United States v. Basurto (117 F. Supp. 3d 1266, 2015)

United States District Court for the District of New Mexico 2015-10-08

Crimes and Criminal Procedure Customs Duties Food and Drugs

Citations

Full opinion text

AMENDED MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Sentencing Memorandum and Motion for Downward Departure, filed June 18, 2014 (Doc., 57)(“Sentencing Memo.”); (ii) the United States’ Supplemental Briefing to the Court in Support of a Fine as.Part of Defendant’s Sentence, filed November 6, 2014 (Doc. 66)(“U.S. Fine Memo.”); and (iii) Ms. Basurto’s Supplemental. Brief in Opposition to Imposition of a Fine, filed March 24, 2015 (Doc. 70) (“Basurto Fine Memo.”). The Court held sentencing hearings on October 7, 2014, and May 18, 2015. The primary issues are: (i) what term of imprisonment to impose upon Defendant Rachel Basurto, where there are numerous potential grounds for downward variances but also where she violated the terms of her pretrial release by committing the same criminal conduct that formed the basis of the crime of conviction in this case; and (ii) what fine to impose upon Basurto, where she owns a home jointly with her absentee husband, out of which she dealt illegal drugs, but also where she has minimal income prospects, going forward, even when she is released, from prison. As to the incarceration questions, the Court will treat Basurto as if her criminal history were one category less serious than the United States Sentencing Guidelines says it is, because one of the two felony convictions that ratchets up her criminal history score is about as old as a conviction can be while still being counted under the Guidelines. The Court will not reduce Basurto’s sentence on acqeptance-of-responsibility grounds, because her criminal conduct on pretrial release indicates a lack of acceptance of responsibility, but it will vary downward two offense levels to reflect what her base offense level would be under an impending amendment to the drug-possession guideline. The Court will then vary the, equivalent of twenty-seven months below the bottom of the working Guidelines range based on Basurto’s personal characteristics, and it will impose a sentence of 51-months imprisonment. As for the fine issue, the Court will impose a fine equal to half of the estimated value of Basurto’s home — reflecting the reality that her husband jointly owns the property and that he was not involved with her drug-dealing operation — less $2,500.00 in debt that Basurto owes to various creditors. This figure comes out to $13,133.38.

FACTUAL BACKGROUND

' The Court takes its facts from the Pre-sentence Investigation Report, disclosed April 28, 2014 (“PSR”), which the United States Probation Office (“USPO”) prepared. The Court will first outline the facts of Basurto’s offense. In compiling that section of the PSR, the USPO relied heavily on the investigative materials that the Drug Enforcement Administration (“DEA”) prepared. PSR 119, at 6. The Court will then briefly describe Basurto personally, including her upbringing, her medical and mental-health situation, and her criminal history. The USPO obtained that information primarily from thé pre-sentence interview it conducted with Ba-surto. See PSR ¶ 49, at 13.

1. The Offense of Conviction.

On March 5, 2013, DEA agents received information from the New Mexico State Police Department in reference to Basurto possibly being involved in the distribution of illegal narcotics. See PSR ¶ 10, -at 6. The DEA agents and state police officers visited'her residence in Grants, New Mexico, to investigate their suspicions. See PSR ¶ 10, at 6. The DEA agents approached the front of the residence and knocked on the front door, and Basurto opened the door and agreed to speak to them. See PSR ¶ 11, at 6. The agents then asked if they had permission to enter her house, to which she replied “yes.” PSR ¶ 11, at 6.

Basurto stated she owned the residence and that she shared it with her daughter, Roxanne Garza, and son-in-law, Isai Barto-lon-Deleon. See PSR ¶ 11, at 6. The agents advised her that they had reason to believe that she was involved in trafficking prescription pills and acquiring prescriptions by fraud or forgery. See PSR ¶ 12, at 6. They asked her if she had any prescription pills in the house that did not belong to her, and she presented them with a list of her prescribed medications and where she kept them. See PSR ¶ 12, at 6. The DEA agents then questioned her about whether she kept any weapons or illegal drugs in the residence, and she indicated that there were “swords and a bow and arrow,” but no other weapons in the house. PSR ¶ 12,. at 6. Basurto also indicated that there were no illegal drugs in the residence and that the only drugs in the. house were her prescribed medications. See PSR ¶ 12, at 6.. Agents asked her if she would consent to a search of the residence,, and she gaye verbal and written consent. See PSR ¶ 12, at 6.

