Full opinion text
MEMORANDUM OPINION AND ORDER BROWNING, District Judge. THIS MATTER comes before the Court on: (i) the United States’ Objections to Pre-Sentence Report, filed December 22, 2006 (Doc. 429)(“United States’ PSR Objections”); (ii) the Defendant’s Objections to the Presentence Report, filed January 5, 2006 (Doc. 430)(“Vigil’s PSR Objections”); and (iii) the Defendant’s Motion for Downward Departure, filed January 16, 2006 (Doc. 437)(“Motion for Downward Departure”). The Court heard these objections at the sentencing hearing held on January 24, 2007. The primary issues are: (i) whether the conviction for attempted extortion is properly grouped under the United States Sentencing Guidelines with other uncharged conduct and the conduct for which Defendant Robert Vigil was acquitted, requiring the Court to consider that conduct under the Guidelines; (ii) whether it is constitutional for the Court to consider conduct, established by a preponderance of the evidence, for which Vigil was acquitted' at trial; (iii) whether the Court should" depart downward under the Guidelines because of a number of factors that Vigil advances; and (iv) whether the Court should vary from the Guidelines because the Guidelines’ sentence of 235 to 240 months is not reasonable. Because the Court believes that the United States Probation Office (“USPO”) has, with a few exceptions, properly applied the Guidelines in its Presentence Investigation Report (“PSR”) and its.Addendum to the Presentence Report (“Addendum”), because current law within the United States Court of Appeals for the Tenth Circuit counsels that the Court calculate the guideline sentence using conduct found by a preponderance of the evidence, and because the Court believes that the guideline sentence would not be a reasonable sentence for Vigil, the Court will, for the most part, overrule the objections and vary from the guideline sentence. PROCEDURAL BACKGROUND In the course of resolving the parties’ pre-trial and post-trial motions, and in making evidentiary rulings throughout the course of the proceedings, the Court has already made some factual findings, by a preponderance of the evidence, that are relevant to the sentencing. The Court found by a preponderance of the evidence, for example, that Vigil was a member of a conspiracy to engage in racketeering activity — along with Michael Montoya, Angelo Garcia, Kent Nelson, and Leo Sandoval— for the purpose of admitting co-conspirator statements at trial as non-hearsay pursuant to rule 801(d)(2)(E) of the Federal Rules of Evidence. See Memorandum Opinion and Order, filed August 31, 2006 (Doc. 329)(“Court’s Co-Conspirator Opinion”). The USPO has, in turn, included all conduct for which Vigil was acquitted, but which involved his co-conspirators, in the guideline calculation. The USPO has then proposed that the Court vary from the guideline sentence. See PSR ¶ 122, at 44. Together, the United States and Vigil disagree with much of what the USPO has done or suggests. 1. The Fifth Superseding Indictment. On July 25, 2006, a grand jury returned a Fifth Superceding Indictment charging Vigil with twenty-four counts of racketeering and extortion in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c)-(d), and the Hobbs Act, 18 U.S.C. §§ 1951 & 1952. See Fifth Superceding Indictment, filed July 25, 2006 (Doc. 259)(“Indictment”). The Court held a jury trial in this case from September 5, 2006 to September 30, 2006. The jury returned a verdict on September 30, 2006 finding Vigil not guilty on Counts One through Twenty-Three and guilty on Count Twenty-Four of the Indictment. See Verdict, filed September 30, 2006 (Doc. 408)(“Verdict”). Count Twenty-Four of the Fifth ■ Superseding Indictment charges: Between May 2, 2005 and September 15, 2005, both dates being approximate and inclusive, in the State and District of New Mexico, the defendant Robert Vigil, did knowingly and unlawfully affect and attempt to affect interstate commerce and the movement of articles and commodities in interstate commerce by extortion, in that the defendant Robert Vigil attempted to cause George Ever-age to provide money and property to another person, with Everage’s consent, induced by wrongful use and threat of use of economic harm and under color of official right, in connection with Ever-age’s efforts to work as the Securities Lfending Oversight Manager for the New Mexico State Treasurer’s Office. Indictment at 31. The United States’ charging language in Count Twenty-Four does not precisely track the language of the Hobbs Act. Count Twenty-Four of the United States’ Indictment, unlike 18 U.S.C. § 1951(b)(2), is worded in the conjunctive. Paragraph two of Count Twenty-Four charges that Vigil attempted to extort property “by wrongful use and threat of use of economic harm and under color of official right.” Indictment at 31 (emphasis added). The Hobbs Act’s definition of “extortion” is written in the disjunctive — encompassing the taking of property “by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2) (emphasis added). 2. Finding of Conspiracy. The Court has made some relevant decisions about the existence of the conspiracy in response to the United States’ motion to allow the admission of co-conspirator statements as non-hearsay pursuant to rule 801(d)(2)(E). See Government’s Motion to Admit Co-Conspirator Statements as Non-Hearsay Pursuant to Fed.R.Evid. 801(d)(2)(E), filed August 4, 2007 (Doc. 267). The Court has already found, by a preponderance of the evidence, a conspiracy to engage in racketeering activities existed and that Vigil — along with Montoya, Garcia, Nelson, and Sandoval — was a member of the conspiracy. See Court’s Co-Conspirator Opinion at 10. The pattern of activity that comprised the substantive acts in furtherance of the conspiracy’s objectives constitutes much of the relevant conduct that the PSR attributes to Vigil. In its PSR, the USPO has also linked the conspiracy’s conduct and Vigil’s offense of conviction into a single course of conduct. In issuing its decision on the United States’ motion to admit the co-conspirator statements, the Court relied upon its earlier denial of a rule 29 motion Vigil filed after his first trial before the Honorable James A. Parker, Senior United States District Judge for the District of New Mexico.- See Memorandum Opinion and Order, filed August 7, 2006 (Doc. 268). The Court noted in its Co-Conspirator Opinion that it “ha[d] already ruled that there was sufficient evidence at the first trial for a reasonable jury to conclude that the United States proved, beyond a reasonable doubt, that Vigil took part in the racketeering conspiracy charged in the indictment.” Court’s Co-Conspirator Opinion at 7. The Court went on to “find[ ] that the same evidence establishes, by a preponderance, the existence of a conspiracy and of Vigil’s membership therein.” Id. at 10. The Court has, accordingly, already found — by the same evidentiary standard to be used at sentencing — that the conspiracy alleged in the indictment existed and that Vigil was a member thereof. 