                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 05-11680                  JANUARY 4, 2006
                        Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                      ________________________

                    D. C. Docket No. 04-00015-CR-5

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                 versus

DANIEL LEE CLARK,

                                                      Defendant-Appellant.

                      ________________________

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

                           (January 4, 2006)

Before ANDERSON, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Daniel Lee Clark pleaded guilty to two crimes: (1) possession with intent to

distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1)

and (2) possessing a firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C. § 924(c). The presentence investigation report indicated for the

cocaine charge Clark had a total offense level of 31 and a criminal history

category of VI, which would have meant a guidelines range of 188-235 months

imprisonment. The statutorily required term of imprisonment for the felon in

possession charge was 60 months, not to be run concurrently. Putting the two

together resulted in a range of 248-295 months.

      However, based on his prior felony convictions for sale of cocaine and

aggravated assault on a law enforcement officer, Clark qualified as a career

offender under Sentencing Guidelines Manual § 4B1.1(c)(3), and because of this

the presentence investigation report recommended a final guidelines range of 262-

327 months.

      Clark objected that United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005), renders application of the career offender status to him unconstitutional.

The district court rejected that contention.

      Clark also objected on grounds that a criminal history category VI

significantly over-represented the seriousness of his prior offenses, because there is

                                           2
a 13 year gap in his criminal history. However, during all but four months of that

13 year “gap” Clark was incarcerated, and only 15 months after his final release

from prison, Clark sold crack cocaine to an undercover agent, which is the offense

that led to the charges in this case. Nonetheless, the court found that Clark’s

criminal history category did significantly over represent the seriousness of his

criminal history and his likelihood of recidivism, and on that basis departed

downward by three criminal history categories to III, pursuant to U.S.S.G. §4A 1.3.

      That downward departure resulted in a guidelines range of 135-168 months

for the cocaine charge plus 60 months on the felon in possession charge,

effectively resulting in a final range of 195-228 months. The district court

continued its merciful ways by sentencing Clark to the lowest point in the range,

195 months (135 months on the cocaine charge and the required 60 months for the

firearms charge). The government did not object to the sentence. Clark is still

unhappy with it, contending the sentence should be reversed for two reasons.

                                          I.

      First, Clark contends that under the Booker decision the district court should

not have found that he was a career offender under the Sentencing Guidelines

Manual § 4B1.1, because under that guideline the district court finds facts beyond

the existence of prior convictions. Because Clark timely raised his Booker

                                          3
challenge to the career offender enhancement in the district court, we review his

claim on appeal de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

      A defendant will be classified as a career offender if: (1) the defendant was

at least 18 years old at the time the defendant committed the offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence or

a controlled substance offense; and (3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). If a court finds a defendant to be a career offender under

§ 4B1.1(a), the defendant’s offense level is increased as specified in § 4B1.1(b).

      We have held that a district court does not violate the Sixth Amendment, as

interpreted in Booker, when it increases a defendant’s sentence based on prior

convictions. United States v. Gallegos-Aguero, 409 F.3d 1274, 1276 (11th Cir.

2005). This is so because “a prior conviction must itself have been established

through procedures satisfying the fair notice, reasonable doubt, and jury trial

guarantees.” United States v. Orduno-Mireles, 405 F.3d 960, 962 (11th Cir. 2005),

petition for cert. filed, (U.S. July 1, 2005) (No. 05-5141) (citation omitted). Even

in the post-Booker world, a district court does not err when it relies on prior

convictions to enhance a defendant's sentence. U.S. v. Shelton, 400 F.3d 1325,

1329 (11th Cir. 2005); see Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005).

                                            4
      Clark seemingly argues that because this Court has not addressed the precise

question of whether the prior conviction exception applies to the career offender

guideline, that guideline has been unconstitutionally applied in his case. Clark

gives us no sound reason for his position, and he is not able to distinguish

precedent that is closely on point, the logic of which applies to this issue.

      Clark’s argument is wrong under existing law. See e.g. United States v.

Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (“No part of the Act or

guidelines concerning extra-verdict enhancements was excised or modified by the

Booker decision. The same extra-verdict enhancement provisions apply after

Booker as before.”). Clark’s Booker argument is meritless because his career

offender status was determined using prior convictions. The Supreme Court’s

decision in Almendarez-Torres v. United States, 523 U.S. 224, (1998), allowing a

district court to use prior convictions to enhance a defendant’s sentence, remains

undisturbed after Booker. Shelton, 400 F.3d at 1329; Rodriguez, 398 F.3d at 1300.

      To bolster his argument, Clark urges this Court to adopt the reasoning of

Justice Thomas’ concurring opinion in Shepard v. United States, ___U.S.___, 125

S. Ct. 1254 (2005). Clark argues that we “should follow Justice Thomas’s

reasoning and decide that judicial fact-finding under the career offender guideline

is unconstitutional.” However, Justice Thomas’ concurring opinion in Shepard

                                           5
does not overrule the decision in Almendarez-Torres, and Almendarez-Torres

controls this case unless the Supreme Court rules otherwise. United States v.

Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005), petition for cert.

filed, (U.S. Aug. 30, 2005) (No. 05-6178).

      Another reason that Clark’s Booker argument relating to the career offender

enhancement is wrong is that the district court applied the guidelines in an advisory

fashion, and Booker does not forbid extra-verdict enhancements in an advisory

guidelines regime. Rodriguez, 398 F.3d at 1300.

                                         II.

      Clark’s second contention is that his sentence is unreasonable under 18

U.S.C. § 3553(a). He asserts that an appropriate sentence would be one where the

career offender rule was not applied. Clark argues that the district court should

have used the same factors it used to reduce his criminal history level to reach an

even lower sentence than it did.

      After a district court has accurately calculated the guideline range, it may

impose a more severe or more lenient sentence. We review for reasonableness the

sentence imposed. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.

