United States v. Ulibarri (115 F. Supp. 3d 1308, 2015)

United States District Court for the District of New Mexico 2015-07-15

Crimes and Criminal Procedure

Citations

Full opinion text

UNSEALED MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Amended Objections to PSR [and] Sentencing Memorandum, filed May 6, 2015 (Doc. 894)(“Amended Objections”). The Court held a sentencing hearing on May 12, 2015. The primary issues are: (i) whether the Court should apply an 8-level adjustment under § 2Jl.2(b)(1)(B) of the United States Sentencing Guidelines to Defendant Kenneth Ulibarri’s base offense level of 15; and (ii) whether the Court should strike mention of K. Ulibarri’s distribution-of-heroin arrest in case number CR 14-2211 MV from paragraph 70 under “Other Arrests” of the Presentence Investigation Report, disclosed April 16, 2015 (“PSR”), that the United States Probation Office (“USPO”) prepared. First, the Court will not apply § 2J1.2(b)(l)(B), because K. Ulibarri’s offense did not involve threatening to cause physical injury to confidential human source 2 (“CHS-2”) to obstruct the administration of justice. Second, the Court will not strike K. Uli-barri’s distribution-of-heroin charge from paragraph 70 of the PSR, because the Guide to Judiciary Policy requires the USPO to include all prior criminal history in the PSR, because the PSR specifies that the circumstances of K. Ulibarri’s distribution-of-heroin charge are the same as that in this case, and because K. Ulibarri will not suffer any prejudice if the Court leaves that information in paragraph 70 of the PSR.

FACTUAL BACKGROUND

The Court takes its facts from: (i) the PSR; (ii) the Sealed Response to Defendant Kenneth Ulibarri’s Amended Objections to PSR [and] Sentencing Memorandum at 2, filed May 8, 2015 (Doc. 902)(“Response”); and (iii) the Indictment, filed December 12, 2012 (Doc. 2)(“Indict-ment”). In- June, 2011, the Federal Bureau of Investigation (“FBI”) initiated an investigation eodenamed Operation Rain Check into eo-Defendant Christopher Roy-bal’s drug-trafficking organization (“Roy-bal DTO”). PSR ¶10, at 5. Operation Rain Check involved numerous investigative techniques, including multiple controlled purchases of kilogram-quantities of cocaine and marijuana using CHS-2. See Response at 2. During the course of the controlled purchases, CHS-2 met with and received drugs from eo-Defendant George Roybal, who is K.' Ulibarri’s uncle, and co-Defendant Jonathon Ulibarri, who is K. Ulibarri’s' brother. See Response at 2. Operation Rain Check culminated in a nineteen-defendant indictment that Plaintiff United States of America filed in December, 2012. See Indictment at 1. K. Ulibarri was not part of the Roybal DTO and Operation Rain Check did not target him. See PSR ¶ 10, at 5. Accordingly, although the Indictment charged J. Uli-barri with a number of offenses, see Indictment at 1-2, it did not assert any charges against or mention K. Ulibarri.

After the takedown for Operation Rain Check, one of the co-Defendants in that case (“CHS-1”) agreed to cooperate with the United States. Response at 2. As part of CHS-l’s cooperation, CHS-1 executed numerous controlled purchases of drugs with a variety of targets, including K. Uli-barri See Response at 2. In May, 2014, the FBI began a separate investigation into K. Ulibarri’s drug-trafficking activities. See PSR ¶ 10, at 5. On May 5, 2014, CHS-1 approached K. Ulibarri to buy illegal drugs from him. See PSR ¶ 11, at 5. K'Ulibarri offered to sell CHS-1 methamphetamine and heroin. See PSR ¶ 11, at 5. During that conversation, K. Ulibarri also told CHS-1 that he and several other people were interested in hiring a “hitman” to kill CHS-2. PSR ¶ 11, at 5. K. Ulibarri told CHS-1 that he knew of someone who would kill CHS-2 for $20,000.00. See PSR ¶ 11, at 5. K Ulibarri further indicated that he had collected about $8,000.00 from several people, and that others had agreed to give him $7,000.00 more for- the hitman after the murder was completed. See PSR ¶ 11, at 5. K. Ulibarri asked CHS-1 to contribute the remaining $5,000.00 for the hitman. See PSR ¶ 11, at 5. CHS-1 told K. Ulibarri that “the money could be paid from' the proceeds earned from selling drugs.” PSR ¶ 11, at 5.

On May 16, 2015, FBI agents used CHS-1 to conduct a controlled buy of heroin from K Ulibarri. See PSR ¶ 12, at 5. The agents gave CHS-1 a recording device and $3,000.00, and instructed CHS-1 to buy four ounces of heroin from K. Ulibarri. See PSR ¶ 12, at 5. CHS-1 met K. Ulibarri and bought the heroin from him for $800.00 per ounce. See PSR ¶ 12, at 5. After the transaction, CHS-1 provided the FBI agents with four individually wrapped balls of a brown substance that field-tested positive for heroin. See PSR ¶ 12, at 5.

On May 21, 2014, CHS-1 met with FBI agents to plan a controlled drug transaction with K. Ulibarri. See PSR ¶ 13, at 5. The agents gave CHS-1 a recording device and $1,000.00 for CHS-1 to contribute to the hired murder' of CHS-2. See PSR ¶ 13, at 5. CHS-1 then met with K. Ulibarri, and they discussed the hired murder. See PSR ¶ 13, at 5. K. Ulibarri offered a deal with CHS-1, in which CHS-1 could pay him the remaining balance towards the hitman after the murder was completed. See PSR ¶ 13, at 5.

