                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1




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

                                 Submitted February 3, 2010
                                  Decided February 4, 2010

                                           Before

                             KENNETH F. RIPPLE, Circuit Judge

                             TERENCE T. EVANS, Circuit Judge

                             DIANE S. SYKES, Circuit Judge

No. 09-1205
                                                Appeal from the
UNITED STATES OF AMERICA,                       United States District Court for the
          Plaintiff-Appellee,                   Southern District of Indiana,
                                                Indianapolis Division.
       v.
                                                No. 08-CR-00038
REGINALD SMITH,
          Defendant-Appellant.                  Sarah Evans Barker,
                                                Judge.

                                         ORDER

        Reginald Smith was found guilty by a jury of possessing a firearm after a felony
conviction, 18 U.S.C. § 922(g)(1), and was sentenced to 108 months’ imprisonment. Smith
filed a notice of appeal, but his appointed lawyers represent that the case is frivolous and
move to withdraw. See Anders v. California, 386 U.S. 738 (1967). Smith objects to counsel’s
submission. See C IR. R. 51(b). We limit our review to the potential issues considered in
counsel’s facially adequate supporting brief and in Smith’s response. See United States v.
Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
No. 09-1205                                                                            Page 2

        At 6:45 a.m. on a December morning in 2007, police in Indianapolis, Indiana,
responded to a 911 call reporting that shots had been fired. The accounts given by the
police officers and Smith differ as to what happened next. At a pretrial hearing on Smith’s
motion to suppress his postarrest statements, Officer Figura, the first officer on the scene,
noted that the area was deserted except for Smith knocking on a door demanding to be let
in. When Figura approached to see if Smith had heard the shots, he saw Smith drop on the
sidewalk what turned out to be a .30-caliber rifle. Figura (now joined by backup officers)
arrested Smith, searched his pockets, and discovered several .30-caliber bullets. Smith told
Figura that it was not his gun. When the officers explained they were arresting Smith
because he was found with a gun after a report of shots fired, Smith began swearing at the
officers. Figura asked for Smith’s identifying information, but he testified that he asked no
other questions. Another officer, Decker, testified that he read Miranda warnings to Smith
from a card. When asked if he understood those warnings, Smith reportedly responded, “I
ain’t telling you shit.”

        Police continued to investigate the area, discovering several spent .30-caliber
casings. During the investigation, Smith was kept nearby in handcuffs, but police said he
was not questioned. Agitated and upset, Smith accosted the investigating officers with a
string of lewd and abusive comments, but he also volunteered that he was a member of the
10th Street Vanish Gang and had been shot at by “Mez,” a member of a rival gang warring
over drug turf.

        Smith’s version of events was different. Although he admitted making lewd
comments after his arrest, he testified that he never saw the rifle, did not have any bullets
in his pockets, was not given Miranda warnings, and never volunteered that he was shot at
or was a member of a gang.

       At trial Officers Figura and Decker testified consistently with their testimony at the
suppression hearing, as did Smith. The jury returned a guilty verdict. At sentencing, after
concluding that Smith’s testimony at trial was perjurious and warranted a two-level
increase in his offense level, the district court calculated his guidelines range to be
120 months’ imprisonment (the range would have been 120 to 150 months but was capped
by the statutory maximum). Believing there to be “still some hope” for Smith, the district
court sentenced him to 108 months’ imprisonment.

       In their Anders submission, counsel first question whether Smith could challenge the
denial of his motion to suppress his postarrest statements. When reviewing a ruling on a
motion to suppress, we evaluate factual findings for clear error and questions of law de
novo. United States v. Burnside, 588 F.3d 511, 516-17 (7th Cir. 2009). Motions to suppress
almost always involve fact-specific inquiries, and because it was the district judge who
No. 09-1205                                                                                 Page 3

heard the testimony and observed the witnesses at the suppression hearing, we would
defer to the judge’s credibility findings, which almost never will be clearly erroneous.
United States v. Stewart, 536 F.3d 714, 720 (7th Cir.), cert. denied, 129 S. Ct. 741 (2008); United
States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007). Counsel recognize that statements made in
response to custodial interrogation would be inadmissible if the defendant was not advised
of his constitutional rights to silence and counsel. Miranda v. Arizona, 384 U.S. 436, 444
(1966); United States v. Peterson, 414 F.3d 825, 828 (7th Cir. 2005). But it was not clearly
erroneous for the court to conclude that although Smith initially invoked his right to
silence, he later waived that right by volunteering information about the shooting and gang
war. Volunteered statements are admissible, Miranda, 384 U.S. at 478; United States v.
Hendrix, 509 F.3d 362, 374 (7th Cir. 2007), so any challenge to the suppression ruling would
be frivolous.

