                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 11, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 06-3398
 v.                                             (D.C. No. 05-CR-20104-KHV)
                                                       (Dist. of Kan.)
 CARL DEAN SMITH,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant-Appellant, Carl Dean Smith, was indicted for robbing the First

National Bank of Louisburg (First National) in Stilwell, Kansas, in violation of 18

U.S.C. § 2113(a) and (d). Mr. Smith proceeded to trial, testified in his own

behalf, and was found guilty by a jury. The district court sentenced him to a term

of imprisonment of 78 months, followed by five years of supervised release. Mr.

Smith appeals from his conviction and sentence, challenging the admission at trial


      *
           This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See F ED . R. A PP . P. 34(a); 10 TH
C IR . R. 34.1(G). The case is therefore ordered submitted without oral argument.
of certain evidence regarding his visit on the day of the robbery to nearby bank

and the district court’s enhancement of his sentence for obstruction of justice.

We AFFIRM.

                                I. BACKGROUND

      A masked gunman robbed First National in Stilwell, Kansas and escaped

without being identified. Mr. Smith testified that he had been at a nursery in

Stilwell on the day of the robbery, and as he was leaving, was almost hit by a car.

He testified that as the car passed him, something came out of it, but the car kept

moving. Mr. Smith said that he continued down the street and found a sack of

money, which he subsequently used to pay his bills.

      According to his testimony, Mr. Smith did not know the money was from a

bank robbery, but only later heard about the robbery through a news report and

concluded that the money he found might be from the robbery. Initially, Mr.

Smith told the FBI that the money used to pay his bills was from other sources.

                                  II. DISCUSSION

      Mr. Smith challenges his conviction on the ground that evidence about his

visit to a nearby bank was improperly admitted. He challenges his sentence on

the basis that an obstruction of justice enhancement was improperly applied for

perjury. We reject both claims.




                                         -2-
                           A. Admissibility of Evidence

      Mr. Smith’s counsel submits the admissibility-of-evidence issue pursuant to

Anders v. California, 386 U.S. 738 (1967). Anders instructs that, “if counsel

finds his case to be wholly frivolous, after a conscientious examination of it, he

should so advise the court and request permission to withdraw. That request

must, however, be accompanied by a brief referring to anything in the record that

might arguably support the appeal.” Anders, 386 U.S. at 744.

      Because he did not consider the obstruction-of-justice issue to be frivolous,

Mr. Smith’s counsel did not seek to completely withdraw from the representation.

Rather, he took an alternative, but seemingly appropriate, path in flagging the

admissibility-of-evidence issue as subject to Anders. See generally United States

v. Medley, 476 F.3d 835, 837 (10th Cir.) (noting defense counsel’s invocation of

Anders as to most, but not all, appellate issues), cert. denied, 128 S. Ct. 83

(2007). Mr. Smith was afforded an opportunity to put additional arguments or

issues before this Court and he elected to do so, filing a supplemental brief that

focused on the admissibility-of-evidence issue. 1


      1
             Almost seven months after Mr. Smith filed his supplemental brief
and eight months after the filing of his opening brief, Mr. Smith submitted a
motion asking this Court to “withdraw” (i.e., remove) his counsel “due to a
breakdown of the Attorney Client Relations.” Motion for Appellant Counsel to
Withdraw at 1. Mr. Smith urged us to hold the appeal in abeyance until new
counsel could be appointed to “review the merits of the appeal and make the
necessary changes.” Id. at 2. However, Mr. Smith did not voice these concerns
about his lawyer until long after this appeal was ripe for decision. Mr. Smith’s
                                                                      (continued...)
                                         -3-
      Prior to trial, Mr. Smith filed a motion objecting to the admission of

evidence regarding his visit to a nearby bank – prior to, but on the same day as,

the charged robbery. Mr. Smith argued that the evidence was not relevant and

was unduly prejudicial in violation of Rule 403 of the Federal Rules of Evidence.

The district court denied the motion before trial. Employing the lexicon of Rule

404(b) of the Federal Rules of Evidence, the district court noted that the evidence

was relevant to show motive, intent and preparation for the charged offense. See

Fed. R. Evid. 404(b) (authorizing the admission of other-acts evidence as proof,

inter alia, of “motive, opportunity, intent, preparation”).