On June 4, 2014, CHS-1 met with K. Ulibarri to buy eight ounces of heroin from him that CHS-1 had previously ordered. See PSR ¶ 14, at 5. K. Ulibarri arrived at a pre-determined location and told CHS-1 to follow him. See PSR ¶ 14, at 5. As they left, FBI agents directed CHS-1 to pull away from K. Ulibarri. See PSR ¶ 14, at 5. Detectives then attempted to conduct a traffic stop of K. Ulibarri, but K. Ulibarri refused to stop. See PSR ¶ 14, at 5. While K. Ulibarri was driving awáy, FBI agents observed a brown fluid — later determined to be heroin — being thrown from the driver’s side window of K. -Ulibarri’s vehicle. See PSR ¶ 14, at 5.

K. Ulibarri continued to drive around and eventually pulled into a drug store, where he bought a bottle of lotion. See PSR ¶ 15, at 5. Agents arrested K Ulibar-ri as he exited the store. See PSR ¶ 15, at 5: K. Ulibarri admitted to the agents that he had concealed the heroin in his rectum, and the agents gave him an opportunity to remove it on his own. See PSR ¶ 15, at 5. Instead of pulling the bag out, however, K. Ulibarri removed the heroin from the plastic bag while in his rectum — leaving one. or two ounces of unwrapped heroin inside his rectum. See PSR ¶15, at 5. Concerned that K. Ulibarri might overdose from the heroin, the agents arranged for K Ulibarri to be taken to the hospital to remove it. See PSR ¶ 15, at 5.' Laboratory testing determined that the heroin which K. Uli-barri sold to CHS-1 weighed 100.6 grams. See PSR ¶ 16, at 6. After the FBI tested the heroin, less than 100 grams of the heroin remained;’ as a result, K. Ulibarri “was unable to independently weigh the heroin.” PSR ¶ 16, at 6.

PROCEDURAL BACKGROUND

The Second Superseding Indictment, filed September 9, 2014 (Doc. 626)(“Su-perseding Indictment”), added K, Ulibarri to. the original Indictment. against the members of the Roybal DTO, alleging that: (i) K. Ulibarri attempted to kill CHS-2 by collecting money to hire a hit-man to kill CHS-2, with the intent to prevent CHS-2’s attendance and testimony at Roybal’s trial, in violation of 18 U.S.C. § 1512(a)(1)(A); and (ii) K. Ulibarri distributed 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). See Superseding Indictment at 29-30. On January .9, 2015, K. Ulibarri pled guilty to one count of obstruction of justice, in violation of 18 U.S.C. § 1512(c), and one count of distribution of heroin, in violation of §§ 841(a)(1), (b)(1)(C). See Plea Agreement ¶ 3, at 2, filed January 9, 2015 (Doc. 728)(“Plea Agreement”). Among other things, the Defendant’s Admission of Facts in the Plea Agreement states:

In May 2014,1 met with a confidential source (CHSl) to discuss selling heroin to CHSl. In those meetings, I told CHSl that I and some others were hiring a hitman to kill another confidential source (CHS2) for $20,000. CHS2 is a testifying cooperator in the underlying case (12-cr-3182). I explained to CHSl that some people had contributed money towards the hit. I further explained that some others had promised to pay money after the hit was committed. Between the cash and the promised monies, I told CHSl that I still needed additional money towards the hit (approximately $5,000 to $8,000). I explained to CHS1 that CHS1 could pay half of the money after the hit. During a meeting on May 21, 2014, at the direction of FBI agents, CHS1 paid me $1,000 and told me it was CHSl’s contribution towards the hitman, and CHS1 told me that CHS1 would pay the remaining amount later on.

The United States maintains that I made these statements with the intent of hiring a hitman to kill CHS2. However, I maintain that these statements to CHS1 about killing CHS2 were false and that I made these statements about a hitman for the purpose of obtaining money from CHS1. Either way, I admit that the natural and probable effect of the statements I made was to interfere with, obstruct, or influence an official proceeding. Thus, by making these statements to CHS 1 about the hitman and accepting the $1,000 from CHS1, I corruptly obstructed, influenced, and impeded an official proceeding, that being the underlying charges in this case.

Plea Agreement ¶¶ 10-11, at 4-5.

On January 29, 2015, the United States debriefed J. Ulibarri. See Response at 4. During that debrief, the United States asked J. Ulibarri about his brother’s murder-for-hire scheme, and J. Ulibarri said that he did not think that his brother is smart enough to organize a hitman. See Response at'4. When the United States asked J. Ulibarri why his brother accepted' only $1,000.00 from CHS-1 and assured CHS-1 that CHS-1 could pay the rest of the money after the murder was completed, J. Ulibarri said that he believed it was so that the plot would seem more credible to CHS-1. See Response at 4-5.

The USPO disclosed the PSR on April 16, 2015. See PSR at 1. Relying on § 2J1.2, the USPO calculates a base offense level of 14 for K. Ulibarri. See PSR ¶22, at 6. The USPO applies an 8-level increase to K. Ulibarri’s base offense level under § 2J1.2(b)(l)(R), because K. Ulibarri discussed his murder-for-hire scheme with CHS-1. See PSR ¶23, at 7. The USPO also applies a 2-level increase under § 201.1, because that section provides that an offense involving 100.6 grams of heroin has a base offense level of 24. See PSR ¶ 28, at 7. The USPO then recommends a 3-level decrease for K. Ulibarri’s timely acceptance of responsibility and a 2-level increase for a multiple-count adjustment. See PSR ¶¶ 34-37, .40-41, at 7-8. The PSR thus calculates K. Ulibarri’s total offense level to be 23. See PSR ¶ 41, at 8. The PSR also calculates a criminal history score of 8: (i). 3 points for K. Ulibarri’s 1997 convictions for receiving or transferring a stolen motor vehicle, and criminal damage to. property, see PSR ¶ 45, at 9; (ü) 1 point for K. Ulibarri’s 2002 convictions for driving under the influence of alcohol or drugs, and .possession or use of marijuana, see PSR ¶ 48, at 10; (iii) 1 point for K. Ulibarri’s 2004 conviction for felony possession of marijuana, see PSR ¶ 49, at 10; (iv) 1 point for K. Ulibarri’s 2012 conviction for driving under the influence of alcohol, see PSR ¶ 52, at 12; and (v) 2 points, because K. Ulibarri committed the offenses in this case while serving probation for his 2012 conviction, see PSR ¶ 55, at 13. K. Ulibarri’s total offense level-of 23 and criminal-history category of IV results in a Guideline imprisonment range of 70 to 87 months. See PSR ¶ 87, at 23.