3. Jury Instructions and Verdict Form. Unlike the language of the United States’ Fifth Superceding Indictment, the Court’s jury instructions related to Count Twenty-Four tracked the language of the Hobbs Act and charged the jury that they could find Vigil attempted to extort Ever-age “either (a) by wrongful use of actual or threatened fear, or (b) under color of official right.” Court’s Final Jury Instructions with Citations, Instruction No. 31, at 68, filed September 28, 2006 (Doc. 394)(“Jury Instructions”). On the other hand, the verdict form presented to the jury required that the jury find Vigil guilty or not guilty “as charged in Count Twenty-Four of the indictment.” Verdict at 5. The Court’s instructions directed the jury that “[t] o reach a verdict, whether it is guilty or not guilty, [every juror] must agree.” Jury Instructions, Instruction No. 39, at 79. The jury was told that its “verdict must’ be unanimous on each count of the indictment.” Id. The verdict form did not contain, however, any special interrogatories requiring the jury to identify upon which method of extortion it based its unanimous verdict. 4. Rule 29 Motions. On September 28, 2006, at the close of the United States’ evidence, Vigil moved, under rule 29 of the Federal Rules of Criminal Procedure, to dismiss all charges. The Court took the motion under advisement, but indicated to the parties that it was inclined to submit all the counts to the jury. See Transcript of Trial at 147:2-149:1 (Court)(taken September 28, 2006). Subsequent to the Court reserving its ruling, Vigil chose not to present any evidence. The jury returned a verdict on September 30, 2006, finding Vigil not guilty on Counts One through Twenty-Three and guilty on Count Twenty-Four of the Fifth Superceding Indictment. See Verdict. On October 5, 2006, Vigil filed two motions, pursuant to rule 29, requesting that the Court enter a judgment of acquittal on Vigil’s behalf. Vigil’s first motion argued that the evidence presented at trial, when considered in the light most favorable to the jury’s verdict, was insufficient to sustain a conviction for attempted extortion because the United States failed to prove that Vigil took a substantial step toward the commission of the crime. See Defendant’s Motion to Set Aside Verdict and for Judgment of Acquittal on Count 24 of the Fifth Superseding Indictment Under Fed. R.Crim.P. 29 as the Evidence is Insufficient to Sustain a Conviction, filed October 5, 2006 (Doc. 410)(“Substantial Step Motion”). Vigil’s second motion primarily asserted that, even when all the evidence presented at trial is considered in the light most favorable to the jury’s verdict, the facts of this case related to the attempt of the New Mexico State Treasurer’s Office (“NMSTO”) to engage in securities lending do not constitute a violation of the Hobbs Act. See Motion to Set Aside Verdict and for Judgment of Acquittal on Count 24 of the Fifth Superseding Indictment Under Fed.R.Crim.P. 29 or in the Alternative for New Trial on Count 24, filed October 5, 2006 (Doc. 411)(“Impossibility Motion”). Vigil’s second motion argued: (i) that the jury’s verdict was ambiguous regarding upon what method of extortion it premised its conviction; (ii) that Everage never acquired a property interest that Vigil could extort; (iii) that Vigil’s actions did not affect interstate commerce; and (iv) that Vigil’s conviction offends due process because the Hobbs Act does not provide adequate notice that the conduct the United States alleges violates the Act. See id. The Court issued a Memorandum Opinion and Order denying Vigil’s Impossibility Motion on January 12, 2007. See Memorandum Opinion and Order, filed January 12, 2007 (Doc. 436)(“Impossibility Opinion”). The Court determined that the jury’s general verdict, although ambiguous as to what theory upon which the jury premised its conviction, was not invalid and that the evidence was sufficient for a reasonable jury to find that Vigil attempted to extort Everage under either theory submitted to- the jury — either by placing him in fear of economic harm and/or under color' of official right. See Id., Part I.C, at 27-38. The Court concluded that Ever-age’s reasonable expectation of some profit, his right to compete fairly for government contracts, and his right to conduct his business free from coercion all established a property interest that the jury could, have determined Vigil attempted to extort. See id., Part II, at 38-47. In addition, the Court ruled that Vigil’s attempt to manipulate monies generated by securities lending — an activity involving interstate activity — established the requisite nexus between Vigil’s conduct and interstate commerce necessary to fall within the auspices of the Hobbs Act. See Id., Part III, at 47-55. Finally, the Court held that the Hobbs Act put Vigil on sufficient notice that his actions were illegal, and thus his conviction does not offend due process. See Id., Part IV, at 55-57. The Court issued a Memorandum Opinion and Order denying Vigil’s Substantial Step Motion on January 19, 2004. See Memorandum Opinion and Order, filed January 19, 2004 (Doc. 440)(“Substantial Step Opinion”). The Court concluded that Vigil took substantial steps toward the completion of the crime — beyond mere preparation and planning — and that those steps, taken individually and in the aggregate, corroborated his intent to commit the crime in a manner that brought his actions within -a dangerous proximity of success. See id. at 22. The Court held that the evidence, viewed in the light most favorable to the jury’s verdict, was sufficient for a reasonable jury to find Vigil guilty beyond a reasonable doubt of the crimes the United States charged in Count Twenty-Four. 5. The USPO’s Guideline Calculation. The USPO prepared the PSR and provided it to the parties on December 8, 2006. The PSR determined that Vigil’s adjusted offense level was forty and his criminal history category was I. See PSR ¶¶ 73 & 76, at 32, 33. Based on those calculations, the USPO found that the guideline imprisonment range was 292 to 365 months. See id. ¶ 102, at 40. Because the statutory maximum term of imprisonment is twenty years, however, see 18 U.S.C. § 1951(a), the PSR concluded that the guideline imprisonment term is 240 months pursuant to U.S.S.G. § 5G1.1(a), see PSR ¶ 102, at 40. a. Base Offense Level. The USPO determined that the appropriate guideline for determining Vigil’s base offense level is U.S.S.G. § 2C1.1. See PSR ¶ 64, at 30. U.S.S.G. § 2C1.1(a)(1), which applies to extortion committed under color of official right, provides that, when a defendant was a public official during