During the search, the agents found a scale, a box of small plastic baggies, and a razor blade in plain view on a desk table in Basurto’s bedroom. See PSR ¶ 13, at 6. The agents also found a small safe and a cash-laden handbag in a false space located in .the top of a closet. See PSR ¶ 13, at 6. At that point, the agents deployed a narcotics K-9 to search the residence. See PSR ¶ 13, at 6. The K-9 alerted on the small safe and on a larger safe located in Basurto’s bedroom. See PSR ¶ 13, at 6. Basurto related that she did not have a key to the small safe and did not know the combination to the large safe. See PSR ¶ 14, at 6. Basurto’s daughter then opened the larger safe for the agents, revealing quantities of a white crystalline substance that field tested positive for methamphetamine, and two handbags containing cash and a Lorcin .25 caliber handgun. See PSR ¶ 14, at 6-7. The agents also found keys to the small safe in the larger . safe. See PSR ¶ 14, at 7. The agents next opened the small safe, which contained-$28,000.00 in cash. See PSR ¶ 14, at 7. The DEA agents ,. conducted a further search of the false space in the closet, which yielded another small box containing a white crystalline substance that field tested positive for methamphetamine. See PSR ¶ 15, at 7. The agents also discovered, wrapped in a blanket in the closet, a brown substance that field tested positive for heroin. See PSR ¶ 15, at 7. The agents placed Basurto under arrest and terminated the search. See PSR ¶ 15, at 7.

According to DEA laboratory reports, a total of 11.5 grams of methamphetamine and 94.1 grams of heroin were recovered from Basurto’s residence. See PSR ¶ 16, at 7. The DEA case agent assigned to the case states that Basurto appears to have been a source and supplier of heroin, methamphetamine, and oxycodone in the Grants area. See PSR ¶ 17, at 7. The case agent states that he believes that Basurto played a significant role in the distribution of illegal narcotics. See PSR ¶ 17, at 7. The case agent opines that the amounts of illegal substances and money — as well as the presence of the firearm — in her residence are “not indicative of someone who is a low-level street dealer.” PSR ¶ 17, at 7. According to the case agent and the Assistant United States Attorney assigned to the case, Basurto did not provide a post-arrest statement, and she has not yet been debriefed. See PSR ¶ 17, at 7. The case agent states, however, that there is no evidence that the firearm located in the residence was stolen or that it has ever been involved in a crime. See PSR ¶ 17, at 7.

In addition to the crime of indictment, in March, 2014, while on pretrial release, Ba-surto sold 1.1 grams of heroin to confidential law enforcement sources. See PSR ¶ 19, at 7. The USPO opines that, under U.S.S.G. § 1B1.3 (Relevant Conduct), Ba-surto’s March, 2014 conduct is part of the same course of conduct as the counts of conviction and that she is thus on the hook for the additional 1.1 grams of heroin. See PSR ¶ 19, at 7.

2. Basurto’s Personal Characteristics and Criminal History.

The Court will describe the USPO’s relevant findings about Basurto’s background. The Court will describe her (i) upbringing; (ii) mental and physical health and substance-abuse history; (iii) financial condition; and (iv) relevant criminal history.

a. Upbringing and Family Information.

Basurto was born on February 23, 1961, in Grants; she is, thus, currently fifty-four years old. See PSR ¶ 50, at 13. She does not know who her biological father is and has no contact with him. See PSR ¶ 50, at 13. Her mother, who is currently seventy-three years old, married William Salcido, who is currently seventy-one years old, when she was young; Salcido raised Ba-surto, and Basurto considers him to be her father. See PSR ¶ 50, at 13. Salcido and her mother are both disabled, and they presently live together in San Rafael, New Mexico. See PSR ¶ 50, at 13. Salcido suffers from depression, heart problems, and high blood pressure, and he has a pacemaker. See PSR ¶ 50, at 13. He is ex-military and was a miner. See PSR ¶ 50, at 13. Basurto’s mother suffers from diabetes, high blood pressure and severe joint pain, and she is expecting to undergo knee and hip replacement surgery. See PSR ¶50, at 13. Basurto helps care for both of her parents, and they require twenty-four-hour in-home nurse care. See PSR ¶ 50, at 13.

Basurto has a positive and close relationship with her parents. See PSR ¶ 50, at 13. Her parents are aware of her current situation, and they are worried that they will not be alive to see her upon her release. See PSR ¶ 50, at 13. Basurto indicates that her parents have no history of substance abuse or criminal conduct. See PSR ¶ 50, at 13. Basurto has three half-siblings, with two of whom Basurto has close relationships. See PSR ¶¶ 51-52, at 13-14.

Basurto describes her childhood as “hard,” because she had to care for her maternal grandmother and her siblings. PSR ¶ 53, at 14. She says was never the victim of any physical or sexual abuse, and states that her parents worked very hard to provide for her and her siblings. See PSR ¶ 53, at 14. She adds that, at an early age, she began to work so that she could buy her own things. See PSR ¶ 53, at 14. She did not graduate from high school, but she obtained her G.E.D. in 1992 while incarcerated. See PSR ¶ 67, at 17. She has held down jobs in the past — as a restaurant server, call-center employee, bartender, housekeeper, and landscaper— but she has not worked since 2003. See PSR ¶¶ 68-72, at 17-18. When asked what her plan is during or after her service of sentence regarding the instant offense, she stated: “ ‘I plan to take care of my parents and family. That’s all I live for.’ ” PSR ¶ 55, at 14 (quoting Basurto).