1. The Amended Objections.

K. Ulibarri filed the Amended Objections on May 6, 2015. See Amended Objections at 1. K Ulibarri first objects to the PSR’s application of the 8-level adjustment under § 2J1.2(b)(l)(B). See Amended Objections at 2. In his view, § 2J1.2(b)(l)(B) requires an intent to obstruct the administration of justice. See Amended Objections at 2. K. Ulibarri relies on United States v. Calvert, 511 F.3d 1237 (9th Cir.2008), in which the United States Court of Appeals for the Ninth Circuit' said that the defendant “ ‘makes the unremarkable proposition that the increase only applies where the defendant acts with an intent to obstruct the administration of justice,’ ” and held that the de-' fendant’s convictions for conspiracy to retaliate against a witness and retaliation against a witness satisfied § 2J1.2(b)(l)(B)’s • intent requirement. Amended Objections at 2 (quoting United States v. Calvert, 511 F.3d at 1240-41). K. Ulibarri notes that, in United States v. Wardell, 591 F.3d 1279 (10th Cir.2009), the United States Court of Appeals for the Tenth Circuit held that a conviction undér' § 1513(b)(1) satisfies § 2J1.2(b)(l)(B)’s intent requirement. See Amended Objections at 2. K. Ulibarri points out that § 1513(b)(1) requires as an element 'of the offense that the defendant acted “ ‘with intent to retaliate against any person ____’ ” Amended Objections at 2 (quoting 18 U.S.C. § 1513(b)(l))(alterations in Amended Objections).

K. Ulibarri says that, by contrast, the' crime to which he pled .guilty — obstruction of justice under § 1512(c)(2) — does not contain an intent element. See Amended Objections at 2. According to K. Ulibarri,' that subsection requires only that a person “ ‘corruptly otherwise obstructs, influences, or impedes any official proceeding....’” Amended Objections at 2-3 (quoting 18 U.S.C. § 1512(c)(2))(alterations in Amended Objections). K. Ulibarri points out that, unlike § 1512(c)(2), every other subsection of § 1512 requires that the underlying conduct be done “ ‘with intent’ ” or “ ‘intentionally.’ ” Amended Objections at 3 (quoting 18 U.S.C. § 1512). K. Ulibarri highlights United States v. Suarez, No. CR 13-0420, 2014 WL 1898995 (N.D.Ohio May 8, 2014)', in which the Honorable Patricia A. Gaughan, United States District Judge for the Northern District of Ohio, said that “‘it does not appeal’ that Section 1512(c)(2) has an intent element.’ ” Amended Objections at 3 (quoting United States v. Suarez, 2014 WL 1898995, at *3). K. Ulibarri adds that, in United States v. Phillips, 583 F.3d 1261 (10th Cir.2009), the Tenth Circuit held that § 1512(c)(2)’s mens rea requirement is satisfied if “ ‘it is foreseeable that the defendant’s conduct will interfere with an official proceeding.’ ” Amended Objections at 3 (quoting United States v. Phillips, 583 F.3d at 1263-64). ’ K. Ulibarri contends that, because § 2J1.2(b)(l)(B) requires an intent to obstruct justice and § 1512(c)(2) requires no such intent, “the mere fact that Ulibarri admitted that he made the statements about a ‘hitman’ is insufficient to warrant the application of 2J1.2(b)(l)(B).” Amended Objections at 3.

K. Ulibarri argues that a § 2J1.2(b)(l)(B) adjustment is similarly not warranted under a relevant-conduct theory. See Amended Objections at 3. K. Ulibarri says that he has consistently denied that there ever was a hitman and has instead asserted that his statements’, only purpose was to obtain money from CHS-1. See Amended Objections at 3. K. Ulibarri points out that the United States has no evidence of a hitman and no evidence that anyone but CHS-1 knew about his state- • ments. See Amended Objections at 3. K. Ulibarri argues that, in short, “there is no evidence of an intent to obstruct justice and the mere making of the statements coupled with the denial as to their truth does not establish an intent.” Amended Objections at 3 (internal quotation marks omitted).

K. Ulibarri next objects to paragraph 70 of the PSR, which lists his distribution-of-heroin charge under “Other Arrests.” Amended Objections at 4 (quoting PSR ¶70, at 17-18)(internal quotation "marks omitted). K Ulibarri says that, after he informally objected to this paragraph, the USPO declined to remove it, because “it is not the same case, as it is associated with a different Docket Number.” Amended Objections at 4. K. Ulibarri points out that the arrest for distribution of heroin resulted in an indictment in MV 14-221, but that the United States dismissed that indictment after filing the Superseding Indictment in the case involving the' Roybal DTO, which added K. Ulibarri’s distribution-of-heroin and obstruction-of-justice charges. See Amended Objections at 4. K. Ulibarri notes that, although the arrest was initially listed under a different docket number, it is still the same case as this one. See Amended Objections at 4.

