Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on the Defendant’s Exception to Pre-Sentence Report and Request for Ev-identiary Hearing, filed June 27, 2014 (Doc. 20) (“Objections”). The Court held a hearing on September 12, 2014. The primary issues are: (i) whether to apply the cross-reference provision of the guideline for being an illegal alien in possession of a firearm and calculate Defendant Omar Cervantes-Chavez’ sentence under the drug-possession guideline, even though Cervantes-Chavez’ crime of conviction was being an illegal alien in possession of a firearm; (ii) whether the Court should calculate Cervantes-Chavez’ base offense level under the drug-possession guideline using only the actual weight of marihuana discovered at the scene or should additionally consider the drug-weight equivalent of $19,652.00 cash found at the scene; (in) whether the Court should apply a 2-level enhancement for possessing a dangerous weapon, even though said possession is a necessary element of Cervantes-Chavez’ crime of conviction; (iv) whether the Court should apply a 2-level enhancement for being an “organizer, leader, manager, or supervisor,” where there is no direct evidence that Cervantes-Chavez organized the activities of other members of a criminal organization, and where only his relevant conduct — and not his crime of conviction, possessing firearms as an illegal alien — is the subject of any alleged criminal organizational activity; and (v) whether the Court should vary Cervantes-Chavez’ sentence downward to reflect impending changes to the Guidelines which indicate a more lenient sentence for drug offenders than the current Guidelines. The Court will cross reference to the drug-possession guideline, because the Court may consider all of Cervantes-Chavez’ relevant conduct, and the Court finds by a preponderance of the evidence that Cervantes-Chavez committed the crime of illegal drug possession as 21 U.S.C. § 841(a)(1) defines that offense. The Court will convert the $19,652.00 in currency found at the scene into its drug-weight equivalent, because there is sufficient evidence — namely, that the bulk of this enormous quantity -of money was found, in cash, in a container in the same shed in which the marihuana was stowed — that the money is attributable to drug sales. The Court will also apply the 2-level enhancement for possessing a dangerous weapon, because using an essential element of the defendant’s crime of conviction to trigger an enhancement under the Guidelines does not constitute double counting. The Court will not, however, apply the 2-level enhancement for being an organizer, leader, manager, or supervisor. Although the Court can apply such an enhancement even where the crime of conviction is unrelated to any criminal organization, the Court finds insufficient evidence that Cervantes-Chavez satisfies the requirements for an upward role adjustment, because there is no direct evidence that he organized the activities of other participants in a common criminal scheme. Last, the Court will grant Cervantes-Chavez a downward variance so that his sentencing range will match the one he would receive under the impending changes to the Guidelines, and the Court will impose a sentence at the bottom of that range: 37-months imprisonment. FACTUAL BACKGROUND The Court takes its facts from the Pre-sentence Investigation Report, disclosed March 26, 2014 (“PSR”), that the United States Probation Office (“USPO”) prepared. On October 11, 2013, government agents in Silver City, New Mexico discovered a pickup truck containing one hundred pounds of marihuana in concealed compartments in the truck bed. See PSR ¶ 12, at 4. The driver of the truck, a confidential informant (“Cl”), told the agents that the marihuana was to be delivered to a man named “Omar” who resided at 1712 Bonito Court, S.W., Albuquerque, New Mexico. PSR ¶ 12, at 4. This first name and address match those of Cervantes-Chavez. See PSR at 1-2. The Cl told the agents that he delivered marihuana to Cervantes-Chavez every two to three weeks. See PSR ¶ 13, at 4. The agents sent the Cl to make the 100-pound delivery as scheduled and obtained a search warrant for Cervantes-Chavez’ residence. See PSR ¶ 12-13, at 4. As the Cl and Cervantes-Chavez were beginning.to unload the marihuana from the truck bed, agents moved in and detained the two individuals. See PSR ¶ 14, at 4. The agents recovered: (i) the 100 pounds of marihuana compressed into bricks in the bed of the truck; (ii) an additional seventy-five pounds of marihuana in a storage shed outside Cervantes-Chavez’ residence; (iii) $19,000.00 in cash in a white cylindrical container in the same shed; (iv) an additional $625.00 in cash on Cervantes-Chavez’ person; and (v) two pistols and one rifle inside the residence. See PSR ¶¶ 15-. 18, at 4-5. Cervantes-Chavez has no prior criminal history. See PSR ¶¶ 37-42, at 7-8. PROCEDURAL BACKGROUND Cervantes-Chavez pled guilty to possessing a firearm as an illegal alien under 18 U.S.C. § 922(g)(5)(A). See Plea Agreement, filed January 29, 2014 (Doc. 13); Clerk’s Minutes for Proceedings Held Before Magistrate Judge Robert H. Scott, filed January 29, 2014 (Doc. 14). The USPO calculates that Cervantes-Chavez has a total offense level of 25 and a criminal history score of 0 — equivalent to a criminal history category of I. See PSR ¶¶ 35, 39, at 7. The USPO calculates the offense level by first applying the guideline for the “unlawful receipt, possession, or transportation of firearms or ammunition.” U.S.S.G. § 2K2.1 (capitalization altered for readability). See PSR ¶ 25, at 6.