In this direct appeal, Defendant-Appellant Michael Fleming challenges his conviction and sentence. Mr. Fleming argues that the prosecutor made improper statements during closing arguments at trial and thereby violated his right to a fair trial. He also argues that the district court erred by applying a two-level enhancement to his offense level for obstruction of justice under section 3C1.1 of the Sentencing Guidelines. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Mr. Fleming’s conviction and sentence.
I. BACKGROUND
A. The Charge
On May 20, 2010, the grand jury for the District of Wyoming indicted Mr. Fleming on one count of conspiracy to possess with *1101 intent to distribute, and to distribute, 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 21 U.S.C. § 846. Mr. Fleming pled not guilty and requested a jury trial.
On September 21, 2010, the grand jury returned a superseding indictment charging Mr. Fleming with one count of conspiracy to possess with intent to distribute, and to distribute, 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C. § 846.
B. The Telephone Calls
While he awaited his trial, Mr. Fleming was detained in the County Detention Center in Scotts Bluff, Nebraska. Sometime during his detainment, Mr. Fleming learned the names of several witnesses who planned to testify against him at his trial.
On August 29, 2010, Mr. Fleming called a woman named Michelle using a jail telephone. He asked Michelle to tell “Fish” with the “Sons” that the witnesses who planned to testify against him (Mr. Fleming) were also “snitching” about drug sales by “Fish.” Aple. Br., at 22-23. 1 Mr. Fleming repeated the names of the witnesses twice so that Michelle could write them down. He also told Michelle the names of the correctional facilities where he believed the witnesses were incarcerated.
On September 1, 2010, Mr. Fleming again called Michelle using a jail telephone and asked her to warn “Fish” about the witnesses. He stated: “I’m up here in Scotts Bluff, you know, I’m just trying to warn him. You know, warn Fish that, you know, these [people] are using his name and trying to, you know rat him out and get less time.” Id. at 23. Michelle assured Mr. Fleming that she would contact “Fish” and get him the information.
During the same telephone conversation, Mr. Fleming also told Michelle that a woman named Cathy Scott had been subpoenaed to testify at his trial. He then stated:
[T]ell her not to be talking to anybody about this shit.... I’m afraid that they might use her, try to use her against me, or threaten her with a, putting a case on her, to testify against me, ’cause these are some dirty people man. DEA is. And DEA has been the ones that been talking to her. Tell her ... they’re ... devious as hell.
Id. Mr. Fleming also stated that he could not call Ms. Scott because the jail had blocked him from calling her telephone number. Michelle told Mr. Fleming that she would deliver the message to Ms. Scott.
C. The Trial
During Mr. Fleming’s jury trial, the Government stipulated that no drugs had been seized from Mr. Fleming’s person or residence. The Government therefore focused its case on showing that Mr. Fleming had acted as a middleman between Wyoming methamphetamine distributors and Colorado methamphetamine suppliers from June 2009 to March 2010. To do so, the Government presented testimony from several methamphetamine users and distributors from Wyoming and Colorado. Several of the Government’s witnesses were co-conspirators of Mr. Fleming and *1102 testified against Mr. Fleming pursuant to plea agreements.
The witnesses testified that on several occasions: (1) drug distributors in Wyoming pooled their money to purchase methamphetamine, (2) the distributors met Mr. Fleming at the hotel where he lived in Colorado, (3) the distributors transported Mr. Fleming to meet with someone who could supply large quantities of methamphetamine, (4) Mr. Fleming purchased methamphetamine from his source using the distributors’ money, (5) Mr. Fleming gave the methamphetamine to the distributors, and (6) the distributors gave Mr. Fleming a portion of their purchase for his services.
The defense focused its case on the lack of drugs seized from Mr. Fleming and the credibility of the Government’s witnesses. During closing argument, Mr. Fleming’s attorney began by pointing out that no controlled substances or drug paraphernalia had been seized from Mr. Fleming or from any of his residences. Defense counsel then stated: “So who did [the prosecutor] call [to testify]?” ROA, at 578. Counsel then recited the criminal record of each Government witness.
During his rebuttal closing argument, the prosecutor responded to defense counsel’s comments concerning the witnesses. In relevant part, the prosecutor stated:
I wish that priests and nuns attended drug deals. I wish they came along when drug dealers got together to decide that they were going to bring methamphetamine from Denver to Cheyenne to pollute this community with methamphetamine’s poison and take money back to Denver so they don’t have to do real jobs.