the commission of the crime, the base offense level is fourteen. b. Special Offense Characteristics, i.Multiple Extortions. The PSR includes a two-level increase in Vigil’s base offense level, pursuant to U.S.S.G. § 2C1.1(b)(1), because the USPO determined that the offense involved more than one bribe or extortion. See id. ¶ 65, at 30. ii. The PSR’s Relevant Conduct Determination. The USPO reached its conclusions on the basis of not only the facts of the offense of conviction, but also upon relevant conduct that the USPO concluded the United States established by a preponderance of the evidence át trial. The USPO found, pursuant to U.S.S.G. § 2C1.1(b)(2), that the Court should adjust Vigil’s offense level upward by eighteen levels on the basis of “the value of anything obtained or to be obtained by a public official or others acting with a public official.” Id. ¶ 66, at 31. The PSR identified this total value as $3,121,175.40. See id. ¶ 66, at 32. The PSR broke this sum down into the following components: (i) $42,180.00, representing the value of forty percent of $105,450.00 — the gross amount Everage testified he estimated he would earn in the first year of the Securities Lending Oversight Manager (“SLOM”) contract; (ii) $244,888.00, representing the amount of payments Nelson transferred to Garcia, acting as Vigil’s agent, during Vigil’s term as New Mexico State Treasurer; (iii) $11,500.00, representing cash payments Nelson gave to Vigil on May 2, 2005; and (iv) $2,822,607.40, representing the value of all payments that members and associates of the RICO enterprise and conspiracy received during Montoya’s term in office as New Mexico State Treasurer. See id. iii. High-Level Position Enhancement. The PSR includes a four-level increase in Vigil’s base offense level, pursuant to U.S.S.G. § 201.1(b)(3), because the USPO determined that Vigil held a high-level decision making or other sensitive position. See id. ¶ 67, at 82. The PSR noted that, “[a]s the elected State Treasurer, [Vigil] made several high level decisions regarding who would handle monetary investments involving the funds of the [S]tate of New Mexico.” See id. c. Aggravating Role. The PSR includes a two-level increase in Vigil’s base offense level, pursuant to U.S.S.G. § 3B 1.1(c), because the USPO determined that Vigil was an organizer, leader, manager, or supervisor in criminal activity. See id. ¶ 69, at 32. The PSR states that, after becoming Treasurer in 2003, Vigil took over the kickback scheme that Montoya had originated during his term in office. See id. The PSR asserts that, during his term in office, Vigil managed and supervised Garcia and directed Nelson’s activities. See id. 6. Proposed Variance. The PSR concluded by opining that “a guideline imprisonment term of 240 months is greater than necessary to comply with [the goals of sentencing]” and sentencing factors that 18 U.S.C. § 3553(a) defines. Id. ¶ 121, at 44. The USPO recommended that “the Court vary downward from the applicable sentencing guideline range.” Id. ¶ 122, at 44. The PSR asserts that “[a] downward variance would still reflect the seriousness of the offense, and a lower sentence would promote - respect for the law, and provide just punishment for the defendant’s conduct in this case.” Id. ¶ 121, at 44. The PSR makes only the following statement in support of its proposed variance from the guideline term of imprisonment: In this case, when looking at the nature and circumstances of the offense and the history and characteristics of the defendant, the Court should consider several factors. Robert Vigil is currently 53 years old and this is his first contact with law enforcement or any Court. Additionally, the defendant has no history of violence. Mr. Vigil is a very educated person, and has maintained a stable employment history for his adult life. Id. ¶ 120, at 44. The PSR made no recommendation as to the extent of the proposed downward variance. See id. ¶ 122, at 44. 7. Addendum. Pursuant to rule 32(f)(1) of the Federal Rules of Criminal Procedure, the United States filed objections to the PSR. See United States’ PSR Objections. The United States objects to the USPO’s conclusion that a guideline imprisonment term of 240 months is greater than necessary to comply with sentencing goals and to the recommended downward variance. See id. at 1-2. Vigil also objects to the PSR that the USPO submitted, arguing that there are constitutional and non-constitutional reasons that the Court should not consider the conduct for which Vigil was acquitted. See Vigil’s PSR Objections. On January 16, 2007, the USPO disclosed the Addendum. As to the United States’ objection, the USPO stated that, as detailed in the PSR, it is the USPO’s assessment that a downward variance would appear to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for Vigil’s conduct. See Addendum at 1. Beyond one factual exception related to the location of his wedding, the USPO did not agree with any of Vigil’s objections. See id. at 1-9. On the same day, Vigil filed a motion for a downward departure from the applicable guideline range. See Motion for Downward Departure. RELEVANT LAW REGARDING CALCULATION OF GUIDELINE SENTENCES Real conduct is the cornerstone of the United States Sentencing Guidelines. But when the Guidelines require the sentencing court to consider conduct for which the defendant was acquitted and to enhance the defendant’s sentence based on the judge’s finding that the conduct occurred by a preponderance of the evidence, the court’s actions can be viewed as at tension with the jury’s verdict of acquittal. Nevertheless, the Tenth Circuit has made it clear that, not only can the sentencing court consider conduct for which the defendant was acquitted, the sentencing court, under the Guidelines, makes findings about that conduct by a preponderance of the evidence. 1. Relevant Conduct. In calculating an appropriate sentence, the Guidelines consider a defendant’s “offense of conviction and all relevant conduct under [U.S. S.G.] § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1 cmt. n. 1(H). In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court of the United States referenced the Hobbs Act as an offense for which relevant conduct must be taken into account when imposing a sentence. See id. at 250-51, 125 S.Ct. 738. Congress’ basic statutory goal — a system that diminishes sentencing disparity — depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction. That determination is particularly important in the federal system where crimes defined as, for example, ■ “obstructing], delaying], or affecting] commerce or the movement of any article or commodity in commerce, by ... extortion,” ... can encompass a vast range of very different kinds of underlying conduct. Id. (quoting 18 U.S.C. § 1951(a))(emphasis in original). The Supreme Court’s reasoning in United States v. Booker suggests that the consideration of real conduct is necessary to effectuate Congress’ purpose in enacting the Guidelines. 