- The USPO then applies the cross-reference provision of that guideline, U.S.S.G. § 2K2.1(c)(l)(A), and uses the drug-possession guideline, U.S.S.G. § 2D1.1, for all subsequent calculations. See PSR ¶ 25, at 6. The USPO calculates that Cervantes-Chavez possessed 99.54 kilograms (219.45 pounds) of marihuana; it arrives at that calculation by adding the 79.38 kilograms (175 pounds) of marihuana found at the scene with 25.4 kilograms (fifty-six pounds) — the “marijuana equivalency” of the $19,652.00 in “drug proceeds” found at the scene. — and subtracting five percent of the total weight for packaging. PSR ¶ 20, at 5. The USPO thus assesses a base offense level of 24 pursuant to U.S.S.G. § 2Dl.l(c)(8), which applies to cases involving “[a]t least 80 KG but less than 100 KG of Marihuana.” PSR ¶ 25, at 6. It then applies a 2-level enhancement for using a dangerous weapon, see PSR ¶ 26, at 6 (citing U.S.S.G. § 2Dl.l(b)(l)), and another 2-level enhancement for Cervantes-Chavez’ alleged role as an organizer, leader, manager, or supervisor, see PSR ¶ 29, at 6 (citing U.S.S.G. § 3Bl.l(e)). The USPO bases the role adjustment on the fact that Cervantes-Chavez “was'responsible for accepting and storing loads of marijuana and currency related to the drug transactions,” and that he “had acted in this capacity for over a year.” PSR ¶ 29, at 6. The USPO then decreases the offense level by 3 levels for Cervantes-Chavez’ acceptance of responsibility, resulting in a final offense level of 25. See PSR ¶¶ 33r35, at 7. Cervantes-Chavez filed his Objections three months after the disclosure of the PSR. See Objections at 1. He lodges five objections to the PSR. First, he argues that the Court should not apply the cross-reference provision, but should instead calculate his offense level fully under the illegal alien-in-possession guideline. See Objections passim. It is not clear whether this contention is a standalone argument or just a rhetorical flourish to make the points that: (i) the role adjustment has little to do with his crime of conviction, as the criminal organization of which Cervantes-Chavez is a part is a drug organization and not an illegal alien-in-possession organization; and (ii) the adjustment for possessing a dangerous weapon is unfair in light of his crime of conviction necessarily requiring possession of a dangerous weapon. Second, Cervantes-Chavez argues that, even if the Court rejects his first argument and cross references to the drug-possession guideline, it should apply a base offense level of 22, which reflects the 79.38 KG of marihuana actually discovered, and not a base offense level of 24, which would reflect the 99.54 KG figure that includes the addition of the marihuana weight equivalent of the $19,652.00 in cash discovered at the scene. See Objections at 3-4. His argument is not that money-to-drug-weight conversions are per se prohibited, but rather that there is insufficient evidence — and Cervantes-Chavez contends that the Court should require clear and convincing evidence — to conclude that the money found at the scene was drug proceeds. See Objections at 3-4 (“There is no indication as to whether the amount of money located was there strictly as to some drug transaction related to the marijuana or whether it was an amount accumulated from other sources.”). Third, Cervantes-Chavez argues that the Court should not apply the 2-level enhancement for possessing a dangerous weapon, presumably because that would constitute double-counting with his crime of conviction. See Objections at 5. He outlines the alleged unfairness as follows: If the court attributes the drug amounts, as converted including the cash, then that would place Mr. Cervantes at a level 24. However, the PSR writer then goes back to treat the drug offense as the “offense” conduct not whether it’s a gun offense. Having! ] converted to the highest level the writer tries to include an additional 2 points for guns being used in an offense for which the defendant is not convicted and in fact which becomes the offense conduct not for the idea of his relevant conduct but for purposes of calculating an offense level that is higher if the underlying offense level for the gun possession is lower. Objections at 5. Fourth, Cervantes-Chavez argues that the Court should not apply the 2-level enhancement for being an organizer, leader, manager, or supervisor, both because it reflects an enhancement of a crime other than his crime of conviction, and because he does not meet the standard’s factual requirements. See Objections at 2-4. This argument, thus, has two alternative halves: first, that Cervantes-Chavez was not an organizer, leader, manager, or supervisor of any criminal organization, even one committed to the drug trade; and second, that even if Cervantes-Chavez is an organizer of a drug organization, the role adjustment would still be inapplicable, because his crime of conviction did not involve drugs. Cervantes-Chavez never fleshes out the first half of this argument, stating only: “The Pre-Sentence writer requests this court to