The ... felony convictions that [defense counsel] read to you, you already heard them from the witnesses at the very beginning of their testimony. They are who they are.... They are the best witnesses to talk about drug conspiracies because they are the only people who live it and really know it. And in this case they were the only people who were there, the only people other than [Mr. Fleming]. It’s ironic to read Cathy Scott’s felonies when they’ve been friends for 30 years.
Id. at 583. Mr. Fleming did not object to these statements.
The jury convicted Mr. Fleming of conspiracy to possess with intent to distribute, and to distribute, 500 grams or more of methamphetamine.
D. The Sentence
The United States Probation Office’s presentence report recommended a two-level enhancement on Mr. Fleming’s offense level for obstruction of justice under section 3C1.1 of the Sentencing Guidelines. Section 3C1.1 provides that a defendant’s offense level be increased by two levels for obstruction of justice if:
1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and
2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense....
During Mr. Fleming’s sentencing hearing, the Government presented complete transcripts of Mr. Fleming’s telephone conversations to support the two-level enhancement for obstruction of justice. It also presented testimony from Special Agent Jeffrey Smith of the Wyoming Division of Criminal Investigation. Special Agent Smith testified that the person Mr. Fleming referred to as “Fish” during his *1103 conversation with Michelle was a known member of the Sons of Silence motorcycle gang, which is known to have members and associates in prisons.
Mr. Fleming objected to the two-level enhancement for obstruction of justice. The district court rejected his arguments and concluded that his conduct had “a tendency to obstruct justice and certainly created risks to the witnesses and concerns on their part.” ROA, at 615. The district court therefore applied a two-level enhancement to Mr. Fleming’s offense level. The court sentenced Mr. Fleming to 240 months of imprisonment and five years of supervised release.
Mr. Fleming now appeals his conviction and sentence.
II. DISCUSSION
On appeal, Mr. Fleming argues that the prosecutor’s statements during closing argument substantially prejudiced the verdict and violated his right to a fair trial. He also argues that the district court erred in applying a two-level enhancement to his offense level for obstruction of justice.
A. Prosecutorial Misconduct
Mr. Fleming argues that the prosecutor’s statements during his rebuttal closing argument constituted prosecutorial misconduct and deprived him of his right to a fair trial. Because defense counsel did not object to the prosecutor’s statements at trial, we review this issue for plain error.
See United States v. Taylor,
We analyze whether a statement constitutes prosecutorial misconduct using a two-step process.
See United States v. Rogers,
The Government generally bears the burden of proving that an improper statement is harmless beyond a reasonable doubt.
See Rogers,
*1104 Mr. Fleming claims the prosecutor’s statements were improper in two ways. First, he contends the statements were “intended to inflame the jurors’ passions and sympathies to obtain a guilty verdict to protect the community from the scourge of drugs.” Aplt. Opening Br., at 26. Second, he argues the statements appealed “for a guilty verdict based on [his] ‘guilt by association.’” Id. We conclude that Mr. Fleming has failed to demonstrate that the prosecutor’s statements resulted in plain error.
1. Protection of the Community
“Prosecutors are not permitted to incite the passions of a jury by suggesting they ... act as the ‘community conscience’ to society’s problems.”
Rogers,
During his closing argument, Mr. Fleming’s attorney challenged the credibility of the prosecution’s witnesses. He stated: “who did [the prosecution] call? ... I am going to remind you of their records.” ROA, at 569. He then recited the criminal record of each Government witness.
In rebuttal closing argument, the prosecutor stated:
I wish that priests and nuns attended drug deals. I wish they came along when drug dealers got together to decide that they were going to bring methamphetamine from Denver to Cheyenne to pollute this community with methamphetamine’s poison and take money back to Denver so they don’t have to do real jobs. I wish folks who dealt drugs decided that [Agent] Smith could go with them on each of their trips. I wish it were safe to let men like [Agent] Smith and women who do the same job to go undercover for years at a time so that I could bring you perfect people to tell you what a drug conspiracy is like and to tell you about drug deals. I didn’t put [the witnesses] in the same rooms as [Mr.] Fleming. He did. They’re his friends. And ultimately whether they’re good or bad people, whatever they’ve done in the past, they admitted it to you....
