14. At th e proceeding on August 14, at which Defendant was to be arraigned, she asked the court to postpone her arraignment f or 60 days. According to defense counsel, Defendant’s the rapist had indicated that she suffered from dissociative disorders but was “not competent to [give] a medical opinion on that.” R., Vol. 3 at 883. The therapist advised her to seek a qualified psychologist to o pine on her mental-health condition, and her counsel sought a continuance to do so. The magistrate judge granted the request and reset the arra ignment for two months later. Trial was initially set for Decemb er 15, 2014. B ut on December 8, Defendant moved to continue the trial becau se she had an examination sche duled with Dr. Dana Satir, a psychologist she had reta ined, and she wished to inves tigate whether Dr. Satir could provide expert testimony that Defendant lacked the mens rea necessary to commit the charged crimes. Counsel sai d that before finding Dr. Satir , he had considered another expert but “he was a male, and [D efendant] was not comfortable talking about her issues and her trauma issues and all o f that to the male person.” Id. at 884. The government opposed a continuance, arguing that Defendant had previously re quested, and received, a postponement for the same reason . The magistrate judge advised defense counsel that under Federal Rule of Criminal Procedure 16 he would need to su bmit to the government a written summary of the exp ert’s proposed testimony, see Fed. R. Crim. P. 16(b), and she asked counsel how much time that would take. Defense couns el requested 50 days.8 The magistrate judge agreed and s et January 27, 2015, as the de adline for Defendant to make her expert disclosures, Feb ruary 9 as the deadline for the government’s expert disclosures, and February 23 fo r trial. But she warned defense counsel that “another continuance on this basis is ve ry unlikely because I think at s ome point we’ve got to decide.” Id. at 899. Defendant missed her deadline. After the close of business on Friday, February 6, ten days after the deadline, counsel email ed to the government and the m agistrate judge Defendant’s witness list, whi ch included Dr. Lon Kopit as an expert witness. The list contained a two-sentence descri ption of Dr. Kopit’ s proposed te stimony: Dr. Kopit is an expert in Forens ic psychology a nd psychiatry. He will testify to the mental health i ssues of defendant and her lack o f the requisite mental state (mens rea) elements of the crimes charged against defendant. R., Vol. 1 at 144. Defendant did not provide any further summary of the expert’s opinion at that time. On the following Monday the court entered a minute order instructing Defendant to submit the witness list through the court’s electr onic filing system (PACER), not email. That same day, the government moved to exclude Defendant’s expert, filing Defendant’s emailed witness list as an attachmen t to its motion. The motion was considered at a pr etrial conference on Tuesday, February 10. Defense counsel gave an assort ment of reasons for the tardy dis closure. But the magistrate judge found the excuse s inadequate—noting that Defen dant had been afforded ample time to find an expert—and g ranted the motion to exclude Dr. Kopit. Defendant filed a motion to recons ider at midnight before anoth er pretrial conference scheduled for the mor ning of February 13. Defense c ounsel again offered9 excuses for his delay, the govern ment explained that it could n ot possibly be prepared to respond to the new expert in time for trial, and the magistrate judge denied the motion to reconsider. The magistrate judge’s exclusion of Defendant’s expert was with in her sound discretion. We begin with the governing law. In United States v. Wicker , 848 F.2d 1059, 1061 (10th Cir. 1988), we enumerat ed three factors to be consid ered in imposing a discovery sanction against the government in a criminal case: (1) the reasons the government del ayed producing the requested materials, including whether or not the gove rnment acted in bad faith when it failed to comply with the discove ry order; (2) the ext ent of prejudice to the defendant as a result of the gov ernment’s delay; and (3) the fe asibility of curing the prejudice with a continuance. These factors do not “dictate the bounds of the court’s discret ion,” but “merely guide the district court in its consideration of sanctions.” Id. For example, “the district court may need to suppress eviden ce that did not comply with discovery or ders to maintain the integrity and schedule of the cou rt even though the defendant m ay not be prejudiced.” Id.
