United States v. Courtney (76 F. Supp. 3d 1267, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant’s Objections to August 28, 2013 Redisclosed Presentence Investigation Report, filed October 2, 2013 (Doc. 151)(“Objections”);. (ii) the Sentencing Memorandum of Keith Michael Courtney, filed October 3, 2013 (Doc. 152)(“Sen-tencing Memo.”); and (iii) the Letter from Keith Michael Courtney to the Court, filed October 9, 2013 (Doc. 156)(“Courtney Letter”). The Court held a hearing on October 9, 2013. The primary issues are: (i) whether Defendant Keith Michael Courtney was an organizer of criminal activity, thus triggering a 2-level increase under U.S.S.G. § 3Bl.l(c); (ii) whether Courtney used a special skill to commit his crimes, thus triggering a 2-level increase under U.S.S.G. § 3B1.3; (iii) whether Courtney used sophisticated means to commit wire fraud, thus triggering a 2-level increase under U.S.S.G. § 2Bl.l(b)(10)(C); (iv) whether Courtney has clearly demonstrated acceptance of responsibility for his offense, thus triggering a 2-level decrease under U.S.S.G. § 3El.l(a); and (v) whether the Court should vary Courtney’s sentence from the Guidelines sentencing range. The Court concludes that Courtney was an organizer of the fraud scheme, that he used sophisticated means to commit wire fraud, and that he has not clearly demonstrated acceptance of responsibility for his offense; the Court cannot properly apply a special-skill enhancement, because such an enhancement cannot be imposed in conjunction with an aggravating role enhancement, which Courtney merits. Courtney’s total offense level is thus 25, and his criminal history category is I, indicating a Guidelines sentencing range of 57-71 months. The Court will vary downward from this range, however, and impose a sentence of 24-months imprisonment; the Court will also impose three years of supervised release. The Court, thus, sustains the Objections in part and overrules them in part, and grants in part and denies in part the relief that the Sentencing Memo, and the Courtney Letter request.

FACTUAL BACKGROUND

From approximately November, 2006, to September, 2007, Courtney and Co-Defendant Jason Johns operated an elaborate scheme to fraudulently obtain money from mortgage lending institutions. See Second Amended Presentence Investigation Report ¶ 32, at 12 (disclosed August 28, 2013)(“PSR”). Courtney was part-owner of construction and mortgage/lending companies, and Johns was one of Courtney’s loan officers. See PSR ¶ 32, at 12. The scheme involved using straw buyers to purchase two houses that Courtney had built and that Courtney’s mother owned; Johns used his knowledge as a loan officer to generate the loan applications, secure no-document loans, obtain the straw buyers’ signatures, and submit the applications to prospective lenders. See PSR ¶ 32, at 12. Courtney used his knowledge as the part-owner of the businesses and made the transactions possible by acting as the real estate broker for the buyers, signing the closing documents on behalf of his mother under a power of attorney. See PSR ¶ 32, at 12. Courtney also promised to pay the mortgages on both homes on behalf of the straw buyers. See PSR ¶ 32, at 12.

Courtney and Johns solicited a total of $1,601,825.80 in fraudulent loans, of which $772,265.17 they never repaid. See PSR ¶ 33, at 12. Courtney appears to have intended to pay off all the loans, but his businesses went south and, on September 11, 2008, Courtney declared Chapter 13 bankruptcy. See PSR ¶ 33, at 12. Courtney recruited others into his scheme— including the straw buyers and his mother — but, other than Johns, their level of knowledge of and culpability for the fraud remains unestablished. See PSR ¶ 33, at 12.

PROCEDURAL BACKGROUND

A jury convicted Courtney of Wire Fraud and Aiding and Abetting under 18 U.S.C. § 1343 and 18 U.S.C. § 2. See Indictment, filed November 9, 2011 (Doc. 2); Verdict, filed March 27, 2013 (Doc. 109). The United States Probation Office (“USPO”) disclosed the PSR on August 28, 2013. The USPO calculates the base offense level to be 7 pursuant to U.S.S.G. § 2B1.1. See PSR 1Í44, at 7. The USPO applies a 14-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(H), because the total loss amount for which Courtney is responsible is $772,265.17. See PSR ¶ 45, at 15. The USPO also applies a 2-level increase pursuant to U.S.S.G. § 2Bl.l(b)(10) for use of sophisticated means, because the case involved an elaborate mortgage-fraud scheme, which, the USPO contends, constitutes the use of sophisticated means. See PSR ¶ 46, at 15. The USPO additionally applies a 2-level increase pursuant to U.S.S.G. § 3B1.1 for his role in the offense, because Courtney was a part-owner of three companies involved in the scheme, because he recruited the straw buyers upon which the scheme depended and acted as their point of contact, and because Courtney’s mother used the loan proceeds to pay off her own mortgage and construction loans. See PSR ¶48, at 15. The USPO last applies a 2-level adjustment for use of a special skill, because Courtney used his knowledge as part-owner of mort-gageAending companies, and because he acted as a real estate broker for the buyers, signing the closing documents on his mother’s behalf under a power of attorney and directing the proceeds. See PSR ¶ 49, at 15. The USPO explicitly recommends that the Court not apply a reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility. See PSR ¶ 53, at 16; Taken together, the PSR calculates Courtney’s total offense level to be 27. See PSR ¶ 54, at 16. The PSR calculates his criminal history to be I, based on a total of zero criminal history points. See PSR ¶ 58, at 16. A total offense level of 27 and criminal-history category of I produces a Guideline imprisonment range of 70-87 months. See PSR ¶ 87, at 23.