The ... felony convictions that [defense counsel] read to you, you already heard them from the witnesses at the very beginning of their testimony. They are who they are, and they are the only people who live drug conspiracies, live drug deals every day, and can really tell you what happens. [Agent] Smith can tell you what he’s learned about drug distribution and drug use, but he’s telling you that based on interviews with people just like you saw testify. They are the best witnesses to talk about drug conspiracies because they are the only people who live it and really know it. And in this case they were the only people who were there, the only people other than [Mr. Fleming], It’s ironic to read Cathy Scott’s felonies when they’ve been friends for 30 years.
Id. at 574-75 (emphases added).
Mr. Fleming contends that the prosecutor’s statement that “they were going to bring methamphetamine from Denver to Cheyenne to pollute this community with methamphetamine’s poison and take money back to Denver so they don’t have to do real jobs,” id. at 574, was “intended to inflame the juror’s passions and sympa *1105 thies to obtain a guilty verdict to protect the community from the scourge of drugs.” Aplt. Opening Br., at 26.
When read in isolation, the prosecutor’s statement could potentially support Mr. Fleming’s position. But when evaluating whether a statement is improper, we must view the statement in context.
See Lopez-Medina,
When read in context, the prosecutor’s statement was responsive to defense counsel’s argument that the Government’s witnesses could not be believed because they were convicted felons.
See Franklin-El,
Because the prosecutor’s statement was made in response to defense counsel’s closing argument and does not appear to have been directed toward “incitfing] the passions of a jury by suggesting they can act as the ‘community conscience,’ ” we conclude that it was not improper.
2. Guilt By Association
“[T]he government frequently uses conspiracy to cast a wide net that captures many players.”
United States v. Evans,
During the rebuttal closing argument, the prosecutor stated: “It’s ironic to read Cathy Scott’s felonies when they’ve been friends for 30 years.” ROA, at 575. Ms. Scott was a long-time friend of Mr. Fleming who testified against him during his trial. According to Mr. Fleming’s brief, Ms. Scott is, or was, a drug addict with three prior drug-related felonies. Aplt. Opening Br., at 8.
Mr. Fleming argues that the prosecutor’s statement concerning Ms. Scott impermissibly encouraged the jury to render “a guilty verdict based on [his] ‘guilt by association.’ ” Id. at 26. He claims the statement suggested he must have been guilty of conspiracy to distribute methamphetamine because he associated with Ms. Scott, who had been convicted of three drug-related felonies.
*1106
We need not decide whether the prosecutor’s comment regarding Ms. Scott was improper, because even if it were, Mr. Fleming has not demonstrated that the statement violated his substantial rights.
See United States v. Mendoza,
Even if the prosecutor’s comment regarding Ms. Scott could be construed as improper, “the jury was properly instructed that [statements and] arguments [of counsel] are not evidence and that [Mr. Fleming] [e]ould only be convicted on the basis of evidence submitted at trial.”
Rogers,
Additionally, “the statement ] complained of constituted only a small portion of the Prosecutor’s closing argument.”
See Sierra-Ledesma,
‡ ‡ ‡ ‡ ‡ ‡
In sum, we hold that the first statement challenged by Mr. Fleming was a response to defense counsel’s closing argument and was not improper. Additionally, we hold that, even if the prosecutor’s statement regarding Ms. Scott could be read as suggesting guilt by association, Mr. Fleming has not satisfied his burden of demonstrating that the statement violated his substantial rights. We therefore hold that Mr. Fleming has failed to satisfy the plain-error standard.
B. Obstruction of Justice Sentencing Enhancement
We next address Mr. Fleming’s argument that the district court erred in concluding that his statements to Michelle constituted an attempt to obstruct justice
*1107
and warranted application of a two-level enhancement under the Sentencing Guidelines. “In reviewing the district court’s application of the sentencing guidelines, this court reviews legal questions de novo and reviews factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.”
United States v. Maestas,
Section 3C1.1 of the Sentencing Guidelines states that an offense level should be increased by two levels if: “(A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstruction conduct related to ... the defendant’s offense of conviction.... ” U.S.S.G. § 3C1.1 (emphasis added). The commentary to section 3C1.1 provides a nonexhaustive list of the types of conduct warranting the obstruction of justice enhancement, including “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.” (Emphasis added). 2
A defendant’s offense level is enhanced by two levels for
attempted
obstruction of justice when the Government demonstrates that the defendant: (1) intended to obstruct justice, and (2) committed an act that constitutes a substantial step toward the obstruction of justice.
