                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Argued February 21, 2006
                              Decided April 12, 2006

                                       Before

                          Hon. DANIEL A. MANION, Circuit Judge

                          Hon. DIANE P. WOOD, Circuit Judge

                          Hon. TERENCE T. EVANS, Circuit Judge

No. 05-3168

UNITED STATES OF AMERICA,                       Appeal from the United States
              Plaintiff-Appellee,               District Court for the Northern
                                                District of Illinois, Eastern Division
      v.
                                                No. 04 CR 377
GARY SMALL,
                Defendant-Appellant.            John Darrah, Judge.


                                    ORDER

       Gary Small paid a large price for his relatively small role in connection with
a Chicago Heights, Illinois, drug conspiracy. Small lied on the stand when he was
called as a witness in the trial of his cousin, Troy Lawrence, and other
codefendants, who were charged with running a drug conspiracy within 1,000 feet of
an elementary school. This false testimony precipitated Small’s indictment for
perjury and obstruction of justice. Small subsequently pled guilty. In this appeal,
he lodges several challenges to his sentence. We find none of them meritorious.

       Small’s problems began when he was called by Lawrence to testify about a
gun found in Lawrence’s home in Hammond, Indiana, and another gun found in the
car of Lawrence’s girlfriend and codefendant, Stacia Smith. As part of its case, the
government had to prove that Lawrence and Smith possessed the guns in
furtherance of the drug conspiracy. Regarding the first gun, Small claimed he left it
No. 05-3168                                                                               2



at Lawrence’s house because he didn’t want to get pulled over with it while driving.
In reality, Small provided the gun to Lawrence at Lawrence’s request after
Lawrence was injured in a shooting. Regarding the second gun, Small testified that
he took Smith’s car to have it washed, left the gun in the trunk, and forgot to tell
her about it. This story, too, was a fabrication. In truth, the gun made its way into
Smith’s car at some point after Small provided it to Lawrence, again at Lawrence’s
request.

       After pleading guilty under an agreement with the government, Small
received concurrent sentences of 60 months for perjury and 108 months for
obstruction. The sentencing guidelines for both of those offenses cross-reference the
guideline for the crime of being an accessory after the fact. The underlying offense
for which Small became an accessory was possession and distribution of controlled
substances within 1,000 feet of an elementary school.

       In this appeal, Small claims that the district court (Judge John W. Darrah)
identified the wrong underlying offense; erroneously rejected Small’s argument that
he was unaware of the scope of the drug conspiracy; erroneously applied the
sentencing guidelines as mandatory; and erred in denying him a sentence reduction
for acceptance of responsibility. In the wake of Booker v. United States, 543 U.S.
220 (2005), which made application of the guidelines advisory rather than
mandatory, we continue to review a district court’s application of the guidelines de
novo and its factual findings for clear error. United States v. Bothun, 424 F.3d 582,
586 (7th Cir. 2005). Denial of a sentence reduction for acceptance of responsibility
is reviewed for clear error. Id.

       Small does not dispute that the guidelines for perjury, § 2J1.3, and for
obstruction of justice, § 2J1.2, both cross-reference the guideline for accessory after
the fact, § 2X3.1. Nor does he dispute that § 2X3.1 in turn requires a court to
determine the underlying offense to which the defendant was an accessory. On
Small’s reading, however, § 2X3.1 defines “underlying offense” as, in the words of
his brief, the offense “in which the defendant is actually convicted.” The only
offenses for which Small was actually convicted were perjury and obstruction of
justice. Ergo, Small believes, the court erred in using the drug conspiracy as the
underlying offense.

       Small misreads the application note for § 2X3.1, and his reasoning fails for
obvious reasons. Spinning out his logic to its reductio ad absurdum, the underlying
offenses in which Small was an accessory after the fact--that is, the offenses for
which he was actually convicted--were his own perjury and obstruction of justice.
But one obviously cannot be an accessory after the fact to one’s own crimes. The
guidelines say plainly that “‘underlying offense’ means the offense as to which the
No. 05-3168                                                                          3



defendant is convicted of being an accessory.” U.S. Sentencing Guidelines Manual §
2X3.1 App. Note 1 (emphasis added). Because Small’s perjury and obstruction of
justice made him an accessory to the drug conspiracy about which he falsely
testified, the district court properly identified that conspiracy as the underlying
offense.

       Small next argues that Judge Darrah improperly calculated his offense level
under § 2X3.1. In determining the appropriate base offense level, the district court
took into account the type and quantity of drugs involved in the conspiracy. Small
believes that his sentence should not reflect these factors because he was not aware
of them. But we have previously rejected this same argument. When the
underlying offense is drug-related, the quantity of drugs is not a specific offense
characteristic about which the court inquires whether the accessory knew or should
have known; rather, it is a factor used to determine the base offense level. See
United States v. Girardi, 62 F.3d 943, 946 (7th Cir. 1995); U.S.S.G. § 2X3.1 App.
Note 1. As we have previously explained, “Neither Application Note 1 nor § 2X3.1
require[s] that an accessory ‘know’ or ‘reasonably know’ of the factors used to
calculate the base offense level, such as the quantity of drugs involved in the
offense.” Girardi, 62 F.3d at 946.

       Small believes that, post-Booker, the government was required to prove to a
jury all the facts that were used to enhance his sentence and that Booker calls into
question our holding in Girardi. Both points are incorrect because, as we have
explained, no Sixth Amendment violation is implicated by a court’s own fact-finding
during sentencing as long as the court treats the guidelines as advisory. See United
States v. Bryant, 420 F.3d 652, 656 (7th Cir. 2005) (“By treating the guidelines as
advisory, the judge necessarily sidestepped the constitutional infirmity identified in
Booker--judicial factfinding coupled with mandatory application of the guidelines.”).

       Contrary to Small’s claim on appeal, it is clear to us that Judge Darrah was
aware of Booker and that he did not erroneously apply the guidelines as mandatory.
Small was sentenced 6 months after the Supreme Court decided Booker. Given
that decision’s immediate and well-publicized impact on the day-to-day work of
federal judges, it is absurd to suggest the judge here was somehow unaware of it.
Indeed, various presentencing filings by Small and the government noted the
guidelines’ advisory nature. Small seizes on one word in Judge Darrah’s sentencing
order, where he noted that the guidelines for both perjury and obstruction
“directed” him to the guideline for accessory after the fact. Small interprets the
word “directed” to mean the judge was applying the guidelines as mandatory.
That’s not a logical conclusion: Judge Darrah was simply explaining how one part
of the guidelines cross-referenced another part.
No. 05-3168                                                                          4



      Finally, Small objects that Judge Darrah denied him a sentence reduction for
acceptance of responsibility. We have explained that, while a defendant’s guilty
plea before trial indicates acceptance of responsibility, it can be outweighed by other
conduct that is inconsistent with acceptance. United States v. McDonald, 22 F.3d
139, 144 (7th Cir. 1994). For example, a district court “may conclude that continued
criminal activity, such as use of a controlled substance, is not consistent with
acceptance of responsibility.” Id. On the day he was released on bond after his
arraignment, Small was arrested for possession of crack cocaine and for driving on a
suspended license. Shortly after he pled guilty to the perjury and obstruction
charges, Small tested positive for cocaine. Considering these developments, the
judge did not clearly err in determining that Small failed to qualify for an
acceptance of responsibility reduction.

      For these reasons, the judgment of the district court is AFFIRMED.