2005) (citing Booker). In determining whether a sentence is reasonable, the Court

is guided by the factors in 18 U.S.C. § 3553(a). Booker, 125 S. Ct. at 76–66;

                                          6
United States v. Winingear, 422 F.3d 1241, 1245–46 (11th Cir. 2005).

      Here, the district court found that Clark was a career offender and calculated

his guideline range accordingly, but it departed downward from his criminal

history category by three categories, and then it sentenced him to the bottom of the

resulting, much-reduced guidelines range. Having been sentenced to 195 months

imprisonment rather than the 262-327 months imprisonment he would have been

without the downward departure, Clark is the beneficiary of a favorable guidelines

calculation.

      The record clearly indicates that the district court departed downward

because it found that the criminal history category significantly overstated the

seriousness of defendant’s criminal history. Thus, the district court implicitly

considered the factors set out in 18 U.S.C. § 3553(a), specifically, the history and

characteristics of the defendant and the need for the sentence imposed to reflect the

seriousness of the offense. See 18 U.S.C. § 3553(a)(1)-(2)(A); United States v.

Scott, No. 05-11843, manuscript op. at 11-12 (11th Cir. Sept. 27, 2005) (holding

that a district court does not have to state on the record that it considered every §

3553(a) factor).

      The reasonableness of Clark’s sentence is supported by the fact that his 135

month sentence for his possession with intent to distribute cocaine offense is only

                                           7
about a quarter of the 40 year statutory maximum for this crime. See Winingear,

422 F.3d at 1246 (comparing, as one indication of reasonableness, the actual prison

term imposed against the statutory maximum).

      AFFIRMED.

                                         8


482 F.Supp. 448 (1979)
Thomas FELTON, Petitioner,
v.
David HARRIS, Superintendent, Green Haven Correctional Facility, Respondent.
No. 79 Civ. 2180.
United States District Court, S. D. New York.
October 31, 1979.
*449 David Blackstone, New York City, for petitioner.
Robert Abrams, Atty. Gen. of N. Y., New York City, for respondent; Andrea G. Iason, Deputy Asst. Atty. Gen., of counsel.

OPINION
EDWARD WEINFELD, District Judge.
Petitioner, Thomas Felton, now serving a sentence of 25 years to life at Green Haven Correctional Facility, New York pursuant to a judgment of conviction of the murder in the second degree, of three separate victims, entered upon a jury verdict in the Supreme Court, Bronx County, petitions for his release under a federal writ of habeas corpus. Petitioner's co-defendant, Willie Lee Kirksey, also was convicted at their joint trial of the same charges and received the same sentence. The judgment of conviction was affirmed by the Appellate Division, First Department and leave to appeal to the Court of Appeals was denied. Soon thereafter, petitioner commenced this proceeding upon a claim that his conviction was obtained in violation of his right of confrontation under the Sixth Amendment in that Kirksey's confession, which directly implicated petitioner, was admitted in evidence over his objection, although Kirksey did not testify, as petitioner did.
Before trial, each defendant moved pursuant to Huntley[1] to suppress his individual statements or confessions. Each motion was heard separately before State Supreme Court Justice Donald Sullivan who, after extensive testimony, denied each defendant's motion upon specific findings that appropriate Miranda warnings were given; that the statements were voluntary; that the People had established beyond a reasonable doubt that each defendant's constitutional rights had not been violated; and that each had made an intelligent waiver. The Court also denied motions made by Kirksey to suppress eyewitness identification evidence pursuant to Wade[2] and physical evidence, a school guard crossing shield, obtained during a search of his apartment, pursuant to Mapp.[3]
Following the denial of the aforesaid motions, the case proceeded to trial before Judge Sullivan and resulted in the conviction of each defendant of the murders of Elsie Simon, Margaret Doyle and Stella Bloswick, committed during the commission of robbery and other felonies. Several days after petitioner had been sentenced thereon, he pled guilty to manslaughter in the first degree in the killing of another victim, Rose Jocelyn and was sentenced to a term of 8 1/3 to 25 years. He also pled guilty to an attempt to commit robbery in the second degree upon one Ethel Dyer and was sentenced to 2 1/3 to 7 years. The latter two sentences were to run concurrently with *450 those imposed upon the second degree murder convictions.[4]
A series of murders of elderly women were committed between March and September 3, 1975 in Bronx County, New York City, each of which followed a common pattern. The assailants gained entry into apartments by a ruse and when the occupant opened the door she was pushed in and assaulted. The apartment was ransacked for money, jewelry and other valuables and in some instances, the aged woman was raped before she was killed either by violent assault, gagging or strangulation.

