United States v. Smoot , 172 F. App'x 496 ( 2006 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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.
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