UNSEALED MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Amended Objections to PSR [and]
FACTUAL BACKGROUND
The Court takes its facts from: (i) the PSR; (ii) the Sealed Response to Defendant Kenneth Ulibarri’s Amended Objections to PSR [and] Sentencing Memorandum at 2, filed May 8, 2015 (Doc. 902)(“Response”); and (iii) the Indictment, filed December 12, 2012 (Doc. 2)(“Indict-ment”).
After the takedown for Operation Rain Check, one of the co-Defendants in that case (“CHS-1”) agreed to cooperate with the United States. Response at 2. As part of CHS-l’s cooperation, CHS-1 executed numerous controlled purchases of drugs with a variety of targets, including K. Uli-barri See Response at 2. In May, 2014, the FBI began a separate investigation into K. Ulibarri’s drug-trafficking activities. See PSR ¶ 10, at 5. On May 5, 2014, CHS-1 approached K. Ulibarri to buy illegal drugs from him. See PSR ¶ 11, at 5. K'Ulibarri offered to sell CHS-1 methamphetamine and heroin. See PSR ¶ 11, at 5. During that conversation, K. Ulibarri also told CHS-1 that he and several other people were interested in hiring a “hitman” to kill CHS-2. PSR ¶ 11, at 5. K. Ulibarri told CHS-1 that he knew of someone who would kill CHS-2 for $20,000.00. See PSR ¶ 11, at 5. K Ulibarri further indicated that he had collected about $8,000.00 from several people, and that others had agreed to give him $7,000.00 more for- the hitman after the murder was completed. See PSR ¶ 11, at 5. K. Ulibarri asked CHS-1 to contribute the remaining $5,000.00 for the hitman. See PSR ¶ 11, at 5. CHS-1 told K. Ulibarri that “the money could be paid from' the proceeds earned from selling drugs.” PSR ¶ 11, at 5.
On May 16, 2015, FBI agents used CHS-1 to conduct a controlled buy of heroin from K Ulibarri. See PSR ¶ 12, at 5. The agents gave CHS-1 a recording device and $3,000.00, and instructed CHS-1 to buy four ounces of heroin from K. Ulibarri. See PSR ¶ 12, at 5. CHS-1 met K. Ulibarri and bought the heroin from him for $800.00 per ounce.
On May 21, 2014, CHS-1 met with FBI agents to plan a controlled drug transaction with K. Ulibarri. See PSR ¶ 13, at 5. The agents gave CHS-1 a recording device and $1,000.00 for CHS-1 to contribute to the hired murder' of CHS-2. See PSR ¶ 13, at 5. CHS-1 then met with K. Ulibarri, and they discussed the hired murder. See PSR ¶ 13, at 5. K. Ulibarri offered a deal with CHS-1, in which CHS-1 could pay him the remaining balance towards the hitman after the murder was completed. See PSR ¶ 13, at 5.
On June 4, 2014, CHS-1 met with K. Ulibarri to buy eight ounces of heroin from him that CHS-1 had previously ordered. See PSR ¶ 14, at 5. K. Ulibarri arrived at a pre-determined location and told CHS-1 to follow him. See PSR ¶ 14, at 5. As they left, FBI agents directed CHS-1 to pull away from K. Ulibarri. See PSR ¶ 14, at 5. Detectives
K. Ulibarri continued to drive around and eventually pulled into a drug store, where he bought a bottle of lotion. See PSR ¶ 15, at 5. Agents arrested K Ulibar-ri as he exited the store. See PSR ¶ 15, at 5: K. Ulibarri admitted to the agents that he had concealed the heroin in his rectum, and the agents gave him an opportunity to remove it on his own. See PSR ¶ 15, at 5. Instead of pulling the bag out, however, K. Ulibarri removed the heroin from the plastic bag while in his rectum — leaving one. or two ounces of unwrapped heroin inside his rectum. See PSR ¶15, at 5. Concerned that K. Ulibarri might overdose from the heroin, the agents arranged for K Ulibarri to be taken to the hospital to remove it. See PSR ¶ 15, at 5.' Laboratory testing determined that the heroin which K. Uli-barri sold to CHS-1 weighed 100.6 grams. See PSR ¶ 16, at 6. After the FBI tested the heroin, less than 100 grams of the heroin remained;’ as a result, K. Ulibarri “was unable to independently weigh the heroin.” PSR ¶ 16, at 6.