2. Sentencing Guidelines Regarding Extortion. Because “extortion ... can encompass a vast range of very different kinds of underlying conduct,” the Guidelines treat extortion differently depending on the method the defendant used to extort — or, in the case of attempted extortion, attempted to extort — his victim. In choosing the operative guideline provision in this case, these distinctions complicate the Court’s task because the jury’s verdict is ambiguous as to the theory of extortion for which it chose to convict Vigil. a. U.S.S.G. § lB1.2(a). Absent an express direction noting an exception, the Guidelines are to be applied in a specific order. See U.S.S.G. § 1B1.1. The first step is to “[determine, pursuant to [U.S.S.G.] § 1B1.2 (Applicable Guidelines), the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction.” U.S.S.G. § 1B1.1(a). See U.S.S.G. § 1B1.2. To determine the guideline section, U.S.S.G. § 1B1.2(a) directs the Court to “[r]efer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction.” U.S.S.G. § 1B1.2(a). For offenses involving an attempt, the court should apply U.S.S.G. § 2X1.1 in addition to the guideline referenced in the Statutory Index for the substantive offense. Id. b. Appendix A. Appendix A contains the statutory index that specifies the offense guideline section or sections in Chapter Two (Offense Conduct) applicable to the defendant’s statute of conviction. For defendants convicted under 18 U.S.C. § 1951, Appendix A lists four guideline sections: 2B3.1, 2B3.2, 2B3.3, and 2C1.1. The Introduction to Appendix A instructs that, where “more than one guideline section is referenced for the particular statute, use the guideline most appropriate for the offense conduct charged in the count of which the defendant was convicted.” U.S. Sentencing Guidelines, Appendix A—Statutory Index, Introduction. c. U.S.S.G. § lB1.2(b). Once the Court has determined the appropriate offense guideline section pursuant to U.S.S.G. § 1B1.2(a), it must consider other relevant conduct—in accordance with U.S.S.G. § 1B1.3—to calculate the defendant’s base offense level and to determine the applicable guideline sentencing range. See U.S.S.G. § 1B1.2(b). The Application Notes to U.S.S.G. § 1B1.2 indicate that, “[w]here there is more than one base offense level within a particular guideline, the determination of the applicable base offense level is treated in the same manner as a determination of a specific offense characteristic.” U.S.S.G. § 1B1.2 cmt. n. 2. In addition, the guidelines require that “the ‘relevant conduct’ criteria of [U.S.S.G.] § IB 1.3 are to be used, unless conviction under a specific statute is expressly required.” Id. d. U.S.S.G. § IB 1.3. The Sentencing Guidelines define the activity that the court should consider in determining the guideline sentencing range. (a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following: (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant;, and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; (2) solely with respect to offenses of a character for which [U.S.S.G.] § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction; (3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and (4) any other information specified in the applicable guideline. U.S.S.G. § 1B1.3(a)(1)-(4). In evaluating jointly undertaken criminal activity under subsection (1)(B), the Guidelines distinguish between the findings the court must make for sentencing purposes and those traditionally relevant to conspiracy law analysis. The Guidelines recognize that, “[bjecause a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the criminal activity jointly undertaken by the defendant ... is not necessarily the same as the scope of the entire conspiracy.” U.S.S.G. § 1B1.3 cmt. n. 2. Consistent with that recognition, a defendant’s relevant conduct does not include conduct in which the co-conspirators engaged before the defendant joined the conspiracy, even if the defendant knew of that conduct. See id.; United States v. Bad Wound, 203 F.3d 1072, 1077 (8th Cir.2000)(“A person cannot be held liable for the losses caused by other conspirators in the scheme prior to the time the person entered the conspiracy.”). Nevertheless, once a defendant joins the criminal activity, U.S.S.G. § 1B1.3(a)(1)(B) provides that he is accountable for the conduct of others that was both: “(i) in furtherance of the jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § 1B1.3 cmt. n. 2. See United States v. Westcott, Nos. 06-5018, 06-5019, 06-5026, 2007 WL 196564, at *4, 2007 U.S.App. LEXIS 1870, at *13 (10th Cir. Jan. 26, 2007). Once the court has found jointly undertaken criminal activity by a preponderance of the evidence, if the underlying offenses are of the type for which U.S.S.G. § 3D1.2(d) would require grouping of multiple counts, it must then determine whether that activity is relevant to the offense of conviction because it is either part of the same common scheme or plan or part of a continuous course of conduct. The Application Notes to U.S.S.G. § 1B1.3 characterize “common scheme or plan” and “same course of conduct” as “two closely related concepts,” provide the court guidance regarding the proper standards to apply in making these findings, and enumerate a non-exhaustive list of factors pertinent to the court’s consideration of each category. U.S.S.G. § 1B1.3 cmt. n. 9. (A) Common scheme or plan. For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. (B) Same course of conduct. Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses. Factors that are appropriate to the determination of whether offenses are sufficiently connected or related to each other to be considered as part of the same course of conduct include the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses. When one of the above factors is absent, a stronger presence of at least one of the other factors is required. Id. e. U.S.S.G. § 3D1.2. When counts against a defendant involve substantially the same harm, U.S.S.G. § 3D 1.2 requires the counts be grouped together into a single group for sentencing purposes. Counts involve substantially the same harm within the meaning of this rule: (a) When counts involve the same victim and the same act or transaction. (b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan. (c) Wfiien one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts. (d) Wfiien the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to. cover such behavior. U.S.S.G. § 3D1.2(a)-(d). In addition to these general rules, Subsection (d) of U.S.S.G. § 3D1.2, the subsection erossr-referenced in U.S.S.G. § 1B1.3(a)(2), also directs the court to group offenses covered under numerous specific guidelines, including