grant a two level increase in the offense category for being a leader or organizer of the offense for which he was convicted. But the offense of conviction is that of the illegal possession of firearms not a drug trafficking offense.” Objections at 2. As to the second half of the argument — that Cervantes-Chavez is not a leader, organizer, manager, or supervisor, even of a drug organization — he asserts that the USPO never discusses any of the “elements” of U.S.S.G. § 3B1.1, found in the commentary, see Objections at 3, and that'“Cervantes-Chavez was no more than a mule,” Objections at 4. Last, Cervantes-Chavez argues that the Court should depart or vary downward to reflect the more-lenient Guidelines, which the Commission has approved but which have not yet come into effect. See Objections at 8. He asserts that the application of the impending Guidelines would result in a base offense level of 20. See Objections at 8. 'Plaintiff United States of America responded to the Objections within a month, defending all of the USPO’s positions in the PSR. See United States’ Response to Defendant’s Exception to Pre-Sentence Report and Request for Evidentiary Hearing Filed on June 27, 2014 (Doc. 20) at 5-7, filed July 17, 2014 (Doc. 23)(“Response”). It defends the role adjustment as follows: Defendant received a two-level upward role adjustment pursuant to U.S.S.G. § 3B1.1(c). He argued that this was improperly applied as he was a mere mule. He states in his Objection to the PSR that he merely held money and drugs. This statement is biased and self-serving in order to argue for a lesser guideline imprisonment range and sentence. According to.the PSR, HSI investigation, and Defendant’s admissions as stated above, Defendant was observed by law enforcement unloading the Avalanche truck which was delivering approximately 100 pounds of marijuana stored in hidden compartments to Defendant’s residence. Another approximately 75 pounds of marijuana were stored in the shed located within the carport of Defendant’s residence, both in bricks and uncompressed form. $19,000.00 was seized from this shed, even though Defendant stated this money was not his. $652.00 was seized from Defendant’s person. The Cl informed law enforcement that it delivers marijuana to Defendant once every week or two. Through HSI investigation, it believes Defendant to be a facilitator or middle man. Three firearms were seized from inside Defendant’s residence. Defendant admitted he is an illegal alien, and possessed a false Social Security card bearing his name. While Defendant may not be the ultimate leader or organizer in this DTO to warrant a four-level increase pursuant to U.S.S.G. § 3Bl.l(a), the United States argues that Defendant was properly assessed as a lower level leader or organizer within this DTO pursuant to U.S.S.G. § 3B1.1(c), and a two-level enhancement was properly assessed and warranted. Response at 6-7 (citations omitted). The United States also notes that it does not oppose a downward variance to put Cervantes-Chavez’ sentence in line with the impending Guidelines. See Response at 3. The Court held a hearing on September 12, 2014. See Transcript of Hearing (taken September 12, 2014)(“Sept. 12, 2014 Tr.”). The Court alerted the United States that the Court had serious doubts whether the role adjustment was warranted, see Sept. 12, 2014 Tr. at 6:4 — 7:1 (Court, Wang), and, in response, the United States elected to put on two witnesses to provide evidentiary support for the enhancement, see Sept. 12, 2014 Tr. at 7:13-28:7 (Court, Wang, Grant, Juarez, Barahona). It first called Jacob Grant, a detective with the Albuquerque Police Department (“APD”). See Sept. 12, 2014 Tr. at 7:11-12 (Wang). Grant described the events leading up to Cervantes-Chavez’ arrest, and then opined, based on his ten years of experience with APD, see Sept. 12, 2014 Tr. at 11:16-19 (Wang, Grant), that Cervantes-Chavez was carrying too much money and drugs to be a mere mule: Q. And pursuant to your 10 years of training and experience with APD, that’s Albuquerque Police Department, with this amount of drugs and firearms and money and pursuant to the totality of the circumstances, is Mr. Cervantes Chavez a mere mule? A. No, ma’am. Q. Why is that? A. He is more of a distribution hub[. A] mule takes drugs from one place to another.' Mr. Cervantes Chavez had drugs, individually broken up into sections inside of his shed, as well as having firearms and a large amount of money. Typically a mule simply. takes drugs from one place to another and then is paid for, like a truck driver, taking the narcotics from one place to another. However in this circumstance, I believe, that his source of revenue was not because he was storing [or] transferring drugs it was because he was actually wholesaling them. Q. And let me ask you, you just testified that there were packages of marijuana? A. Yes. Q. Can you explain to the Court pursuant to those packages the size and so on, what made you think that he was selling as well, not just a hub? A. Well, they’re one pound packages that were packaged differently[.] The ones that came off the truck were imagined differently than the ones that came out of the shed. Q. You’re going to have to explain that? A. Well there was brown packages and then black packages that looked like a brick and weighed