                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4493



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


GERTRUDE ARMSTRONG GOLDEN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Raymond A. Jackson,
District Judge. (4:05-cr-00067-RAJ)


Submitted:   October 31, 2007           Decided:    November 27, 2007


Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Acting Federal Public Defender, Larry M.
Dash, Assistant Federal Public Defender, Frances H. Pratt, Research
and Writing Attorney, Norfolk, Virginia, for Appellant.       Chuck
Rosenberg, United States Attorney, Michael R. Gill, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           A jury convicted Gertrude Armstrong Golden of five counts

of wire fraud, in violation of 18 U.S.C. § 1343 (2000) (Counts One

through Five), one count of money laundering, in violation of 18

U.S.C. § 1957 (2000) (Count Six), and one count of making false

statements during bankruptcy proceedings, in violation of 18 U.S.C.

§ 152 (2000) (Count Seven).            She was sentenced to 42 months’

imprisonment on each count to be served concurrently.                 Golden

appealed her convictions and sentences.             Finding no reversible

error, we affirm.

           Golden’s counsel filed a brief in accordance with Anders

v.   California,   386   U.S.   738    (1967),   concluding   there   are   no

meritorious claims, but questioning whether: (1) the district court

erred by refusing to give Golden’s requested good faith jury

instruction; (2) there was sufficient evidence to support the money

laundering conviction (Count Six) because the Government failed to

prove the interstate commerce element of the offense; (3) the

district court erred in enhancing Golden’s sentence for obstruction

of justice based on perjury; and (4) Golden’s sentence violated her

Fifth and Sixth Amendment rights in light of United States v.

Booker, 543 U.S. 220 (2005).          The Government was directed to file

a responding brief, and has done so.             Golden was advised of her

right to file a pro se supplemental brief, but has not done so.




                                      - 2 -
     I.   Good Faith Jury Instruction

          Counsel argues the district court erred in refusing to

give Golden’s requested good faith jury instruction.     This court

considers de novo whether a district court has properly instructed

a jury on the statutory elements of an offense, see United States

v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996), but reviews for abuse of

discretion the district court’s decision of whether to give a jury

instruction and the content of the instruction.    See United States

v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996).   A court’s refusal to

give a requested instruction is reversible error 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).

          We conclude the district court provided an adequate

specific intent instruction to the jury, and thus was not required

to give an additional instruction on good faith. See United States

v. Fowler, 932 F.2d 306, 317 (4th Cir. 1991)(holding good faith

jury instruction is not necessary when the court has given an

adequate specific intent instruction). Thus, this claim is without

merit.




                              - 3 -
       II.   Sufficiency of Evidence

             Golden argues the district court erred in denying her

motion for judgment of acquittal because there is insufficient

evidence to convict her of money laundering when the Government

failed to establish the interstate commerce element of the offense.

If a motion for judgment of acquittal is based on insufficiency of

the evidence, the verdict must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.     Glasser v. United States, 315 U.S. 60, 80 (1942).

Substantial    evidence    is   defined    as   “that   evidence   which    ‘a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’”     United States v. Newsome, 322 F.3d 328, 333 (4th Cir.

2003) (quoting United States v. Burgos, 94 F.3d 849, 862-63 (4th

Cir.   1996)   (en   banc)).     The   court    reviews   both   direct    and

circumstantial evidence and permits “the [G]overnment the benefit

of all reasonable inferences from the facts proven to those sought

to be established.” United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982).      Witness credibility is within the sole province

of the jury, and we will not reassess the factfinder’s credibility

determination.       United States v. Saunders, 886 F.2d 56, 60 (4th

Cir. 1989); see also United States v. Sun, 278 F.3d 302, 313 (4th

Cir. 2002).




                                   - 4 -
          The Government concedes that the jury instruction given

on the issue of proof required to establish the interstate commerce

element was “not a correct statement of the law and overstated the

burden of proof.”     The Government had requested the court give a

jury instruction that the interstate commerce requirement could be

satisfied based on proof that Golden withdrew funds from an FDIC

insured financial institution.    However, the district court denied

the request and instead instructed:

     The phrase in or affecting commerce includes commerce
     between any place in a state and any place outside of
     that state. The government may meet its burden of proof
     on the question of being in or affecting commerce by
     proving to you beyond a reasonable doubt that the
     property or money involved at any time had traveled or
     crossed a state boundary line.