In Adams , 271 F.3d at 1244, we adopted the same approach to determine t he propriety of excluding defense w itnesses. Adams had disclosed his psychological expert only three days before trial a nd over a month after the disclos ure deadline. See id. at 1243. We held that the district c ourt properly excluded the ex pert “on the grounds of untimeliness alone,” because “thre e months had passed since the defendant’s indictment” and “concerns about the defendant ’s mental state” had previousl y been raised. Id. at 1244. Although the dis trict court did not “explicitly weigh” t he second or third Wicker factors, we noted that the record on appeal indicated that “the final two factors weigh[ed]10 strongly in favor of exclusion o f the evidence,” because the de layed disclosure “left the government no opportunity to cond uct its own psy chological exam ination of the defendant, or otherwise mount a rebuttal” and a “continuance ad equate to accommodate the described needs of the gov ernment would significantly delay the trial.” Id

. On appeal Defendant challenges the exclusion of Dr. Kopit on s everal grounds. First, she argues that the mag istrate judge failed to apply Wicker in ruling on the matter. This argument is belied by the record. The magistrate judge ma y not have cited Wicker itself. But she cited Adams , which follows Wicker , and she addressed each of the factors. She discussed Defendant’s excu ses for not disclosing her expert on time, the impact her tardiness would have on the gover nment’s being ready for the sc heduled trial, and the problems with setting a new date. Next, Defendant, “assuming the magistrate [judge] implicitly c onsidered the
Wicker factors,” Aplt. Br. at 22, challe nges how the magistrate judge evaluated and weighed those factors. Regardi ng the reasons for delay—the fir st Wicker factor— Defendant excuses her counsel’s f ailure to comply with the magi strate judge’s deadline on the ground that counsel was u nfamiliar with federal-court ru les and procedures, including the PACER system, since this was his first federal cr iminal trial. The magistrate judge was properly un impressed. Regarding PACER, sh e pointed out that it is a very user-friendly system, that this was the first time durin g her seven years on the bench that any lawyer had complai ned of problems, that defense counsel had first brought up the PACER matter two months ea rlier and had plenty of time t o learn the system, and11 in any event it was not until 10 days after the deadline that d efense counsel tried to use PACER to give noti ce of his expert. Unfamiliarity with federal court procedures was also no excuse. The magistrate judge’s directions to counsel c ould not have been clearer—discl ose the expert and a summary of the proposed testimony by a specific date. How much federal-court experience does one need to under stand that plain directive? I ndeed, defense counsel never suggested that he did not u nderstand what he had to do an d when he had to do it. Other than complaining about PAC ER, he invoked his lack of fede ral-court experience only when he tried to explain why he had not alert ed the govern ment or the court of the need for additional time to make the disclosure. The magistrat e judge found that explanation unconvincing, pointin g out that counsel’s state-cou rt experience certainly encompassed requests for additiona l time. Defense counsel then gave additional excuses, saying that giving notice had not occurred to him and that he w as having personal problems at the time. But those excuses ring hollow since coun sel had successfully requested a continuance on the sa me issue twice before and thus knew that was an available option. As the magistrate judge said at t he February 13 hearing, “The t rial dates have been extended several times now all on the basis of defend ant’s request to . . . get a mental health report . . . .” R., Vol. 3 at 700. Defendant cites one case in which we held that an attorney’s in experience was a consideration in overturni ng a discovery sanction. In United States v. Dennison , 891 F.2d 255, 258 (10th Ci r. 1989), the prosecuto r had not complied with several discovery orders requiring disclosure of “any evid ence in his custody or under h is control which12 might tend to impeach a governmen t witness or might otherwise t end to exculpate the defendants.” But the opinion doe s not describe the undisclosed evidence or why inexperience could excuse the p rosecutor’s lapse. Perhaps more importantly, the sanction in that case—midtrial dismissal of the indictment—was the most extreme possible. We decline to read our prior opini on as forbidding a witness-exclu sion sanction for failure by an inexperienced attorn ey to comply with a m andate as precise a s in the case before us. Defendant further asserts that because her attorney did not act in bad faith, exclusion of her expert was improper. But Adams , on which the magistrate judge relied, excluded a defendant’s expert eve n absent a consideration of ba d faith. See 271 F.3d at