The Kirksey Statements
In the late afternoon of September 5, 1975, as a result of a report of a robbery in the general area of the most recent homicide, Willie Lee Kirksey was apprehended soon after he jumped over a fence of a hospital near the scene of the reported robbery. He was arrested and interrogated by detectives who, it so happened were in the vicinity investigating the murder of Margaret Doyle two days earlier on September 3. Kirksey was told that any leads he could give concerning the homicide might be helpful to him on the instant arrest charge. He mentioned that three of his friends  Tommy, Ronny and Bobby  had disclosed to him that they had "ripped off" an old lady; that when she opened the door of her apartment in response to their knock they pushed her in and she screamed. The detectives, with respect to the Doyle murder, had information that the deceased in fact had screamed. Kirksey's reference to this detail led one of them to suggest "you were there," whereupon, after a moment's reflection, Kirksey admitted he had been and said he wished to talk because his conscience was bothering him.[5] He agreed to take the detectives to the scene of the homicide.
He led them to 2476 Webb Avenue, Bronx, walked three flights up to an apartment, described the layout before entering, and upon entry gave a detailed account of his and each accomplice's role in, and recounted events leading to, the assault, robbery and murder and how they later divided the proceeds of the crime. He said it was Tommy who pushed her inside when she screamed and then used a pillow as he began punching the struggling 75 year old woman. Margaret Doyle resided and was murdered in that apartment two days earlier. He also mentioned that before they had entered the apartment, using his shirt, he had unscrewed a hallway light bulb so that it would not light. It was the loosened bulb, which the custodian of the building was about to remove, that led to the discovery of the deceased when he checked the door of her apartment.
When asked by the detectives if he had anything to so with any other homicides committed against elderly people, Kirksey stated he had been involved in another, four or five weeks earlier, and named Tommy, Ronny, Bobby and Skip as the other participants. He then led the detectives to a building at 2364 Tiebout Avenue, Bronx, and pointed out a ground floor apartment. It was the scene of the Elsie Simon murder committed on July 29, 1975. In this instance, he said his accomplices went into the building while he waited downstairs in a car; that in about twenty minutes they came running out of the building; and after meeting them at a pre-arranged spot, they told him that they had ripped off an *451 old woman, tied and gagged her and had gotten some jewelry and money and split the proceeds.
The detectives then returned to the police precinct where Kirksey repeated his versions of the Doyle and Simon crimes and signed a statement summarizing what he had recounted to the detectives. Efforts late that evening to locate the named accomplices, including Tommy, proved fruitless. The detectives, in their quest for those named by Kirksey, were accompanied by him. He pointed out their usual haunts, but they were not to be found.
Upon their return to the police precinct, Kirksey was asked whether or not there were really accomplices and had he acted on his own. He became visibly upset and told detectives he was responsible for a third murder, committed in March 1975, at De Voe Terrace in the Bronx. The homicide, as described by him, had been committed in similar fashion to the Doyle and Simon murders. The victim was pushed into her apartment, assaulted, robbed and killed. Again he directed the officers to an apartment at 2435 De Voe Terrace where Stella Bloswick's dead body was discovered on March 15, 1975.
When they returned to the station house, Kirksey was again asked if in fact he had not committed the crimes by himself. This time he said he had committed the Doyle and Bloswick murders by himself and that Tommy was involved only in the Simon homicide. He also eliminated Ronny, Skip and Bobby as accomplices in any of the murders.[6] Following this reinterview, he repeated his revised version to an Assistant District Attorney that he alone was responsible for the Doyle and Bloswick murders and that he and Tommy committed the murder of Elsie Simon. He stated that he and Tommy entered the Tiebout apartment house on July 29, 1975, and met Elsie Simon as she was leaving her apartment to empty garbage; that they pushed her back into her apartment and he restrained her on the floor while Tommy tied and gagged her, following which they took money and jewelry from a rear bedroom. The question and answer statement was stenographically recorded. Later that morning, Kirksey was arraigned and charged with the three murders.