      In his supplemental brief Mr. Smith claims that the district court abused its

discretion in admitting evidence relating to his visit to a “nearby bank that was

not robbed.” Aplt. Supp. Br. at 1. Particularly problematic in Mr. Smith’s view




      1
        (...continued)
counsel indicated that he diligently examined the law and facts and presented
available non-frivolous issues for our resolution. Furthermore, insofar as Mr.
Smith believed that his counsel failed to identify the full universe of appealable
issues, Mr. Smith had an opportunity to rectify the purported failing. And Mr.
Smith in fact availed himself of the opportunity. We have no reason therefore to
doubt the appropriateness of moving forward at this time to decide this case. Mr.
Smith’s motion is denied. Furthermore, this logic guides our disposition of Mr.
Smith's subsequently-filed Motion for Appointment of Counsel. Mr. Smith filed
this motion twenty-one days after his earlier motion (i.e., his motion asking us to
“withdraw” his counsel). Significantly, Mr. Smith does not explain how a newly-
appointed counsel would advance his cause. For example, he does not indicate
what new issues (if any) his newly-appointed counsel would present for our
consideration. Mr. Smith's Motion for Appointment of Counsel is denied.

                                         -4-
was the district court’s admission of evidence pertaining to fingerprints which

matched Mr. Smith that were lifted from the other bank.

      Mr. Smith argues that the other-bank evidence, especially the fingerprint

evidence, had the effect of confusing the jury. Specifically, regarding the

fingerprint evidence, Mr. Smith contends that it “served to confuse the jury and

cause the jury to believe the Appellant’s fingerprints came from the bank that was

robbed.” Id. at 2.

      A district court’s ruling on the admissibility of evidence is reviewed for an

abuse of discretion. United States v. Zepeda-Lopez, 478 F.3d 1213, 1219 (10th

Cir. 2007). The ruling will not be reversed “without a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Id. at 1219 (quoting United

States v. Griffin, 389 F.3d 1100, 1103 (10th Cir. 2004)).

      Rule 403 of the Federal Rules of Evidence states, “Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

      We conclude that the district court did not abuse its discretion in admitting

the evidence pertaining to Mr. Smith’s visit to the other bank. The district court

reasonably concluded that the evidence was relevant on the issues of motive,

                                         -5-
intent, and preparation for the robbery. Cf. United States v. Moss, 544 F.2d 954,

962 (8th Cir. 1976) (concluding under Fed. R. Evid. 404(b) that evidence of

defendant’s prior trips to two different states with the aim of committing bank

robberies was, inter alia, “admissible to show preparation, plan, intent”).

      Specifically, a reasonable jury could infer that Mr. Smith visited the other

bank as part of his preparation to rob a bank (i.e., he was “casing” it) and he

settled on First National as the most desirable target. In this regard, the

government introduced evidence that there were only two banks in Stilwell,

Kansas and someone matching Mr. Smith’s description had been observed at First

National the previous day. Mr. Smith’s own testimony tended to strongly confirm

his presence at First National the previous day. The evidence thus supported a

reasonable inference that, with an eye toward ultimately committing a robbery

(i.e., with the intent to do so), Mr. Smith visited the two banks in Stilwell – First

National, the day before the robbery, and the other bank, on the day of the

robbery, but before it occurred – and then selected First National to rob and

robbed it.

      Furthermore, the district court did not err in finding that the probative force

of this evidence was not substantially outweighed by the danger of juror

confusion. Throughout the trial, the government was careful to distinguish

between the two banks. For example, in questioning a law enforcement agent, the




                                          -6-
prosecutor clarified that although the robbery occurred at First National, the

fingerprints were taken from the other bank visited by Mr. Smith.

      The district court specifically instructed the jury that “[i]n determining

whether defendant is guilty or innocent, you are to consider only whether he has

committed the acts charged in the indictment” – that is, the armed robbery of First

National – and further noted that Mr. Smith “is not on trial for any act or conduct

not specifically charged in the indictment.” R., Vol. I, Doc. 51, Instruction No. 8.

Mr. Smith had the opportunity during a jury instruction conference at trial to

request more detailed or specific limiting or cautionary instructions to counteract

the alleged prejudice from the other-bank evidence. But Mr. Smith failed to do so.