In his Objections, Courtney objects to the PSR’s statements that he was a real estate broker for the buyers, arguing that he was a broker only for his mother, the seller. See Objections at 2. Further, Courtney objects to the PSR’s special-skills enhancement, arguing that he did not use any special skills as a real estate broker to significantly facilitate the alleged crimes, and, further, that he cannot receive both the special-skills enhancement and the aggravating role enhancement. See Objections at 3-12. Courtney also objects to the PSR’s application of the sophisticated means enhancement, arguing that mortgage schemes that would justify application of that enhancement are far more complex than those in this case. See Objections at 12-17. In his view, “there must be something more intricate and complex than the mere commission of the crime at issue to warrant the enhancement.” Objections at 13. As an example, Courtney cites United States v. Weiss, 630 F.3d 1263 (10th Cir.2010); in that case, the Tenth Circuit upheld the district court’s application of the sophisticated means enhancement where the defendant had engaged in complex financial calculations and generated multiple false credit letters to fraudulently obtain loans for ineligible buyers under the Fair Housing Act. See United States v. Weiss, 630 F.3d at 1267-68, 1278-79. Citing United States v. Weiss and cases like it, Courtney argues that, because the Tenth Circuit has upheld application of the sophisticated means enhancement to schemes arguably more complex than the ones he used, the Court should not apply the enhancement here; according to him, the allegations here “do not evidence the level of deceit and calculated action that the Tenth Circuit and others have pointed to as sufficient to substantiate the Sophisticated Means enhancement.” Objections at 14-17.

Courtney also objects to the PSR’s application of the aggravating role enhancement. See Objections at 18-22. Courtney first points out that the PSR does not specify which of the four aggravating roles listed in U.S.S.G. § 3B1.1 he played and suggests that that alone should cause the Court to deny the enhancement, citing no authority for that proposition. See Objections at 19. To the substance of the enhancement, Courtney argues that the Tenth Circuit has interpreted “leader” in U.S.S.G. § 3B1.1 to require a degree of control over others. Objections at 18-19. In Courtney’s view, there is no evidence that he exercised the degree of control required, and, further, he points to Johns’ role in “recruiting the borrowers; preparing and submitting loan applications, and closing the loans,” and argues that Courtney’s conduct was less significant than Johns’. Objections at 19-21. Further, Courtney argues that, even assuming the PSR’s characterization of Courtney’s involvement, “[tjhere simply is no evidence that Mr. Courtney did anything extraordinary beyond his actions to ‘facilitate’ the mortgage transactions.” Objections at 22. He submits that, “[cjomparing the evidence regarding John’s actions in the mortgage transactions with the evidence regarding Mr. Courtney’s makes clear that Mr. Courtney did not act as a leader or organizer.” Objections at 22.

The United States responded to each of these arguments. See United States’ Response to Defendant’s Objections to August 28, 2013, Redisclosed Presentence Report (Doc. 151), filed October 8, 2013 (Doc. 154)(“U.S. Response to Objections”). With respect to the sophisticated means enhancement, the United States argues that Courtney, along with Johns, used fraudulent no-documentation loans to mislead mortgage lenders, misrepresenting to them that the straw buyers were buying the houses as primary residences — and that he did this to pay off existing loans in his mother’s name. See U.S. Response to Objections at 5-6. Further, he concealed that he was the true source of the mortgage payments using a wire transfer and a cashier’s check. See U.S. Response to Objections at 6. The United States concedes that, when Courtney became unable to continue paying those payments, he acceded to the- buyers’ request that he draft letters indicating he was responsible for making ' their mortgage payments — but contends that he did so fully aware that those letters would have no legal effect on the straw buyers’ existing obligations, and, further, that the letters also could not help the lenders address the underlying fraud. See Response at 7. Given these allegations, the United States says, the Court should read the cases that Courtney cites in light of an important qualification that permeates Tenth Circuit sophisticated means cases: that the enhancement can apply even if individual steps were unsophisticated, so long as the overall scheme was sophisticated. See U.S. Response to Objections at 7. In the United States’ view,

[Courtney’s] overall scheme involved using [his] companies to obtain appraisals in excess of the underlying construction loans, enlisting straw buyers to sign the loan applications, obtaining no-documentation loans allegedly for the purchase of primary residences, concealing that the associated costs paid to the title companies came from Courtney, all in order to divert the sales proceeds to Courtney’s benefit. Courtney’s subsequent payment of the mortgages extended the concealment of the fraud. These actions are sufficient for the application of the enhancement for use of sophisticated means.

U.S. Response to Objections at 8.

With respect to the aggravating role enhancement, the United States first argues that, as the background to § 3B1.1 says,

[i]n relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3Bl.l(c).