See United States v. Washington,
“A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime.”
Washington,
“Whether a defendant’s actions amount to an attempt, and, in particular, whether his actions qualify as a substantial step, is a highly fact-specific inquiry.”
Id.
(quotations omitted);
see also Smith,
264
*1108
F.3d at 1017 (“[There is no] bright-line rule as to what constitutes a substantial step.... Whether the defendant has taken a substantial step is a heavily fact-specific question.”). When engaging in this factual inquiry, a court must determine whether the defendant’s
objective
acts strongly corroborate his criminal intent such that they constitute a substantial step.
See United States v. Prichard,
Mr. Fleming raises both a legal and a factual challenge to the district court’s application of the obstruction of justice enhancement to his offense level. First, he contends that the statements he made to Michelle were legally insufficient to constitute a substantial step toward obstructing justice because they were not made directly to witnesses. Second, he argues that the evidence presented does not demonstrate that he intended to obstruct justice or that he committed a substantial step toward obstructing justice.
We conclude that attempting to threaten or influence a witness through a third-party intermediary may constitute a substantial step sufficient to justify application of an obstruction of justice enhancement. We further conclude that the district court did not clearly err in concluding that Mr. Fleming’s statement to Michelle concerning Ms. Scott constituted an attempt to obstruct justice. Because we conclude that the statement concerning Ms. Scott constituted an attempt to obstruct justice, we need not and do not address whether Mr. Fleming’s statements to Michelle concerning “Fish” also constituted an attempt to obstruct justice.
1. Statements Made to Third Parties
Mr. Fleming contends that attempting to threaten or influence a witness through a third-party intermediary cannot constitute a substantial step toward obstructing justice absent a showing that the threat or message was actually communicated to the witness. He relies on the Fourth Circuit’s decision in
United States v. Brooks,
In Brooks, a Deputy United States Marshall testified during a sentencing hearing that he had overheard the defendant make a threatening comment concerning a witness to a third party. See id. at 1149. Based on this testimony, the sentencing court applied a two-level enhancement for obstruction of justice to the defendant’s offense level. See id. The Fourth Circuit reversed, concluding that the Deputy Marshall’s testimony, “standing alone, c[ould] not support an enhancement for obstruction of justice under section 3C1.1.” Id. The court determined that, “[a]t a minimum, section 3C1.1 requires that the defendant either threaten the codefendant, witness, or juror in his or her presence or issue the threat in circumstances in which there is some likelihood that the codefendant, witness, or juror will learn of the threat.” Id. at 1149-50. The court concluded that there was “no evidence in th[e] record that [the witness] ever learned of [the defendant’s] threat, [and] no basis for concluding from the circumstances in which the threat was made that [the witness] might learn of the threat.” Id. at 1150. It therefore held that the obstruc *1109 tion of justice enhancement should not have been applied to the defendant. See id.
We have not expressly addressed whether indirect threats or statements made to third parties concerning witnesses can qualify for the obstruction of justice enhancement under section 3C1.1.
3
But the other circuits that have addressed this issue have not followed
Brooks. See, e.g., United States v. Searcy,
For instance, in
Jackson
the defendant disseminated to various third parties a copy of a cooperation agreement that the defendant’s co-conspirator had entered into with the government.
See
We find the reasoning of the Second, Fifth, Eighth, Ninth, and Eleventh Circuits persuasive. Section 3C1.1 expressly applies to attempts by defendants to directly or
indirectly
threaten, intimidate, or influence a potential witness.
See
U.S.S.G. § 3C1.1
&
cmt. n. 4(A). Accordingly, to qualify as an attempt to obstruct justice, “[a] defendant need not actually threaten the witness; he need only attempt to influence the[] [witness].”
United States v. Powell,
2. Application to Mr. Fleming
We next address Mr. Fleming’s contention that the district court erred in concluding that the statements he made to Michelle constituted an attempt or attempts to obstruct justice. “[W]e review the sentencing court’s factual determinations concerning the obstruction of justice enhancement for clear error only.”