PROCEDURAL BACKGROUND
The Second Superseding Indictment, filed September 9, 2014 (Doc. 626)(“Su-perseding Indictment”), added K, Ulibarri to. the original Indictment. against the members of the Roybal DTO, alleging that: (i) K. Ulibarri attempted to kill CHS-2 by collecting money to hire a hit-man to kill CHS-2, with the intent to prevent CHS-2’s attendance and testimony at Roybal’s trial, in violation of 18 U.S.C. § 1512(a)(1)(A); and (ii) K. Ulibarri distributed 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). See Superseding Indictment at 29-30. On January .9, 2015, K. Ulibarri pled guilty to one count of obstruction of justice,
In May 2014,1 met with a confidential source (CHSl) to discuss selling heroin to CHSl. In those meetings, I told CHSl that I and some others were hiring a hitman to kill another confidential source (CHS2) for $20,000. CHS2 is a testifying cooperator in the underlying case (12-cr-3182). I explained to CHSl that some people had contributed money towards the hit. I further explained that some others had promised to pay money after the hit was committed. Between the cash and the promised monies, I told CHSl that I still needed additional money towards the hit (approximately $5,000 to $8,000). I explained to CHS1 that CHS1 could pay half of the money after the hit. During a meeting on May 21, 2014, at the direction of FBI agents, CHS1 paid me $1,000 and told me it was CHSl’s contribution towards the hitman, and CHS1 told me that CHS1 would pay the remaining amount later on.
The United States maintains that I made these statements with the intent of hiring a hitman to kill CHS2. However, I maintain that these statements to CHS1 about killing CHS2 were false and that I made these statements about a hitman for the purpose of obtaining money from CHS1. Either way, I admit that the natural and probable effect of the statements I made was to interfere with, obstruct, or influence an official proceeding. Thus, by making these statements to CHS 1 about the hitman and accepting the $1,000 from CHS1, I corruptly obstructed, influenced, and impeded an official proceeding, that being the underlying charges in this case.
Plea Agreement ¶¶ 10-11, at 4-5.
On January 29, 2015, the United States debriefed J. Ulibarri. See Response at 4. During that debrief, the United States asked J. Ulibarri about his brother’s murder-for-hire scheme, and J. Ulibarri said that he did not think that his brother is smart enough to organize a hitman. See Response at'4. When the United States asked J. Ulibarri why his brother accepted' only $1,000.00 from CHS-1 and assured CHS-1 that CHS-1 could pay the rest of the money after the murder was completed, J. Ulibarri said that he believed it was so that the plot would seem more credible to CHS-1. See Response at 4-5.
The USPO disclosed the PSR on April 16, 2015. See PSR at 1. Relying on § 2J1.2, the USPO calculates a base offense level of 14 for K. Ulibarri. See PSR ¶22, at 6. The USPO applies an 8-level increase to K. Ulibarri’s base offense level under § 2J1.2(b)(l)(R), because K. Ulibarri discussed his murder-for-hire scheme with CHS-1. See PSR ¶23, at 7. The USPO also applies a 2-level increase under § 201.1, because that section provides that an offense involving 100.6 grams of heroin has a base offense level of 24. See PSR ¶ 28, at 7. The USPO then recommends a 3-level decrease for K. Ulibarri’s timely acceptance of responsibility and a 2-level increase for a multiple-count adjustment. See PSR ¶¶ 34-37, .40-41, at 7-8. The PSR thus calculates K. Ulibarri’s total offense level to be 23. See PSR ¶ 41, at 8. The PSR also calculates a criminal history score of 8: (i). 3 points for K. Ulibarri’s 1997 convictions for receiving or transferring a stolen motor vehicle, and criminal damage to. property, see PSR ¶ 45, at 9; (ü) 1 point for K. Ulibarri’s 2002 convictions for driving under the influence of alcohol or drugs, and .possession or use of marijuana, see PSR ¶ 48, at 10; (iii) 1 point for K. Ulibarri’s 2004 conviction for felony possession of marijuana, see PSR ¶ 49, at 10; (iv) 1 point for K. Ulibarri’s 2012 conviction for driving under the influence of alcohol, see PSR ¶ 52, at 12; and (v) 2 points, because K. Ulibarri committed the offenses in this case while serving probation for his 2012 conviction, see PSR ¶ 55, at 13. K. Ulibarri’s total offense level-of 23 and criminal-history category of IV results in a Guideline imprisonment range of 70 to 87 months. See PSR ¶ 87, at 23.