approximately one pound a piece; that were appeared to be broken up into separate bins as if they were being sorted and prepared to be possibly sold or given to another source. Sept. 12, 2014 Tr. at 15:6-16:16 (Wang, Grant). On cross examination, Cervantes-Chavez flushed out that the agents had recovered no packaging materials, drug ledgers, “crib sheets,” or bank account information from the scene. Sept. 12, 2014 Tr. at 17:17-18:20 (Juarez, Grant). Cross examination also elicited the following exchange: Q. So what information you did have was the confidential informant told you that he did what again that he delivered drugs to that particular house, correct? A. Yes, sir. Q. That’s all he did? A. The informant, yes, sir. Q. Did he tell you what role Mr. Chavez played other than accepting the drugs? A. No, sir he did not. Q. That’s the only role you [know of| that Mr. Chavez played, correct that you know [of]? A. That I know of, yes. Sept. 12, 2014 Tr. at 19:12-24 (Juarez, Grant). The United States next called Frank Barahona, a special agent with Homeland Security Investigations (“HSI”), the investigative branch of the Immigration Customs Enforcement Bureau. See Sept. 12, 2014 Tr. at 20:14-21:6 (Wang, Court, Bara-hona). Barahona first testified about how the $350.00/lb. conversion factor was obtained, asserting that the price of one pound of marihuana in Albuquerque is approximately $500.00 but that the price sinks to roughly $345.00/Lb. when multiple pounds are purchased, and the $350.00/lb. figure represents a “happy medium” price. Sept. 12, 2014 Tr. at 21:22-22:17 (Baraho-na, Wang). Barahona testified that the USPO got its figure from HSI. See Sept. 12, 2014 Tr. at 21:14-22:4 (Wang, Baraho-na). Barahona also testified that, “based on [his] background and experience, ... Cervantes[-]Chavez is not a mule.” Sept. 12, 2014 Tr. at 23:17-18 (Barahona). Baraho-na based this conclusion on three facts: (i) that mules do not typically carry the amount of cash that Cervantes-Chavez was carrying, see Sept. 12, 2014 Tr. at 23:22-24:2 (Barahona); (ii) that mules typically “do not carry[] over 100[p]ounds,” Sept. 12, 2014 Tr. at 24:2-3 (Barahona); and (iii) that he “ha[s] not encountered mules with firearms in their possession,” Sept. 12, 2014 Tr. at 24:4-5 (Barahona). On cross examination, Cervantes-Chavez asked Barahona whether he found any drug ledgers or packaging material in Cervantes-Chavez’ residence—which he did not—and whether he was aware of anyone in particular that Cervantes-Chavez was responsible for supervising—Barahona was not, and he could not name any members of the criminal organization other than Cervantes-Chavez and the Cl. See Sept. 12, 2014 Tr. at 25:4-16 (Juarez, Bara-hona); id. at 25:17-26:13 (Juarez, Baraho-na, Wang, Court). Barahona also conceded that, although he suspected that the cash discovered at the scene was connected to the drug trade, he did not know for sure. See Sept. 12, 2014 Tr. at 27:1-21 (Juarez, Barahona, Wang, Court). The parties then reiterated the arguments that they made in their briefs, with the United States adding a reference to U.S.S.G. § 3B1.1 cmt. 2, which states that “[a]n upward departure may be warranted in the case of a defendant who did not organize, manage, or supervise another participant, but who nonetheless exercised management responsibility over the property, assets, or activities of [a] criminal organization.” ' Sept. 12, 2014 Tr. at 32:9-14 (Wang). The Court then adjourned the hearing and set a time to reconvene on September 17, 2014. See Sept. 12, 2014 Tr. at 38:18-39:2 (Court). The parties and the Court reconvened on September 17, 2014. See Transcript of Hearing (taken September 17, 2014)(“Sept. 17, 2014 Tr.”). After the parties briefly rehashed the arguments from their briefs, the Court announced that it would convert the cash found at the scene to its drug-weight equivalent using the conversion factor that the USPO supplied and that the United States supported with evidence. See Sept. 17, 2014 Tr. at 5:19-6:4 (Court). The Court further stated that it would apply the cross-reference provision, but would grant Cervantes-Chavez a 2-level downward variance to reflect the range he would receive under the impending Guidelines. See Sept. 17, 2014 Tr. at 6:4 — 8:8 (Court, Juarez, Probation Officer). The Court clarified that Cervantes-Chavez’ final offense level under the current Guidelines is 23, but that it would vary the offense level to 21 to reflect the impending Guidelines. See Sept. 17, 2014 Tr. at 23:21-24:4 (Court). The Court noted that, when combined with his criminal history category of I, this offense level indicates a “working” Guidelines sentencing range of 37-46 months. Sept. 17, 2014 Tr. at 24:2-5 (Court, Probation Officer). The Court ran through the factors in 18 U.S.C. § 3553(a) and concluded that, other than the 2-level downward variance reflecting the impending Guidelines, which was already factored into the “working” Guidelines sentencing range, Cervantes-Chavez’ circumstances did not justify any further variance. See Sept. 17, 2014 Tr. at 24:11-15 (Court). The Court imposed a sentence at the bottom of the varied Guidelines range, 37-months imprisonment, and, after verifying with the USPO that it had discretion to do so, declined to impose an period of supervised release. See Sept. 17, 2014 Tr. at 24:19-25:1 (Court, Probation Officer). LAW REGARDING THE GUIDELINES In United States v. Booker, the Supreme Court severed the mandatory provisions from the Sentencing Reform Act, Pub.L. No. 98-173, 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.” 