                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                    FILED
                           ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                   July 01, 2005
                                 No. 04-13385
                                                               THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                        D. C. Docket No. 03-00501-CR-1-1


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

ERIK PAZ,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                   (July 1, 2005)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Erik Paz appeals his convictions and 37-month concurrent sentences for one

count of conspiring to utter counterfeit currency, in violation of 18 U.S.C. § 371,
and three counts of passing and uttering counterfeit currency, in violation of 18

U.S.C. § 472. The charges were based on allegations that Paz, along with

employees of a SaveRite grocery store in Norcross, Georgia, passed counterfeit

U.S. currency by exchanging counterfeit bills with genuine bills in the SaveRite

safe. The counterfeit bills were then allegedly deposited into a bank with the rest

of the store’s funds, while the conspirators kept the genuine currency.

      Paz claims that the district court committed four errors that entitle him to

relief on appeal:

      (1)    admitting evidence of prior uncharged criminal activity in
             violation of Federal Rules of Evidence 403 and 404(b);

      (2)    basing the loss calculation relevant to his sentence, under
             U.S.S.G. § 2B1.1, on acquitted conduct;

      (3)    applying an incorrect legal standard and failing to make
             required factual findings in enhancing his sentence for
             obstruction of justice pursuant to U.S.S.G. § 3C1.1; and

      (4)    imposing an unconstitutional sentence pursuant to Blakely v.
             Washington, 542 U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403
             (2004), and United States v. Booker, 543 U.S. __, 125 S. Ct.
             738, 160 L. Ed. 2d 621 (2005).

We address each argument in turn.

1)    Admitting Evidence of Prior Uncharged Criminal Conduct

      Paz first contests the district court’s decision to admit testimony of Naketa

Jenkins, an acquaintance of Paz, indicating that Paz showed her counterfeit

                                          2
currency and asked her if she thought he could pass the currency at the SaveRite,

claiming that it violated Federal Rules of Evidence 404(b) and 403. We review a

district court’s evidentiary rulings for abuse of discretion. United States v.

Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

      Federal Rule of Evidence 404(b) provides that “evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith.” However,

      evidence of criminal activity other than the charged offense is not
      extrinsic under Rule 404(b) if it is (1) an uncharged offense which
      arose out of the same transaction or series of transactions as the
      charged offense, (2) necessary to complete the story of the crime, or
      (3) inextricably intertwined with the evidence regarding the charged
      offense.

United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995).

      Pursuant to Federal Rule of Evidence 403, relevant evidence is inadmissible

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.”

“Rule 403 is an extraordinary remedy which the district court should invoke

sparingly,” and when addressing challenges to admitted evidence under Rule 403

on appeal, “[we] look at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue prejudicial effect.”

                                           3
United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989).

       The admission of Jenkin’s testimony did not violate Rule 404(b) because it

was “inextricably intertwined” with the evidence regarding the charged offenses.

Jenkins testimony concerned a conversation in which Paz suggested the very same

counterfeit currency transactions that formed the basis of the charges against him.

Moreover, there is no indication that admission of Jenkins’ testimony violated Rule

403, as its probative value was not 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. Fed. R. Evid. 403. Accordingly, the district court did not

abuse its discretion in admitting Jenkins’s testimony.1

2) Basing the Loss Calculation Relevant to Paz’s Sentence, under U.S.S.G. §
2B1.1, on Acquitted Conduct

       Paz next challenges the district court’s calculation of the amount of loss

attributable to Paz on the basis that, as a matter of law, it considered acquitted

conduct in its calculation. Specifically, Paz asserts, the jury acquitted him of four

counts alleged in the indictment, but the loss related to those counts was included

in the amount of loss calculation under U.S.S.G. § 2B1.1, thereby increasing his


       1
          To the extent that Paz challenges Jenkins’s credibility on appeal, his claim fails because
credibility issues are best left to the trial court and jury, whose judgment will not ordinarily be
disturbed on appeal. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

                                                 4
offense level by two.