2. The Addendum.

On May 6, 2015, the USPO responded to the Amended Objections. See Addendum to the Presentence Report, disclosed May 6, 2015 (“Addendum”). In response to K. Ulibarri’s first objection, the USPO points out that, in United States v. Gordon, 710 F.3d 1124 (10th Cir.2013), the Tenth Circuit noted that ‘“acting corruptly within the -meaning of § 1512(c)(2) means acting with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct’ an official proceeding.” Addendum at 2 (quoting United States v. Gordon, 710 F.3d at 1151). The USPO explains:

The enhancement pursuant to U.S.S.G. § 2J1.2(b)(l) “does not impose an additional ‘seriousness’ requirement beyond the fact of a violent threat. Although the background commentary indicates that the guideline reflects ‘the. more serious forms of obstruction,’ ... we agree with out sister circuits that have found that threats of .violence, as such, necessarily fit within this category.” United States v. Plumley, 207 F.3d 1086, 1090-91 (8th Cir.2000).

Relevant conduct holds the defendant accountable for all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused 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. U.S.S.G. § 1B1.3. The defendant’s statements about hiring a hitman and collecting money to pay for the murder are considered.

The defendant plead guilty to 18 U.S.C. § 1512(c)(2), which includes an element of intent, as interpreted by 10th Circuit case law, which also satisfies the intent element required for the application of the enhancement. Further, the defendant admitted to the' nexus between the wrongful conduct and the official proceeding in the plea agreement. Based on the above information, it is believed the eight level enháncement pursuant to U.S.S.G. § 2J1.2(b)(l)(B) is appropriate and the presentence report will not be changed.

Addendum at 2 (omission in Addendum) (citation omitted)(internal quotation marks omitted).

Addressing K Ulibarri’s second objection, the USPO says that the offense listed in paragraph 70 is associated with a different docket number from the one in this case. See Addendum at 2. The USPO notes that the narrative included in the arrest notes that the circumstances of that arrest are the same as those of the offense in this case. See Addendum at 2. The USPO asserts, that the PSR lists all arrests and docket numbers that are associated with K. Ulibarri, in accordance with the Guide to Judiciary Policy, which states that presentence reports must contain “any prior criminal record.” Addendum at 2 (citation omitted)(internal quotation marks omitted).

3. The Response.

The United States responded to the Amended Objections on May 8, 2015. See Response at 1. The United States asks the Court to overrule K. Ulibarri’s objection to the PSR’s § 2J1.2(b)(l)(B) application. See Response at 9. The United States asserts that § 2J1.2(b)(l)(B)’s application notes clarify that it may apply to a variety of offenses and that “ ‘the specific offense characteristics reflect the more serious forms of obstruction.’” Response at 5 (quoting commentary background to U.S.S.G. § 2J1.2(b)(l)(B)). The United States contends that K. Ulibarri’s solicitation and acceptance of money toward a hitman to kill CHS-2 “is a crime that cannot be tolerated in the United States’ justice system.” Response at 5. In the United States’ view, “[t]o brush off the seriousness of this offense based solely on the defendant’s after-the-fact claim that he was just kidding would undermine the safety of countless numbers of cooperators.” Response at 5.

, The United States maintains. that the circumstances surrounding K. Ulibarri’s murder-for-hire plot suggest that he devised the plot in an attempt to benefit J. Ulibarri, G. Roybal, and, perhaps to a lesser extent, his cousin, C. Roybal. See Response at "6. The United States points out that K. Ulibarri met with CHS-1 on' numerous occasions over two weeks during which he talked to CHS-1 repeatedly about his murder-for-hire plan. See Response at 7. The United' States says that, of all the details which K. Ulibarri shared with CHS-Í, “the one that stands out the most” is that K. Ulibarri was “totally fine” with CHS-1 paying the remainder of his $5,000.00 contribution after CHS-2’s murder. Response at 7. The United States asserts that, if K. Ulibarri truly intended to steal money from CHS-1, one would expect that he would have' pressured CHS-1 into contributing more money at that time. See Response at .7. “Instead,” the United States contends, “we are left with the defendant’s chilling assurances that CHS-1 could just settle up his tab after the murder:!’ Response at 7.

The United States adds that the Court should afford little weight to J. Ulibarri’s statements about his brother’s inability to concoct and execute a murder-for-hire scheme. See Response at 8. The United States explains that, if this case had gone to trial, it would have offered evidence that K. Ulibarri told CHS-1 that the hitman was J. Ulibarri’s “connection.” Response at 8. The United States argues that, when he spoke with the United States — twenty days after his brother pled guilty — J. Uli-barri likely knew what his brother had admitted to the United States. See Response at 8. “By expressing the opinion that that there was no hitman,!’ the United States asserts, J. Ulibarri was also “denying his involvement in the murder-for-hire plot.” Response at 8. The United States contends that, accordingly, the Court should afford little weight to J. Ulibarri’s self-serving statements. See Response at 8.

The United States urges that, even if the Court accepts K. Ulibarri’s version of events, that conclusion does not mean that K. Ulibarri did not intend to obstruct the administration of justice. See Response at 6. The United States asks: “Why' else would the defendant suggest a scheme ... premised on killing a key witness who was going to testify against his brother and his uncle?” Response at 6. The United States says that, even if K. Ulibarri’s story is true, he knew that spreading the word that there was a hit out on CHS-2’s.life would have -a chilling effect on CHS-2’s willingness to continue cooperating with the United States. See Response at 6. The United States argues that K. Ulibarri’s purported ruse “is one, of the most serious nature” and that, to not. apply § 2J1.2(b)(l)(B) would cause, this “extremely serious offense” to. be grouped at an offense, level with relatively benign conduct overall. Response at 7.

4. The Reply.

K. Ulibarri replied to the Response on May 10, 2015. See Reply to Responses to Objections to PSR [and] Sentencing Memorandum, filed May 10, 2015 (Doc. 903)(“Reply”). K. Ulibarri first addresses the USPO’s reliance on United States v. Gordon for the proposition that § 1512(c) includes an intent element. See Reply at 1.In K Ulibarri’s view, that case addresses only § 1512(c)’s attempt portion, which requires an intent to commit the substantive offense. -See Reply at 1 (citing United States v. Gordon, 710 F.3d at 1150 (“[W]e are free to focus on whether any rational finder of fact would have found' Mr. Gordon guilty of the attempt offense (as opposed to the substantive offense), and we elect to do so.” (internal quotation marks omitted))). K. Ulibarri contends that United States v. Gordon is- inapplicable, because he did not plead to attempt. See Reply at 1.