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 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 ranges 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 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 the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; (2) solely with respect to offenses of a character for which [U.S.S.G.] § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction; (3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and (4) any other information specified in the applicable guideline. U.S.S.G. § 1B1.3(a)(1)-(4). 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.). 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 marihuana and cocaine into the United States, and in a 1991 attempt to import marihuana. 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 marihuana 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 marihuana 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 in the Double Jeopardy Clause of the Fifth Amendment to the Constitution. 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, to have previously considered this question. See United States v. Wittie, 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 United States v. Watts, 519 U.S. at 149, 117 S.Ct. 633. In reaching its result, the Supreme Court noted that its conclusion was in accord with every Court of Appeals other than the United States Court of Appeals for the Ninth Circuit, and that each Court of Appeals allowed sentencing courts to consider conduct for which the defendant had been acquitted, provided that the United States establishes that conduct by a preponderance of the evidence. See United States v. Watts, 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 holdings 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 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 discussing 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 pn 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 was applicable to a charge upon which the defendant was acquitted.” 947 F.2d at 1429. In United States v. Washington, 11 F.3d 1510 (10th Cir.1993), the defendant argued that the United States should prove drug quantities used as relevant conduct to establish a defendant’s offense level by clear- and-convincing evidence rather than by a preponderance of the evidence. See 11 F.3d at 1512. The defendant objected to his sentencing, because the drug quantity that the district court considered as relevant conduct, and which the court found by a preponderance of the evidence, increased his Guidelines sentencing range from 210-262 months to life. The defendant argued '“that because the additional drug quantities effectively resulted in a life sentence a higher standard of proof should be required.” 11 F.3d at 1515. Although the Tenth Circuit in United States v. Washington “recognize[d] the strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof,” it held that “the Due Process Clause does not require sentencing facts in the ordinary case to be proved by more than a preponderance standard.” 11 F.3d at 1516 (citing McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)). LAW REGARDING VARIANCES FROM THE GUIDELINES After United States v. Booker, the sentencing guideline ranges are now advisory and are one of several factors set out in 18 U.S.C. § 3553(a). Although appellate courts are allowed to assume that within-guidelines sentences are reasonable, subject to rebuttal, see Gall v. United States, 552 U.S. at 50-51, 128 S.Ct. 586, the Supreme Court has made it clear that no presumption of reasonableness attaches at the district court level to the Guidelines sentencing ranges, see Gall v. United States, 552 U.S. at 50, 128 S.Ct. 586 (explaining that a sentencing judge “may not presume that the Guidelines range is reasonable”); Rita v. United States, 551 U.S. at 351, 127 S.Ct. 2456 (“In determining the merits of [the parties’] arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”). 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). Section 3553(a) also directs sentencing courts to consider: (i) the nature of the offense and the defendant’s character; (ii) the available sentences; (iii) the sentencing guidelines and policy statements that the Sentencing Commission has promulgated; (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). In Kimbrough v. United States, the Supreme Court stated that, in the ordinary-case, “the Commission’s recommendation of a sentencing range will ‘reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.’ ” 552 U.S. at 89, 128 S.Ct. 558 (quoting Rita v. United States, 551 U.S. at 350, 127 S.Ct. 2456). The Supreme Court recognized, however, that the sentencing judge is “in a superior position to find facts and judge their import under § 3553(a) in each particular case.” 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 so as to be able 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 Jager’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 Jager’s military service was “superior and uniformly outstanding,” as Jager appeared to have been “trustworthy[ ] and dedicated, and he served with distinction.” 