Basurto is currently either single or in the final stages of divorcing her most recent husband, Melchore Basurto. See PSR ¶ 56, at 14; id. ¶ 58, at 15, She was previously married to Raul Garza, who is currently fifty-four years old. See PSR ¶56, at 14. She married Garza in 1976, and they divorced in 1991. See PSR ¶ 56, at 14. She asserts that the divorce was the result of marital problems that his severe substance abuse issues cause, and that her ex-husband ultimately passed those issues on to her. See PSR ¶ 56, at 14; id. ¶ 64, at 16. Garza is currently incarcerated in Hobbs, New Mexico, on drug charges, and Basurto has no contact with him. See PSR ¶ 56, at 14. She had three children with Garza — all daughters — and she states that she has “a close and positive relationship” with all of them. PSR ¶ 57, at 15. See PSR ¶56, at 14.

b. Mental and Physical Health and Substance-Abuse History.

Basurto has numerous health problems. She contracted hepatitis C in 1994 as a result of intravenous needle use, and she was diagnosed with diabetes in 2003. See PSR ¶ 59, at 15. She has also been diagnosed with epilepsy, depression, rheumatoid arthritis, cirrhosis of the liver, migraines, hypertension, vascular disease, hepatic encephalopathy, fibromyalgia, and acid-reflux disease. See PSR ¶ 60, at 15-16; id. ¶ 62, at 16. In 2004, she fell off a chair and hit her head, causing severe bleeding in her brain. See PSR ¶ 59, at 15. As a result, she suffers from seizures, which occur approximately four to five times per week. See PSR ¶ 59, at 15. She also suffers from severe back, knee, and ankle pain, which renders her unable to work. See PSR ¶ 59, at 15.

Basurto reports that heroin is her drug of choice and that it “is the cause for all her problems.” PSR ¶64, at 16. She states that she started using approximately in 1985, at age twenty-four, and that she last used it on April 16, 1998. See PSR ¶ 64, at 16. She says that her first husband was a heroin addict and that she began using because she was “curious” as to how it felt to use heroin. PSR ¶ 64, at 16. She ultimately began using approximately $200.00 to $300.00 worth of heroin on a daily basis. See PSR ¶ 64, at 16. She took the drugs via injections, and, although she never overdosed, she contracted hepatitis C from using a tainted needle. See PSR ¶ 64, at 16. In the early 1990s, she admitted herself into a ninety-day substance-abuse rehabilitation program in Silver City, New Mexico, but she was kicked out of the program after two weeks for smuggling in illegal drugs. See PSR ¶ 65, at 16. She also previously attended Narcotics Anonymous meetings, but she stopped as a result of the negative influences in the program. See PSR ¶ 65, at 16-17. In 1998, while incarcerated at the Women’s Prison in Grants, she participated in the Therapeutic Community Unit and completed its substance-abuse program. See PSR ¶ 65, at 17. She reports that she has been drug free since she was released from prison in 2000, and she feels that she would not benefit from more substance-abuse treatment at this point. See PSR ¶ 65, at 17. On March 14, 2013, the New Awakenings Counseling Agency in Albuquerque, New Mexico assessed her, and, according to its assessment, she does not meet the diagnostic criteria for mental-health or substance-abuse treatment. See PSR ¶ 66, at 17.

c. Financial Condition.

The USPO reports that Basurto owns a residence worth $102,356.00 and has $2,50LOO in liabilities, making her net worth $99,855.00. See PSR ¶74, at 19. The PSR also states that she has $725.00 ip monthly income, all of it from disability payments, and $1,501.00 in monthly expenses, making for a negative monthly cash flow of $776.00. See PSR ¶ 74, at 19.

d. Relevant Criminal History.

Basurto has numerous prior convictions, but the USPO contends that only three of them contribute to her criminal history score under the Guidelines, because the others are outside of the Guidelines’ temporal look-back windows, see U.S.S.G. § 4A1.2(e)(l)-(2), and thus stale, see PSR ¶¶ 35-38, at 9-11. First, on May 11, 1998, she was convicted in New Mexico state court of forgery and possession of a stolen credit card, and sentenced to three-and-a-half years of incarceration, two years of which was suspended. See PSR ¶ 39, at 11. The USPO says that this conviction counts for 3 criminal history points. See PSR ¶ 39, at 11. Second, on July 16,1998, she was convicted, again in New Mexico state court, of receiving or disposing of stolen property over $250.00, for which the court sentenced her to thirty months im-* prisonment and one year of parole. See PSR ¶ 40, at 11. The USPO says that this conviction also counts for 3 criminal history points. See PSR ¶ 40, at 11. Finally, on January 4, 2013, she was convicted in Arizona state court of shoplifting, for which the court fined her $480.00. See PSR ¶ 41, at 11-12. The USPO says that this conviction imparts 1 criminal history point, thus bringing her total to 7, which indicates a criminal history category of IV. See PSR ¶¶ 41-43, at 11-12.

