* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10883

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

STEVE HOWARD SMITH

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:03-CR-276-ALL-A 

--------------------

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
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

-3-

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
No. 04-10883

-4-

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.