2011 WL 831279, at *14. ANALYSIS Cervantes-Chavez has lodged five objections to the PSR, the first three of which the Court will overrule and the last two of which the Court will sustain: (i) that the Court should not apply the cross-reference provision but should instead calculate his offense level fully under the illegal alien-in-possession guideline; (ii) that, even if the Court does cross reference to the drug-possession guideline, it should apply a base offense level of 22, which reflects the 79.38 kilograms of marihuana actually discovered, and not a base offense level of 24, which would reflect the 99.54-kilogram figure that includes the addition of a'drug-weight equivalent of the $19,652.00 in cash discovered at the scene; (iii) that the Court should not apply the 2-level enhancement for possessing a dangerous weapon, presumably because that would constitute double-counting with his crime of conviction; (iv) that the Court should not apply the 2-level enhancement for being an “organizer, leader, manager, or supervisor,” both because it reflects his role in a crime other than his crime of conviction and because he does not satisfy the factual requirements of the standard; and (v) that the Court should depart or vary downward to reflect the more-lenient Guidelines which have been approved but have not yet come into effect. The Court will reject Cervantes-Chavez’ argument on (i) and will cross reference to the drugpos-session guideline. Cross references do not violate a defendant’s Sixth Amendment rights, as the Court has previously explained in United States v. Sangiovanni, No. CR 10-3238 JB, 2014 WL 4347131 (D.N.M. Aug. 29, 2014) (Browning, J.). The Court will likewise reject Cervantes-Chavez’ argument on (ii) and allow the conversion of the money found at the scene to its drug-weight equivalent, as there is sufficient evidence—from the fact that an enormous quantity of money, $19,000, was found, in cash, in a container in the same shed in which the marihuana was stowed— that the money is “attributable to drug sales” as United States v. Rios, 22 F.3d 1024, 1027-28 (10th Cir.1994) (Baldock, J.), requires. The Court will also reject Cervantes-Chavez’ argument on (iii) and allow the 2-level enhancement for possessing a dangerous weapon, even though that enhancement implicates an element of his crime of conviction. The Court concluded that such an enhancement does not constitute double-counting in United States v. Sangiovanni, 2014 WL 4347131, at *4 n. 5. The Court agrees with Cervantes-Chavez’ argument on (iv) and will not apply the 2-level enhancement for aggravating role, because there is insufficient evidence to establish that Cervantes-Chavez was an “organizer, leader, manager, or supervisor of one or more other participants ” as U.S.S.G. § 3B1.1 cmt. 2 (emphasis added) requires. Although the Court can apply a departure — not an enhancement — to a defendant who merely “exercised management responsibility over the property, assets, or activities of a criminal organization,” the case must be outside the heartland to warrant a departure. Merely temporarily holding onto drugs and money— necessary instruments of the drug trade whose handling is by no means limited to organizational higher-ups; — does not establish that this case is outside the heartland. See United States v. Anderson, 189 F.3d 1201, 1212 (10th Cir.1999). There is no evidence here that Cervantes-Chavez organized the activities of other members of a criminal organization, nor that he had anything other than temporary custody of the necessary ingredients of a drug transaction: money and drugs. The Court could, however, apply the role adjustment to Cervantes-Chavez even though the crime of which he was convicted is not the crime that he allegedly organized, led, managed, or supervised, because the commentary to U.S.S.G. § 3B1.1 makes it clear multiple times that all relevant conduct is considered, and does not limit — as some other guidelines do — the Court to facts that “the offense of conviction establishes.” E.g., U.S.S.G. § 2D1.1(a)(1)-(4). Additionally, the nature of criminal organizations is that they rarely violate only one statute of the criminal code. It is not clear how the Court could delineate and enforce a rule that limited role adjustments strictly to organizations based on the crime of conviction and not on other crimes that the defendant committed. Last, regarding Cervantes-Chavez’ argument on (v), the Court is aware of the impending changes to the Guidelines and will grant Cervantes-Chavez a downward variance so that his sentence is equal to that which he would receive under the impending Guidelines. I. THE COURT WILL CROSS REFERENCE FROM THE ILLEGAL ALIEN-IN-POSSESSION GUIDELINE TO THE DRUG-POSSESSION GUIDELINE. The Court will cross reference from the guideline applicable to Cervantes-Chavez’ crime of conviction — possessing a firearm as an illegal alien — to the drug-possession guideline, because: (i) Cervantes-Chavez’ relevant conduct constitutes illegal drug possession with intent to distribute; (ii) that being the case, the Guidelines demand the cross reference; and (iii) cross referencing does not violate Cervantes-Chavez’ Sixth Amendment rights. The Court addressed issues (ii) and (iii) in United States v. Sangiovanni in which the Court held that it would allow a cross reference from U.S.S.G. § 2K2.1— the same guideline applicable to Cervantes-Chavez — to the kidnapping guideline, .U.S.S.G. § 2A4.1. See 2014 WL 4347131, at *22-26. The Court ultimately did not cross reference to the kidnapping guideline, because Sangiovanni’s relevant conduct did not satisfy the definition of kidnapping in either the federal or New Mexico statute, but it made clear that such a cross reference would have been proper if Sangiovanni’s conduct had met the definition of kidnapping. See 2014 WL 4347131, at *26-29. The Court issued United States v. Sangiovanni earlier this year, and no relevant intervening case law has arisen in the meantime. 