PROCEDURAL BACKGROUND

Basurto pled guilty, without a plea agreement, on March 27, 2013, to two counts: (i) Count I-, possession with intent to distribute heroin under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and (ii) Count II, possession with intent to distribute a methamphetamine-containing mixture, also under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See Plea Minute Sheet, filed March 4, 2014 (Doc. 47); PSR ¶¶ 1, 3, at 5. This case involves both incarceration and monetary sanctions against Basurto, As to imprisonment, the USPO states that Basurto’s base offense level under the Guidelines, based on the amounts of heroin and methamphetamine she possessed, should be 26, see PSR ¶ 24, at 8 (citing U.S.S.G. § 2D1.1), and it additionally applied a 2-level enhancement for possessing a dangerous weapon, see PSR ¶ 25, at 8 (citing U.S.S.G. § 2Dl.l(b)(l)), resulting in a total offense level of 28, see PSR ¶29, at 8, which, when combined with her criminal history category of IV, result in a Guidelines imprisonment range of 110 to 137 months, see PSR ¶ 76, at 19. The USPO does not recommend a reduction for acceptance of responsibility, because Basurto “continued to engage in criminal conduct, by selling heroin on two occasions.” PSR ¶ 31, at 9. It states that, “[although [she] pled guilty in this matter and initially accepted responsibility, her conduct since the guilty plea is not indicative of someone who has truly accepted responsibility for their offense.” PSR ¶ 31, at 9. Earlier in the PSR, however — perhaps added before Basurto’s-crime while on pretrial release and kept in the PSR as an oversight — the USPO. states that Basurto “provided a factual basis for her guilty plea at the change of plea hearing; therefore, an adjustment for acceptance of responsibility will be made.” PSR ¶ 22, at 7-8.

As for monetary sanctions, the USPO states that Basurto faces mandatory special assessments of $100.00 apiece for both of her two counts of conviction. See PSR ¶ 86, at 20. It also states that she faces discretionary fines on both counts and that the statutory maximum for each is $1,000,000.00. See PSR ¶ 85, at 20 (citing 21 U.S.C. § 841(b)(1)(C)). It says that the Guidelines indicate a total fine range — for both Counts combined — of $12,500.00 to $2,000,000.00. See PSR ¶87, at 20 (citing U.S.S.G. § 5El.2(c)(4)). The USPO also states that, while Basurto does not owe restitution in this case, as there is no private victim, see PSR ¶¶ 89-90, at 21 (citing 18 U.S.C. § 3663), she owes the United States the costs of its prosecution, which the USPO calculates to be $2,412.33 per month-while she is in Bureau of Prisons (“BOP”) facilities, $2,244.17 per month while she is in community correction centers, and $278.95 per month while she is on supervised release, see PSR ¶88, at 21 (citing 18 U.S.C. § 3572(a)(6); U.S.S.G. § 5E1.2(d)(7)). The USPO caveats its fine recommendations, however, by noting that, “[bjased on available information, it appears the defendant does not have the ability to pay a fine.” PSR ¶74, at 18.

1. The Briefing on the Proper Term of Imprisonment.

Shortly after the PSR’s issuance, Basur-to lodged two objections with the USPO. See Addendum to the Presentence Report, disclosed June 25, 2014 (“Addendum”). The-USPO appears-to acknowledge the validity of — if not fully agree with — both of these objections. See Addendum., at 1-2. First, Basurto contends that her criminal history category of IV over-represents-her criminal history and that “a criminal history category of I is more representative of’ her history. Addendum at 1. The USPO concedes that a category of IV over-represents her criminal history but contends that a reduction to III is all that is needed to rectify the over-representation. See Addendum at 1. Basurto and the USPO base their conclusions that her criminal history is over-represented on the fact that she “has [only] two prior convictions, both of which are non-violent offenses and occurred 15 years ago.” Addendum -at 1. Second, Basurto contends that the Court should grant her a downward variance based on her precarious medical and mental health conditions, substance abuse issues, and personal history. See Addendum at 1. Variances are, of course, outside of the Guidelines framework, and the USPO’s response to Basurto’s ■ objection was to neither recommend for or against a variance, but the USPO stated that it had identified those factors in paragraphs 94-95 of the PSR and that it “agrees a downward variance outside the advisory guideline range may be warranted in this case.” Addendum at 2.

Basurto submitted the Sentencing Memo, on June 18, 2014. The Sentencing Memo, makes five arguments. First, Ba-surto contends that she deserves the full 3-level reduction for acceptance of responsibility. See Sentencing Memo, at 2-3. She states that, although her conduct on pretrial release “does not demonstrate a profound withdrawal from criminal conduct or' associations,” the USPO’s position that this conduct should deprive her of the adjustment “ignores the penalty that Ms. Basurto has already paid” — meaning, presumably, that the addition of those additional pretrial-release drug quantities to the drug quantities involved in her crime of conviction for the purposes of determining her base offense level adequately reflects the seriousness of her conduct on pretrial release. Sentencing Memo, at 3. She additionally points out — much more persuasively, see supra note 3 — that, if she had been separately convicted of her pretrial-release crime, her Guidelines range for that crime would be 15 to 21 months; by losing her acceptance-of-responsibility adjustment, however, her Guidelines range rises from seventy-seven to ninety-six months to 110 to 137 months. See Sentencing Memo, at 3.