     Interstate commerce means commerce or travel between one
     state or territory or possession of the United States and
     another state or territory or possession of the United
     States, including the District of Columbia. Court [sic]
     recalls the parties saying there was no big dispute about
     this issue of interstate commerce.

          An error in jury instructions will mandate reversal of a

judgment only if the error was prejudicial, based on a review of

the record as a whole. Wellington v. Daniels, 717 F.2d 932, 938

(4th Cir. 1983).    We find Golden was not prejudiced by the district

court’s overbroad instruction, which imposed a higher evidentiary

burden on the Government than should have been required.

     The evidence at trial established that victims deposited funds

in the amount of $37,500, into the Maude Ellen Coates Armstrong

Foundation’s (“MECA”) SunTrust account in McLean, Virginia.      Two

                                 - 5 -
days later, Golden deposited into her personal account at Bank of

America in Virginia Beach, Virginia, a check payable to herself she

had written from MECA’s SunTrust account.         Because the interstate

commerce element is satisfied by evidence establishing Golden

withdrew the money from an FDIC insured bank, and the parties

stipulated both SunTrust and Bank of America were FDIC insured,

there was sufficient evidence to support a conclusion that the

funds had traveled in interstate commerce.            See United States v.

Peay, 972 F.2d 71, 74 (4th Cir. 1992) (holding deposit of unlawful

proceeds in an FDIC insured institution was sufficient to establish

interstate commerce nexus required to support a money laundering

conviction).    Therefore, there was sufficient evidence to support

Golden’s conviction for money laundering.



     III. Obstruction of Justice Enhancement for Perjury

             Counsel contends the district court erred by finding

Golden committed perjury during her testimony and enhancing her

sentence for obstruction of justice pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 3C1.1 (2005).            The district court’s

factual findings supporting the § 3C1.1 obstruction of justice

enhancement are reviewed for clear error. United States v. Kiulin,

360 F.3d 456, 460 (4th Cir. 2004).             Under USSG § 3C1.1, the

sentencing    court   must   impose   a   two-level   enhancement   if   the

defendant does willfully or attempts to willfully obstruct or


                                  - 6 -
impede the administration of justice during the investigation,

prosecution, or sentencing of the offense of conviction, relating

to the offense of conviction and any relevant conduct or a closely

related offense.       The enhancement is applied when it is shown a

defendant committed perjury.         USSG § 3C1.1, comment. n.4(b); see

also United States v. Dunnigan, 507 U.S. 87, 94 (1993).

           To    establish      Golden    committed    perjury   during    her

testimony, the Government has the burden of persuading the court by

a preponderance of the evidence that Golden gave false testimony

under oath “concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion,

mistake, or faulty memory.”        See Dunnigan, 507 U.S. at 94; United

States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995).            The sentence

enhancement based on perjury does not apply merely because Golden

was convicted.        See Dunnigan, 507 U.S. at 95.         A defendant may

testify   truthfully,     but    “the    jury   may   nonetheless   find   the

testimony insufficient to excuse criminal liability or prove lack

of intent.”     Id.    The district court should “address each element

of the alleged perjury in a separate and clear finding.”             Id.

           After a thorough review of the record, we find there was

substantial evidence Golden gave false testimony at trial on

material matters that was not the result of any confusion, mistake

or faulty memory but instead was a willful attempt to avoid

responsibility for her conduct.          Thus, the district court did not


                                    - 7 -
clearly err in finding Golden committed perjury or in applying the

enhancement for obstruction of justice.



     IV.    Obstruction of Justice Enhancement Violates Booker

            Golden also argues the obstruction of justice enhancement

is erroneous in light of Booker because the facts supporting it

were not found by a jury beyond a reasonable doubt.               We find the

enhancement for obstruction of justice did not run afoul of Booker

because, in sentencing defendants after Booker, the district court

should continue to apply a preponderance of the evidence standard,

taking into account that the resulting guidelines range is advisory

only.     See United States v. Morris, 429 F.3d 65, 72 (4th Cir.

2005).    The district court fully complied with these requirements.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm Golden’s convictions and sentences.

This court requires that counsel inform his client, in writing, of

her right to petition the Supreme Court of the United States for

further review.     If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel    may   move   in   this   court    for   leave   to   withdraw   from

representation.     Counsel’s motion must state that a copy thereof

was served on the client.       We dispense with oral argument because

the facts and legal contentions are adequately presented in the


                                     - 8 -
materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                                    AFFIRMED




                                   - 9 -
