UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4481

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CALVIN SMOOT, a/k/a Smooth,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Cameron McGowan Currie, District

Judge. (CR-04-131)

Argued: January 31, 2006 Decided: March 2, 2006

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: William Rhett Eleazer, Chapin, South Carolina, for

Appellant. Leesa Washington, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee. ON BRIEF: Jonathan S. Gasser, United States Attorney,

Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Calvin Smoot appeals his conviction and sentence for

conspiracy to possess with intent to distribute and possession with

intent to distribute cocaine. He challenges the district court’s

refusal to give an alibi instruction and its sentencing finding

that he suborned perjury. We affirm.

I.

In 2004, a grand jury indicted Smoot on charges of conspiring

to possess with intent to distribute 5 kilograms or more of cocaine

and possessing with intent to distribute at least 500 grams of

cocaine on March 2, 2003. At trial, two of Smoot’s co-conspirators

testified about the conspiracy and also testified that they

purchased a kilogram of cocaine from Smoot on both March 2 and

March 3 of 2003 at Smoot’s apartment. Smoot presented Latisha

Bryant, his ex-girlfriend, as his only witness. 

Bryant testified that on March 2, 2003, she spent the night at

Smoot’s apartment, and that they were alone the entire time. She

further testified that Smoot spent March 3, 2003 at her apartment.

Bryant relied on a personal calendar to refresh her memory; she

testified that she had recorded where she spent the night on those

dates in her calendar. On cross-examination, Bryant admitted that

Smoot had asked her to serve as a witness. There were a number of

inconsistencies in Bryant’s testimony. She gave varying accounts
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of when her relationship with Smoot began and ended, and although

she remembered what happened in March 2003 in great detail, she was

unable to recall the content of more recent conversations she had

with Smoot after his arrest. In addition, she was unable to

explain phone calls between her cell phone and a phone number used

by Smoot on March 2, 2003 during the time that she claimed to be

with him.

Before Bryant ever testified, Smoot’s lawyer accurately

proffered the content of her testimony and requested that the

district court give the jury an alibi instruction. During the

charge conference, Smoot’s attorney admitted that Bryant could only

provide an alibi for March 3, 2003, because Bryant’s testimony

would indicate that Smoot spent March 2, 2003 in his apartment.

The district court declined to give the alibi instruction, finding

that Smoot’s presence was not required for the conspiracy charge

and that the evidence did not provide an alibi for the substantive

charge -- possession with intent to distribute on March 2, 2003.

The jury convicted Smoot of both the conspiracy and the

substantive charge. At Smoot’s sentencing hearing, he objected to

the Presentence Report’s recommendation that he receive an

enhancement for obstruction of justice on the grounds that he

suborned perjury when he asked Bryant to testify on his behalf. He

argued that there was insufficient evidence to support a finding

that Bryant perjured herself or that Smoot suborned perjury. The
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district court overruled Smoot’s objection, finding that Bryant’s

testimony was “preposterous” and “incredible” and that Smoot urged

his lawyer to subpoena Bryant. Smoot’s total offense level and

criminal history resulted in an advisory guidelines range of 121 to

151 months. The district court sentenced Smoot to 136 months for

each count, with sentences to run concurrently. 

 

II.

Smoot alleges that the district court erred when it refused to

give the jury an alibi instruction. We review a district court’s

decision not to give a requested jury instruction for abuse of

discretion. See United States v. Hassouneh, 199 F.3d 175, 181 (4th

Cir. 2000). “A district court’s refusal to provide an instruction

requested by a defendant constitutes reversible error only if the

instruction: 1) was correct; 2) was not substantially covered by

the court’s charge to the jury; and 3) dealt with some point in the

trial so important, that failure to give the requested instruction

seriously impaired the defendant’s ability to conduct his defense.”

United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (quoting

United States v. Camejo, 929 F.2d 610, 614 (11th Cir. 1991))

(internal quotation marks omitted). However, “as a threshold for

applying this test, a defendant must present an adequate

evidentiary foundation supporting the instruction.” Id. at 33 n.8.
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An alibi is “a defense that places the defendant at the

relevant time of crime in a different place than the scene involved

and so removed therefrom as to render it impossible for him to be

the guilty party.” Black’s Law Dictionary 71 (6th ed. 1990); see

also Holdren v. Legursky, 16 F.3d 57, 63 n.4 (4th Cir. 1994). 