K. Ulibarri says that the United States does not address whether § 1512(c) has an intent element, but rather attempts to “bootstrap” foreseeability into intent. Reply at 1. K. Ulibarri acknowledges that his statements had the natural and probable effect of obstructing an official proceeding. See Reply .at 2. K. Ulibarri urges, however, that his concession does not mean that he made his threat with the -intent to obstruct the administration of justice. See Reply at 2. K. Ulibarri asserts that the facts upon which the United States relies “are significant for what is not there.” Reply at 2. K. Ulibarri notes that CHS-1 is the only person who asserted any knowledge about the plot, and that the United States has failed to offer any other evidence of a hitman or a plan to hire a hitman.. See Reply at 2.

K. Ulibarri argues that, although the Response refers to “all of the details that the defendant shared with CHS-1,” he, in fact, shared few details with CHS-1 about the plot. Reply at 3 (quoting Response at 7)(internal quotation marks omitted). K. Ulibarri says: “At approximately 48:40 of CD-2, File 1671.001, recorded May 21, 2014, the Defendant told CHS-1 that he (the Defendant) was the only one who knew, and later at approximately 51:30 that it would be all ‘me’ (the Defendant), and ‘you’ (CHS-1) don’t need to know anything about all this.” Reply at 3 (citation omitted). K. Ulibarri contends that the existence of a hitman does not answer the intent question completely, because a person could spread a false rumor about a hitman, but do so with the intent to obstruct an official proceeding. See Reply at 3. K, Ulibarri argues, however, that, without any evidence of a hitman, the Court is left with the statements and his explanation of those statements, which the United States “can rebut only with speculation.” Reply at 3, K. Ulibarri concludes that, even with a preponderance of the evidence standard, the United States cannot overcome his unrebutted and uncontradicted explanation of those statements. See Reply at 3.

5. The May 12,2015, Hearing.

The Court held a hearing on May 12, 2015. See Transcript of Hearing (taken May 12, 2015)(“Tr.”). The Court began the hearing by noting that there are two circumstances in which § 2J1.2(b)(l)(B) applies: (i) the offense involved causing physical injury to a person to obstruct the administration of justice; or (ii) the offense involved threatening to cause physical injury to a person to obstruct the administration of justice. See Tr. at 4:2-17 (Court). Upon the Court’s questioning, the United States agreed that it was not arguing that (i) applies in this case. See Tr. at 4:17-5:2 (Court, Long). The Court then said that whether § 2J1.2(b)(l)(B) applies thus turns on whether K. Ulibarri’s offense involved threatening to cause physical injury to CHS-2. See Tr. at 5:3-13 (Court, Long). The Court asked the United States whether a threat would include a situation in which the defendant is sitting across a kitchen table and tells person A that he or she is going to kill person B, but does not intend for person B to ever learn about the threat. See Tr. at 5:20-25 (Court). The Court said that, based on its research, the speaker must intend to communicate his or her threat to a victim for the statement to constitute a threat. See Tr. at 6:57:2 (Court). The United States responded that the Court’s definition of threat would conflict with the United States Sentencing Commission’s intent in adopting § 2J1.2(b)(l)(B) and pointed to § 2J1.2(b)(l)(B)’s structure:

When you ... go through the specific offense characteristics, it starts with a four-level enhancement under subpart A.... That will apply to certain conduct of a less[ ] serious nature. Subsection B then involves when there is causing or threatening to cause fiscal injury. Subsection C involves terrorism or domestic terrorism and some other ... crimes that wouldn’t really fit. So really what the Sentencing Commission was trying to accomplish in this [section] is, because obstruction of justice can encompass so many different t[ypes] of harms and so many different types of crimes, the Sentencing Commission specified that the specific offense characteristics should apply to separate out much less serious conduct from much more serious conduct, and then depending on the ... seriousness of the conduct[,] you’ll have either the four level, eight level, or twelve level.

Tr. at 7:14-8:9 (Long).

The United States reiterated that it should be sufficient that K. Ulibarri attempted or intended to cause physical injury to CHS-2 for § 2J1.2(b)(l)(B). See Tr. at 9:16-10:17 (Long). The Court replied that the United States’ approach would read “attempted or intended to cause physical injury” into § 2J1.2(b)(l)(B). Tr. at 8:16-10:22 (Court). The United States responded that the Court’s definition would exclude from § 2J1.2(b)(l)(B) situations where a defendant told another person in jail that he was going to kill his judge. See Tr. at 11:20-12:5 (Long). The United States said that the Court’s proposed definition of threat would strip the United States of its ability to ensure that such a defendant receives the appropriate sentence for threatening to kill a judge. See Tr. at 12:5-13 (Long).

When K. Ulibarri took the lectern, he said that he did not address the Court’s concerns in the briefing, because there is a lot of case law which says that a threat does not have to be communicated directly to the person who is being threatened. See Tr. at 13:10-19 (Couleur). The Court agreed with that assessment, but said that its definition of threat turns on whether the defendant intended for the person to know about the threat. See Tr. at 13:20-14:4 (Court). K. Ulibarri said that he agreed with the Court’s definition, but noted that he was concerned about advancing that definition, because, in United States v. Martin, 163 F.3d 1212 (10th Cir.1998), the Tenth Circuit said:

[I]t is not necessary to show that the defendant intended to carry out the threat, nor is it necessary to prove that the defendant actually had the apparent ability to carry out the threat. The question is whether those who hear or read the threat reasonably consider that an actual threat has been made. It is the making of the threat, not the intention to carry it out, that violates the law.