Second, Basurto argues that a criminal history category of IV over-represents her criminal history. She notes that her two felony convictions “are as old as they could be and still qualify for criminal history points,” with one of them set to go stale a mere two months after Basurto committed the instant offense. Sentencing Memo, at 5. She also points out that, “during the intervening 15 years between the commission of her 1997 and 1998 crimes and the instant offense[,] ... Ms. Basurto only suffered one misdemeanor conviction and no other interface with the criminal law.” Sentencing Memo, at 5. She argues that the Court should count only the misdemeanor conviction, leaving her with a criminal history category of I. See Sentencing Memo, at 9.

Third, Basurto argues that her medical condition “is exceedingly precarious and merits a variance.” Sentencing Memo, at 6. She states that her life expectancy is “maybe 20 to 25 years,” and thus “a sentence of 110 months is virtually half her remaining life.” Sentencing Memo, at 7. She also asserts that she is not receiving all of her prescribed medications in prison, especially the narcotic-based medications. See Sentencing Memo, at 7. Last, she asserts that her conditions are incurable and that they will only worsen with time, and that, thus, “her incarceration will be more difficult than a similarly situated inmate without her constellation of medical problems.” Sentencing Memo, at 7.

Fourth, she points out that a proposed amendment the Guidelines will, if passed, indicate a base offense level 2 levels lower than the one currently indicated — 24, rather than 26. See Sentencing Memo, at 8. Basurto asserts that “[pjassage appears likely” and that, if passed, the new provision would be retroactive. Sentencing Memo, at 8.

Fifth and finally, Basurto asks for a variance on the basis of her family situation. See Sentencing Memo, at 9. She asserts that she cares for her parents and is the mother of three adult daughters and grandmother of five grandchildren. See Sentencing Memo, at 9. Basurto notes that, if the Court grants both her requested offense-level reduction from 28 to 26 on the basis of the impending amendment and her requested criminal history category reduction from IV to I, her Guidelines range changes to 51-63 months. See Sentencing Memo, at 9. She then asks the Court to vary below the low end of that range and to impose a sentence of 51 months or less. See Sentencing Memo, at 9.

The United States responded to the Sentencing Memo, two weeks later. See United States’ Response to Defendant’s Sentencing Memorandum and Motion for Downward Departure Filed on June 18, 2014 (Doc. 57), filed July 2, 2014 (Doc. 60)(“Response”). The United States argues not only that a variance below the bottom of the Guidelines range is inappropriate, but that “a sentence below the high-end of the applicable guideline range would not be appropriate in this case.” Response at 5 (emphasis added). The Response mostly reiterates the facts of the offense and Basurto’s criminal activity on pretrial release. It points out that she lied to investigators about there being illegal drugs and weapons in her home, see Response at 5, and that the amounts of drugs found in the house — and the firearm’s presence — indicate that she was more than a street-level dealer, see Response at 6-9. The United States opposes a variance on medical grounds, noting:

From December 26, 2011, there have been four emergency calls to Defendant’s house, three for non-medical related reasons, which include someone not picking up her child, possible “drug activity” occurring around Defendant’s house, and someone kicking a puppy. For the past three to four years, there has been only one medical emergency call, which occurred on April 11, 2014, the day the search warrant was executed on Defendant’s house after she sold heroin to a confidential source in March 2014 as stated above. Defendant has also had another “epileptic episode” while she was in the courtroom for the instant offense. The United States is troubled by Defendant’s frequent use of her “medical conditions” when requesting for leniency and for release from custody. Furthermore, while Defendant claims her medical conditions warrant a downward variance, she wasn’t so ill or immobile when she was trafficking heroin and methamphetamine on three separate occasions....

Response at 9-10.

The United States consents, however, to one of Basurto’s requests in full and to another in part. The United States is amenable to a 2-level downward variance on the basis of the impending Guidelines amendment, see Response at 12, and, while it disagrees that the Court should sentence Basurto under a criminal history category of I, it agrees with the USPO’s recommended reduction of her criminal history category from IV to III, see Response at 12-13. The United States opposes an acceptance-of-responsibility reduction for essentially the same reasons that the USPO recommends against it. See Response at 14.

2. The First Sentencing Hearing, and Resolving the Term of Imprisonment.

The Court held a sentencing hearing on October 7, 2014. See Transcript of Hearing, filed November 14, 2014 (Doc. 67)(tak-en Oct. 7, 2014)(“lst Tr.”). At the hearing, Basurto withdrew her objection to the PSR’s refusal to grant her a reduction for acceptance of responsibility. See 1st Tr. at 3:5-4:25 (Winterbottom, Court). Basurto thus agreed that, under the Guidelines, her ultimate offense level is 28 and her criminal history category is IV. See 1st Tr. at 5:4-9 (Court, Winterbottom). The Court stated that it would grant the requested 2-level downward variance based on the impending amendment, see 1st Tr. at 5:10-20 (Court), and would also go along with the United States’ and USPO’s recommended criminal history category of III, see 1st Tr. at 19:22-21 (Court), leaving the Court with a “working” offense level of 26 and criminal history category of III, producing a working sentencing range of 78-97 months, 1st Tr. at 20:21-24 (Court). The Court declined to grant Basurto’s requests to treat her criminal history category as I, however, noting that she has a number of unconvicted arrests and stale convictions, none of which count toward her Guidelines criminal history; the Court also noted that her criminal conduct while on pretrial release bodes poorly for the “likelihood that she w[ill not] commit further crimes.” 1st Tr. at 19:25-20:19 (Court).