Thomas Felton and His Statements
Kirksey's reference to "Tommy" led detectives to believe that he was Thomas Felton, the petitioner. However, it was not until September 17 that contact was made with him. This was effected through Detective William Hoard who was known to be friendly with the Felton family and whose assistance was enlisted in locating Felton by the detectives investigating the murders. Hoard himself was not engaged in any aspect of the investigation into the murders. Hoard left word with James Felton that the investigating detectives desired to interview his son Tommy. Thereafter, Thomas Felton voluntarily appeared on September 17 at the police precinct. He first saw Hoard to whom he denied any knowledge of the crimes. He was later interviewed by the detectives investigating the murders. He was informed of Kirksey's arrest for several homicides and after first stating he did not know who Kirksey was, identified his picture as somebody he knew from the neighborhood. When told that Kirksey had named him as a participant in one of the homicides, he denied he had anything to do with Kirksey with respect to criminal activities. Felton was not detained. In the meantime, the detectives continued their investigation.
On October 3, 1975, Felton, without solicitation, called on the detectives at the station house. He was again given his Miranda rights. He told detectives that he worked for a company as a protective gate installer which gave him access to residences; that he was thus in a position to "case" apartments; and that when he went into apartments he looked for valuables and later passed this information on to Kirksey. He told them he had "fingered" three locations; *452 that the Elsie Simon residence was one where he had seen an old lady and valuables in the apartment and subsequently had given this information to Kirksey. He agreed to locate the premises about which he had given the information to Kirksey. He then directed them to the building where the Simon murder occurred and pointed out the window gates on the ground floor apartment he had installed. He next led them to another building where he said he had taken measurements for gates to be installed in an apartment three flights up. This apartment was the scene of the Margaret Doyle murder. Later he identified yet another apartment on De Voe Terrace where he said he had fingered a job. This was the apartment where Stella Bloswick was murdered. He also admitted casing a fourth apartment, that of Rose Jocelyn on University Avenue, Bronx, and later implicated himself in a robbery and burglary there.[7]
Felton acknowledged that he knew the purpose of furnishing the information to Kirksey was robbery and that after each robbery he was paid either 50, 60 or 70 dollars. However, he denied that he was present or knew what had happened at the various apartments when the crimes were committed or that he was informed any of the victims had been injured. He named Jerry Kirksey, Willie's brother and one Kevin McKinley as Willie Kirksey's confederates.
At the station house, he repeated what he had told the detectives and the substance of his statements was recorded by a detective on five pages of notes, each of which he initialed. Later, in the early hours of October 4, he again repeated his earlier statements upon questioning by an Assistant District Attorney and they were stenographically recorded. Later that morning, October 4, he was arraigned in the Criminal Court upon an unrelated robbery charge, to which he had referred during the course of his questioning, and released on low bail. The decision to lodge this charge against him was based upon three factors: (1) his confession during the preceding night was at that time insufficient to warrant a murder prosecution; (2) the investigation was ongoing; and (3) the prospect that he might be used as a witness against Kirksey.
On October 6, Felton, entirely on his own, called on Detective Hoard, revised his earlier version, volunteering that he was present at the three homicides, but denied he killed anyone. Hoard stopped him from speaking further and advised him of his Miranda rights. Hoard then phoned Detective Lyman, one of the investigating team, and arranged an appointment for Lyman and Felton the next day.
Felton failed to keep that appointment. On the evening of October 9, Lyman and another detective called at petitioner's home where he was found hiding in a closet. He agreed to accompany them to the station house, where, at his request, he spoke to his father in privacy for about a half hour. Following this conversation, in the presence of his father, he told the police officers that his prior version about installing or measuring gates was false and that he had not worked during the period of the murders for the gate installing company. He stated that he knew Kirksey for three years and that he was present with Kirksey when the three robberies were committed. He confessed to the murders of Margaret Doyle, Elsie Simon and Stella Bloswick and inculpated himself in the murder of Rose Jocelyn.
He described in detail his role, that of Kirksey and others in the Doyle robbery and murder; the others included Kirksey's brother, Jerry, and one Kevin McKinley. He described how when the quartet got to the floor of the apartment they unscrewed the light bulb in the hallway and that when Kirksey knocked on the door of the apartment he flashed a silver badge to encourage the occupant to open the door wide enough to force entry. He related how, after gaining *453 entrance, the victim was bound and gagged; how he and the others ransacked the apartment of money, jewelry and valuables; and how they split the money later that night, with Kirksey assigned to "fence" the jewelry and to divide the proceeds.
With respect to the Simon robbery and murder, he also recounted in detail his role, Kirksey's and that of the other confederates. He described how they had stalked the victim for several days before following her from the street on the fatal day to her apartment; how she was pushed into her apartment as she was opening the door, then assaulted, robbed and murdered, and how they later split the spoils.
Similarly, he described in minute detail events leading to the robbery and murder of Stella Bloswick on March 15, 1975; in that instance too, to gain entrance, a school crossing guard shield was displayed when the occupant of the apartment responded to their knock on the door or signal, following which they pushed her into the apartment. He identified for the detectives a school crossing guard shield as similar to the one displayed to the victims. This was the shield obtained during the search of Kirksey's apartment and the subject of his unsuccessful motion to suppress.
Felton also identified a picture of a ring that was part of the loot taken in the Bloswick apartment that he had given to Kirksey and which the latter wore at the time of his arrest. Felton, at the conclusion of this interview, signed and initialed each page of the officer's notes summarizing his statements. Later, starting shortly after midnight on October 10th, he repeated his statement to an Assistant District Attorney which was recorded stenographically on eighty-six pages.[8] This statement was also made in his father's presence.
When Felton named Jerry Kirksey as one of the accomplices, the police immediately went to the Kirksey home where they were informed, and soon verified, that Jerry Kirksey had been imprisoned during the period that Felton named him a participant in the crimes he described. Confronted with this information, petitioner said he wanted to get even with Willie Lee Kirksey because he informed on him. He then substituted his own brother Al for Jerry Kirksey. When the police brought Al Felton to the station house, and the brothers talked privately, Felton retracted, saying he had falsely accused his brother because he didn't want to go to jail alone and wanted somebody who knew him. Thereafter he repeated his final revised statement, that his confederates in the Simon, Doyle and Bloswick murders were Willie Kirksey and Kevin McKinley, to an Assistant District Attorney which also was recorded stenographically.
Upon the trial, in addition to other evidence, each defendant's inculpatory statements and confessions, oral and written, were presented to the jury. Appropriate cautionary instructions were given to the jury that each defendant's statement was received in evidence only as to that defendant and was not to be considered against the other.
Kirksey did not testify. He called as his only witness a psychiatric nurse at the Kingsbridge Veterans Hospital, who testified that Kirksey and his mother were at the hospital on July 29, 1975 between 1:15 and 1:45 p. m. The petitioner did testify. He categorically denied that he knew or had heard of Kirksey prior to October 1975 when questioned about him by the detectives. He denied that he had been in the apartment of the murder victims or that he played any role whatsoever in the crimes. He admitted he made the oral and written inculpatory statements which acknowledged his complicity in each of the three murders, but, despite the minutia of detail, denied the inculpatory statements were true.
He testified that the various statements which detailed his role in the murders were in fact false; that they were drilled into *454 him by the family friend, Detective Hoard. His version was that Hoard, in whom he had confidence, told him that Kirksey had named him as a participant in three or four murders, and when he denied he was involved, Hoard said the authorities had helped him out on the unrelated robbery charge when he was released in low bail and in return asked him to become a state's witness against Kirksey; that Hoard asked him to make a statement to the detectives in charge of the murder investigation. Petitioner testified that Hoard told him what to say with respect to each murder and went over the details of each, giving the locations of each murder scene, the color of an ambulance called to the scene of one of the murders, a description of the school crossing badge and the jewelry he identified that Kirksey wore and had been stolen from one of the apartments. He further testified that he had memorized what Hoard had told him to say until he knew the answers by heart. Felton said that it was upon Hoard's instructions that he included the jailed Jerry Kirksey as a participant in the crimes, and gave the explanation that he included Jerry because he wanted to get at his brother Willie because Willie had named him as a confederate. Felton also testified that Hoard was present each time he made incriminating statements, the oral as well as the written ones, on October 3-4 and October 9-10. Felton admitted he made the confessions as testified to and as set forth in the question and answer recorded statements, but maintained that he simply was parroting what he was told to say  in sum, that his confession was false. Felton's father, with whom he conferred privately before, and who was present when he confessed, was not called as a defense witness.
Detective Hoard categorically denied Felton's charge of a false confession or that he was present when Felton made either his oral inculpatory statements to the detectives or his recorded confessions to the Assistant District Attorneys. The testimony of the State's witnesses was of like tenor. The stenographic question and answer confessions do not list Hoard as present.
Since petitioner does not dispute that he made the incriminating admissions and the confession, if in fact they were voluntary, they constitute the strongest evidence that can be given of the facts stated therein.[9] With the corpus delicti established in the instance of each murder, the guilt of the defendant could be based on his uncorroborated confession.[10] But there is corroborative evidence. Petitioner's detailed information as to each robbery, the ransacking of the apartments, their locations, the role of each participant in the crimes, and the minutia of events leading to each murder was consistent with the independent objective evidence that also was presented to the jury.
On the other hand, if petitioner was innocent of the crimes but merely repeated what was told him upon assurance that this would help him on the unrelated robbery charge against him, then his confession and the inculpatory statements were of no value. Prior to trial, at the Huntley hearing, the Judge found that the statements were voluntarily and knowingly made and free from any constitutional taint. This determination is presumed to be correct in this proceeding, and in fact, petitioner has presented no challenge to the validity of that finding.[11] The jury, by its verdict, obviously rejected his version of a planted and false confession.
Against the background of the trial record, we consider petitioner's claim that *455 nonetheless the admission of Kirksey's confession violated petitioner's right of confrontation since Kirksey did not testify and thus was not subject to cross-examination, and that as a consequence the judgment of conviction is void.
There can be no question that petitioner's confessions, oral and written, "interlocked" with those of Kirksey, who did not testify. Each one separately described his own particular role and that of his confederates in each murder, and with such detail that only a participant could have known, including, but not limited to, the "fingering" of an apartment occupied by an elderly lady for a planned "rip-off"; the precise location of the apartment; in one instance, the unscrewing of an electric light bulb; in other instances, the use of the school guard badge to gain entry; and once entry was effected, specific acts of assault upon the victim, the ransacking of the apartment in search of valuables, a description of the loot and a subsequent meeting and sharing of the spoils of the crime. The fact that the confessions of each with respect to each separate crime do not jibe in perfection, or indeed that there are some contradictions, is of no consequence.[12] Absolute identical statements are not required. Indeed, it would be remarkable if suspects questioned separately with each seeking to minimize his role in the murders were in precise accord in their recital of details. It is sufficient if the two confessions are substantially the same and consistent on the major elements of the crime, particularly the slayings.[13] Here, the statements of Felton and Kirksey are in harmony as to the basic material events; they clearly interlock as to motive, plotting and execution of the crimes.
Our Court of Appeals consistently has held that upon a joint trial, the Bruton rule[14] is not violated "[w]here the jury heard not only a co-defendant's confession but the defendant's own confession," since in that circumstance "no such `devastating' risk attends the lack of confrontation as was thought to be involved in Bruton."[15] This view, shared by most circuits, recently has been upheld by a plurality of the Supreme Court in Parker v. Randolph.[16] The precise issue there decided is four-square with that presented by the instant case, to wit, as stated by Mr. Justice Rehnquist, "whether Bruton requires reversal of a defendant's conviction when the defendant himself has confessed and his confession `interlocks' with and supports the confession of his codefendant." The holding was that the admission at a joint trial of such interlocking confessions with proper instructions did not infringe upon the right of confrontation secured under the Sixth Amendment.
The continuing vitality of Bruton was recognized but the Court noted that its underlying rationale was not applicable to every case. That rationale is that at a joint trial the admission of extrajudicial statements of a non-testifying codefendant has the potential of such devastating impact upon a non-confessing defendant that potential prejudice cannot be removed by limiting instructions with the consequence that his right to a fundamentally fair trial may be impaired. But Mr. Justice Rehnquist went on to say:

*456 [T]he same cannot be said, however, when the defendant's own confession  `probably the most probative and damaging evidence that can be admitted against him,' . . . is properly introduced at trial. The defendant is `the most knowledgeable and unimpeachable source of information about his past conduct,' . . . and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt. Thus, the incriminating statements of a codefendant will seldom, if ever, be of the `devastating' character referred to in Bruton when the incriminated defendant has admitted his own guilt. The right protected by Bruton  the `constitutional right of cross-examination,' . . .  has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence.[17]
The case here is even stronger than Parker to support the non-applicability of the Bruton doctrine. Here Felton testified seeking to vitiate the force of his inculpatory statements by a denial of their verity. That the jury rejected his disavowal of his oral and written confessions did not give rise to a violation of his right of confrontation. Indeed, the confrontation clause, while of great importance in assuring an accused a fundamentally fair trial, has never been woodenly applied to bar every extrajudicial statement.[18] Petitioner's counsel urges that Parker has not conclusively resolved the issue of whether the Bruton rule precludes the use at trial of a non-testifying codefendant's confession when the defendant himself has confessed, pointing out that only four justices held that Bruton was not violated, whereas, according to him, four were of the view that it was, and that the majority vote was obtained by Mr. Justice Blackmun's concurrence which was based on the harmless error doctrine as explicated in Harrington v. California.[19] Accordingly, petitioner's counsel presses that Bruton be applied in the instant case. However one may view that contention, the short answer is that this Court is bound by the rulings of our Court of Appeals,[20] and under its repeated authorities on this subject, this case is beyond Bruton. Moreover, even were it assumed, contrary to the foregoing, that Bruton was applicable and that petitioner's conviction was obtained in violation of that rule, this Court, based upon its word-by-word study of the entire record, including not only the trial testimony but that taken over a four-day period with respect to the pretrial motions, is fully persuaded that the claimed error was harmless beyond a reasonable doubt. The detailed review of the record fully supports the trial court's observation there was "strong evidence of defendant's guilt." Once the jury rejected petitioner's disclaimer of his confession, and upon its face the disavowal does appear most implausible, the evidence that he committed the murders was most powerful. Perhaps the strongest proof that the jury convicted Felton upon his own confession of guilt and not that of his codefendant is that Kirksey in his final confession implicated Felton only in the Simon murder, whereas Felton confessed to and was convicted of all three, the Simon, Doyle and Bloswick murders.
The petition for a writ of habeas corpus is denied.
NOTES
[1]  People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).
[2]  United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
[3]  Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
[4]  The petitioner did not admit the underlying facts but expressed his desire to enter the guilty pleas. The Court, after closely questioning defendant and impressing upon him his right to a trial, accepted the pleas as voluntarily and intelligently entered under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), noting that "the defendant's claim of innocence has been, in the Court's opinion negated by the proof and strong evidence of actual guilt." Minutes January 14, 1976, p. 32.
[5]  Kirksey was given the Miranda warning in this and other instances when questioned, as was the case when Felton was questioned at various times. As already noted, the Supreme Court Justice so found upon the Huntley hearing and the trial evidence abundantly establishes this and no claim is raised with respect thereto. Accordingly, hereafter reference will not be made to each instance when the warning was given.
[6]  His explanation: The first time I was kidding around a bit. I was scared the first time. Then the second time we started talking . . . I just told them everything.
[7]  Felton was separately indicted for the murder of Rose Jocelyn and in another indictment for robbery and burglary of another woman who was in the apartment and pled guilty to the latter charges. See text accompanying footnote 4 supra.
[8]  This statement was redacted upon the trial to exclude reference to the Rose Jocelyn murder and robbery.
[9]  Hopt v. Utah, 110 U.S. 574, 585, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Cramer v. United States, 325 U.S. 1, 67, 65 S.Ct. 918, 89 L.Ed. 1441 (1945) (Douglas, J., dissenting); United States v. Mihalopoulos, 228 F.Supp. 994, 1000 (D.D.C. 1964). Cf. United States v. Drummond, 354 F.2d 132, 144 (2d Cir. 1965), cert. denied, 384 U.S. 1013, 86 S.Ct. 1968, 16 L.Ed.2d 1031 (1966).
[10]  Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 99 L.Ed. 192 (1954).
[11]  28 U.S.C. § 2254(d). See also United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 51 (2d Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975).
[12]  United States ex rel. Ortiz v. Fritz, 476 F.2d 37, 39 (2d Cir.), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973).
[13]  United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 49 (2d Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975); United States v. De Berry, 487 F.2d 448 (2d Cir. 1973); United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972).
[14]  Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
[15]  United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296, 300 (1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970); United States v. Dizdar, 581 F.2d 1031 (2d Cir. 1978); United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 49 (2d Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975); United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972).
[16]  442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).
[17]  Id. at 72, 99 S.Ct. at 2139 (quoting from Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)).
[18]  See Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979); Dutton v. Evans, 400 U.S. 74, 80, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Heike v. United States, 192 F. 83, 90 (2d Cir. 1911), aff'd, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450 (1913); Montgomery v. Fogg, 479 F.Supp. 363, 79 Civ. 3626 (S.D.N.Y. Oct. 16, 1979).
[19]  395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
[20]  See, e. g., United States v. Jenkins, 349 F.Supp. 1068, 1072 (E.D.N.Y.1972), app. dismissed, 490 F.2d 868 (2d Cir. 1973), aff'd, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); United States ex rel. Johnson v. Zelker, 339 F.Supp. 227, 230 (S.D.N.Y.1971); Hoover v. Allen, 241 F.Supp. 213, 229 (S.D.N.Y.1965).