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 sen-fence, 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 2014 WL 4347131, at *22-26. The Court also explained its decision — which it now repeats in this case — for declining to follow the Tenth Circuit’s unpublished opinion in United States v. Lake, 530 Fed.Appx. 831 (10th Cir.2013) (unpublished). See 2014 WL 4347131, at *24-26. The only remaining question is whether Cervantes-Chavez’ relevant conduct satisfies the drug-possession guideline’s factual requirements, and the Court concludes that it does. The drug-possession guideline applies to those who violate, among other statutes, 21 U.S.C. § 841. Section 841 provides that “it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a). Marihuana is listed as a controlled substance throughout § 841 and the entirety of Title 21. Cervantes-Chavez was discovered unloading 100 pounds of marihuana from a concealed compartment in a truck driven by a Cl who states that the two regularly engage in large-quantity drug transactions. See PSR ¶¶ 13-14, at 4. Cervantes-Chavez had another seventy-five pounds of marihuana hidden in a storage shed, along with $19,000.00 in cash. See PSR ¶ 15, at 4; id. ¶ 18, at 5. Based on this evidence, the Court concludes that Cervantes-Chavez was engaged in violations of § 841; although the Court need only find this violation by a preponderance of the evidence, the facts presented to the Court would establish Cervantes-Chavez’ § 841 violation by greater standards of proof. II. THE COURT WILL CONVERT THE $19,652.00 IN CASH FOUND AT THE SCENE TO ITS DRUG EQUIVALENT FOR THE PURPOSE OF CALCULATING CERVANTES-CHAVEZ’ BASE OFFENSE LEVEL. The Court will convert the $19,652.00 cash found at the scene of the crime to its drugweight equivalent of 25.4 kilograms (fifty-six pounds) of marihuana, because: (i) it is settled law in the Tenth Circuit that drug proceeds can be converted to their drug-weight equivalent; (ii) there is sufficient evidence to conclude that the $19,000.00 found, in cash, in the same shed as seventy-five pounds of marihuana, “is attributablé to drug sales,” United States v. Rios, 22 F.3d at 1028; and (iii) there is sufficient evidence to support the $350.00/lb. conversion factor that the USPO proposes. A district court’s power to convert drug money to its drug-weight equivalent comes from the commentary to the drug-possession guideline: Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate* the quantity of the controlled substance. In making this determination, the court may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. U.S.S.G. § 2D1.1 cmt. 5. The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, clarified that districts judges may convert drug proceeds to drug weight under this provision: While we have never addressed whether sums of cash can be converted to drug equivalents for purposes of sentencing, today we join our sister circuits in holding that they may, so long as the quantities are determined to be relevant quantities under § 1B1.3. See United States v. Jackson, 3 F.3d 506, 511 (1st Cir.1993); United States v. Hicks, 948 F.2d 877, 882 (4th Cir.1991); United States v. Gerante, 891 F.2d 364, 369 (1st Cir.1989). See also United States v. Rivera, 6 F.3d 431, 446 (7th Cir.1993) (conversion of cash permissible with showing by preponderance that cash was proceeds of conspiracy’s drug activity). We find support for this cash-to-drug-quantity conversion in commentary note [5 to] § 2D1.1.... Thus, in a case where cash is seized and where either no drug is seized or the amount seized does not reflect the scale of the offense, the sentencing court may estimate the quantity of drugs with which Defendant was involved by converting cash to its drug equivalent, provided the court finds by a preponderance that the cash is attributable to drug sales which were part of the same course of conduct or common scheme or plan as the conviction count. United States v. Rios, 22 F.3d at 1027-28. See also United States v. Hinson, 585 F.3d 1328, 1341 (10th Cir.2009) (Ebel, J.); United States v. Jarvi, 537 F.3d 1256, 1263 (10th Cir.2008) (McConnell, J.). Judge Baldock’s requirement that the drug sales be part of “the same course of conduct or common scheme or plan as the conviction count” is a recitation of the generic test for what portions of the defendant’s conduct constitute “relevant conduct” to be considered in applying the Guidelines. U.S.S.G. § 1B1.3(a). The Court has already concluded that Cervantes-Chavez’ drug-related conduct is relevant conduct in sentencing Cervantes-Chavez on