       We review a district court’s loss calculations for clear error. United States v.

Dominguez, 109 F.3d 675, 676 (11th Cir. 1997).2 To determine the loss

attributable to a defendant, the court may consider all acts which he “committed,

aided, abetted, counseled, commanded, induced, procured or willfully caused.”

U.S.S.G. § 1B1.3(a)(1)(A). Moreover, the Supreme Court has held that “a jury’s

verdict of acquittal does not prevent the sentencing court from considering conduct

underlying the acquitted charge, so long as that conduct has been proved by the

preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157, 117 S.

Ct. 633, 638, 136 L. Ed. 2d 554 (1997); see also Booker, 543 U.S. at __, 125 S. Ct.

at 754-55 (mentioning, but not overruling, Watts). Thus, the district court did not

clearly err in basing its amount of loss calculation on acquitted conduct.

3) Applying an Incorrect Legal Standard and Failing to Make Required
Factual Findings in Enhancing Paz’s Sentence for Obstruction of Justice
Pursuant to U.S.S.G. § 3C1.1

       Paz also challenges the district court’s enhancement of his sentence under

U.S.S.G. § 3C1.1, for obstruction of justice, when calculating the applicable

guidelines range. He identifies two alleged inconsistencies upon which the


       2
         “Although Booker established a ‘reasonableness’ standard for the sentence finally imposed
on a defendant,” Booker does not alter the standard we use to review a district court’s application
of the U.S. Sentencing Guidelines. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.
2005).

                                                5
presentence investigation report (“PSI”) relied in concluding that an obstruction of

justice enhancement was warranted were insufficient to support the imposition of

the enhancement, under U.S.S.G. § 3C1.1. He also asserts that, under United

States v. Dunnigan, 507 U.S. 87, 113 S. Ct. 1111, 22 L. Ed. 2d 445 (1993), the

district court erred because it did not make specific findings as to each of the

elements of perjury. Paz further contends that the district court should have

applied a more demanding standard of proof than merely a preponderance of the

evidence in evaluating whether he obstructed justice.

      We accord special deference to the district court’s credibility determinations

and review for clear error the district court’s application of the obstruction of

justice enhancement for perjury. United States v. Banks, 347 F.3d 1266, 1269

(11th Cir. 2003). Section 3C1.1 of the Guidelines provides for a two-level

enhancement “if [ ] the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense of conviction.”

U.S.S.G. § 3C1.1. A defendant may obstruct or impede justice by “committing,

suborning, or attempting to suborn perjury.” § 3C1.1, comment. (n.4(b)).

      We held in United States v. Singh that, under Dunnigan, four elements must

be present for a finding of perjury: (1) testimony under oath or affirmation, (2) that



                                           6
is false, (3) that is material, (4) and that is given with the willful intent of falsehood

and not resulting from mistake, confusion, or faulty memory. 291 F.3d 756, 763

(11th Cir. 2002). The Supreme Court in Dunnigan noted that, while it is

“preferable” for the district court to make a separate finding in relation to each

element of the alleged perjury, it is sufficient if “the court makes a finding of an

obstruction of, or impediment to, justice that encompasses all of the factual

predicates for a finding of perjury.” Dunnigan, 507 U.S. at 95, 113 S. Ct. at 1117

(indicating that the sentencing court’s findings that “the defendant was untruthful

at trial with respect to material matters in this case, . . . [and she failed] to give

truthful testimony on material matters that were designed to substantially affect the

outcome of the case” were sufficient to warrant an obstruction enhancement). We,

too, have stated that even absent particularized findings regarding the defendant’s

perjury, we may affirm if the record supports the district court’s finding. United

States v. Dobbs, 11 F.3d 152, 155 (11th Cir. 1994).