                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

                  No. 06-19-00069-CR

       RAYMOND DOYLE GILBERT, Appellant

                           V.

           THE STATE OF TEXAS, Appellee

        On Appeal from the 392nd District Court
              Henderson County, Texas
           Trial Court No. CR17-0194-392

      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                     MEMORANDUM OPINION
           A Henderson County jury 1 convicted Raymond Doyle Gilbert of aggravated assault with a

deadly weapon after Gilbert assaulted J. Hays with a screwdriver. 2 Gilbert was sentenced to life

in prison 3 and was ordered to pay $9,156.00 in attorney fees for his court-appointed attorney. On

appeal, Gilbert argues that the trial court erred in permitting the State to discuss parole issues

during closing arguments. Gilbert also argues that because he was indigent, the trial court erred

in ordering him to pay the fees of his court-appointed counsel.

           We find that Gilbert failed to preserve his first point of error. However, we sustain

Gilbert’s second point of error because there was no evidence to support the order to pay attorney

fees. We therefore delete the attorney fee assessment from the judgment and affirm the judgment,

as modified.

I.         Gilbert’s Complaint of Improper Jury Argument Is Unpreserved

           During the closing argument of the punishment phase of trial, the State explained the

indictment’s enhancement paragraphs to the jury. The State also discussed the jury charge and

certain aspects of parole law. Gilbert complains about the following comments by the State:

           And back in 1995 . . . a Judge or a jury in Dallas County said we’ve had enough of
           Raymond Gilbert, and sentenced him to life in prison back in 1995. And that didn’t
           work. Because as you heard him say, he got out on parole after 12 years.

1
 Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of
any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX.
R. APP. P. 41.3.
2
    See TEX. PENAL CODE ANN. § 22.02.
3
 The punishment range for Gilbert’s second-degree-felony conviction was enhanced by two prior felony convictions.
See TEX. PENAL CODE ANN. § 12.42(d).

                                                         2
               ....

                If you look at this jury charge on Page 2, that last paragraph. Under the law
       applicable in this case, the defendant will not become eligible for parole until the
       actual time served equals one-half of the sentence imposed, or 30 years, whichever
       is less.

               . . . . That deadly weapon makes this an aggravated offense which means
       that he has to serve at least half of whatever you sentence him to. Or if you sentence
       him to 60 years or more, anything above that, he has to serve 30.

               ....

               So it’s half of the sentence up until 60. Anything after 60 is 30 years.

               And he said that that sentence out of Dallas County, that life sentence in
       1995 . . . .

       It was not until this point that Gilbert objected “to discussing parole. The charge talks

about parole, and it specifically says they’re not allowed to consider how parole might affect this

defendant.” The trial court then stated, “The -- all the law as it applies to deliberation has been

given and read to the jury, and the original will be in the jury room.” Gilbert made no further

objections and made no request for instruction.

       “The right to a trial untainted by improper jury argument is forfeitable.” Hernandez v.

State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018) (citing Cockrell v. State, 933 S.W.2d 73, 89

(Tex. Crim. App 1996)). To preserve a complaint for appellate review, “the record must show that

. . . the complaint was made to the trial court by a timely request, objection, or motion.” TEX. R.

APP. P. 33.1(a)(1). And, “to cure erroneous jury argument, the defendant must object and pursue

his objection to an adverse ruling.” Hernandez, 538 S.W.3d at 622; Hinojosa v. State, 433 S.W.3d

742, 761 (Tex. App.—San Antonio 2014, pet. ref’d). “A trial court’s ruling on a matter need not
                                                  3
be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling.”

Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995); see Montanez v. State, 195 S.W.3d

101, 104 (Tex. Crim. App. 2006); Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991)

(“[I]t must be clear from the record the trial judge in fact overruled the defendant’s objection or

otherwise error is waived.”). Here, the trial court’s comment is more in line with an instruction to

the jury. In any event, the trial court did not overrule Gilbert’s objection, and Gilbert did not

pursue his objection to an adverse ruling. Consequently, Gilbert did not preserve this point of

error for our review. See Hernandez, 538 S.W.3d at 622.

