United States v. Eric Smith, 681 F. App'x 205

Eric Lamont Smith was indicted on six counts related to controlled drug buys and drugs/weapons found in a backpack; convicted on all counts and sentenced to 106 months (46 concurrent + 60 consecutive).
Undercover buys of small amounts of marijuana from Smith occurred on Sept. 8 and Nov. 4, 2011; a shooting/home invasion occurred Nov. 12, 2011, but Smith was not charged for the shooting.
Police found a backpack near the complex containing a semi-automatic pistol, a .38 revolver with distinctive red/white rubber bands, loose ammo, small amounts of marijuana and crack, a digital scale, and a keychain with a photo of Smith’s child.
Smith admitted possessing firearms (though a felon), denied selling drugs at trial despite prior statements and multiple witnesses describing past small-scale drug sales and observed drug-related items in his apartment; he offered an alternate story that others moved the gun and placed items in the backpack.
The district court admitted Rule 404(b) testimony about Smith’s prior drug activity over objection and applied a two-level obstruction enhancement under U.S.S.G. § 3C1.1 based on the court’s finding that Smith perjured himself at trial when denying the controlled buys.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Rule 404(b) evidence; omitted witness on government list	Admission of prior drug-act witnesses was improper; one witness wasn’t listed pretrial, causing surprise	Government had disclosed the witness’s anticipated testimony in its 404(b) notice; omission caused no prejudice	Affirmed: no reversible error; omission not prejudicial and, even if remote evidence were erroneous, any error was harmless given overwhelming evidence
Admissibility of Rule 404(b) evidence as remote / too old	Prior acts years earlier were too remote to show intent or pattern	Prior similar drug transactions are generally admissible to show knowledge/intent; remoteness didn’t undermine admissibility here	Affirmed: district court acted within discretion; harmlessness alternative if error assumed
Procedural challenge to obstruction enhancement ("bait and switch" over PSR)	Court improperly relied on revised PSR basing enhancement on trial testimony after initial PSR cited investigation statements	Revision was proper; Smith had time to respond before sentencing	Affirmed: no procedural error
Substantive challenge to obstruction enhancement for perjury	Smith denied selling drugs at trial; argues enhancement not supported	Court found by preponderance that Smith willfully testified falsely on a material matter (perjured), qualifying for §3C1.1	Affirmed: district court’s perjury finding not clearly erroneous and supports two-level enhancement

United States v. Byers, 649 F.3d 197 (4th Cir. 2011) (Rule 404(b) is a rule of inclusion; prior acts admissible if relevant to non-character issue and satisfy relevance, necessity, reliability)
United States v. Cabrera-Beltran, 660 F.3d 742 (4th Cir. 2011) (district court’s admission of 404(b) evidence reviewed for abuse of discretion)
United States v. Johnson, 617 F.3d 286 (4th Cir. 2010) (prior drug activity must have sufficient nexus in time, manner, place, or pattern to charged conduct)
United States v. Hernandez, 975 F.2d 1035 (4th Cir. 1992) (evidence of unrelated bad acts too remote is inadmissible to show intent)
United States v. Fulks, 454 F.3d 410 (4th Cir. 2006) (court should consider short adjournment to cure prejudice from surprise witness)
Dunnigan v. United States, 507 U.S. 87 (1993) (perjury at trial can justify obstruction-of-justice enhancement when false testimony is willful and material)
United States v. Perez, 661 F.3d 189 (4th Cir. 2011) (explaining that a bare statement of perjury is insufficient; district court must make factual findings supporting perjury)
United States v. Andrews, 808 F.3d 964 (4th Cir. 2015) (obstruction-of-justice enhancement reviewed for clear error)