1244. And at any rate there was reason to doubt defense counsel’s bon a fides. The magistrate judge observed that d efense counsel “filed [the expe rt disclosure] as late as you possibly could I think to dis advantage the Government,” R., Vol. 3 at 697, and had “wait[ed] until the eve of trial to tell the Government what [t he expert was] going to say so that they had no chance whatsoever to rebut it,” id. at 915. Although defense counsel denied delaying the filings for s trategic gain, the magistrate judge told him that “your actions are speaking lo uder than your words.” Id. at 697. 2
Defendant’s briefs also allude t o defense counsel’s statements to the magistrate judge about the difficulties in obtaini ng an expert witness. But by the time of the

2 The magistrate judge then said , “And I’m not holding that aga inst you. I’m just saying that’s the fact of it.” R., Vol. 3 at 697. Defendant reads this a s evidence that the magistrate judge did not make a finding of bad faith. But in c ontext we understand this last remark to mean only that t he late-night filing of Defendan t’s motion to reconsider did not factor into the magistrate j udge’s decision to deny the mot ion. See id. at 697.13 disclosure deadline defense coun sel had been in the case for ni ne months (having entered an appearance in May 2014), had said in open court in August 2014 that he was trying to get an expert to testify to Def endant’s mental-health issues, a nd had been granted lengthy extensions to obtain an expert in August and December 2014 for the amount of time he had requested. Defendant suggest s that there was a special pro blem because she did not wish to disclose her condition to a male psychologist. But cou nsel would have known of this problem when first seeking an expert, and Defendant ultima tely ended up with a male expert anyway. In any event , defense counsel had known of the need to obtain an expert for at least six months (t wo or three times as long as i n Adams ), which was ample time. Regarding prejudice—the second Wicker factor—it cannot be denied that the prosecution could not possibly ha ve been ready to respond to th e expert testimony in the brief time available before trial. As it explained at the hear ing to exclude the expert, it would need time to obtain Defenda nt’s mental-health records, co nsult an expert of its own, and possibly obtain an exp ert examination of Defendant. T he magistrate judge reasonably credited the governme nt’s account of the prejudice i t would suffer. See, e.g. , id. at 699 (“The Government is extr emely disadvantaged and severel y disadvantaged . . . .”); id. at 700 (the delayed disclosure was “way too prejudicial to the plaintiff”). The third factor is the feas ibility of a continuance. A conti nuance is almost always “doable.” But the magistrate j udge explained that a long delay would have been
necessary. See id. at 698 (“I don’t have another d ate to give you for another mon th or so. And the Government, from what the y’ve told me, boy, that’s goin g to take a lot longer14 than a month to get all these me dical records and have a 702 he aring and interview these experts, maybe take a deposition.”). As we said in Wicker , suppression of evidence may be necessary “to maintain the in tegrity and schedule of the cou rt even though the [opposing party] may not be prej udiced.” 848 F.2d at 1061. We held that a continuance was not a feasible remedy “in view of the district court’s pres sing schedule, the status of the present case, and the failure of a prior continuance and de adlines to ensure timely discovery.” Id. at 1062. This was also the case in Adams , where “[a] continuance adequate to accommodate the descr ibed needs of the government w ould significantly delay the trial.” 271 F.3d at 1244. Here the reason to deny a n additional continuance was particularly sound. Defendant had already been granted two continuances—for the amount of time she requested—to obtain an expert witness. Cour ts have no obligation to grant continuances ad infinitum to avoid prejudice to parties w ho have demonstrated repeated failure s of diligence. Finally, Defendant contends that the magistrate judge improperl y excluded her expert on the ground that his te stimony would be inadmissible. We reject that contention. True, the magistrate judge expre ssed serious doubts as to the a dmissibility of much of Defendant’s proposed expert tes timony. But she made no rulings on the matter. On the contrary, she said there would need to be hearings if admissibi lity was challenged. And it was the additional delay that would result from such proceedings that appeared to be her chief concern. The magistrate judge’s decision wa s informed and supported by t he considerations outlined in Wicker . She did not abuse her discretion.15 D. Application of Two-Level E nhancement to Offense Level The Sentencing Guidelines incre ase a defendant’s offense level by two for obstruction of justice if “(1) the defendant willfully