II.    Improper Assessment of Attorney Fees

       A trial court is authorized to order the reimbursement of court-appointed attorney fees as

court costs only if “the judge determines that a defendant has financial resources that enable the

defendant to offset in part or in whole the costs of the legal services provided to the defendant . . .

including any expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Supp.). “[T]he

defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s

determination of the propriety of ordering reimbursement of costs and fees.” Armstrong v. State,

340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556

(Tex. Crim. App. 2010)).

       Here, the trial court declared Gilbert indigent and appointed counsel for trial. Therefore,

he was “presumed to remain indigent for the remainder of the proceedings in the case” absent

record proof of a material change in his financial circumstances. TEX. CODE CRIM. PROC. ANN.

art. 26.04(p) (Supp.); see Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). Because

                                                  4
the record is devoid of proof of a material change in Gilbert’s financial circumstances, the evidence

is insufficient to support the order to pay attorney fees in the written judgment. The State concedes

the error.

        Appellate courts “have the authority to reform judgments and affirm as modified in cases

where there is non reversible error.” Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco

2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments).

Accordingly, we modify the trial court’s judgment by deleting the order to pay attorney fees from

the judgment.

III.    Conclusion

        We delete the order to pay attorney fees from the judgment and affirm the trial court’s

judgment, as modified.

                                              Ralph K. Burgess
                                              Justice

Date Submitted:        August 29, 2019
Date Decided:          August 30, 2019

Do Not Publish

                                                 5


258 F.Supp.2d 1312 (2003)
Kent WHISENANT and Linda Whisenant, Plaintiffs,
v.
FIRST NATIONAL BANK & TRUST COMPANY, Nowata, Oklahoma, Trans Union, LLC f/k/a Trans Union Corporation and Credit Bureau of Oklahoma City, Inc., Defendants.
No. 02-CV-09-C.
United States District Court, N.D. Oklahoma.
April 14, 2003.
*1313 James M Elias, Brewer Worten Robinett et al, Bartlesville, OK, Robert David Humphreys, Luke James Wallace, Humphreys Wallace Humphreys, Tulsa, OK, David A Szwak, Bodenheimer Jones Szwak & Winchell, Shreveport, LA, for Kent Whisenant, Linda Whisenant, plaintiffs.
Daniel Richard Funk, P Joshua Wisley, Conner & Winters, Tulsa, OK, for First Nat. Bank & Trust Co., Nowata, OK.
*1314 Joseph R Farris, F Jason Goodnight, Feldman Franden Woodard Farris & Boudreaux, Tulsa, OK, Paul L Myers, Mark T Craig, Strasburger & Price LLP, Dallas, TX, for Trans Union.
Chris L Rhodes, III, Kerry R Lewis, Rhodes Hieronymus Jones Tucker & Gable, Tulsa, OK, for Credit Bureau of Oklahoma City, Inc.

ORDER
H. DALE COOK, District Judge.
Before the Court is a motion for summary judgment filed by defendant, First National Bank & Trust Company of Nowata ("FNBN") against plaintiffs, Kent Whisenant and Linda Whisenant, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant contends that there exists no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. After careful consideration of the parties' pleadings, the summary judgment evidence, and the applicable law, the Court GRANTS summary judgment in favor of defendant on plaintiffs' federal law claims and, in its discretion, the Court dismisses plaintiffs' state law claims without prejudice.

Statement of Facts
For purposes of FNBN's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to plaintiffs Kent and Linda Whisenant, the non-moving parties.
FNBN is a lending institution located in Nowata, Oklahoma. As is common practice in the industry, FNBN maintains a reciprocal agreement with certain credit reporting agencies, whereby FNBN provides credit data on its customers and the credit reporting agencies provide access to credit reports of potential FNBN customers. This system facilitates maintenance of reliable credit history information, enabling lending institutions like FNBN to make well-informed credit decisions on loan applications.
Trans Union ("TU") is one of the credit reporting agencies to which FNBN is a subscriber. The Credit Bureau of Oklahoma City ("CBOC") acts as a "middleman" for the exchange of credit data between TU and subscribers like FNBN. Sometime in early 1999, FNBN changed the software it was using to collect and provide its customers' credit data to CBOC and TU. At some point in this conversion process a number of errors occurred that adversely affected plaintiffs' credit history.[1] Numerous other FNBN customers were similarly affected. As would be expected when an error occurs affecting numerous customers, FNBN worked closely with TU and CBOC to correct the errors and to complete the software conversion accurately. Over the course of the next several months, plaintiffs contacted FNBN, CBOC, and TU on many occasions to dispute inaccuracies appearing on their credit report due to the faulty software conversion. Significantly, however, neither CBOC nor TU ever reported plaintiffs' *1315 dispute to FNBN.[2]
As a result of the inaccuracies in then credit report, plaintiffs' ability to secure loans was allegedly impaired. Plaintiffs also claim they have suffered various forms of reputational harm and emotional distress caused by the inaccuracies in their credit report.
Plaintiffs filed their complaint on January 3, 2002, seeking damages from FNBN based on alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2b, and state law claims for negligence, negligence per se, property damage, impairment of credit rating, defamation, infliction of emotional distress, invasion of privacy, injunctive relief, misrepresentation/statutory deceit, agency and breach of implied covenant of good faith and fair dealing. On December 9, 2002, FNBN filed its motion for summary judgment. Plaintiffs filed an amended response and opposition to defendant's motion for summary judgment on January 22, 2003. Defendant filed its reply on February 3, 2003. All matters having been fully briefed, defendant's motion for summary judgment is now ripe for the Court's consideration.

Standard of Review
In considering a motion for summary judgment, the Court "has no real discretion in determining whether to grant summary judgment." U.S. v. Gammache, 713 F.2d 588, 594 (10th Cir.1983). The Court must view the pleadings and documentary evidence in the light most favorable to the nonmovant, Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 527-28 (10th Cir.1994), and summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034 (10th Cir.1998). "`[T]he moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.'" Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991) (quoting Swing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987)). However, once the moving party meets its burden, the burden then shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The "party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or *1316 denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted).

