FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 29, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15734

Non-Argument Calendar

________________________

D. C. Docket No. 03-00436-CR-P-E

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

EARNEST W. SMITH, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

 (August 29, 2005)

Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:
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Appellant Earnest W. Smith was convicted of bank robbery, in violation of

18 U.S.C. § 2113(a). This appeal raises two issues: (1) whether the district court

abused its discretion by admitting as evidence a fingerprint card; and (2) whether

the district court properly calculated Smith’s sentence including a two-level

enhancement under U.S.S.G. § 2B3.1(b)(2)(F) on the basis that the crime involved

a threat of death. For the reasons that follow, we affirm.

I.

The relevant facts for the purposes of this appeal are as follows. Jennifer

Ballew, a teller at Farmers and Merchants Bank in Oxford, Alabama, testified at

trial that two men entered the bank, went to the island where the deposit slips were

kept, and wrote something down. One of the men then approached her booth and

handed her a note which read: “I want all the cash, bitch or I’ll kill all; you say,

you die.” She gave him $1,840 from her cash drawer and activated the alarm as

the two men left the bank. 

Naveon Taylor also testified, admitting he was one of the robbers and

identifying Appellant Smith as the second robber. According to Taylor, he and

Smith lived together at the time of the robbery and they worked out a plan to rob

the bank because they needed money for drugs. Taylor testified that Smith wrote

the demand note before the robbery at the home of Smith’s girlfriend. Taylor
 There was evidence that Smith’s girlfriend got the car from a nearby car dealership by 1

asking the dealership to allow her to take the car on a test drive. 

 FBI agent Phyllis Garcia also testified that she compared prints lifted from the front 2

passenger side of the car to those on the fingerprint card and the prints matched. 

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further explained that when inside the bank, he and Smith pretended to write

something on a piece of paper to enable them to see what was going on in the bank. 

Taylor testified that he handed the demand note to the teller and took the money. 

He and Smith then left the bank in a car driven by Smith’s girlfriend, with Smith

riding in the front passenger seat.1

The government sought to introduce a fingerprint card that contained

Smith’s signature, social security number, and date of birth, through the testimony

of Brian Clay, the officer who took the prints, and FBI agent Brian Tallent.

Although Clay was unable to identify the defendant as the person whom he

fingerprinted, he stated that, at the time of the arrest, he arranged for a fingerprint

card to be taken and that he entered certain information on the card, including

Smith’s name, social security number and date of birth. He also testified that the

card was signed Earnest Smith. FBI agent Brian Tallent testified that he

interviewed Smith at the police station on the same day the fingerprint card was

made. According to Tallent, during the interview, Smith gave him his name and

social security number, which matched the information on the fingerprint card.2
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Defense counsel objected to the admission of the fingerprint card on the basis that

Tallent had no personal knowledge that the prints on the card belonged to Smith. 

The district court overruled the objection. At the conclusion of the trial, Smith was

convicted. 

Following the trial, the probation officer prepared a presentence

investigation report (“PSI”), assigning a base offense level of 20 under U.S.S.G. §

2B3.1, with a 2-level increase for property taken from a financial institution,

U.S.S.G. § 2B3.1(b)(1), and another 2-level enhancement because the note handed

to the teller presented a threat of death, U.S.S.G. § 2B3.1(b)(2)(F). At sentencing,

Smith’s counsel objected to the 2-level increase for the threat of death because

Taylor, not Smith, handed the note to the teller. The court overruled the objection

and noted that, based on the evidence at trial, the jury had concluded that Smith

played a role in the death threat. With a total offense level of 24 and a criminal

history category IV, Smith’s guidelines range was 77 to 96 months imprisonment. 

The court sentenced Smith to 86 months imprisonment, 3 years supervised release,

and restitution in the amount of $1,840. This appeal followed. 

II.

Smith argues that the district court erred by admitting the fingerprint card
 There is no merit to Smith’s argument that the introduction of the fingerprint card 3

violated his confrontation clause rights under the Sixth Amendment. Smith had an opportunity

to cross-examine both Clay and Tallent. Additionally, to the extent that Smith challenges the

chain of custody, that argument has no merit, as such a challenge goes to the weight of the

evidence and not its admissibility. United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir.

1985). 

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because there was insufficient evidence to lay a proper predicate. We review a 3

district court’s ruling on the admissibility of evidence for abuse of discretion. 

United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). “Evidentiary

errors do not constitute grounds for reversal unless there is a reasonable likelihood

that they affected the defendant’s substantial rights; where an error had no

substantial influence on the outcome, and sufficient evidence uninfected by error

supports the verdict, reversal is not warranted.” United States v. Drury, 396 F.3d

1303, 1315 (11th Cir. 2005). 

Federal Rule of Evidence 901 provides that the “requirement of

authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Fed.R.Evid. 901. The government may show the connection

between the physical evidence and the defendant by circumstantial evidence. 