Tr. at 17:9-16 (Couleur)(quoting United States v. Martin, 163 F.3d at 1216) (internal quotation marks omitted). K. Ulibarri said that, because of that case law, he approached the issue from a different perspective, i.e., that § 1512(c) does not require that the defendant intended to obstruct justice. See Tr. at 15:9-17:8 (Coul-eur).

The Court then read from United States v. Heineman, 767 F.3d 970 (10th Cir.2014), in which the Honorable Harris L Hartz, United States Circuit Judge for the Tenth Circuit, said:

We read [Virginia v.] Black, [538 U.S. 343, 155 L.Ed.2d 535 (2003),] as establishing that a defendant can be constitutionally convicted of making a true threat only, if the defendant intended the recipient of the threat to feel threatened. The majority of the Court said that “‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Tr. at 19:1-20:9 (Court)(emphasis in United States v. Heineman). K. Ulibarri responded that, if threat requires intent, then he would agree with the Court that he did' not threaten CHS-2. See Tr, at 21:21-24 (Couleur). K. Ulibarri said that, even if § 2J1.2(b)(l)(B) does not require that the defendant intended to communicate the threat to the victim, the adjustment still does not apply, because he did not intend to obstruct justice. See Tr. at 22:4-9 (Couleur).

The Court said that it disagreed with K. Ulibarri on the latter point, noting that there probably is enough evidence to conclude by a preponderance of the evidence that he intended to hire a hitman. See Tr. at 22:21-23:24 (Court). In response, K. Ulibarri reiterated his arguments from the Amended Objections and the Reply— namely, that the United States has offered only his statements to show that he intended to hire a hitman and has not produced any other evidence to corroborate its theory. See Tr. at 24:23-28:7 (Couleur). K. Ulibarri concluded his argument by noting that there is no evidence contradicting his version of eyents, ie., that he wanted only to steal money from CHS-1. See Tr. at-29:11-19. (Couleur).

As the United States started its rebuttal, the Court asked what it thought of Judge Hartz’ definition of threat in United States v. Heineman; the United States responded that, “to do any justice to the . Court’s question, [it would] probably, have to review the case, and then [the] statute that was at issue,” which is 18 U.S.C. § 875. Tr. at 31:13-17 (Long). When pressed, the United States noted . that § 875 is in a different chapter of the United States Code from § 1512(c) — the charge to which K. Ulibarri pled — and from § 115, the statute on which the Tenth Circuit focused in United States v. Martin. See Tr. at 31:18-32:7 (Court, Long). The United States added that it was unsure whether studying the multiple definitions of threat under federal law would resolve the issue, because applying United States v. Heineman’s definition of threat to § 2J1.2(b)(l)(B) would lead, to an absurd result. See Tr. at 33:3-5 (Long). The United States posited that, if the Court used United States v. Heineman’s, definition in the § 2J1.2(b)(l)(B) context, it would apply the adjustment when a defendant says “I’m going to Mil you if you testify,” but not when a defendant covertly hires a hitman to Mil the witness, but fails to execute his plan — which is much more serious conduct. Tr. at 35:2-8 (Long).

The Court said that, although it agreed with the United States’ concerns about the consequences of defining threat narrowly under § 2J1.2(b)(l)(B), it is stuck with the Sentencing Commission’s use of the word “threatening” rather than “attempted or intended to cause.” Tr. at 35:11-14 (Court).. The Court reiterated that the United States’ definition reads additional words into § 2J1.2(b)(l)(B). See Tr. at 35:16-20 (Court). The Court asked the United States why, if the Sentencing Commission intended § 2J1.2(b)(l)(B) to have the meaning that the United States proposes, it did not use the words “attempted or intended to cause” in that section. Tr. at 38:18-21 (Court). The United States replied:

I think that a common sensé interpretation that[,] if the offense involved threatening to cause physical injury ..., when you have someone who is putting together a hitman to1 kill a defendant, I think that that would be satisfied____ So I don’t think the Court should be asking could it have been written better? Yes. As it’s written, should it, as a matter of policy, encompass the conduct before the Court today? Yes.

Tr. at 38:22-39:10 (Long).

Addressing his second objection to the PSR, K, Ulibarri reiterated the arguments from the Amended Objections, and noted that the PSR’s inclusion of the distribution-of-heroin charge from this case under “Other Arrests” is “without -form or substance,” because there was only one arrest that resulted in the two cases. Tr. at 41:10-16 (Couleur). The United States responded that the PSR’s explanation that the circumstances of that arrest are the same as those in the case’s offense should address K. Ulibarri’s concern. See Tr. at 42:1-5 (Long). The United States added, however, that there is no harm in removing the PSR’s reference to the charge under “Other Arrests.” Tr. at 42:6-7 (Long). The Court said that it, would take both of K. Ulibarri’s objections under advisement, and would try to issue an opinion and order as soon as possible. See Tr. at 44:4-15 '(Court).

RELEVANT LAW REGARDING THE GUIDELINES

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 of America severed the mandatory provisions from the Sentencing -Reform Act, Pub.L. No. 98473, 98 Stat.1976, thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Act intact, including 18 U.S.C. § 3553: “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. at 261, 125 S.Ct. 738.

Congress has directed sentencing courts to impose a sentence “sufficient, but not greater than necessary” to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner....

18 U.S.C. § 3553(a)(2)(A)-(D).

[A] defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in ’ subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

18 U.S.C. § 3551. To achieve these purposes, § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the nature of the offense and the defendant’s character; (iii) the available sentences; (iv) a policy favoring uniformity in sentences for defendants who commit similar ciimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

Although the Guidelines are no longer mandatory, both the Supreme Court and the Tenth Circuit have clarified that, while the Guidelines are one of several factors enumerated in § 3553(a), they are entitled to considerable deference. See Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill. [its] statutory mandate.”); United States v. Cage, 451 F.3d 585, 593 (10th Cir.2006) (describing the Guidelines as more than “just one factor among many”). They are significant, because “the Guidelines are an expression of popular political will about sentencing that is entitled to due consideration .., [and] represent at this point eighteen years’ worth of careful consideration of the proper sentence for federal offenses.” United States v. Cage, 451 F.3d at 593 (internal quotation marks omitted). A reasonable sentence is one that also “avoid[s] unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. at 261-62, 125 S.Ct. 738.