In this case, the indictment indicated that the conspiracy in

question lasted for four years and involved at least seven

participants. Smoot’s presence at his apartment on March 2 and 3,

2003 was not a required element of the conspiracy, thus an alibi

instruction for the conspiracy charge in this case would clearly

have been inappropriate. See United States v. Lee, 483 F.2d 968,

970 (5th Cir. 1973) (“Since it was unnecessary for the government

to have proved his presence, the alibi defense failed and no

instruction concerning it was required.”). 

 The substantive drug count charged Smoot with possession with

intent to distribute 500 grams or more of cocaine “on or about

March 2, 2003.” The testimony of Smoot’s co-conspirators indicated

that the drug sales in question occurred at Smoot’s apartment.

Although Bryant’s testimony offered Smoot a potential alibi for

March 3, 2003, she testified that Smoot was at his apartment the

night of March 2, 2003. Smoot admitted that Bryant did not

provide an alibi for March 2 when he described her as “an alibi

witness as to the 3rd and a present witness as to the 2nd.”

Because Smoot did not offer any evidence that he was not at his
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apartment on March 2, 2003, we find that he has not established the

evidentiary foundation required by Lewis, 53 F.3d at 33 n.8.

Accordingly, the district court did not abuse its discretion in

refusing to give Smoot’s requested alibi instruction.

III.

Smoot additionally contends that there was insufficient

evidence to support the district court’s finding that Smoot

suborned perjury. The district court made this finding while

calculating Smoot’s advisory sentencing guidelines range; the court

imposed a two level enhancement for obstruction of justice based on

the finding. Post-Booker, we review sentences for reasonableness.

See United States v. Hughes, 401 F.3d 540, 546-47 (2005). Smoot

does not allege Booker error here; rather, he asserts that the

district court’s error in calculating the advisory guidelines range

justifies vacating his sentence. We continue to review a district

court’s factual findings for clear error and legal interpretations

of the guidelines de novo. See United States v. Green, --- F.3d --

-, 2006 WL 267217 at *5, (4th Cir. 2006). A district court’s error

in calculating the advisory guidelines range will, in most cases,

render the ultimate sentence unreasonable. See id. at *9. 

The sentencing guidelines clearly contemplate that the act of

suborning perjury qualifies a defendant for a two level obstruction

of justice enhancement. See United States Sentencing Commission
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Guidelines Manual § 3C1.1, application note 4 (2004). Perjury

requires a finding that a witness “testified 1) falsely, 2) as to

a material fact, and 3) willfully in order to obstruct justice, not

merely inaccurately as the result of confusion or a faulty memory.”

United States v. Cook, 76 F.3d 596, 605 (4th Cir. 1996) (internal

quotation marks omitted). Circuit precedent indicates that

subornation of perjury requires that the “the suborner should have

known or believed or have had good reason to believe that the

testimony given would be false; that he should have known or

believed that the witness would testify willfully and corruptly,

and with knowledge of the falsity; and that he should have

knowingly and willfully induced or procured the witness to give

such false testimony.” Petite v. United States, 262 F.2d 788, 794

(4th Cir. 1959) (internal quotation marks omitted); see also 18

U.S.C. § 1622 (2000) (defining suborning perjury as procuring

another to commit perjury).

In this case, the district court found that the jury

discredited Bryant’s testimony, and that Bryant “certainly was

bound and determined to try to help [Smoot], to the extent of

perjuring herself.” The inconsistencies in Bryant’s testimony and

the fact that the jury disbelieved her account of what happened on

March 2 and 3 suffice to support the district court’s finding that

Bryant committed perjury.
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The record also provides sufficient evidence to support the

district court’s conclusion that Smoot procured Bryant’s testimony.

Smoot knew the content of Bryant’s testimony in advance because his

counsel summarized Bryant’s testimony for the court when he

requested the alibi instruction. In addition, Bryant testified

that Smoot asked her to testify on his behalf. These two facts

indicate that Smoot knew Bryant would offer false testimony and

that he persuaded her to give that testimony. Thus we conclude

that the district court did not err in applying a two level

obstruction of justice enhancement to Smoot’s advisory guidelines

range. 

IV.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.