U.S. Response to Objections at 11 (quoting U.S.S.G. § 3B1.1). The United States clarifies that it seeks the enhancement, because Courtney was an organizer, rather than a leader. See U.S. Response to Objections at 11-12. The United States argues that, under Tenth Circuit law, it does not need to prove that Courtney controlled others: “Rather, to qualify as an organizer, a defendant ‘need only devise a criminal scheme providing the wherewithal to accomplish the criminal objective, and coordinate and oversee the implementation of the conspiracy, even though the defendant may not have any hierarchical control over the other participants.’ ” U.S. Response to Objections at 12 (quoting United States v. Wardell, 591 F.3d 1279 (10th Cir.2009) (internal quotation omitted)). Citing the factors listed in U.S.S.G. § 3B1.1 cmt. 4, the United States alleges that Courtney held a fifty-percent ownership interest in all three companies involved, while Johns was. only an employee. See U.S. Response to Objections at 12. Further, the United States contends that, because Courtney’s mother owned the properties sold, he had the authority to sell the houses to the straw buyers. See U.S. Response to Objections at 12. The United States also argues that, because Courtney convinced straw buyers to participate, authorized the sale of the houses, and paid all associated costs, “[t]he transactions could not have occurred without his participation,” and, further, that “Courtney had the largest share of the ‘fruits of the crime.’” U.S. Response to Objections at 12. The United States contends that, contrary to Courtney’s characterization of Johns, “Johns had no authority to proceed on his own,” because “ultimate control and authority over the transactions lay with Courtney.” U.S. Response to Objections at 12. In particular, the United- States notes that Courtney was vital to recruiting the straw buyers, because he “assured the straw buyers that he would make the mortgage payments, which they relied on because they knew Johns had no funds.” U.S. Response to Objections at 13. The United States concedes that Johns signed a promissory note that Courtney did not, but argues that Courtney paid that promissory note and that Johns lacked any funds to pay it. See U.S. Response to Objections at 13. In sum, the United States argues, Courtney is an “organizer” of criminal activity, and thus the Court should enhance his sentence by two levels. U.S. Response to Objections at 13.

With respect to acceptance of responsibility, the United States contends that Courtney bears the burden to prove by a preponderance of the evidence that he is entitled to the acceptance-of-responsibility reduction and that he has not met that burden. See U.S. Response to Objections at 13-15. The United States concedes that, by going to trial, the law does not absolutely bar Courtney from arguing that he accepted responsibility. See U.S. Response to Objections at 13-14. The United States argues, however, that, by denying that he had the intent to defraud, he challenged a necessary, factual element of proof, and that he has not, therefore, clearly demonstrated that he accepts responsibility for his conduct. See U.S. Response to Objections at 14-15. The United States argues that, under the Guidelines, this argument “does not comprise one of the rare situations in which the [acceptance-of-responsibility] reduction may be available” when a defendant goes to trial. U.S. Response to Objections at 15. Therefore, the United States contends, “Courtney simply has not demonstrated any acceptance of guilt or responsibility, and is not eligible for a two-level reduction for acceptance of responsibility.” U.S. Response to Objections at 15. Last, the United States presents argument supporting the special-skills enhancement, but argues that the Court should not apply both the special-skills enhancement and the aggravating role enhancement. See U.S. Response to Objections at 8-11. The Court’s decision, explained below, to apply the aggravating role enhancement renders these arguments moot.

The USPO responded to Courtney’s Objections and the U.S. Response to Objections by conceding that the special-skill enhancement cannot be applied along with the aggravating role enhancement, but otherwise defending the PSR’s conclusions and recommendations. See Addendum to the Second Redisclosed Presentenee Report at 1, disclosed October 7, 2013 (“PSR Addendum”). This amendment results in a total offense level of 25, instead of 27, and thus indicates a Guidelines sentencing range of 57-71 months. The USPO also amends PSR ¶¶ 10, 32, and 49, to reflect that Courtney acted as real estate broker only for his mother. ' See PSR Addendum at 1.