1. The Amended Objections.
K. Ulibarri filed the Amended Objections on May 6, 2015. See Amended Objections at 1. K Ulibarri first objects to the PSR’s application of the 8-level adjustment under § 2J1.2(b)(l)(B). See Amended Objections at 2. In his view, § 2J1.2(b)(l)(B) requires an intent to obstruct the administration of justice. See Amended Objections at 2. K. Ulibarri re
K. Ulibarri says that, by contrast, the' crime to which he pled .guilty — obstruction of justice under § 1512(c)(2) — does not contain an intent element. See Amended Objections at 2. According to K. Ulibarri,' that subsection requires only that a person “ ‘corruptly otherwise obstructs, influences, or impedes any official proceeding....’” Amended Objections at 2-3 (quoting 18 U.S.C. § 1512(c)(2))(alterations in Amended Objections). K. Ulibarri points out that, unlike § 1512(c)(2), every other subsection of § 1512 requires that the underlying conduct be done “ ‘with intent’ ” or “ ‘intentionally.’ ” Amended Objections at 3 (quoting 18 U.S.C. § 1512). K. Ulibarri highlights United States v. Suarez, No. CR 13-0420,
K. Ulibarri argues that a § 2J1.2(b)(l)(B) adjustment is similarly not warranted under a relevant-conduct theory. See Amended Objections at 3. K. Ulibarri says that he has consistently denied that there ever was a hitman and has instead asserted that his statements’, only purpose was to obtain money from CHS-1. See Amended Objections at 3. K. Ulibarri points out that the United States has no evidence of a hitman and no evidence that anyone but CHS-1 knew about his state- • ments. See Amended Objections at 3. K. Ulibarri argues that, in short, “there is no evidence of an intent to obstruct justice and the mere making of the statements coupled with the denial as to their truth does not establish an intent.” Amended Objections at 3 (internal quotation marks omitted).
K. Ulibarri next objects to paragraph 70 of the PSR, which lists his distribution-of-heroin charge under “Other Arrests.” Amended Objections at 4 (quoting PSR ¶70, at 17-18)(internal quotation "marks
2. The Addendum.
On May 6, 2015, the USPO responded to the Amended Objections. See Addendum to the Presentence Report, disclosed May 6, 2015 (“Addendum”). In response to K. Ulibarri’s first objection, the USPO points out that, in United States v. Gordon,
The enhancement pursuant to U.S.S.G. § 2J1.2(b)(l) “does not impose an additional ‘seriousness’ requirement beyond the fact of a violent threat. Although the background commentary indicates that the guideline reflects ‘the. more serious forms of obstruction,’ ... we agree with out sister circuits that have found that threats of .violence, as such, necessarily fit within this category.” United States v. Plumley,207 F.3d 1086 , 1090-91 (8th Cir.2000).
Relevant conduct holds the defendant accountable for all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused 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. U.S.S.G. § 1B1.3. The defendant’s statements about hiring a hitman and collecting money to pay for the murder are considered.
The defendant plead guilty to 18 U.S.C. § 1512(c)(2), which includes an element of intent, as interpreted by 10th Circuit case law, which also satisfies the intent element required for the application of the enhancement. Further, the defendant admitted to the' nexus between the wrongful conduct and the official proceeding in the plea agreement. Based on the above information, it is believed the eight level enháncement pursuant to U.S.S.G. § 2J1.2(b)(l)(B) is appropriate and the presentence report will not be changed.
Addendum at 2 (omission in Addendum) (citation omitted)(internal quotation marks omitted).
Addressing K Ulibarri’s second objection, the USPO says that the offense listed in paragraph 70 is associated with a different docket number from the one in this case. See Addendum at 2. The USPO notes that the narrative included in the arrest notes that the circumstances of that arrest are the same as those of the offense in this case. See Addendum at 2. The USPO asserts, that the PSR lists all arrests and docket numbers that are associated with K. Ulibarri, in accordance with the Guide to Judiciary Policy, which states that presentence reports must con
3. The Response.
The United States responded to the Amended Objections on May 8, 2015. See Response at 1. The United States asks the Court to overrule K. Ulibarri’s objection to the PSR’s § 2J1.2(b)(l)(B) application. See Response at 9. The United States asserts that § 2J1.2(b)(l)(B)’s application notes clarify that it may apply to a variety of offenses and that “ ‘the specific offense characteristics reflect the more serious forms of obstruction.’” Response at 5 (quoting commentary background to U.S.S.G. § 2J1.2(b)(l)(B)). The United States contends that K. Ulibarri’s solicitation and acceptance of money toward a hitman to kill CHS-2 “is a crime that cannot be tolerated in the United States’ justice system.” Response at 5. In the United States’ view, “[t]o brush off the seriousness of this offense based solely on the defendant’s after-the-fact claim that he was just kidding would undermine the safety of countless numbers of cooperators.” Response at 5.
, The United States maintains. that the circumstances surrounding K. Ulibarri’s murder-for-hire plot suggest that he devised the plot in an attempt to benefit J. Ulibarri, G. Roybal, and, perhaps to a lesser extent, his cousin, C. Roybal. See Response at "6. The United States points out that K. Ulibarri met with CHS-1 on' numerous occasions over two weeks during which he talked to CHS-1 repeatedly about his murder-for-hire plan. See Response at 7. The United' States says that, of all the details which K. Ulibarri shared with CHS-Í, “the one that stands out the most” is that K. Ulibarri was “totally fine” with CHS-1 paying the remainder of his $5,000.00 contribution after CHS-2’s murder. Response at 7. The United States asserts that, if K. Ulibarri truly intended to steal money from CHS-1, one would expect that he would have' pressured CHS-1 into contributing more money at that time. See Response at .7. “Instead,” the United States contends, “we are left with the defendant’s chilling assurances that CHS-1 could just settle up his tab after the murder:!’ Response at 7.
