United States v. Craig Shults, 19-10106

Defendant Craig Shults was convicted under 18 U.S.C. § 115(a)(1)(B) for threatening to assault Judge Andrew Guilford and sentenced to 72 months; he appealed.
The government presented testimony from Valkovich that Shults repeatedly offered to pay him to solicit the murder of Judge Guilford and others.
The prosecution relied on Valkovich’s testimony to show plan, opportunity (funds), and intent to carry out threats; the defense argued Shults was merely bluffing.
The district court admitted the Valkovich testimony under Fed. R. Evid. 404(b) and found its probative value was not substantially outweighed by unfair prejudice under Rule 403.
At sentencing the court applied two Guidelines enhancements: a six-level intent enhancement (U.S.S.G. §2A6.1(b)(1)) and a two-level multiple-threats enhancement (U.S.S.G. §2A6.1(b)(2)(A)); Shults also contended his right of allocution was violated.
On appeal Shults challenged the admission of 404(b) evidence, denial of allocution, and the district court’s use of the preponderance standard for sentencing enhancements.

Issue	Shults' Argument	Government's Argument	Held
Admissibility of Valkovich testimony under Fed. R. Evid. 404(b) and 403	Testimony was unfairly prejudicial and inadmissible to show propensity	Testimony was proper 404(b) evidence showing plan, opportunity, and intent; probative value outweighed prejudice	Affirmed: testimony admissible under 404(b); 403 balance not abused
Right of allocution at sentencing (Fed. R. Crim. P. 32(i)(4)(A)(ii))	Court denied Shults an opportunity to speak to the court	Court afforded the required opportunity; Shults declined to speak	Affirmed: no plain error; Shults declined opportunity or request not shown to be made to the court
Burden of proof for intent enhancement (U.S.S.G. §2A6.1(b)(1))	Clear and convincing evidence required due to due process	Preponderance of the evidence is sufficient because enhancement stems from conduct of conviction	Affirmed: preponderance standard permissible; Valensia factors do not require higher standard
Burden of proof for multiple-threats enhancement (U.S.S.G. §2A6.1(b)(2)(A))	Clear and convincing required because enhancement increases sentence	Preponderance adequate; enhancement had only minimal effect on sentence	Affirmed: preponderance standard not plain error; even if aggregated effect were large, precedent does not clearly require otherwise

United States v. Major, 676 F.3d 803 (9th Cir. 2012) (standard of review for evidentiary rulings)
United States v. Jordan, 256 F.3d 922 (9th Cir. 2001) (standard of review for sentencing allocution and burden issues)
United States v. Mack, 200 F.3d 653 (9th Cir. 2000) (defendant's right to allocute)
United States v. Hymas, 780 F.3d 1285 (9th Cir. 2015) (addressing standard of proof for Guidelines enhancements)
United States v. Valensia, 222 F.3d 1173 (9th Cir. 2000) (factors for assessing need for higher burden of proof)
United States v. Hopper, 177 F.3d 824 (9th Cir. 1999) (assessing proportional effect of enhancements)
United States v. Restrepo, 946 F.2d 654 (9th Cir. 1991) (en banc) (precedent on sentencing enhancement effects)