A day after filing the Objections, Courtney filed the Sentencing Memo. While the Objections focus on Guidelines arguments — specifically, arguing against the PSR’s recommendations — the Sentencing Memo, primarily advances extra-Guidelines § 3553(a) arguments. The Sentencing Memo, attaches a number of letters from various individuals attesting to Courtney’s high character. See Letter from Ron Courtney to the Court, filed October 3, 2013 (Doc. 152-2 at l-4)(Courtney’s father); Letter from Wendy Courtney to the Court, filed October 3, 2013 (Doc. 152-2 at 5-6)(Courtney’s mother); Letter from Kena Fedorschak to the Court, filed October 3, 2013 (Doc. 152-2 at 7)(mentee); Letter from Delilah Medina to the Court, filed October 3, 2013 (Doc. 152-2 at 8)(friend); Letter from Robert Messenger to the Court, filed October 3, 2013 (Doc. 152-2 at 9)(fellow volunteer); Letter from Jason Wyrick to the Court, filed October 3, 2013 (Doc. 152-2 at 10)(friend); Letter from Mohammed Islam to the Court, filed October 3, 2013 (Doc. 152-3 at l)(friend and colleague); Letter from Phyllis Seamster to the Court, filed October 3, 2013 (Doc. 152-3 at 2)(friend); Letter from Kelly Ryan to the Court, filed October 3, 2013 (Doc. 152-3 at 3-4)(col-league); Letter from Kimberly Jendrick to the Court, filed October 3, 2013 (Doc. 152-3 at 5-6)(friend); Letter from John Barron to the Court, filed October 3, 2013 (Doc. 152-3 at 7-8)(friend and colleague); Letter from Sean McQueeney to the Court, filed October 3, 2013 (Doc. 152-3 at 9); Letter from Carlos Alvarez to the Court, filed October 3, 2013 (Doc. 152-4 at l)(friend); Letter from Daniel Hill to the Court, filed October 3, 2013 (Doc. 152-4 at 2-3)(friend and mentee); Letter from Gia Venturi to the Court, filed October 3, 2013 (Doc. 152-4 at 4)(former employee); Letter from Ella Fenoglio to the Court, filed October 3, 2013 (Doc. 152-4 at 5-6)(family friend); Letter from Phillip Rand to the Court, filed October 3, 2013 (Doc. 152-4 at 7-8)(colleague); Letter from Janis Bookout to the Court, filed October 3, 2013 (Doc. 152^4 at 9)(colleague); Letter from John Mihelic to the Court, filed October 3, 2013 (Doc. 152-5 at l)(colleague); Letter from Kevin Lambe to the Court, filed October 3, 2013 (Doc. 152-5 at 2)(professional contact); Letter from Mattie Morris to the Court, filed October 3, 2013 (Doc. 152-5 at 3)(colleague); Letter from Sarah Marshall to the Court, filed October 3, 2013 (Doc. 152-5 at 4-6)(friend and colleague); Letter from Gina DuVall to the Court, filed October 3, 2013 (Doc. 152-5. at 7-8)(fellow volunteer); Letter from Toni Allen to the Court, filed October 3, 2013 (Doc. 152-5 at 9-ll)(girlfriend). The Sentencing Memo, elaborates upon many of the same things upon which the attached letters touch, including Courtney’s work with Landmark Worldwide. See Sentencing Memo, at 12-16. Landmark Worldwide is an apparently much-lauded group that “offers seminars and courses aimed at helping individuals with personal and professional growth, training and development ... [for] more than 2.2 million people ... [while operating from] 115 locations across more than 20 countries.” Sentencing Memo, at 13-14. The Sentencing Memo, also summarizes the content of the various attached letters. See Sentencing Memo, at 16-34.

In addition to its general assertion that Courtney’s exemplary character merits consideration under § 3553(a), the Sentencing Memo, advances three more specific arguments that thé Court should vary on the basis of Courtney’s character. See Sentencing Memo, at 35-36. First, Courtney argues that this.crime was first-time, atypical conduct, and that, “[w]hile repetitious or planned behavior does not qualify for an aberrant conduct downward departure under the Guidelines regime, the Court is free to reject this Guidelines restriction and consider the atypical nature of Mike’s conduct when deciding whether to downwardly vary.” Sentencing Memo, at 35. Second, Courtney argues that the Court should vary downward on the grounds of the strong support he provides to both his family and his community; essentially, Courtney argues that society— and Courtney’s family in particular — benefits from Courtney being out of prison. See Sentencing Memo, at 35-36. Third, Courtney contends that his strong employment history militates against imposing a prison sentence, asserting . that other courts have varied downward on this basis. See Sentencing Memo, at 36 (citing United States v. Ruff, 535 F.3d 999, 1001 (9th Cir.2008)).

Courtney also attaches a table of cases in which district courts have imposed sentences significantly below the Guidelines range on defendants convicted of fraud. See Sentencing Memo, at 48-52. Courtney argues that these sentences are relevant in this case primarily under 18 U.S.C. § 3553(a)(6), which directs courts to consider the “ ‘need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’ ” Sentencing Memo, at 41. Courtney also argues that the. United States Sentencing Commission erred by dramatically increasing sentences for fraud when the fraud involves a large amount of money. See Sentencing Memo, at 53-58. Courtney’s argument on this front is twofold: (i) he asserts that increases in sentence severity do little, if anything, to deter future criminality, see Sentencing Memo, at 53-55 (citing, e.g., David Weisburd et al., Specific Deterrence in a Sample of Offenders Convicted of White Collar Crimes, 33 Criminology 587 (1995)); and (ii) he argues that “the large number of specific offense characteristics under § 2B1.1 are cumulative and fail to accurately reflect the seriousness of the offense,” i.e., that the increasing number of aggravating factors — from six in the original Guidelines to “nearly thirty” today- — • represents a “ ‘factor creep’ ” wherein the factors overlap to such an extent that they no longer produce just, consistent sentences, but, rather, pile on excessive additional offense levels for no other reason than that the factors, each viewed in isolation, seem like they represent sinister conduct, see Sentencing Memo, at 56, 55-58. Last, Courtney argues that his victims deserve restitution, and that, the sooner he is released from prison, the sooner he can earn money to pay restitution. See Sentencing Memo, at 58 (citing 18 U.S.C. § 3553(a)(7)). The Sentencing Memo, also attached a report from the National Center on Institutions and Alternatives, Inc. (“NCIA”), which analyzes Courtney’s offense against the NCIA’s database of prior crimes and sentencing outcomes. Federal Sentencing Statistical Analysis Report, filed October 3, 2013 (Docs. 152-8 & 152-9) (“NCIA Report”). The NCIA Report indicates that the average defendant sentenced under 18 U.S.C. § 1343 in the Tenth Circuit, in Courtney’s “loss amount” category — $400,000.00 to $1,000,000.00 — is sentenced to 24.4-months imprisonment, see NCIA Report at 6 n. 2, or 26.1-months imprisonment, if probation-only sentences are excluded, see NCI A Report at 6.