the gun-possession crime, see supra note 9, at Error! Bookmark not defined., so the only remaining question in determining whether the Court may convert the money into its drug-weight equivalent is whether it is attributable to drug sales. Because $19,652.00 is an enormous amount of money for anyone to have on hand; because Cervantes-Chavez has advanced no alternative, licit reason for . having that much cash, nor can the Court conceive of any such reason; because the cash was discovered in a container in the same shed as seventy-five pounds of marihuana; and because Cervantes-Chavez was actively engaging in a large-quantity drug transaction when he was apprehended, the Court finds that the money is attributable to drug sales. Last, the Court finds that there is sufficient evidence to support the USPO’s $350.00/lb. conversion factor. The Court is entitled to accept facts that the USPO proposes in the PSR when no one objects to them, see United States v. Carrasco-Salazar, 494 F.3d 1270 (10th Cir.2007), and Cervantes-Chavez has not objected to the conversion factor, see supra note 1, at 4. Even putting aside the USPO’s representation, however, the United States has independently adduced evidence in the form of testimony from Barahona — which Cervantes-Chavez has not challenged — supporting the $350.00/lb. conversion factor. See Sept. 12, 2014 Tr. at Sept. 12, 2014 Tr. at 21:14-22:4 (Wang, Barahona). III. THE COURT WILL APPLY THE 2-LEVEL ENHANCEMENT FOR POSSESSING A DANGEROUS WEAPON The Court will apply U.S.S.G. § 2Dl.l(b)(l)’s 2-level enhancement for possessing a dangerous weapon. That Cervantes-Chavez’ conduct satisfies the factual requirements for the enhancement is not in dispute: he pled guilty to a crime that includes, as one of its elements, the possession of a firearm. The only color-able argument Cervantes-Chavez can raise is that, because the facts that trigger the Guidelines enhancement were all necessary to his conviction, using them twice in this fashion constitutes impermissible double-counting. The Court has considered this argument before, in the context of a defendant convicted of possessing a firearm as a felon and facing a cross reference to the kidnapping guideline, which, like the drug-possession guideline, contains a firearm enhancement. The Court notes that enhancing a conviction for being a felon in possession of a firearm with an enhancement for using a “dangerous weapon” — a term that includes all firearms — might constitute impermissible double-counting. E.g., United States v. Pacheco, No. CR 13-2643 JB, 2014 WL 3421063, at *9-14 (D.N.M. July 8, 2014) (Browning, J.). “Double counting occurs when the same conduct on the part of the defendant is used to support separate increases under separate enhancement provisions which necessarily overlap, are indistinct, and serve identical purposes.” United States v. Reyes Pena, 216 F.3d 1204, 1209 (10th Cir.2000) (Kelly, J.). This case does not present the typical double counting scenario, because it involves a necessary element of the statutory offense being used to enhance the Guidelines sentence for that offense. Moreover, such an argument would fail, because the enhancement requires that “a dangerous weapon was used ” in the commission of the kidnapping, U.S.S.G. § 2A4.1(b)(3) (emphasis added), which would seem to encompass a narrower swath of conduct than the statute’s requirement that the defendant “ship or transport ... or possess ... or ... receive any firearm,” 18 U.S.C. § 922(g). Also, even if the enhancement were for mere possession of a firearm, it would probably still not constitute double counting because the provision enhances only the sentences of felons in possession of firearms who also commit kidnapping. Basically, the situation is analytically indistinct from one in which the starting offense level of the kidnapping cross reference is two points higher. United States v. Sangiovanni, 2014 WL 4347131, at *4 n. 5 (emphasis added). The Court stands by this analysis and will add that, although the Tenth Circuit does not appear to have addressed this issue, the United States Courts of Appeals for the Second, Fifth, and Eleventh Circuits have. See United States v. Webb, 665 F.3d 1380 (11th Cir.2012) (per curiam); United States v. Gonzales, 996 F.2d 88, 91-94 (5th Cir.1993) (Garwood, J.) (rejecting both a double-counting and a Double-Jeopardy argument where a district court cross referenced from a conviction for possessing a firearm as a felon to the kidnapping guideline, and applied a 4-level enhancement using or possessing a firearm in connection with the kidnapping); United States v. Patterson, 947 F.2d 635, 638 (2d Cir.1991) (Newman, J.) (“The cross-reference from the gun guideline ultimately to the drug guideline initially directs the sentencing judge to the guideline for conspiracies and attempts, § 2X1.1, which includes any adjustments ‘for any intended offense conduct that can be established with reasonable certainty.’ ... [I]t was correct to add the two-level gun enhancement. ...”). In United States v. Webb — the most recent and most thoroughly reasoned of the three — the defendant was convicted under the same statute as Cervantes-Chavez. The district court cross referenced to the drug-possession guideline and applied the same enhancement— § 2Dl.l(b)(l), possessing a dangero