obstruct ed or impeded, or attempted to obstruct or impede, the admin istration of justice with respe ct to the investigation, prosecution, or sentencing of the instant offense of conviction , and (2) the obstructive conduct related to . . . the defenda nt’s offense of conviction and any relevant conduct.” USSG § 3C1.1. One type of obstr uction is perjury. “The elemen ts of perjury are that a witness: (1) when testifying und er oath, gives false testimony ; (2) concerning a material matter; (3) with willful intent to provide false testimony, rat her than as a result of confusion, mistake or faulty memory.” United States v. Massey , 48 F.3d 1560, 1573 (10th Cir. 1995). To impose an enhancement for per jury, the sentencing court must identify “the perjurious state ment . . . at least in substance. ” Id . “Once the perjurious testimony is identified,

. . . findings that such testimony was false, material, and given with intent to commit perjury” can be “fairly conclusory.” Id. at 1574. Defendant raises two challenges to the magistrate judge’s impos ition of a twolevel enhancement to her offense level for perjury. First she conten ds that the magistrate judge failed to make the findings underlying the enhancement wi th sufficient specificity. But defense counsel did not rais e this argument before the magi strate judge at the sentencing hearing despite speaking at length after impos ition of the enhancement and turning down an offer to raise “anything else” after imposition of the sentence. R., Vol. 3 at 658. We therefore review t he argument for plain error. See United States v. Flonnory , 630 F.3d 1280, 1288 (10th Cir. 2011) (reviewing for plain error the defendant’s argument16 as to adequacy of sentencing co urt’s perjury findings when the defendant did not object on that ground); see also United States v. Cook , 550 F.3d 1292, 1297–98 (10th Cir. 2008). To prevail under the pla in-error standard, Defendant mu st show: “(1) error, (2) that is plain, which (3) affect s substantial rights, and which (4) seriously affects the fairness, integrity, or public re putation of judicial proceedin gs.” Cook , 550 F.3d at 1298 (internal quotation marks omitte d). “For an error to affect su bstantial rights, Defendant bears the burden of s howing a reasonable pr obability that, but for the error claimed, the result of the proceeding woul d have been different.” Id. (internal quotation marks omitted). Defendant fails on the third pron g—prejudice—because of the cle ar evidence of perjury. See Flonnory , 630 F.3d at 1288 (defendant did not show the requisite prejudice because “it would be surprising if his s entence would be any different if we reversed and remanded for sentencing”). A rela tively brief summary of the e vidence will suffice. The evidence included the recording of a surveillance video at the Exchange, observations of Defendant’s con duct by Exchange employees, and the results of searches of the store and Defendant immediately after she was apprehended when she left the store. She had initially joined a checkout line but then went to an unattended register and ultimately rolled her cart through central checkout and left wi thout paying. Security personnel found her with 13 items that had not been paid for; h er purse also contained some wire cutters. We will discu ss the evidence regarding four items: a pair of boots, two Coach bags, and a N orth Face jacket.17 The video recording showed that Defendant removed a pair of bo ots from one box, placed them into another box (for cheaper shoes), and ente red a dressing room. Defendant left the first box on the sales floor—where it was fo und after she was stopped by security personnel, and left the second box in a dressing ro om searched by a security officer (who had been following her on vide o) shortly after Def endant left the dressing room. When she was apprehended , the boots were in a bag from a nother store (Marshalls). The video also showed Defendant t aking two Coach purses and con cealing them with her own purse; those same purses were found in Defendant’s bag after she left the Exchange. And it captured Defend ant discarding some items into trash bins, which were searched immediately after Defe ndant was apprehended. It appea red that she picked up a tissue from the floor, c ontinued walking fo r a while, and then reached into her back pocket before putting the tissue in a trash bin in the cosmetic s section. When that bin was searched, the security officer fo und an EAS (Electronic Article Surveillance) tag wrapped in a tissue. Such tags are pl aced on high-priced merchandise; a tag sets off an alarm in detectors beyond the checkout are a if the cashier has not remov ed it from the merchandise. The tag could not be identified as having come fr om a specific item; but the boots and the Coach purses in Defendant’s possession when s he was apprehended, which should have had such tags (in fact, an EAS tag can be see n on the boots in the surveillance video), had no tags . The wire