The United States responded to the Sentencing Memo, separately from its response to the Objections. See United States’ Response to Sentencing Memorandum of Keith Michael Courtney (Doc. 152) at ' 1-6, filed October 8, 2013 (Doc. 155)(“U.S. Response to Memo.”). The United States clarifies that it opposes a probation-only sentence, see U.S. Response to Memo, at 1, and attempts to rebut several of the mitigating factors that the Sentencing Memo, raises, see U.S. Response to Memo, at 2-6. First, however, they argue that the Court should not view Courtney’s mortgage payments on behalf of the straw buyers, and his subsequent letter to the lenders when he was no longer able to make payments, as acceptance of responsibility for Guidelines purposes. See U.S. Response to Memo, at 3. The United States says that these actions were “the only way he could delay detection of the fraud.” U.S. Response to Memo, at 3. The United States next acknowledges the ream of letters written on Courtney’s behalf and attached to the Sentencing Memo., but asks the Court to remember the victims:

Without taking anything away from what these persons say the Defendant has done for them, it should be noted he did not show the same care or concern for the straw buyers. His motive in engaging in the fraudulent transactions was to sell two houses and raise money for his own uses, and certainly not to help them. More importantly, there are no letters from any persons whom he or his three companies represented in real estate transactions, or from whom he borrowed over $700,000.00 to invest in the Vista Studios venture. None of those persons, whom he listed as creditors in his bankruptcy petition, recovered the monies they loaned him.

U.S. Response to Memo, at 4. The United States also attempts to distinguish this case from the many that Courtney cites in which the sentencing courts imposed a sentence well below the Guidelines range. See U.S. Response to Memo, at 4. According to the United States, “in each of these cases, the defendants had pleaded guilty.” U.S. Response to Memo, at 4. Last, the United States contends that the amount of the loss in this case is so great that a probation-only sentence could never satisfy the § 3553(a) considerations. See U.S. Response to Memo, at 5.

On the day of the sentencing hearing, Courtney sent the Court a letter explaining his actions. See Courtney Letter at 1-2. Courtney states that, although he exercised his right to a jury trial and wishes to preserve his appellate rights, he is deeply sorry for the economic harm he has inflicted upon the victims in this case. See Courtney Letter at 1. He expresses a desire to pay them back in full at the earliest possible opportunity and relates to the Court how he feels he went down the path that led him to commit these crimes. See Courtney Letter at 1-2. Essentially, he tells the Court that he got caught up in a successful, “win-win” pattern of real estate investments that, before his downfall, made both Courtney and those with whom he associated very wealthy. See Courtney Letter at 1-2. He expresses gratitude for his loving and supportive family, and asks the Court for a sentence of probation, so that he “can continue to contribute to [his] community and begin paying for the losses in this case.” Courtney Letter at 2. He states that his mother is retired and that his sister is stricken with mental illness, and that he is worried about their ability to cope with him receiving a prison term. See Courtney Letter at 2.

At the sentencing hearing, the parties began by arguing the sophisticated means enhancement. See Transcript of Hearing at 6:18-25:13 (taken October 9, 2013)(“Tr.”) (Wisenberg, Court, Higgins). Courtney summarized the arguments in his briefing, stating essentially that, if this case’s facts triggered the sophisticated means enhancement, it would be hard to imagine a case that does not merit the enhancement. See Tr. at 6:18-10:13 (Wisenberg). In particular, Courtney argues that, because the fraud was committed by way of only two transactions — the two mortgage agreements— there is nothing sophisticated about the crime. See Tr. at 7:4-21 (Wisenberg). The United States, on the other hand, asserts that it has cited numerous cases in which the sophisticated means enhancement was applied and in which there were only a few transactions in the fraud; the United States says that the number of transactions in a fraudulent scheme is a poor proxy for the scheme’s sophistication. See Tr. at 10:21-11:5 (Higgins, Court). It argues that “the sophisticated means enhancement will apply if the overall scheme was sophisticated, even if the individual acts did not appear to be.” Tr. at 11:7-9 (Higgins). The United States says that the mortgages in question were not made hastily, but, rather with great deliberation; it notes Courtney’s use of straw buyers and his payment by way of cashier’s checks. See Tr. at 11:17-13:2 (Higgins). Last, the United States pointed out that the letter that Courtney wrote promising to pay the straw buyers’ mortgage payments “did not in any way have him admitting to any kind of criminal liability ... [and] also had no legal effect whatever.” Tr. at 13:23-14:1 (Higgins). The Court stated that it had reviewed the law regarding the sophisticated means enhancement, and that it was inclined to agree with the United States and apply the enhancement. See Tr. at 19:4-25:13 (Court).