United States v. Lopez, 758 F.2d 1517, 1520 (11th Cir. 1985). 

Here, the district court did not abuse its discretion, as the government

proffered sufficient circumstantial evidence for the jury to conclude that the
 Under U.S.S.G. § 2B3.1(b)(2)(F), the offense level is increased by two if a threat of 4

death was made. A threat of death could be oral or in writing. U.S.S.G. § 2B3.1, comment.

(n.6). After United States v. Booker, 543 U.S. –, 125 S.Ct. 738 (2005), we apply the same

standards of review to guidelines applications. See United States v. Crawford, 407 F.3d 1174

(11th Cir. 2005). Additionally, after Booker, the same extra-verdict enhancements remain, and

the district court considers the same factual evidence in applying the guidelines enhancements as

it would under the mandatory guidelines scheme. United States v. Williams, 408 F.3d 745 (11th

Cir. 2005). 

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fingerprints on the card belonged to Smith. Clay testified that he took the

fingerprints on the day of Smith’s arrest and that Smith’s signature, social security

number, and other identifying information were recorded on the card. In addition,

Smith gave Tallent his social security number during an interview on the same day

the fingerprints were taken and that number matches the number on the fingerprint

card. Viewed together, the testimony of these two witnesses provided a sufficient

foundation for the admission of the fingerprint card. See Lopez, 758 F.2d at 1520-

21. 

Smith also argues that the two-level enhancement of his sentence pursuant to

U.S.S.G. § 2B3.1(b)(2)(F) that was imposed on the basis that the robbery involved 4

a threat of death violates his constitutional rights in light of

Blakely v. Washington 542 U.S. 296 (2004). In particular, Smith argues that the

enhancement was improper because Taylor, not Smith, presented the note to the

teller. 

Smith did not preserve his Blakely (now United States v. Booker, 543 U.S.
7

–, 125 S.Ct. 738 (2005)) argument. In the district court, Smith did not cite to any

caselaw in objecting to the enhancement nor did he contend that the issue should

have been submitted to the jury. Instead, Smith merely objected on the basis that

Taylor, not Smith, handed the demand note to the teller; this is insufficient to

preserve a Booker claim. See United States v. Dowling, 403 F.3d 1242 (11th Cir.

2005) (holding that, to preserve a constitutional objection, the defendant must refer

to the Sixth Amendment, the Apprendi/Blakely/Booker line of cases, or the right to

have a jury decide a disputed fact, but that a challenge to the sufficiency of the

evidence does not preserve the error). 

Because Smith did not preserve his Booker claim, we review for plain error. 

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, –

S.Ct. – (No. 04-1148) (June 20, 2005). To establish plain error, Smith must show

there is: (1) error ; (2) that is plain; (3) that affects the defendant’s substantial

rights in that it was prejudicial and not harmless; and (4) that seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. Rodriguez, 398

F.3d at 1298. 

Here, the district court imposed a 2-level extra-verdict enhancement

pursuant to U.S.S.G. § 2B3.1(b)(2)(F). Therefore, Smith’s Booker challenge

presents an error that is plain. See Rodriguez, 398 F.3d at 1298-99. The third
 Because Smith cannot show that his sentence would have been different but for the 5

mandatory application of the guidelines, any claim of statutory error fails as well. See United

States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005); Rodriguez, 398 F.3d at 1301. See

also United States v. Williams, 408 F.3d 745 (11th Cir. 2005) (stating that Williams could not

show his sentence would have been different where his sentence fell at the high end of the

guideline range); United States v. Curtis, 400 F.3d 1334 (11th Cir. 2005) (noting that there was

nothing in the record to suggest the district court would have imposed a lower sentence under an

advisory guidelines system, especially in light of the fact that the court already had sentenced

him at the top of the guideline range). 

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prong of the plain error test, however, places a high burden on a defendant; Smith

must show that his sentence would have been different but for the mandatory

application of the guidelines. Id. at 1299-1301. 

Smith has not met this burden. Although Smith did not object to the

enhancement on Booker grounds, the district court indicated that the jury had

found that Smith played a role in the use of the demand letter. Thus, the district

court determined that the extra-verdict enhancement had been decided by the jury. 

Id. at 1301. Moreover, if faced with the same information on remand, the court

would still consider the same guideline and the same facts. See United States v.

Williams, 408 F.3d 745 (11th Cir. 2005). There is no indication that the district

court would have sentenced Smith differently if it had it known the guidelines were

only advisory. Thus, Smith cannot meet the third prong of the plain error test.5

United States v. Shelton, 400 F.3d 1325, 1330-32 (11th Cir. 2005); Rodriguez, 398

F.3d at 1301. 

Accordingly, for the foregoing reasons, we affirm. 
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AFFIRMED.