United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-10883
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
STEVE HOWARD SMITH
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-276-ALL-A
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Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Steve Howard Smith (Smith) appeals his guilty plea
conviction and sentence for possession of stolen mail in
violation of 18 U.S.C. § 1708.
Smith contends that the district court erred when it
increased his base offense level for obstruction of justice
pursuant to U.S.S.G. § 3C1.1 because the record does not support
the district court’s finding that he committed perjury on a
material matter at the detention hearing. The district court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-10883
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found that Smith committed perjury at the detention hearing when
he testified that he had not used marijuana after his pretrial
release on January 28, 2004. The district court specifically
found that Smith’s false testimony was material; intentional; not
by accident, mistake, or because of some misunderstanding; and an
attempt to influence the court into ruling in his favor. These
findings are plausible in light of the record as a whole and,
thus, the district court did not clearly err in concluding that
an enhancement for obstruction of justice was warranted.
See United States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999);
United States v. Villanueva, ___ F.3d ___, No. 03-20812, 2005 WL
958221, *8 n.9 (5th Cir. Apr. 27, 2005) (“Post-[United States v.
Booker, 125 S. Ct. 738 (2005)], we continue to apply the same
standard of review to claims of erroneous fact-finding with
respect to the application of adjustments, i.e., we review for
clear error.”).
Smith also contends that the district court’s denial of a
two-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 was without foundation because it was based on
the district court’s finding that Smith testified falsely at the
detention hearing. As previously stated, the district court’s
finding that Smith committed perjury on a material matter at the
detention hearing was plausible in light of the record as a
whole. Further, Smith has failed to demonstrate that this is one
of the extraordinary cases in which adjustments under both
No. 04-10883
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U.S.S.G. §§ 3C1.1 and 3E1.1 apply. See U.S.S.G. § 3E1.1,
comment. (n.4); United States v. Thomas, 120 F.3d 564, 574-75
(5th Cir. 1997). Therefore, the district court’s determination
that Smith was not entitled to a two-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1 was not
without foundation. See United States v. Washington, 340 F.3d
222, 227 (5th Cir.), cert. denied, 540 U.S. 1081 (2003); see also
United States v. Angeles-Mendoza, ___ F.3d ___, No. 04-50118,
2005 WL 950130, *6 (5th Cir. Apr. 26, 2005) (applying deferential
standard of review to district court’s denial of a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1 post-Booker).
Smith also contends that the district court improperly
included third-party conduct in determining the amount of loss
attributable to him without making the particularized findings
required when a jointly undertaken criminal activity is involved.
However, contrary to Smith’s contention, the district court did
not include third-party conduct in determining the amount of loss
attributable to him as relevant conduct. Instead, Smith was held
accountable for relevant conduct in which he was directly
involved. See U.S.S.G. § 1B1.3(a)(1)(A). Therefore, the
district court did not clearly err in determining the amount of
loss attributable to Smith.
Finally, Smith contends that his sentence is
unconstitutional in light of Booker. Because Smith did not raise
a Sixth Amendment objection in the district court, this court’s
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review is for plain error. See United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517).
Although Smith’s sentence was enhanced based on facts that
were neither admitted by him nor found by a jury beyond a
reasonable doubt, he has not demonstrated that this plain error
affected his substantial rights. Smith has failed to point to
any evidence in the record indicating that the same sentence
would not have been imposed had the district court known that the
Sentencing Guidelines were advisory. The record itself gives no
indication that the district court would have reached a different
result under an advisory guidelines scheme. The district court
found that a sentence in the middle of the guideline range was
appropriate. Given the lack of evidence indicating that the
district court would have reached a different conclusion, Smith
has not demonstrated that his substantial rights were affected,
and, thus, he has failed to establish plain error. See Mares,
402 F.3d at 520-22.
Accordingly, the district court’s judgment is AFFIRMED.