The parties next discussed the aggravating role enhancement. See Tr. at 25:18-46:17 (Court, Higgins, Wisenberg). Courtney argued that the trial “testimony is overwhelming that Jason Johns had the primary leadership role.” Tr. at 25:21-22 (Wisenberg). He asserted that Johns was the one who approached Rhonda Smith, one of the straw buyers, to recruit her as an unwitting participant and that Johns had signed both loan applications. See Tr. at 25:22-26:11 (Wisenberg). He states that Johns had testified at trial that Courtney was “not on the real estate side” and “not involved in any finances.” Tr. at 27:12-15 (Wisenberg). Courtney further asserts that Johns put roughly $100,000.00 of his in-laws’ money into the scheme and that Johns was an investor in the company himself. See Tr. at 27:16-28:4 (Wisen-berg). Last, Courtney noted that the original PSR had not assigned Courtney any role adjustment. See Tr. at 36:16-37:8 (Wisenberg). The Court checked with the USPO about that omission, which had been rectified before the issuance of the amended PSR even without the United States objecting, and the USPO stated that it had been an oversight stemming from an early misreading of the facts in the .case. See Tr. at 38:4-17 (Probation Officer). The USPO also stated that it was not recommending that the Court give Johns a role adjustment, either aggravating or mitigating, at his sentencing. See Tr. at 38:14-22 (Probation Officer, Court).

The United States rebutted Courtney’s arguments with three of its own. First, it said, “Johns had no ownership interest” in the business; he was an independent contractor, and he “worked under.Mr. Courtney.” Tr. at 32:15-19 (Higgins). Second, the United States stated that Courtney was “the de facto manager of Black Diamond,” and that Courtney was the one responsible for building the houses and obtaining the construction loans. Tr. at 32:2-33:6 (Higgins). Third, the United States argued that the most important factor was that Johns did everything he did “on behalf of Mr. Courtney” — “Johns didn’t own these houses,” nor did he “have the authority or the permission ... to sell the houses. Only Mr. Courtney did.” Tr. at 33:7-14 (Higgins). The United States conceded that Johns did much of the “scut work,” but that this fact has no bearing on the determination that Courtney is the leader of the two men. Tr. at 34:1-2 (Higgins). Last, the United States notes that Johns never had possession of any funds, and that all loans and sales proceeds went into Courtney’s bank accounts. See Tr. at 34:13-22 (Higgins). The United States concluded that Johns was “more of a messenger boy for Mr. Courtney” and that, while the crime could have been committed without Johns, “none of this would work unless Mr. Courtney was completely involved.” Tr. at 35:10-24 (Higgins).

The Court stated that it was inclined to apply the aggravating role enhancement under U.S.S.G. § 3Bl.l(c), noting that the enhancement is appropriate when the defendant “leads or organizes even one participant.” Tr. at 43:14 (Court). The Court noted that “no control is necessary” to qualify for the enhancement under subsection (c), and that devising the scheme, alone, even without hierarchal control, is sufficient to warrant the enhancement. Tr. at 44:6-19 (Court). The Court stated that, by devising the scheme and acting as the straw buyers’ point of contact, Courtney exercised decision-making authority and participated in planning and organizing the offense. See Tr. at 44:20-45:12 (Court).

The Court next quickly disposed of the special-skills enhancement, with the United States agreeing that it cannot be imposed on top of an aggravating role enhancement. See Tr. at 46:1118 (Court, Higgins). ' The parties next addressed the acceptance-of-responsibility reduction, with the parties standing by their briefing on the issue. See Tr. at 47:23-52:4 (Court, Higgins, Wisenberg). The Court stated that it would not apply the reduction, noting that Courtney had not acknowledged the criminality of his actions and that “acceptance of responsibility adjustments after trial are very rare.” Tr. at 49:22-24 (Court).

The Court confirmed with the parties that, given its inclinations on the objections, Courtney’s Guidelines offense level is 25, see Tr. at 64:12-18 (Court, Wisen-berg), and then addressed Courtney’s arguments for a variance, see Tr. at 64:19-107:6 (Court, Wisenberg, Higgins). Courtney indicated an intent to stand on his briefing, and the Court asked a few questions about the NCIA Report that Courtney was largely unable to answer. See Tr. at 65:2-67:21 (Court, Wisenberg). Courtney clarified, however, the difference between the two reports, which is that the second report included defendants who received § 5K1.1 departures for substantially assisting the United States. See Tr. at 65:15-24 (Court, Wisenberg). Courtney also talked about how he had been brought up in an “anything goes” real-estate environment, Tr. at 69:6 (Wisenberg), how he was remorseful for his actions, how these actions were atypical of Courtney’s character, and how — although he may be undeserving of an acceptance-of-responsibility reduction — he took mitigating actions to avoid more harm being done to the victims, see Tr. at 68:16-71:6 (Wisenberg).