       In Singh, we found that the district court’s finding that the defendant had

made “false statements” under oath at his sentencing hearing was sufficient to

support the § 3C1.1 enhancement when the record reflected that the false

statements were material and could not “possibly be the result of a mistake,

confusion, or faulty memory.” 291 F.3d at 763-64. Similarly, the district court



                                             7
here found that Paz had made at least two false statements under oath at trial that,

based on our reading of the record, were material and could not possibly have been

the result of a mistake, confusion, or faulty memory. Although the district court

could have made more particularized findings as to each element of perjury, which

would have been preferable under Dunnigan, the imposition of the enhancement

was supported by the record. See Dobbs, 11 F.3d at 155. We therefore find no

clear error with the district court’s imposition of the obstruction of justice

enhancement, nor do we find any error with respect to the specificity of its factual

findings.

      To the extent that Paz argues that the district court applied the wrong

standard of review in determining that he obstructed justice, his argument must

fail, because as noted by the government, it relies upon an obsolete comment to the

Guidelines. U.S.S.G. App. C, 414 (Amendment 566) (deleting the phrase “such

testimony or statements should be evaluated in a light most favorable to the

defendant.”).

4. Blakely/Booker Objection

      Finally, Paz argues that, in light of Blakely v. Washington, 542 U.S. __, 124

S. Ct. 2531, 159 L. Ed. 403 (2004), and by extension, United States v. Booker, 543

U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), his Sixth Amendment rights



                                            8
were violated because his sentence exceeded the maximum authorized by the jury’s

verdict, based on facts (other than prior convictions) that he did not admit and were

not proved to a jury beyond a reasonable doubt.

      Because Paz made this objection with respect to the calculation of the

amount of loss before the district court, based on Apprendi v. New Jersey, 530

U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000), we review his

Blakely/Booker claim de novo, and will reverse only if any error was harmful. See

United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005); see also United States v.

Garcia, 405 F.3d 1260, 1275 (11th Cir. 2005) (explaining that appellant had

preserved his claim by clearly raising an “Apprendi-type constitutional claim” in

his objections to the PSI, at sentencing, and in his appellate briefs). Constitutional

Booker error is harmless if the government can meet its burden to show that “it is

clear beyond a reasonable doubt that the error complained of did not contribute to

the sentence obtained.” Paz, 405 F.3d at 948 (quotation and alteration omitted).

      In Booker, the Supreme Court held that “[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 ___, 125 S. Ct. at 756. In a second and separate majority opinion, the



                                           9
Booker Court concluded that, to best preserve Congress’s intent in enacting the

Sentencing Reform Act of 1984, the appropriate remedy was to “excise” two

specific sections—18 U.S.C. § 3553(b)(1) (requiring a sentence within the

guideline range, absent a departure) and 18 U.S.C. § 3742(e) (establishing

standards of review on appeal, including de novo review of departures from the

applicable guideline range)—thereby effectively rendering the Sentencing

Guidelines advisory only. Id. at ___, 125 S. Ct. at 764. The Court indicated that

both its “Sixth Amendment holding and . . . remedial interpretation of the

Sentencing Act” must be applied to “all cases on direct review.” Id. at ___, 125 S.

Ct. at 769.

      In the instant case, the district court committed constitutional Booker error

by sentencing Paz on the basis of facts that he did not admit, were not proved to a

jury beyond a reasonable doubt, and did not constitute prior convictions. The jury

convicted Paz of three of the substantive counts contained in the indictment –

Counts 4, 5, and 9. According to the PSI, the amount of loss stemming from those

counts was $1,200, $650, and $2,560, respectively. Therefore, the jury found that

the amount of loss attributable to Paz’s conduct was $4,410. This calculation

would have resulted in a one-level increase to Paz’s offense level, under U.S.S.G. §

2B5.1(b)(1)(A), because the loss exceeded $2,000, but was less than $5,000. In



                                         10
calculating the amount of loss, however, the district court, in adopting the PSI,

included in the loss calculation the losses stemming from acquitted conduct,

detailed in Counts 3, 6, 7, and 8, even though Paz did not admit those losses and

the jury verdict did not authorize the inclusion of those losses. Due to these

additional factual findings, Paz’s offense level was enhanced by an additional three

levels under U.S.S.G. §§ 2B5.1(b)(1) and 2B1.1. Thus, Paz’s sentence is

unconstitutional.