      Accordingly, we hold that the district court did not abuse its discretion in

admitting the evidence relating to Mr. Smith’s visit to a nearby bank on the day of

the charged robbery.

               B. Obstruction of Justice Enhancement for Perjury

      “In considering the application of the sentencing guidelines, we review the

district court’s factual findings for clear error, and its legal determinations de

novo.” United States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). “We give

due deference to the district court’s application of the guidelines to the facts.” Id.

(internal quotation marks omitted).




                                          -7-
      The district court imposed an obstruction of justice enhancement pursuant to

U.S.S.G. § 3C1.1 for committing perjury at trial. It justified this enhancement by

saying:

             This is as clear a case of perjury as I’ve ever seen in court and,
             frankly, I thought that the story about the real robbers
             throwing the money out of a car was preposterous. And when
             you put that together with the undisputed and I guess
             unobjected to parts of the Pretrial Order which say that the
             defendant is sort of a pathological liar, it makes this a pretty
             easy call for me.

                    So I think that the obstruction of justice calculations are
             appropriately made for exactly the reasons stated in paragraph
             30 of the presentence investigation report.

R., Vol. III, Doc. 65, Tr. at 9 (Sentencing Hearing, dated Nov. 6, 2006).

             On appeal, Mr. Smith does not claim that there was a lack of evidence

showing he committed perjury or that the district court made any procedural errors

in applying the enhancement. Rather, Mr. Smith maintains that it was improper

for the district court to enhance his sentence for obstruction of justice because the

jury did not find that he committed perjury at trial.

      More specifically, Mr. Smith argues that imposing such an enhancement

based upon judge-found facts violates United States v. Booker, 543 U.S. 220

(2005), as evidenced by the Supreme Court’s decision in Cunningham v.

California, 127 S. Ct. 856 (2007).

      In Booker, the Supreme Court applied Blakely v. Washington, 542 U.S. 296

(2004) to the Sentencing Guidelines and held the Sixth Amendment required that

                                          -8-
“[a]ny fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 543 U.S. at 244.

      The Supreme Court’s holding in Booker, however, does not prevent a

district court from making the same factual findings and applying the same

enhancements to a defendant’s sentence that it could before Booker, as long as it

does not apply the Guidelines in a mandatory fashion. See United States v.

Lawrence, 405 F.3d 888, 907 (10th Cir. 2005). In Cunningham, the Court

held that California’s determinate sentencing law – a statute that had a multi-tier

structure for sentencing and authorized a judge to find facts to increase the

sentence from a “middle term” to an “upper term” – violated the Sixth

Amendment’s jury trial guarantee. Cunningham, 127 S. Ct. at 861-62. Nothing in

Cunningham barred the district court here, however, from engaging in judicial

fact-finding under an advisory Guidelines system and imposing a sentence upon

Mr. Smith within the relevant statutory maximum authorized by his conviction.

United States v. Holtz, 226 F. App’x 854, 858 n.3 (10th Cir. 2007) (unpublished).

      “After Booker, a constitutional violation lies only where a district court uses

judge-found facts to enhance a defendant’s sentence mandatorily under the

Guidelines, and not where a court merely applies such facts in a discretionary

manner.” United States v. Hall, 473 F.3d 1295, 1312 (10th Cir. 2007) (internal

                                          -9-
quotation marks and alterations omitted). “Because the post-Booker Guidelines

are discretionary, a district court may continue to find facts . . . by a

preponderance of the evidence.” Id. “[W]hen a district court makes a

determination of sentencing facts by a preponderance test under the now-advisory

Guidelines, it is not bound by jury determinations reached through application of

the more onerous reasonable doubt standard.” United States v. Magallanez, 408

F.3d 672, 685 (10th Cir. 2005). Accordingly, the district court did not err under

Booker in enhancing Mr. Smith’s sentence for obstruction of justice based upon its

findings of perjury.

                                 III. CONCLUSION

      For the foregoing reasons, we AFFIRM Mr. Smith’s conviction and

sentence.



                                         ENTERED FOR THE COURT

                                         Jerome A. Holmes
                                         Circuit Judge




                                           -10-