        Counsel next consider whether Smith might challenge the admission at trial of
evidence that the police were responding to a 911 call that shots had been fired, that the
arresting officers discovered spent shell casings near Smith, and that the officers were told
by Smith that he was shot at because of a gang turf battle. We would review evidentiary
rulings for an abuse of discretion, United States v. Conner, 583 F.3d 1011, 1018 (7th Cir. 2009),
but would reverse a conviction only if the ruling had a substantial influence on the verdict,
United States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007). We would find no abuse of
discretion in the admission of this evidence. At trial Smith refused to stipulate that the
item found on the sidewalk after his arrest was designed to fire and thus met the statutory
definition of a “firearm.” See 18 U.S.C. § 921(a)(3). Both the .30-caliber casings and the
evidence that the police were reacting to a report of gunfire are relevant to the question
whether Smith possessed a firearm. See United States v. Moore, 25 F.3d 563, 568 (7th Cir.
1994) (observing that presence of bullets is relevant to question whether a “firearm” was
possessed). And although the district court initially barred the government from
introducing testimony about hostilities between rival gangs, the court changed its view
after Smith testified that he never told the officers anything about the shooting; that denial,
the court reasoned, opened the door to impeaching testimony concerning what Smith did
tell the officers, including his gang affiliation. We would conclude that the testimony was
proper because it explained Smith’s motive for possessing the firearm and ammunition.
Accordingly, any challenge to these evidentiary rulings would be frivolous.

        Counsel next consider whether Smith might challenge the sufficiency of the
evidence supporting his conviction, a contention we would accept only if, viewing the
evidence in the light most favorable to the prosecution, “no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324
(1979); United States v. Harris, 585 F.3d 394, 402 (7th Cir. 2009). But because the jury could
No. 09-1205                                                                                Page 4

rely on the police officers’ testimony that they saw Smith drop the rifle and that bullets
were discovered in his pockets, this challenge would be frivolous.

        Counsel and Smith then question whether there might be a nonfrivolous basis for
Smith to challenge his prison sentence. Smith proposes to argue that the district court
applied a presumption that a sentence within the guidelines range should be imposed.
Such a presumption would have been error, Rita v. United States, 551 U.S. 338, 351 (2007);
United States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009), but in Smith’s case the district court
did exactly as it should: as the district court explained, it would “look at those guidelines
and see if they represent a reasonable sentence in this case, in your case; and if not how
they should be tweaked or changed or modified.” See Gall v. United States, 552 U.S. 38,
49-50 (2007); United States v. Hurt, 574 F.3d 439, 442 (7th Cir. 2009) (concluding that district
court properly calculated sentence and then considered whether that sentence would be
reasonable); Smith, 562 F.3d at 872 (same). Smith also contends that the district court
disregarded United States v. Booker, 543 U.S. 220 (2005), by increasing his offense level for
obstruction of justice without letting a jury decide whether he perjured himself at trial. We
have explained repeatedly, however, that Booker holds that guidelines adjustments are for
the sentencing court to decide, not the jury. E.g., United States v. Parr, 545 F.3d 491, 505 (7th
Cir. 2008), cert. denied, 129 S. Ct. 1984 (2009); United States v. Clanton, 538 F.3d 652, 655 (7th
Cir. 2008); United States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007). Moreover, because the
finding that Smith perjured himself is not clearly erroneous, we would not overturn the
two-level increase for obstruction of justice. United States v. Anderson, 580 F.3d 639, 648 (7th
Cir. 2009). Finally, because it is “hard to conceive of below-range sentences that would be
unreasonably high,” United States v. George, 403 F.3d 470, 473 (7th Cir. 2005), any challenge
to the length of the imprisonment term would be frivolous.

       Last, counsel consider whether Smith might challenge the district court’s denial of
his pretrial request for new counsel or the effectiveness of his trial counsel. We would
reverse a conviction based on the denial of substitute counsel only if the lawyer who
remained on the case was constitutionally ineffective. United States v. Harris, 394 F.3d 543,
552 (7th Cir. 2005); United States v. Zillges, 978 F.2d 369, 372-73 (7th Cir. 1992). But because,
as both counsel and Smith concede, the record is insufficient to determine whether
counsel’s performance was adequate, any challenge on this record to the court’s denial of
the request or the effectiveness of his counsel would be best reserved for collateral review.
See Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Turcotte, 405 F.3d 515,
537 (7th Cir. 2005).

     Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.