      However, the district court’s constitutional Booker error was harmless. To

show that constitutional Booker error was harmless, the government must prove

beyond a reasonable doubt that the district court would have imposed an equivalent

or greater sentence had it sentenced Paz under an advisory, rather than a

mandatory, sentencing guidelines scheme. United States v. Davis, __ F.3d __, No.

04-14585, 2005 WL 1033422, at *1-2 (11th Cir. May 4, 2005). The transcript of

Paz’s sentencing hearing reveals several facts that indicate the district court would

have imposed an equivalent or greater sentence had it sentenced Paz under an

advisory guidelines scheme:

      1.     after affording Paz and his counsel an opportunity to argue “as
             to whether or not the court ought to sentence him at the low end
             of the guideline range,” the district court imposed the highest




                                          11
               possible sentence within the applicable guidelines range;3

       2.      the district court denied Paz’s request to recommend his
               participation in the Bureau of Prison’s Intensive Confinement
               Center Program, or “shock incarceration” program, see 18
               U.S.C. § 4046 (2004), an intensive, rehabilitation-oriented
               program that would have, upon successful completion, entitled
               Paz to serve the remainder of his sentence in a community-
               based program, see 28 C.F.R. §§ 524.31(a) and 524.32(d)(1)
               (2004), even though he would be eligible to participate;

       3.      the district court expressed concern that recommending Paz for
               the shock incarceration program would make him eligible for a
               more lenient sentence, thus indicating its desire to avoid
               permitting Paz to serve less than 37 months in prison; and

       4.      by refusing to impose a sentence at the low end of the
               applicable guidelines range, the district court prevented Paz
               from being eligible for a sentence reduction through the shock
               incarceration program should the Bureau of Prisons later permit
               him to participate.      See 28 C.F.R. §§ 524.31(a) and
               524.32(d)(2) (2004).

       These factors are enough to convince us beyond a reasonable doubt, on this

record, that the district court’s Booker error is harmless because it would have



       3
          See United States v. Gallegos-Aguero, __ F.3d __, No. 04-14242, 2005 WL 1160635, at
*2 (11th Cir. May 18, 2005) (finding non-constitutional Booker error harmless, under the less
rigorous non-constitutional harmless error standard, where “[t]he district court judge sentenced
Gallegos-Aguero to the highest sentence available under the applicable guideline range, and
considered sentencing Gallegos-Aguero to 20 years, the maximum allowable under the statute of
conviction”); see also United States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005) (incorrectly
analyzing the harmlessness of constitutional Booker error under the less-rigorous non-constitutional
harmless error standard, but finding the error harmless under the non-constitutional standard where
the district court sentenced the defendant to the highest sentence in the applicable guideline range,
and when “the court’s remarks at sentencing [do not] suggest anything other than a belief that the
262 month sentence was appropriate in light of all the circumstances”).

                                                 12
imposed an equivalent or greater sentence under an advisory guidelines scheme.4

       Thus, upon review of the record and consideration of the parties’ briefs, we

discern no reversible error with regard to Paz’s convictions or sentences.

       AFFIRMED.




       4
           The district court also committed statutory Booker error by sentencing Paz under a
mandatory guidelines scheme. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
“Non-constitutional error is harmless when it does not affect the substantial rights of the parties.
Under this standard, we must reverse only if the error resulted in actual prejudice because it had
substantial and injurious effect or influence on [the defendant’s] sentence.” United States v. Petho,
__ F.3d __, No. 04-15412, 2005 WL 1160640, at *1 (11th Cir. May 18, 2005) (internal citations and
marks omitted). Because it is easier for the government to establish the harmlessness of non-
constitutional Booker error than the harmlessness of constitutional Booker error, see United States
v. Robles, __ F.3d __ , No. 04-13598, 2005 WL 1083487, at *3 (11th Cir. May 10, 2005), when a
district court’s constitutional Booker error is harmless, any non-constitutional Booker error will be
harmless as well.

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