U.S.S.G. § 2C1.1, and expressly excludes from grouping offenses that other guidelines cover, including U.S.S.G. §§ 2B3.2 & 2B3.3. The Guidelines recognize that subsection (d) has the likelihood of being used-' most frequently, because “[i]t provides that most property crimes (except robbery, burglary, extortion and the like), drug offenses, firearms offenses, and other crimes where the guidelines are based primarily on quantity or contemplate continuing behavior are to be grouped together.” U.S.S.G. § 3D1.2 cmt. n. 6. In addition, “Mounts involving offenses to which different offense guidelines apply are grouped together under subsection (d) if the offenses are of the same general type and otherwise meet the criteria for grouping under [the] subsection.” Id. See United States v. Taylor, 97 F.3d 1360, 1364 (10th Cir.1996). Finally, the Guidelines do not require that a defendant be convicted on each of the counts- to which U.S.S.G. § 3D1.2(d) applies before a court may consider uncharged conduct or conduct for which the defendant was acquitted as relevant conduct under U.S.S.G. § 1B1.3(a)(2). See U.S.S.G. § 1B1.3 cmt. n. 3 (“Application of this provision does not require the defendant, in fact, to have been convicted of multiple counts.”). The Supreme Court has confirmed that, at least so far as is necessary to calculate the applicable guideline sentencing range, the sentencing court may consider conduct that is not formally charged or that is not an element of the offense of conviction. See United States v. Booker, 543 U.S. at 251-52, 125 S.Ct. 738 (quoting U.S.S.G. § 1B1.3 cmt. background). f. U.S.S.G. § 2X1.1. WTien a defendant has been convicted of an attempt, U.S.S.G. § 2X1.1(b)(1) provides that his base offense level should be decreased three levels, “unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for the apprehension or interruption by some similar event beyond the defendant’s control.” Id. The Application Notes to U.S.S.G. § 2X1.1, however, indicate that certain offense guidelines, including U.S.S.G. § 2C1.1, expressly cover attempts, and therefore U.S.S.G. § 2X1.1 does not apply to guideline sentencing calculations under those guideline provisions. See U.S.S.G. § 2X1.1 cmt. n. 1. LAW REGARDING SIXTH AMENDMENT RIGHT TO JURY TRIAL While the United States is often described generally and somewhat loosely as a democracy, and certainly enjoys democratic features, the focus is often on, at the federal government level, the elected branches — the President and ■ the Congress. Yet, when one stares at the mosaic that makes up the United States’ constitutional system, there is, in fact, nothing more truly democratic than what takes place, day after day, in federal courts across the nation, when the citizens are summoned to the courthouse to apply the law that Congress has passed and the President has signed to the specific facts of a particular case and of an individual defendant. The citizens of this country valued this democratic mechanism well before the Constitution and the Bill of Rights were drafted, and the passage of time has only ingrained further the importance of jury trials into the fabric of the nation’s view of what constitutes justice. It now cannot be seriously disputed, as the nation enters its third century, that one of the most precious and treasured rights that United States citizens and residents have is the right to trial by jury. This fundamental right is a cornerstone of the American criminal justice system, and the Sixth Amendment has long embodied and protected this means of resolving criminal charges that the' government brings. As Alexander Hamilton noted in Federalist Paper No. 83, “all are satisfied of the utility of the [jury trial] institution, and of its friendly aspect to liberty.” The Federalist No. 83, at 499 (Alexander Hamilton)(Clinton Rossiter ed., 1961). “The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” Id. The right to jury trial is “no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” Blakely v. Washington, 542 U.S. 296, 306, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In the majority opinion that Justice Scalia authored, the Supreme Court in Blakely v. Washington acknowledged that, “[j]ust as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Id. As Justice Scalia emphasized through a series of quotations from Thomas Jefferson and John Adams, the right of citizens to participate in the judiciary through jury trial is so fundamental that the “judge’s authority to sentence derives wholly from the jury’s verdict.” Id. SENTENCING LAW AND GUIDELINES I. CONSTITUTIONALITY OF CONSIDERING RELEVANT CONDUCT AND THE APPLICABLE EVIDEN-TIARY STANDARD. In a sentencing proceeding, the United States need only prove the existence of a fact relevant to sentencing by a preponderance of the evidence, rather than beyond a reasonable doubt. The recent upheaval in federal sentencing jurisprudence has not affected the applicable standard for sentencing proceedings in the Tenth Circuit. Moreover, conduct for which the defendant was acquitted may fairly be used as relevant conduct so long as the preponderance of the evidence standard is satisfied. The Supreme Court has expressly and repeatedly approved of sentencing courts’ reliance upon, and consideration of, conduct for which the defendant was acquitted under the Guidelines’ sentencing regime. The practice is, in essence, an artifact of the lower burden of proof that has always been applicable to sentencing proceedings. Furthermore, the use of conduct for which the defendant was acquitted for senténcing purposes is consistent with Fifth Amendment due process and the Sixth Amendment right to jury trial. The Supreme Court and the Tenth Circuit have already both definitively spoken on this issue. 1. Supreme Court Relevant Conduct Jurisprudence. In Witte v. United States, 515 U.S. 389; 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), the Supreme Court upheld the use of uncharged conduct at sentencing against a double jeopardy challenge. The defendant in Witte v. United States had been involved in an unsuccessful 1990 attempt to import marijuana and cocaine into the United States, and a 1991 attempt to import marijuana. See id. at 392-93, 115 S.Ct. 2199. In March 1991, a federal grand jury indicted the defendant for attempting to possess marijuana with intent to distribute in association with the defendant’s latter attempt to import narcotics. See id. At sentencing, the district court concluded that, because the 1990 attempt was part of the same continuing conspiracy, it was relevant conduct under U.S.S.G. § 1B1.3 and therefore calculated the defendant’s base offense level based on the aggregate amount of drugs involved in both the 1990 and 1991 episodes. See id. at 394, 115 S.Ct. 2199. In September 1992, a second federal grand jury indicted the defendant for conspiring