Courtney personally addressed the Court and expressed contrition before the imposition of sentence. See Tr. at 75:6-79:7 (Courtney, Court). The Court asked Courtney about Landmark Worldwide, and Courtney described it as follows:

[T]hey’re a company that has offices around the world, and they provide courses and coaching for people, whether they’re personal or professional, to fulfill in what matters to them, what’s important to them in life. And I volunteered for them, as you’ve read, for a while. And then I worked for them, and then I continue to volunteer for .them. There are two different aspects, .And then after the indictment, the indictment, I left a salaried position to volunteer. So there is a large body of people who do volunteer for the company, supporting the mission and the reason for their existence. And—

THE COURT: What is its mission?

THE DEFENDANT: Its mission is to empower and enable people in fulfilling what matters to them, what’s important to them, and in the process, leave them with more power, freedom, self-expression, peace of mind. And I’ve taken that on as my own mission as well. And I’ve found many of those people are honestly very close to me, whether I’ve had one conversation with them or many. And I would have had many more people write letters except for confidentiality of their participants in some form or fashion.

But Landmark is one way I found that I can get back into the community. It started when I was very young, when I first took one of their programs, and I didn’t actually realize then, it was later that I realized the difference of having power in life in whatever I deal with. And I’m very grateful for the training I’ve received from them in dealing with this matter, as I’m able to, you know, bring courage and strength to what I’m dealing with, and honor my word.

Those are some — I mentioned integrity and honor in my word, because that’s one of the key principles we operate, with.

Tr. at 77:21-79:7 (Courtney, Court).

The Court outlined a number of factors that apply downward and upward pressure on the sentence, which it will explain in greater detail below. See Tr. at 94:18-105:6 (Court). The Court decided to vary Courtney’s sentence downward by eight offense levels, to a working offense level of 17, which indicates a sentencing range of 24-30 months. See Tr. at 104:25-105:4 (Court). The Court imposed a sentence of 24-months imprisonment and three-years supervised release — on both counts, with both to run concurrently — with the following mandatory and special conditions:

The defendant shall not possess a firearm, ammunition, destructive device, or any dangerous weapon.

The defendant shall cooperate in the collection of DNA, as directed by statute.

The defendant must submit to a search of his pérson, property, or automobile under his control, to be conducted in a reasonable manner, reasonable time, for the purposes of detecting any evidence of fraudulent conduct or illegal contraband, at the direction of the probation officer. He must inform any residents that the premises may be subject to a search. This special condition is imposed to help the probation office monitor the defendant’s compliance on supervision.

The defendant will be prohibited from incurring new credit charges, opening additional lines of credit, or negotiating or consummating any’financial contracts without prior approval of the probation officer. This condition is imposed based on the large amount of restitution that is owed in this case.

The defendant must provide the probation officer access to any requested financial information, personal income tax returns, authorization for release of credit information, and other business financial information in which the defendant has a control or interest. This condition is imposed based on the large amount of restitution that is owed in this case.

The defendant shall have no contact with the co-defendant in this case. And this condition is imposed based upon this federal offense which involved the co-defendant, Jason Johns.

Finally, the defendant is restricted from engaging in an occupation where he engages or has access to real estate transactions involving mortgage loan processing or lending services without prior approval of the probation officer. This condition is imposed based upon this federal offense which involved the defendant using his skills and knowledge as a real estate broker to secure fraudulent mortgage loans.

Pursuant to the Mandatory Victim Restitution Act, it is further ordered that the defendant will make restitution to Aurora Bank FSB, in the amount of $493,230.88. The restitution will be paid in monthly installments of 15 percent of the defendant’s gross monthly income, or 150, whichever is greater. Restitution amount shall be paid jointly and severally with co-defendant Jason Johns, and shall be sent to Aurora FSB, Care of Helen M. Vicente, Vice President, 10350 Park Meadows Drive, Littleton, Colorado, 80124. Re: line should be “Keith Michael Courtney Matter.”

Based on the defendant’s lack of financial resources, the Court will not impose a fine. Defendant shall pay a special assessment of $100 as to each count of conviction, for a total of $300, which is due immediately.

Tr. at 107:13-109:24 (Court). The parties did not object to the mandatory or special conditions. See Tr. ' at 109:25-110:14 (Court, Higgins, Wisénberg).

LAW REGARDING THE GUIDELINES

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court of the United States severed the mandatory provisions from the Sentencing Reform Act, Pub.L. No. 98-473, 98 Stat.1976, thus making Guidelines sentencing ranges effectively advisory. In excising the two sections, the Supreme Court left the remainder of the Act intact, including 18 U.S.C. § 3553: “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543 U.S. at 261, 125 S.Ct. 738.

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

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

(B) to afford adequate deterrence to criminal conduct;

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

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

18 U.S.C. § 3553(a)(2)(A)-(D).

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

18 U.S.C. § 3551. To achieve these purposes, 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. Apodacca-Leyva, No. CR 07-1479 JB, 2008 WL 2229550, at *6 (D.N.M. Feb. 13, 2008) (Browning, J.).