Discussion
Federal jurisdiction in this case hinges on defendant's alleged FCRA violations.[3] Congress enacted the FCRA "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information...." 15 U.S.C. § 1681(b); see also Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242, 1245 (10th Cir.1999). Accordingly, the FCRA places distinct obligations on three types of entities: (1) consumer reporting agencies; (2) users of consumer reports; and (3) furnishers of information to consumer reporting agencies. See Aklagi v. Nationscredit Fin., 196 F.Supp.2d 1186, 1192 (D.Kan.2002).
In the instant case, FNBN is a furnisher of credit information and, as such, its obligations are set forth in 15 U.S.C. § 1681s-2. Section 1681s-2 imposes two general sets of duties on furnishers of credit information. First, under § 1681s-2(a), furnishers of credit information have a duty to provide accurate information to a credit reporting agency. Congress did not create a private right of action for violations of this section, providing at 15 U.S.C. § 1681s-2(d) that such violations "shall be enforced exclusively... by the Federal agencies and officials and State officials identified in that section." The FCRA imposes a second set of duties under § 1681s-2(b) that requires furnishers of information to: (1) conduct an investigation with respect to disputed information; (2) review all relevant information provided by the consumer reporting agency; (3) report the results of the investigation to the consumer reporting agency; and (4) if the investigation finds that the information is incomplete or inaccurate, report those results to all other national consumer reporting agencies. A private right action does exist for violations of this set of duties, but it is vital to note that these duties are only triggered after a furnisher of information receives notice of a consumer dispute from a credit reporting agency. In the absence of such notification, no duty arises. Specifically, § 1681s-2(b) imposes these duties "[a]fter receiving notice pursuant to section 1681i(a)(2) of this title of a dispute" regarding the accuracy of information it provided to a consumer reporting agency. Section 16811(a)(2) requires a consumer reporting agency, within five business days after receiving the consumer's dispute to notify any person who provided any relevant item of information about the dispute. Courts have consistently held that a furnisher's duty under § 1681s-2(b) is triggered "only after the furnisher receives notice of the dispute from a consumer reporting agency." Lowe v. Surpas Resource Corporation, 2003 WL 1678131 *1317 (D.Kan.2003) (quoting Aklagi, 196 F.Supp.2d at 1196 (D.Kan.2002)).
Plaintiffs have conducted lengthy depositions with several key representatives from TU, CBOC, and FNBN; they have also obtained voluminous business records from these parties. And yet, plaintiffs have produced not one scintilla of evidence that TU or CBOC notified FNBN of their dispute. Obviously FNBN knew of plaintiffs' dispute. Furthermore, the record indicates that FNBN was in fairly regular contact with CBOC and TU regarding the software conversion errors that occurred in early 1999. But these facts simply do not speak to whether CBOC or TU notified FNBN of plaintiffs' dispute. Again, in order to trigger the duties under the FCRA, FNBN had to be notified of plaintiffs' dispute by a credit reporting agency. On the record before it, the Court must conclude that this never occurred. Therefore, as a matter of law, FNBN violated no duty under the FCRA.
The Court has jurisdiction over the state law claims only through the exercise of its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c). Pursuant to 28 U.S.C. § 1367(c)(3), a district court has discretion to decline to exercise supplemental jurisdiction once it has dismissed the claims over which it had original jurisdiction. Panis v. Mission Hills Bank, 60 F.3d 1486 (10th Cir. 1995). Relevant considerations include judicial economy, convenience, fairness, and comity. The strongest consideration here is that state courts are more familiar with, and better equipped to address, the remaining state law causes of action. The Court therefore exercises its discretion and declines supplemental jurisdiction over the remaining claims. Accordingly, the Court dismisses without prejudice plaintiffs' state law claims against FNBN.
ACCORDINGLY, IT IS THE ORDER OF THE COURT that the motion for summary judgment of defendant First National Bank & Trust Company of Nowata is GRANTED.
IT IS THE FURTHER ORDER OF THE COURT that plaintiffs Kent Whisenant and Linda Whisenant's state law claims against FNBN are dismissed without prejudice. Judgment will issue by separate document as required by Fed. R.Civ.P. 58.
NOTES
[1]  Determining who was responsible for these errors is not relevant to this ruling because a furnisher of information, like FNBN, is liable under the Fair Credit Reporting Act, discussed infra, only for its actions after receiving notice of a customer dispute from a credit reportingagency. Since the errors referred to here obviously occurred before any customer disputed them, they cannot form the basis of FNBN's liability under the Fair Credit Reporting Act.
[2]  Plaintiffs dispute this fact but offer no support for their position other than their own complaint. As the Tenth Circuit noted in Coleman v. Darden, 595 F.2d 533, 536 (10th Cir. 1979), a party opposing a properly supported summary judgment motion "may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried." Although plaintiffs state that "[i]t was very common for FNBN to communicate with CBOC/TU by phone and informal processes where credit reporting errors were concerned!,]" this alone cannot support an inference that TU or CBOC reported plaintiffs' dispute to FNBN. Plaintiffs offer no deposition testimony, affidavit, or documentary evidence from TU or CBOC that either entity reported plaintiffs' dispute to FNBN. Moreover, Bryan Lee, FNBN President and CEO, and Bill Askins, an FNBN loan officer, specifically deny ever having received notice of plaintiffs' dispute from TU or CBOC. Therefore the only reasonable inference to be drawn is that neither TU nor CBOC notified FNBN of plaintiffs' dispute.
[3]  In their response to defendant's motion for summary judgment, plaintiffs also discuss applicability of the Fair Credit Billing Act, 15 U.S.C. 1640(a), 1666, et. seq. The Court's review of plaintiffs' complaint reveals no allegation that FNBN violated the Fair Credit Billing Act. Therefore, the applicability of this federal statute is not properly before the Court.