and attempting to import cocaine in association with the 1990 activities. See id. The defendant moved to dismiss the indictment, arguing that he had already been punished for the cocaine offenses because the district court had considered those offenses relevant conduct at the sentencing for the 1991 marijuana offense. See id. at 395, 115 S.Ct. 2199. The district court agreed and dismissed the indictment, holding that punishment for the cocaine offenses would violate the Double Jeopardy Clause’s prohibition against multiple punishments.. See id. The United States Court of Appeals for the Fifth Circuit reversed the district court and held that “the use of relevant conduct to increase the punishment of a charged offense does not punish the offender for the relevant conduct.” United States v. Wittie, 25 F.3d 250, 258 (5th Cir.1994). In reaching this holding, the Fifth Circuit acknowledged that its conclusion was contrary to other Circuit Courts of Appeals, including the Tenth Circuit, that had previously considered this question. See id. at 255 & n. 19 (citing United States v. Koonce, 945 F.2d 1145 (10th Cir.1991)). The Supreme Court granted certiorari to resolve the conflict between the circuits and affirmed the Fifth Circuit. See Witte v. United States, 515 U.S. at 395, 115 S.Ct. 2199. In finding that the district court’s consideration of the defendant’s relevant conduct did not punish the defendant for that conduct, the Supreme Court concluded that “consideration of information about the defendant’s character and conduct at sentencing does not result in ‘punishment’ for any offense other than the one of which the defendant was convicted.” Id. at 401, 115 S.Ct. 2199. The Supreme Court reasoned that sentencing courts had always considered relevant conduct and “the fact that the sentencing process has become more transparent under the Guidelines ... does not mean that the defendant is now being ‘punished’ for uncharged relevant conduct as though it were a distinct criminal ‘offense.’ ” Id. at 402, 115 S.Ct. 2199 (quoting United States’ Brief at 23). Sentencing enhancements do not punish a defendant for uncharged offenses; rather they reflect Congress’ policy judgment “that a particular offense should receive a more serious sentence within the authorized range if it was either accompanied by or preceded by additional criminal activity.” Witte v. United States, 515 U.S. at 403, 115 S.Ct. 2199. In United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), the Supreme Court, in a per curiam opinion, relied upon the holding of Witte v. United States and upheld a sentencing judge’s use of conduct for which the defendant had been acquitted against a double jeopardy challenge. In reaching its result in United States v. Watts, the Supreme Court noted that its conclusion was in accord with every Circuit Court of Appeals — other than the United States Court of Appeals for the Ninth Circuit — and that each had previously held that a sentencing court may consider conduct for which the defendant had been acquitted, if the government establishes that conduct by a preponderance of the evidence. See id. at 149, 117 S.Ct. 633 (citing, among other authorities, United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir.1991)). There were two Ninth Circuit cases on appeal in United States v. Watts. See United States v. Watts, 67 F.3d 790 (9th Cir.1995); United States v. Putra, 78 F.3d 1386 (9th Cir.1996). In United States v. Watts, a jury convicted Vernon Watts of possessing cocaine with intent to distribute, but acquitted him of using a firearm in relation to a drug offense. See id. at 149-50, 117 S.Ct. 633. Despite Watts’ acquittal on the firearms count, the district court found by a preponderance of the evidence that Watts had possessed 'guns in connection with the drug offense, and, at sentencing, added two offense levels to his base offense level pursuant to U.S.S.G. § 2D1.1(b)(1). See id. at 150, 117 S.Ct. 633. The Ninth Circuit vacated the sentence, holding that “a sentencing judge may not, ‘under any standard of proof,’ rely on facts of which the defendant was acquitted.” Id. (quoting United States v. Watts, 67 F.3d 790, 797 (9th Cir.1995))(emphasis in original). The second case on appeal, United States v. Putra, involved a defendant, Cheryl Putra, whom authorities had videotaped selling cocaine to a government informant on two separate occasions. See United States v. Watts, 519 U.S. at 150, 117 S.Ct. 633. The jury convicted Putra of aiding and abetting possession with intent to distribute one ounce of cocaine in association with the first sale, but acquitted her of aiding and abetting possession with intent to distribute five ounces of cocaine in association with the second transaction. At the sentencing hearing, the district court determined that the United States had proved by a preponderance of the evidence that Putra had been involved in both sales, explained that the second sale was relevant conduct under U.S.S.G. § 1B1.3, and aggregated the amounts of both sales to calculate Putra’s base offense level under the Guidelines. See United States v. Watts, 519 U.S. at 151, 117 S.Ct. 633. “Reasoning that the jury’s verdict of acquittal manifested an ‘explicit rejection’ of Putra’s involvement in the [second] transaction,” the Ninth Circuit reversed and vacated the sentence. Id. (quoting United States v. Putra, 78 F.3d at 1389). The Supreme Court began its analysis in United States v. Watts with 18 U.S.C. § 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. See United States v. Watts, 519 U.S. at 151, 117 S.Ct. 633. According to the Supreme Court, 18 U.S.C. § 3661 embodies the codification of “the longstanding principle that sentencing courts have broad discretion to consider various kinds of information,” and -that “the Guidelines did not alter this aspect of the sentencing court’s discretion.” United States v. Watts, 519 U.S. at 151-52, 117 S.Ct. 638. The Supreme Court distinguished the different limitations on the presentation of evidence at trial and at sentencing: “Highly relevant — if not essential — to [the judge’s] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Id. (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The Supreme Court noted that, “under the pre-Guidelines sentencing regime, it was ‘well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.’ ” United States v. Watts, 519 U.S. at 152, 117 S.Ct. 633 (quoting United States v. Donelson, 695 F.2d 583, 590 (D.C.Cir.1982) (Scalia, J.)). The Supreme Court in United States v. Watts then turned to the Guidelines. The Supreme Court acknowledged that the Guidelines, like 18 U.S.C. § 3661, articulate “in sweeping language the conduct that a sentencing court may consider in determining the applicable guideline range.” United States v. Watts, 519 U.S. at 152-53, 117 S.Ct. 633 (citing U.S.S.G. § 1B1.3). The Supreme Court appeared to be persuaded by the Guidelines’ conclusion that, at least for offenses involving “a pattern of misconduct that cannot readily be broken down into discrete, identifiable units that are meaningful for purposes of sentencing,” U.S.S.G. § 1B1.3 cmt. background, “relying on the entire range of conduct, regardless of the number of counts that are alleged or on which a conviction is obtained, appears to be the most reasonable approach to writing workable guidelines for these offenses.” United States v. Watts, 519 U.S. at 153, 117 S.Ct. 633 (quoting U.S.S.G. § 1 B 1.3 comment., backg’d)(emphasis added in United States v. Watts). Considering 18 U.S.C. § 3661 and the Guidelines in totality, the Supreme Court stated that, “[i]n short, we are convinced that a sentencing court may consider conduct of which a defendant has been acquitted.” United States v. Watts, 519 U.S. at 154, 117 S.Ct. 633. Relying on its earlier decision in Witte v. United States, the Supreme Court in United States v. Watts went on to explain why its ruling did not violate the Double Jeopardy Clause. The Supreme Court in United States v. Watts reaffirmed its holding that “sentencing enhancements do - not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction.” 519 U.S. at 154, 117 S.Ct. 633 (citing Witte v. United States, 515 U.S. at 395, 115 S.Ct. 2199). The Supreme Court in United States v. Watts criticized the Ninth Circuit for “fail[ing] to appreciate the significance of the different standards of proof that govern at trial and sentencing,” and stated that “acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.” 519 U.S. at 155, 117 S.Ct. 633 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984)). The Supreme Court agreed with the dissenting judge in United States v. Putra, the Honorable J. Clifford Wallace, then-Chief United States Circuit Judge, and adopted the proposition that “it is impossible to know exactly why a jury found a defendant not guilty on a certain charge.” United States v. Watts, 519 U.S. at 155, 117 S.Ct. 633. The Supreme Court in United States v. Watts reasoned that, because “[a]n acquittal is not a finding of any faet[,] ... [w]ithout specific jury findings, no one can logically or realistically draw any factual finding inferences.” Id. (quoting United States v. Putra, 78 F.3d at 1394 (Wallace, C.J., dissenting)). Because the jury’s verdict was only dis-positive regarding whether there was a reasonable doubt as to the defendant’s guilt, the Supreme Court in United States v. Watts concluded that “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.” 519 U.S. at 156, 117 S.Ct. 633 (quoting Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)). The Supreme Court acknowledged, however, “a divergence of opinion among the Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence.” United States v. Watts, 519 U.S. at 156, 117 S.Ct. 633. In footnote two, the Supreme Court cited cases from the Supreme Court and from the First, Second, Third, Seventh, Eighth; Ninth, and the District of Columbia Circuits that suggested that clear and convincing evidence might be required for judicial findings that result in extraordinary sentence enhancements. See id. at 156 n. 2, 117 S.Ct. 633. The Tenth Circuit, however, which has rejected a higher standard, created the split in the circuits. See United States v. Washington, 11 F.3d 1510, 1516 (10th Cir.l993)(“At least as concerns making guideline calculations the issue of a higher than a preponderance standard is foreclosed in this circuit.”). In the end, the Supreme Court in United States v. Watts reversed the Ninth Circuit and held that even “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 a preponderance of the evidence.” 519 U.S. at 157, 117 S.Ct. 633. In United States v. Watts, Justices Stevens and Kennedy filed separate dissenting opinions. In his dissent, Justice Stevens conceded that 18 U.S.C. § 3661 does support the per curiam opinion’s “narrow holding that sentencing courts may sometimes ‘consider conduct of the defendants underlying other charges of which they had been acquitted,’” but countered that the statute “sheds no light on whether the district judges’ application of the Guidelines in the manner presented in these cases was authorized by Congress, or is allowed by the Constitution.” 519 U.S. at 161, 117 S.Ct. 633 (Stevens, J., dissenting). Justice Stevens noted that, “[b]y their own terms, the Guidelines incorporate the broadly inclusive language of [U.S.C.] § 3661 only into those portions of the sentencing decision in which the judge retains discretion.” Id. at 162, 117 S.Ct. 633 (Stevens, J., dissenting). Justice Stevens concluded that, if the evidence upon which a defendant was acquitted is used to increase the defendant’s base offense level, it should be proven beyond a reasonable doubt. Id. at 163 n. 2, 117 S.Ct. 633 (Stevens, J., dissenting) (“Since Watts’ base offense level was increased by this evidence, I believe it should have been proved beyond a reasonable doubt.”). Justice Stevens distinguished Watts’ and Putra’s cases from the Supreme Court’s decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), a case in which the defendant’s minimum sentence was enhanced on the basis of a fact proved by preponderance of the evidence. In McMillan v. Pennsylvania, the Supreme Court upheld a Pennsylvania sentencing provision that established a minimum sentence of five years imprisonment if the sentencing judge found by a preponderance of the evidence that a defendant convicted of certain enumerated felonies visibly possessed a firearm during the commission of the offense. See 477 U.S. at 80, 106 S.Ct. 2411. Justice Stevens distinguished McMillan v. Pennsylvania from the facts in United States v. Watts, because under the sentencing scheme in McMillan v. Pennsylvania, the maximum sentence was unchanged by the judge’s finding. See United States v. Watts, 519 U.S. at 166, 117 S.Ct. 633 (Stevens, J., dissenting). Justice Stevens noted that the actual sentence imposed upon the defendant in McMillan v. Pennsylvania “was within the range that would have been available to the judge even if the enhancing factor had not been proved.” United States v. Watts, 519 U.S. at 166, 117 S.Ct. 633 (Stevens, J., dissenting). Justice Stevens reasoned that “the holding [in McMillan v. Pennsylvania] should not be extended to allow a fact proved by only a preponderance to increase the entire range of penal: ties within which the sentencing judge may lawfully exercise discretion.” United States v. Watts, 519 U.S. at 166, 117 S.Ct. 633 (Stevens, J., dissenting). Justice Stevens concluded his dissent: Whether an allegation of criminal conduct is the sole basis for punishment or merely one of several bases for punishment, we should presume that Congress intended the new sentencing Guidelines that it authorized in 