LAW REGARDING RELEVANT COND UCT 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 IB 1.3 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.). 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 fedéral grand jury indicted the defendant for con: spiring 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 offehses, because the district court had considered those offenses relevant conduct at the sentencing for the 1991 marijuana offense. See 515 U.S. at 395, 115 S.Ct. 2199. The district court agreed and dismissed the indictment, holding that punishment for the cocaine offenses would violate the prohibition against multiple punishments, which the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States provides. See 515 U.S. at 395, 115 S.Ct. 2199. The United States Court of Appeals for the Fifth Circuit reversed the district court and held that “the use of relevant conduct to increase the punishment of a charged offense does not punish the offender for the relevant conduct.” United States v. Wittie, 25 F.3d 250, 258 (5th Cir.1994). In reaching this holding, the Fifth Circuit acknowledged that its conclusion was contrary to other United States Courts of Appeals, including the Tenth Circuit, that had previously considered this question. See 25 F.3d at 255 n. 19 (citing United States v. Koonce, 945 F.2d 1145 (10th Cir.1991)).

The Supreme Court granted certiorari to resolve the conflict between the circuits and affirmed the Fifth Circuit. See 515 U.S. at 395, 115 S.Ct. 2199. In finding that the district court’s consideration of the defendant’s relevant conduct did not punish the defendant for that conduct, the Supreme Court concluded that “consideration of information about the defendant’s character and conduct at sentencing does not result in ‘punishment’ for any offense other than the one of which the defendant was convicted.” 515 U.S. at 401, 115 S.Ct. 2199. The Supreme Court reasoned that sentencing courts had always considered relevant conduct and “the fact that the sentencing process has become more transparent under the Guidelines ... does not mean that the defendant is now being punished for uncharged relevant conduct as though it were a distinct criminal offense.” 515 U.S. at 402, 115 S.Ct. 2199. Sentencing enhancements do not punish a defendant for uncharged offenses; rather, they reflect Congress’ policy judgment “that a particular offense should receive a more serious sentence within the authorized range if it was either accompanied by or preceded by additional criminal activity.” 515 U.S: at 403, 115 S.Ct. 2199.

In United States v. Watts, the Supreme Court, in a per curiam opinion, relied upon Witte v. United States’ holding and upheld, against a double-jeopardy challenge, a sentencing judge’s use of conduct for which the defendant had been acquitted. In reaching its result in United States v. Watts, the Supreme Court noted that its conclusion was in accord with every United States Court of Appeals' — other than the United States Court of Appeals for the Ninth Circuit — and that each had previously held that a sentencing court may consider conduct for which the defendant had been acquitted, if the government establishes that conduct by a preponderance of the evidence. See 519 U.S. at 149, 117 S.Ct. 633 (citing, e.g., United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir.1991)). The Supreme Court began its analysis in United States v. Watts with 18 U.S.C. § 3661: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. See United States v. Watts, 519 U.S. at 151, 117 S.Ct. 633. According to the Supreme Court, 18 U.S.C. ■§ 3661 embodies the codification of “the longstanding principle that sentencing courts have broad discretion to consider various kinds of information” and that “the Guidelines did not alter this aspect of the sentencing court’s discretion.” United States v. Watts, 519 U.S. at 151-52, 117 S.Ct. 633.

Tenth Circuit case law adheres closely to the Supreme Court’s results in Witte v. United States and United States v. Watts. See United States v. Andrews, 447 F.3d 806, 810 (10th Cir.2006) (applying Witte v. United States’ holding to affirm that a career offender enhancement does not violate the Double Jeopardy Clause of the Fifth Amendment). In United States v. Banda, 168 Fed.Appx. 284 (10th Cir.2006) (unpublished), the Tenth Circuit rejected a defendant’s argument that it was “structural error” for a district court to find sentencing factors “by a preponderance of the evidence rather than the jury applying a beyond-a-reasonable-doubt standard.” 168 Fed.Appx. at 290. The Tenth Circuit explained that “ ‘[i]t is now universally accepted that judge-found facts by 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) individuals at the arrest scene handled the weapons at will; (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, Patrick Washington, argued that the United States should prove drug quantities used as relevant conduct to establish a defendant’s offense level by clear-and-eonvinc-ing 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. See 11 F.3d at 1515. 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 “reeognize[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)). See United States v. Sangiovanni, No. CR 10-3239 JB, 2014 WL 4347131, at *22-26 (D.N.M. Aug. 29, 2014) (Browning, J.)(ruling that a sentencing court can cross reference from the guidelines that corresponds to the defendant’s crime of conviction to the guidelines for another, more harshly punished crime, if it can be established by a preponderance of the evidence that the defendant committed the more serious crime); United States v. Cervantes-Chavez, 59 F.Supp.3d 1295, 1314-15, No. CR 140259, 2014 WL 6065657, at *14-15 (D.N.M. Nov. 3, 2014) (Browning, J.)(cross referencing from the guidelin’e for being an illegal alien in possession of a firearm to the drug-possession guideline after finding by a preponderance of the evidence that the defendant committed a drug-possession crime).

LAW REGARDING U.S.S.G. § 3B1.1’S AGGRAVATING ROLE ENHANCEMENTS

Section 3B1.1 of the Sentencing Guidelines provides for enhancements to a defendant’s offense level based on a defendant having played an aggravating role in the offense. Section 3B1.1 of the Guidelines provides:

Based on the defendant’s role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

U.S.S.G. § 3B1.1. “A ‘participant’ is a person who is criminally responsible for the commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1 cmt. 1.

.Among the factors a sentencing court should consider when weighing an aggravating role enhancement are:

[T]he exercise of decision ma