The Tenth Circuit has “joined a number of other circuits in holding that a sentence within the applicable Guidelines range is presumptively reasonable.” United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir.2006). This presumption, however, is an appellate presumption and not one that the trial court can or should apply. See Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456; Gall v. United States, 552 U.S. 38, 46-47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Kimbrough v. United States, 552 U.S. 85, 90-91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Instead, the trial court must undertake the § 3553(a) balancing of factors without any presumption in favor of the Guidelines sentence. See Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456; Gall v. United States, 552 U.S. at 46-47, 128 S.Ct. 586; Kimbrough v. United States, 552 U.S. at 90-91, 128 S.Ct. 558.

While the Supreme Court’s decision in United States v. Booker has given the sentencing court discretion that it did not have earlier, the sentencing court’s first task remains to accurately and correctly determine the advisory-guideline sentence.- Thus, before the sentencing court takes up a defendant’s Booker arguments, the sentencing court must first determine whether the defendant is entitled to downward . departures. The sentencing court may, however, also use these same departure factors- in the Booker calculus, even if the court does not grant a downward departure.

United States v. Apodaca-Leyva, No. CR 07-1479 JB, 2008 WL 2229550, at *6 (D.N.M. Feb.. 18, 2008) (Browning, J.). The Supreme Court recognized, howeyer, that the sentencing judge is “ip a superior position to find facts and judge their import under § 3558(a) in each particular case.” Kimbrough v. United States, 552 U.S. at 89, 128 S.Ct. 558. Applying § 3553(a)’s factors, the Court has found that the case of an illegal immigrant who re-enters the United States to provide for his two children and two siblings was not materially differentiated from other re-entry cases, and, thus, no variance from the Guidelines sentence was warranted. See United States v. Almendares-Soto, No. CR 10-1922 JB, 2010 WL 5476767, at *12 (D.N.M. Dec. 14, 2010) (Browning, J.). On the other hand, in United States v, Jager, No. CR 10-1531 JB, 2011 WL 831279 (D.N.M. Feb. 17, 2011) (Browning, J.), although the defendant’s military service was not present to an unusual degree and, thus, did not warrant a departure, the Court found that a variance was appropriate, because the defendant’s military Service'was “superior and uniformly outstanding,” as the defendant appeared to have been “trustworthy[ ] and dedicated, and he served with distinction.” 2011 WL 831279, at *14.

LAW REGARDING THE BURDEN OF PROOF REQUIRED FOR ENHANCEMENTS UNDER THE GUIDELINES

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 of the United States of America limits this discretion and that the Sixth Amendment of the Constitution requires that, “[ojther 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.” Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), 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.” 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted) (citations omitted)(internal quotation marks omitted). In United States v. Booker, the Supreme Court held that, because the sentencing guidelines-.are no longer mandatory, “Ap-prendi does not apply to the present advisory-Guidelines regime.” United States v. Ray, 704 F.3d 1307, 1314 (10th Cir.2013): See United States v. Booker, 543 U.S. at 259, 125 S.Ct. 738 (“[Wjithout this provision [of the Guidelines statute] — namely, the provision that makes the relevant sentencing rules mandatory and imposes binding requirements on all sentencing judges — the statute falls outside the scope of Apprendi’s requirement.” (alterations omitted)(internal quotations marks omitted)). The Supreme Court has recently held that the requirements in Apprendi v. New Jersey apply to facts that increase a defendant’s mandatory minimum sentence. See Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013).

In United States v. Magallanez, 408 F.3d 672 (10th Cir.2005), the Tenth Circuit held that Blakely v. Washington and United States v. Booker had not changed the district court’s enhancement-findings analysis. See United States v. Magallanez, 408 F.3d at 684-85. United States v. Magallanez involved plain-error review of a drug sentence in which a jury found the defendant, Magallanez, guilty of conspiracy to possess with intent to distribute and to distribute methamphetamine. See 408 F.3d at 676. As part of its verdict, the jury, through a special interrogatory, attributed to the defendant 50-500 grams of methamphetamine; at sentencing, however, the judge — based on testimony of the various amounts that government witnesses indicated they had sold to the defendant — attributed 1200 grams of methamphetamine to the defendant and used that amount to increase his sentence under the Guidelines. See United States v. Magallanez, 408 F.3d at 682. The district court’s findings increased the defendant’s Guidelines sentencing range from 63 to 78 months to 121 to 151 months. See United States v. Magallanez, 408 F.3d at 682-83. The Tenth Circuit stated that, both before and after Congress’ passage of the Sentencing Reform Act, “sentencing courts maintained the power to consider the broad context of a defendant’s conduct, even when a court’s view of the conduct conflicted with the jury’s verdict.” United States v. Magallanez, 408 F.3d at 684. Although United States v. Booker made the Guidelines “effectively advisory,” the Tenth Circuit in United States v. Magallanez reaffirmed that “district courts are still required to consider Guideline ranges, which are determined through application of the preponderance standard, just as they were before.” 408 F.3d at 685 (citation omitted).