attaching the tag t o the merchandise had been cut cleanly, as if by wire cutte rs. Defendant also tossed somet hing from her back pocket in a trash bin after leaving cen tral checkout. The video had s hown her rolling up a sales18 tag and putting it in her back poc ket when she left a dressing room. A search of that trash bin revealed tags from the Nort h Face jacket that she took from the store. Defendant tried to e xplain her behavior. She said that she int ended to pay for the merchandise but thought she coul d do so in the mall-like area o utside the Exchange. She said that she planned to give th e boots to her 20-year-old daug hter and moved them to a different box so that her daught er would be less likely to gues s what they were. She claimed that she brought the Mar shalls bag in which she hid the boots because she “believe[s] in recycling” and bec ause “it’s also a way to help [her] with [her obsessive compulsive disorder (OCD)] to k eep things separated.” R., Vol. 3 at 433. Defendant denied putting the Coac h bags she took from the Excha nge in her own purse (where they were ultimately found) and claimed that she i nstead put them “underneath [her] purse so that [s he could] keep track of [them ].” Id. at 430. Later she claimed that she bought the Coach bags at Macy’s before arrivin g at the Exchange. She claimed that the tag from the No rth Face jacket somehow fell of f when she tried to zip the jacket, so she put it in he r pocket. And whe n shown the vi deo footage of her picking up and discarding the tissue, s he attributed the behavior to he r desire for cleanliness, another product of her OCD. She denied, however, removing the EAS tag found in the tissue and said that she used the wirecutters in her purse not to remove such tags but to cut herself, a manifestation of her psychological problems. In light of this evidence, it is h ardly surprising that the mag istrate judge found at sentencing that “[Defendant] cl early in my estimation committed perjury.” Id. at 633.19 Although her findings were perhaps not as specific as required, there can be no doubt of her view of the evidence. The m agistrate judge elaborated as f ollows: What happened in this case is [Defendant] got on the witness st and and lied repeatedly and said things that we re clearly not true, things t hat she – she had no business or reason saying, a nd that puts this in a whole different light. That is obstruction of j ustice. That is not putting th e government to its proof. That is lying in ord er to get out of being found gu ilty for what you were doing on the videotape I might add that the jury was a ble to see. And for that reason the obstructio n of justice adjustment appli es . . . . When you lie about what you did you may – she made extremely speciou s explanations of putting Coach pu rses in another bag and hiding them when – when her behavior was on tape. . . . I think that she’s a pro fessional shoplifter, frankly. She came arme d with her cutting tools and her extra bags from other stores and it seem s to me she was a very well-p repared shoplifter . . . . Id. at 633–34. Later she added: “ I believe that you planned this event, that you came prepared to steal. . . . [Y]ou brought special bags in with you . You brought wire cutters in with you. You did things that to me are very indicative of professional shoplifters.”
Id. at 647. Given the magistrate judge’s comments, we think it hi ghly unlikely that the magistrate judge would change her mind about the enhancement if we remanded for greater specificity about what st atements by Defendant were per jurious. See Flonnery , 630 F.3d at 1288. We therefore conclude that De fendant has not established the third prong of plain error and she is not entitled to relief. Defendant’s second challenge to th e obstruction enhancement is that there was not sufficient evidence of perjury. “[W]e review a [sentencing] co urt’s legal interpretation of the Guidelines de no vo and its factual findings for clear error .” See United States v. Smith , 534 F.3d 1211, 1 226 (10th Cir. 2008). But our prior discussi on of the compelling evidence of perjury a lso rebuts this challenge. We add only th at we are not persuaded by20 Defendant’s argument that the magistrate judge did n ot account for Defendant’s menta l illness in finding that she comm itted perjury. She insists tha t her mental illness explains her “perception” of the shopliftin g incident, which was plainly at odds with the surveillance video. Aplt. Br. a t 32. Perhaps s ome would belie ve her version. But her testimony was far from compelling , and we almost invariably def er to the factfinder on matters of credibility. See United States v. Alcaraz-Arellano , 441 F.3d 1252 , 1265 (10th Cir. 2006). The magistrate judge, who observed Defendant’s tes timony, was not persuaded. Defendant is not entitled to relief regarding the o ffense-level enhancement.
II. CONCLUSION We AFFIRM the district court’s order affi rming Defendant’s conviction an d sentence of imprisonment.