Basurto reiterated her variance arguments, see 1st Tr. at 24:10-32:9 (Winter-bottom), and additionally asked that the Court recommend to the BOP that she serve her ‘sentence at Federal Medical Center Carswell, see 1st Tr. at 32:10-13 (Winterbottom); The Court- then announced its ■ sentence, applying the § 3553(a) factors to its working Guidelines range. The Court concluded that several factors combined to put about fourteen levels of downward pressure on Basurto’s Guidelines range, including: (i) her ability to overcome somewhat her harsh childhood and previous addiction, see 1st Tr. at 43:18-21 (Court); (ii) her relatively sparse recent criminal history, see 1st- Tr. at 43:21-44:3" (Court); (iii) her medical problems, see 1st Tr. at 44:4-17 (Court); (iv) that her crime of conviction was non-violent and that she has no history of violence, see 1st Tr. at 44:18-46:7 (Court); and (v) the availability and moderate likelihood of success of supervised release, see 1st Tr. at 45:8-13 (Court). The Court also concluded that there were several factors that combined to place about nine levels of upward pressure on the sentence, including: (i) the seriousness of the crime, see 1st Tr. at 46:4-5 (Court); (ii) her performance -on pretrial release, see 1st Tr. at 46:6-7 (Court); (iii) the need for specific and general deterrence, see 1st Tr. at 46:10-12 (Court); (iv) the need to protect the public, see 1st Tr. at 46:12 (Court); (v) the need to avoid unwarranted sentence disparities, among similarly situated defendants, see 1st Tr. at 46:13-15 (Court); and (vi) the Court’s lack of confidence- that Basurto will succeed on supervised release, see 1st Tr. at"46:18~20 (Court). The Court then varied downward and imposed a sentence of 51-months imprisonment. See 1st Tr. at 47:14-24 (Court). The Court also imposed three years of supervised release to follow the term of incarceration. See 1st Tr. at 50:10-12 (Court).

The Court also imposed two $100.00 special assessments, see 1st Tr. at 51:21-23 (Court), and stated that it was inclined to impose a hefty fine on top of those:

Based on the defendant’s financial resources, the Court will impose a fine of $99,655. She has resources, and it seems like the house was used as a house which drugs were dealt out of. It seems the residents knew that was taking place. It’s going to cost the Government considerably more than that to incarcerate her and to supervise her for the next seven years.

1st Tr. at 51:13-20 (Court). The parties requested that the Court delay the imposition of sentence so that they could develop more information on the value of Basurto’s residence, and the Court agreed. See 1st Tr. at 51:52-17 (Wang, Court, Winterbot-tom).

3. The Briefing on the Fine.

The United States filed the U.S. Fine Memo, a month after the hearing. In it, the United States supported the Court’s proposed $99,655.00 fine. See U.S. Fine Memo, at 1. It states that Basurto’s home is worth $102,356.00 and that it is unencumbered by any liens. See U.S. Fine Memo, at 3. It also points out that over $30,000.00 in cash was seized from her home. See U.S. Fine Memo, at ’ 5. The United States says that it .

was able to ¡obtain the deed to Defendant’s house, and at the time of purchase in 2004, the deed listed the residence at the sale price of $40,000.00 to both Melchor Basurto and Defendant, as husband and wife. The sale of this property in 2004 and the assessment of this real estate property for purposes of assessing property taxes in Grants County,-New Mexico is substantially under the fair market value as stated by Defendant and the Experian Credit report verification. It is the United States’ position that Defendant would be in the best position to know the fair market value of her home, and that the value of the residence is at $102,356.00, without any liens.

U.S. Fine Memo, at 5-6 (citations omitted). Despite the United States’ representations about the house’s value, it attaches two documents which would seem to undermine that valuation: (i) the contract of sale, showing that when Basurto arid her husband bought the house in 2004, they paid only $40,000.00 for it; and (ii) a Cibo-la County tax assessment from 2014 valuing the house arid land together at a total of $33,689.00. See Home Valuation Documents, at 1-2, 7, filed November 6, 2014 (Doc. 66-4).

The United States supplemented its U.S. Fine Memo, several months later, but before Basurto submitted anything on the subject of the fine. See United States’ Supplement to Its Briefing to the Court in Support ’of a Fine as Part of Defendant’s Sentence Filed on November 6, 2014 (Doc. 66), filed March 3, 2015 (Doc. 69)(“Supple-ment”). The United States stands by its requested fine, but notes that Basurto has-contested the administrative- seizure of the cash from her home, and that the DEA, although finding that Basurto had, put forth an “insufficient,showing that the currency was not being used to facilitate drug distribution activities,” had remitted $13,628.50 of that money back to Basurto, reasoning that this remittance “was warranted: to avoid extreme hardship.” Supplement at 2. .