The Tenth Circuit, while “recognizing ‘strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof,’ ” has “long held that sentencing facts in the ‘ordinary case’ need only be proven by a preponderance.” United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir.2008) (quoting United States v. Washington, 11 F.3d 1510, 1516 (10th Cir.1993)). “[T]he application of an enhancement ... does not implicate the Supreme Court’s holding in Apprendi v. New Jersey.” United States v. Reyes-Vencomo, No. CR 11-2563 JB, 2012 WL 2574810, at *3 (D.N.M. June 26, 2012) (Browning, J.). The Tenth Circuit applies Apprendi v. New Jersey’s requirement that a fact be submitted to a jury only where the fact, would increase a defendant’s sentence “above the statutory maximum permitted by the statute of conviction.” United States v. Price, 400 F.3d 844, 847 (10th Cir.2005). Accord United States v. Ray, 704 F.3d .at 1314. A defendant may assert an error under Apprendi v. New Jersey only where the fact at issue increased his sentence beyond the statutory maximum. See United States v. O’Flanagan, 339 F.3d 1229, 1232 (10th Cir.2003) (holding that a defendant could not assert, an error under Apprendi v. New Jersey, because “his sentence does not exceed the statutory maximum”); United States v. Hendrickson, 592 Fed. Appx. 699, 705-06 (10th Cir.2014) (unpublished) (holding that, after Alleyne v. United States, “[i]t is well-established that sentencing factors need not be charged in an indictment and need only be proved to the sentencing judge by a preponderance of the evidence”). As the Court has noted:

The Court explained that, although the decision of the Supreme Court of the United States in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 ... (2013), expands the rule from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 ... (2000) (holding that facts that increase the maximum sentence a defendant faces -must be proven to a jury beyond a reasonable doubt), to cover facts that increase the mandatory minimum sentence, as well as the maximum sentence, it does not prohibit district judges from continuing to find advisory sentencing factors by a preponderance of the evidence. See [United States v. Sangiovanni, No. CR 10-3239 JB,] 2014 WL 4347131, at. *22-26 [ (D.N.M., Aug. 29, 2014) (Browning, J.)].

United States v. Cervantes-Chavez, 59 F.Supp.3d 1295, 1315 (D.N.M.2014) (Browning, J.).

LAW REGARDING RELEVANT CONDUCT FOR SENTENCING

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. 1(H). ' In United States v. Booker, the Supreme Court noted:

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.

543 U.S. at 250-51, 125 S.Ct. 738 (emphasis in original)(quoting 18 U.S.C. § 1951(a)). 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.

Section 1B1.3 provides that the base offense level • under the guidelines “shall be determined” based on 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 thé commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that of-'fense;

(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. § lB1.3(a)(l)-(4). The court may consider, as relevant conduct, actions that have not resulted in a conviction. Pursuant to the commentary to U.S.S.G. § 6A1.3, evidentiary standards lower than beyond a reasonable doubt are permitted to show relevant conduct. The court may rely upon reliable hearsay, so long as the evidence meets the preponderance-of-the-r evidence standard. See United States v. Vigil, 476 F.Supp.2d 1231, 1245 (D.N.M. 2007) (Browning J.). Accord United States v. Schmidt, 358 Fed.Appx. 132, 135 (10th Cir.2009) (unpublished)(“The district court’s determination of ‘relevant conduct’ is a factual finding subject to a preponderance of the evidence standard, and clear error review.”). The evidence and information upon which the court relies, however, must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable- at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”).

Supreme Court precedent on relevant conduct comes primarily from two cases: Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), and United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). In Witte v. United States, 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 in a 1991 attempt to import marijuana. See 515 U.S. 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 515 U.S. at 392-93, 115 S.Ct. 2199. At sentencing, the district court concluded that, because the 1990 attempt was part of the 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 515 U.S. 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 515 U.S. at 392-93, 115 S.Ct. 2199. 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 515 U.S. at 395, 115 S.Ct. 2199. The district court agreed and dismissed the indictment, holding that punishment for the cocaine offenses would violate the prohibition against multiple punishments, which' the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States provides. See 515 U.S. at 395, 115 S.Ct. 2199. 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 United States Courts of Appeals, including the Tenth Circuit, that had previously considered this question. See 25 F.3d 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 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.” 515 U.S. 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.” 515 U.S. at- 402, 115 S.Ct. 2199. 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.” 515 U.S. at 403, 115 S.Ct. 2199.

In United States v. Watts, the .Supreme Court, in a per curiam opinion, relied upon Witte v. United States’ holding and upheld, against a double-jeopardy challenge, a sentencing judge’s use of conduct for which the defendant had been acquitted. See 519 U.S. at 149, 117 S.Ct. 633. In reaching its • result in United States v. Watts, the Supreme Court noted that its conclusion was in accord with every United States 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 519 U.S. at 149, 117 S.Ct. 633 (citing, e.g., United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir.1991)). 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. 633.

Tenth Circuit case law adheres closely to the Supreme Court’s results in Witte v. United States and United States v. Watts. See United States v. Andrews, 447 F.3d 806, 810 (10th Cir.2006) (applying Witte v. United States’ holding to affirm that a career offender enhancement does not violate the Double Jeopardy Clause of the Fifth Amendment). In United States v. Banda, 168 Fed.Appx. 284 (10th Cir.2006) (unpublished), the Tenth Circuit rejected a defendant’s argument that it was “structural error” for a district court to find sentencing factors “by a preponderance of the evidence rather than the jury applying a beyond-a-reasonable-doubt standard.” 168 Fed.Appx. at 290. The Tenth Circuit explained that “ ‘[i]t is now universally accepted that judge-found facts.,by them-selyes do not violate the Sixth Amendment. Instead, the constitutional error was the court’s reliance on judge-found facts to enhance the defendant’s sentence mandatorily.’ ” 168 Fed.Appx. at 290 (quoting United States v. Lauder, 409 F.3d 1254, 1269 (10th Cir.2005)).

In United States v. Coleman, 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 947 F.2d 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 United States v. Coleman, 947 F.2d 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.”); United States v. Rodriguez, 741 F.Supp. 12, 13-14 (D.D.C.1990) (refusing to apply 2-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 held that the district court did not err in enhancing Coleman’s sentence for possession of a firearm. S