United States v. Hankins,
During Mr. Fleming’s sentencing hearing, the Government provided the court with a complete transcript of the telephone calls Mr. Fleming made to Michelle. It also provided audio recordings of selected portions of the telephone calls. The transcripts reflect that during two of the calls Mr. Fleming asked Michelle to tell “Fish” with the “Sons” that certain witnesses planned to testify against Mr. Fleming and that these witnesses were also “snitching” about drugs sales by “Fish.”
Additionally, the transcripts demonstrate that during the second call, Mr. Fleming informed Michelle that Ms. Scott had been subpoenaed to testify against him and that he stated:
[T ]ell her not to be talking to anybody about this shit____I’m afraid that they might use her, try to use her against me, or threaten her with a, putting a case on her, to testify against me, cause these are some dirty people man. DEA is. And DEA has been the ones that been talking to her. Tell her ... they’re ... devious as hell.
Aple. Br., at 23 (emphasis added).
Based on his statements during the telephone conversations, the district court applied a two-level enhancement to Mr. Fleming’s offense level for obstruction of justice.
Mr. Fleming contends that the district court erred in concluding that his statement to Michelle concerning Ms. Scott constituted an attempt to obstruct justice. We disagree. The district court found that the defendant intended to obstruct justice when he requested that Mi *1111 chelle tell Ms. Scott not to talk about his case. Specifically, the district court determined that Mr. Fleming’s conduct “served no ... [legitimate] purpose ... the only conceivable benefit to Mr. Fleming was to suppress testimony of witnesses who would be appearing against him or were likely to appear against him and, in fact, did appear.” ROA, at 615-16. We do not find this interpretation of Mr. Fleming’s statement to be clearly erroneous.
Mr. Fleming claims that when he told Michelle to warn Ms. Scott — a subpoenaed witness — “not to be talking to anybody about this shit,” he was simply “trying to advise Ms. Scott of her right to an attorney during police questioning.” Aplt. Reply Br., at 8. But the district court considered and rejected this argument and there is no record evidence that contradicts that decision. Accordingly, we cannot say that the district court’s conclusion concerning Mr. Fleming’s statement was clearly erroneous.
The district court also found that Mr. Fleming’s “conduct ha[d] a tendency to obstruct justice and certainly created risks to the witnesses and concerns on their part.” ROA, at 615. It therefore concluded that Mr. Fleming’s conduct constituted a substantial step toward the obstruction of justice. After reviewing the transcripts of Mr. Fleming’s telephone conversation in their entirety, we conclude that, when viewed objectively and under the clearly erroneous standard, his request that Michelle tell Ms. Scott “not to be talking to anybody about this shit” constituted an attempt to threaten or influence Ms. Scott and satisfied the substantial step requirement.
In sum, we hold that the district court did not clearly err in concluding that Mr. Fleming’s statement concerning Ms. Scott reflected an intent to obstruct justice and constituted a substantial step toward obstructing justice. We therefore affirm the district court’s application of a two-level enhancement to Mr. Fleming’s offense level for obstruction of justice. Because we conclude that Mr. Fleming’s statement concerning Ms. Scott justified application of an obstruction of justice enhancement, we need not and do not address whether his statements concerning “Fish” would also justify such an enhancement.
III. CONCLUSION
For the reasons discussed above, we hold that the prosecutor’s statements during closing argument do not warrant reversal of Mr. Fleming’s conviction. We also hold that the district court did not err in applying a two-level enhancement to Mr. Fleming’s sentence for obstruction of justice. Based on these conclusions, we affirm Mr. Fleming’s conviction and sentence.
Notes
. Although we have reviewed the record in its entirety, throughout this opinion we cite the statements from Mr. Fleming’s telephone calls to the Government's brief because the transcripts of the telephone calls were filed under seal. The Government's brief was not filed under seal.
.
"Commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
United States v. Torres-Ruiz,
. Although we have not expressly addressed this issue, we have upheld application of the obstruction of justice enhancement based on threats to witnesses made through third parties.
See, e.g., United States v. Reid,
. Even if we were to adopt
Brooks,
which we do not, the facts of the instant case would still warrant application of the obstruction of justice enhancement. Under
Brooks,
the obstruction of justice enhancement may be applied when there is "some likelihood that the codefendant, witness, or juror will learn of the threat.”