Basurto filed the Basurto Fine Memo, three weeks after the United States filed the Supplement. .Basurto contests the fine on five broad grounds. First, she contends that she “cannot under New Mexico law sell the humble home she and her husband bought and paid for with legitimate funds,” Basurto Fine Memo, at 1, because her husband’s joint ownership of the home precludes sale, Basurto Fine Memo, at 3 (“Ms; Basurto does not believe her husband would agree to sell their house. Ms. Basurto does not know where Mr. Basurto is, but he has been in contact with 'at least one of her daughters.”). Second, she asserts that the home is worth only a fraction of the value to which the United States and the USPO attributes it, providing documentation that “[t]he Cibola County Assessor assessed Ms. Basurto’s home to be worth $33,689 in 2014.” Ba-surto Fine Memo, at 3 (citing Search and Seizure Warrant, filed November 6, 2014 (Doc.' 66-3)). Third, she contends that such a high fine would violate the Excessive Fines Clause, U.S. ' Const, amend. VIII, because it would dispossess her of her home and result in her family’s eviction, and because her home had only a limited connection to the crimes at issue. See Basurto Fine Memo, at 15-17. Fourth, she contends that, under the factors outlined in 18 U.S.Cf § 3553(a), § 3572(a), and U.S.S.G. § 5E1.2(d), such a high fine is inappropriate and would constitute an abuse of discretion. See Basur-to Fine Memo, at 9-10. Fifth and finally, she asserts that, even if the Court were to force the sale of Basurto’s home, her share of the proceeds would amount to less than half of the proposed $99,655.00 fine. See Basurto Fine Memo, at 24-25.

4. The Second Sentencing Hearing, and Resolving the Fine.

The Court held a second sentencing hearing on May 18, 2015, picking up where it left off in the prior hearing. See Transcript of Hearing (taken May 18, 2015)(“2nd Tr.”). The Court opened by stating that, on account of Basurto’s evidence-backed assertions that her house is worth much less than the PSR said it is, the Court was inclined to reduce its fine to $15,634.33 — reflecting the tax assessment’s valuation of $33,689.00, less the $200.00 in special assessments and a six-percent realtor’s fee, which she will likely sustain if she has to sell the home. See 2nd Tr. at 2:13-3:5 (Court). Basurto stated that she opposed even this much-smaller figure, because, “even assuming the house is worth $30,000[,] the purpose of a fine is to punish, not to destroy,” and the fine would still necessitate Basurto selling her home. 2nd Tr. at 3:25 — 4:5 (Butcher). Basurto’s arguments against the fine at the hearing were primary practical ones; she contended that a five-figure fine would force her into poverty and alluded to the possibility that it might nudge her into further profit-bearing criminal activity that she might not otherwise commit. After hearing these arguments, the Court lowered its figure even further and imposed a fine of $13,133.33, with the $2,500.00 reduction designed to compensate for some of Basur-to’s other liabilities to creditors. See 2nd Tr. at 27:7-14 (Court). The Court noted that this figure is “a little over $600 above the minimum guideline range.” 2nd Tr. at 27:14-15 (Court).

This second hearing concluded the case. The Court sentenced Basurto to 51-months imprisonment to be followed by 3 years of supervised release, a $13,133.33 fine, and $200.00 in special assessments. See Sentencing Minute Sheet at 1, filed May 18, 2015 (Doc. 73).

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 severed the mandatory provisions from the Federal Sentencing Act, 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.” 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, 18 U.S.C. § 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 crimes; 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 United States Court of Appeals for the Tenth Circuit have clarified that, while the Guidelines are one of several factors enumerated in 18 U.S.C. § 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 advisory guideline 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. 13,2008) (Browning, J.).