1984 to adhere to longstanding procedural requirements enshrined in our constitutional jurisprudence. The notion that a charge that cannot be sustained by proof beyond a reasonable doubt may give rise to the same punishment as if it had been so proved is repugnant to that jurisprudence. Id. at 169-70, 117 S.Ct. 633. Justice Kennedy, writing separately in dissent, echoed Justice Stevens’ concerns and criticized the per curiam opinion for failing to address distinctions between uncharged conduct, like that addressed in Witte v. United States, and conduct related to a charge for which the defendant was acquitted. See United States v. Watts, 519 U.S. at 170, 117 S.Ct. 633 (Kennedy, J., dissenting). Justice Kennedy expressed concern that, at a minimum, “increas[ing] a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal.” Id. 2. Tenth Circuit Relevant Conduct Jurisprudence. Tenth Circuit caselaw adheres closely to the Supreme Court’s results in Witte v. United States and United States v. Watts. In United States v. Coleman, 947 F.2d 1424 (1991), the defendant, Troy Coleman, appealed the district court’s enhancement of his sentence for firearms possession after he was convicted of conspiracy to possess and possession of a controlled substance with intent to distribute, but was acquitted of using or carrying a firearm during and in relation to a drug trafficking crime. See id. at 1428. The Tenth Circuit acknowledged that courts had taken various positions on whether a sentence may be enhanced for firearms possession despite a defendant’s acquittal of firearms charges. See id. at 1428-29 (citing United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990)(“[A]n acquittal on a firearms carrying charge leaves ample room for a district court to find by the preponderance of the evidence that the weapon was possessed during the drug offense.”), and United States v. Rodriguez, 741 F.Supp. 12, 13-14 (D.D.C.1990)(refusing to apply two-level enhancement for firearms possession, because “[t]o add at least 27 months to the sentence for a charge of which the defendant was found not guilty violates the constitutional principle of due process and the ban against double jeopardy”)). Without discussion related to the standard of proof a sentencing court should use to make factual findings, the Tenth Circuit in United States v. Coleman ruled that the district court did not err in enhancing Coleman’s sentence for possession of a firearm. The Tenth Circuit based its conclusion on evidence that: (i) two weapons had been located at the arrest scene; (ii) the weapons were handled at will by individuals who lived at the house; and (iii) the weapons were kept for the protection of conspiracy participants and the narcotics involved. See id. at 1429. The Tenth Circuit summarized that, in reviewing federal caselaw, it found “persuasive the decisions that have allowed a sentencing court to consider trial evidence that was applicable to a charge upon which the defendant was acquitted.” Id. In United States v. Washington, 11 F.3d 1510 (10th Cir.1993), the defendant, Patrick Washington, argued that drug quantities used as relevant conduct to establish a defendant’s offense level should be proven by clear and convincing evidence rather than by a mere preponderance of the evidence. See 11 F.3d at 1512. Washington objected to his sentencing, because the drug quantity the district court considered as relevant conduct, and which the court found by a preponderance of the evidence, increased his guideline sentence range, from 210 to 262 months, to life. Washington argued “that because the additional drug quantities effectively resulted in a life sentence a higher standard of proof should be required.” Id. at 1515. Although the Tenth Circuit in United States v. Washington “recognize[d] the strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof,” See id. at 1516, it held that “the Due Process Clause does not require sentencing facts in the ordinary case to be proved by more than a preponderance standard.” Id. (citing McMillan v. Pennsylvania, 477 U.S. at 84, 106 S.Ct. 2411). While the phrase “ordinary case” might suggest there are exceptions, the Tenth Circuit’s remaining language suggested that it was shutting the door on that possibility. The Tenth Circuit concluded that, “[a]t least as concerns making guideline calculations^] the issue of a higher than a preponderance standard is foreclosed in this circuit.” United States v. Washington, 11 F.3d at 1516. Finally, more recent Tenth Circuit decisions — issued subsequent to the Supreme Court’s holdings in Witte v. United States and United States v. Watts—have reaffirmed the Tenth Circuit’s position regarding the sentencing court’s consideration-of relevant conduct. See United States v. Valdez, 225 F.3d 1137, 1143 n. 2 (10th Cir.2000)(rejecting the defendant’s argument that a dramatic increase in sentence because of a sentencing judge’s finding of additional amounts of methamphetamine associated with acquitted charges entitled the defendant to a clear and convincing evidence standard at sentencing and noting that this argument was “foreclosed by binding precedent” in the Tenth Circuit); United States v. Constantine, 263 F.3d 1122, 1125 n. 2 (10th Cir.2001)(same). 3. Sixth Amendment Jurisprudence. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court reaffirmed the principle that it is permissible for sentencing judges “to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing judgment within the range prescribed by statute.” 530 U.S. at 481, 120 S.Ct. 2348. The Supreme Court cautioned, however, that the Constitution limited this discretion and that the Sixth Amendment requires that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. In Blakely v. Washington, the Supreme. Court elaborated on its holding in Apprendi v. New Jersey, stating that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. at 303, 124 S.Ct. 2531 (additional emphasis removed). In United States v. Booker, the Supreme Court expanded its earlier holdings to apply to sentencing enhancements that exceeded maximum sentences under the Sentencing Guidelines, See 543 U.S. at 239, 125 S.Ct. 738 (“Regardless of whether the legal basis of the accusation is in a statute or in guidelines promulgated by an independent commission, the principles behind the jury trial right are equally applicable.”). The majority opinions in Apprendi v. New Jersey, Blakely v. Washington, and in the constitutional majority in United States v. Booker reflect the Supreme Court’s concern that sentencing enhancements based on uncharged, dismissed, and acquitted crimes may undermine, if not directly contravene, many of the fundamental components of the adversary system that the Framers intended — specifically notice, jury trial, and proof beyond a reasonable doubt. See United States v. Booker, 543 U.S. at 238, 125