LAW REGARDING THE IMPOSITION OF CRIMINAL FINES

There is a three-tier hierarchy of authority to which a district court must look when imposing a criminal fíne. At the top of the hierarchy, as always, is the Constitution of the United States of America. The Eighth Amendment to the Constitution contains an Excessive . Fines Clause, to which the appellate courts have given content over the years. See U.S. Const, amend. VIII (“Excessive bail shall not be required, nor excessive fines ina-posed, nor cruel and unusual punishments inflicted.”)- At the hierarchy’s middle tier — mandatory for the district court, but subject to the Excessive Fines Clause’s constraints — are three United States Code sections: the general sentencing statute, 18 U.S.C. § 3553(a), and the fines-specific sentencing statute, 18 U.S.C. § 3572(a), both of which bow to the substantive erimi-nal statute under which the defendant is convicted, which obviously varies depending on the case. At the third and lowest level — nonbinding on the district court— are two Guidelines provisions: the general fines guideline, U.S.S.G. § 5E1.2, and the guideline for the substantive offense, to which it bows. As is typical of such hierarchies, the successively lower tiers of authority provide more specific and detailed guidance about what the district court should do, and — while it should not be assumed — compliance with the lower-tier authority is likely to produce compliance with the higher-tier authority. See Kimbrough v. United States, 552 U.S. 85, 89, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (stating that, in the ordinary case, the 'Guidelines “sentencing -range will ‘reflect a rough approximation of sentences that might- achieve § 3553(a)’s objectives’” (quoting Rita v. United States, 551 U.S. 338, 350, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007))); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (“[A] sentence that is properly .- calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.”); United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.2007) (“[I]t was error for the district court to apply the appellate presumption of reasonableness to the advisory guidelines when sentencing.” (citing Rita v. United States, 561 U.S. 338, 127 S.Ct. 2456)). As such, district courts should start with the Guidelines and then move to the statute in selecting an appropriate fine, and only then analyze whether the selected fíne violates the Excessive Fines Clause. Cf U.S.S.Q. § 1B1.1; United States v. Nolf, 30 F.Supp.3d 1200, 1222-42 (D.N.M.2014) (Browning, J.)(concluding that district courts must follow a certain sequence during sentencing, first calculating the Guidelines range and then looking to statutory considerations). The. Court will describe, in order, the steps involved in imposing a criminal fine.

1. The Court Must First Calculate the Guidelines Range.

The Guidelines direct that “[t]he court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine,” although the Guidelines’ overall advisory status post-United States v. Booker, as a practical matter, undoes the text’s .mandatory language. U.S.S.G. § 5E1.2(a). The Guidelines set forth a four-step process for imposing fines.

á. Step One: Assess the Defendant’s Ability to. Pay.

Anyone can serve a prison" sentence^ but not everyone can pay a fine. The fine guideline’s exception for “defendant^ who] establish!/] that-[they are] unable to pay and [are] not likely to become able to pay any fine” trumps, as a practical, matter, everything else in the determining whether to impose‘‘a fine. U.S.S.G. § 5E1.2(a).

The' determination of the fine guideline range-may be dispensed with entirely upon a court determination of present and future inability to pay any fine. -.The inability of a defendant to post bail bond (having otherwise been determined eligible for release) and the fact that a defendant is represented by (or was determined eligible. for) assigned counsel are significant indicators of present inability to pay any fine. In conjunction with other factors, they may also indicate that the defendant is not likely to become able to pay any fine.

U.S.S.G. § 5E1.2 cmt. 3. If the defendant is unable to pay a fine, the district court should impose other forms of punishment in lieu of the appropriate fine; the district court should not simply waive the fine. See U.S.S.G. § 5E1.2(e). Community service is the preferred alternative punishment when fines are unavailable. See U.S.S.G. § 5E1.2(e).

This assessment starts with the defendant’s literal ability to pay — ie., the figure that the defendant could pay if the defendant both liquidated all of his or her assets, and devoted all the future discretionary income that he or she is likely to earn to paying the .fíne — but the district court may cap this figure at the point at which the defendant actually paying it “would unduly burden the defendant’s dependents” or other third parties. U.S.S.G. § 5E1.2(e).. The Guidelines give no‘further guidance about how to determine a defendant’s ability to pay, but, at this stage, the district court’s focus should be on ascertaining the maximum fine available to be imposed — including whether the defendant can pay any fine — rather than on balancing the defendant’s resources and the fine’s effect on third parties against the need for the fine. The district court can conduct that balancing after determining the Guidelines range for the fine, at the statutory-factors stage.

b. Step Two: Check for Overrides.

The second step is a check for overrides. First, the district court should check the guideline for the substantive offense, and, “[i]f ... the guideline for the offense in Chapter Two provides a specific rule for imposing a fine, that rule takes precedence over” the generic fine guideline. U.S.S.G. § 5E1.2(b). Second, the district court should also check the statute of conviction, and, if the statute authorizes either a maximum fine greater than $250,000.00 or a daily compounding fine, then the district court — which must still go through the other steps of the Guidelines fine calculation — should replace the Guidelines range’s maximum fine with the statutory maximum fine. See U.S.S.G. § 5E1.2(c)(2), (4).

c, Step Three: Calculate the Offense Level.

The third step is the same one that applies when determining the proper sentence of imprisonment to impose; this calculation need only be done pnce, and if the Court has already calculated the defendant’s offense level for incarceration purposes, the offense level is the same for fine purposes. In determining a defendant’s offense level, 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 statutoiy 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 affect[ing] commerce dr 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 -originalXquoting 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 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. § 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-evidence standard. See United States v. Vigil, 476 F.Supp.2d 1231, 1245 (D.N.M.2007) (Browning J.), aff'd 523 F.3d 1258 (10th Cir.2008). Accord United States v. Schmidt, 353 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 that the Fifth Amendment’s Double Jeopardy Clause protects. 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 that “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. 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 béyond-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 themselves 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. See United States v. Coleman, 947 F.2d at 1429. 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 947 F.2d at 1429. The Tenth Circuit summarized that, in reviewing federal case law, it found “persuasive the decisions that have allowed a sentencing court to consider trial evidence that w