The United States adds that the Court should afford little weight to J. Ulibarri’s statements about his brother’s inability to concoct and execute a murder-for-hire scheme. See Response at 8. The United States explains that, if this case had gone to trial, it would have offered evidence that K. Ulibarri told CHS-1 that the hitman was J. Ulibarri’s “connection.”
The United States urges that, even if the Court accepts K. Ulibarri’s version of events, that conclusion does not mean that K. Ulibarri did not intend to obstruct the administration of justice. See Response at 6. The United States asks: “Why' else would the defendant suggest a scheme ... premised on killing a key witness who was
4. The Reply.
K. Ulibarri replied to the Response on May 10, 2015. See Reply to Responses to Objections to PSR [and] Sentencing Memorandum, filed May 10, 2015 (Doc. 903)(“Reply”). K. Ulibarri first addresses the USPO’s reliance on United States v. Gordon for the proposition that § 1512(c) includes an intent element. See Reply at 1.In K Ulibarri’s view, that case addresses only § 1512(c)’s attempt portion, which requires an intent to commit the substantive offense. -See Reply at 1 (citing United States v. Gordon,
K. Ulibarri says that the United States does not address whether § 1512(c) has an intent element, but rather attempts to “bootstrap” foreseeability into intent. Reply at 1. K. Ulibarri acknowledges that his statements had the natural and probable effect of obstructing an official proceeding. See Reply .at 2. K. Ulibarri urges, however, that his concession does not mean that he made his threat with the -intent to obstruct the administration of justice. See Reply at 2. K. Ulibarri asserts that the facts upon which the United States relies “are significant for what is not there.” Reply at 2. K. Ulibarri notes that CHS-1 is the only person who asserted any knowledge about the plot, and that the United States has failed to offer any other evidence of a hitman or a plan to hire a hitman.. See Reply at 2.
K. Ulibarri argues that, although the Response refers to “all of the details that the defendant shared with CHS-1,” he, in fact, shared few details with CHS-1 about the plot. Reply at 3 (quoting Response at 7)(internal quotation marks omitted). K. Ulibarri says: “At approximately 48:40 of CD-2, File 1671.001, recorded May 21, 2014, the Defendant told CHS-1 that he (the Defendant) was the only one who knew, and later at approximately 51:30 that it would be all ‘me’ (the Defendant), and ‘you’ (CHS-1) don’t need to know anything about all this.” Reply at 3 (citation omitted). K. Ulibarri contends that the existence of a hitman does not answer the intent question completely, because a person could spread a false rumor about a hitman, but do so with the intent to obstruct an official proceeding. See Reply at 3. K, Ulibarri argues, however, that, without any evidence of a hitman, the Court is left with the statements and his explanation of those statements, which the United States “can rebut only with speculation.” Reply at 3, K. Ulibarri concludes that, even with a preponderance of the evidence standard, the United States cannot overcome his unrebutted and uncontradicted explanation of those statements. See Reply at 3.
The Court held a hearing on May 12, 2015. See Transcript of Hearing (taken May 12, 2015)(“Tr.”).
When you ... go through the specific offense characteristics, it starts with a four-level enhancement under subpart A.... That will apply to certain conduct of a less[ ] serious nature. Subsection B then involves when there is causing or threatening to cause fiscal injury. Subsection C involves terrorism or domestic terrorism and some other ... crimes that wouldn’t really fit. So really what the Sentencing Commission was trying to accomplish in this [section] is, because obstruction of justice can encompass so many different t[ypes] of harms and so many different types of crimes, the Sentencing Commission specified that the specific offense characteristics should apply to separate out much less serious conduct from much more serious conduct, and then depending on the ... seriousness of the conduct[,] you’ll have either the four level, eight level, or twelve level.
Tr. at 7:14-8:9 (Long).
The United States reiterated that it should be sufficient that K. Ulibarri attempted or intended to cause physical injury to CHS-2 for § 2J1.2(b)(l)(B). See Tr. at 9:16-10:17 (Long). The Court replied that the United States’ approach would read “attempted or intended to cause physical injury” into § 2J1.2(b)(l)(B). Tr. at 8:16-10:22 (Court). The United States responded that the Court’s definition would exclude from § 2J1.2(b)(l)(B) situations where a defendant told another person in jail that he was going to kill his judge. See Tr. at 11:20-12:5 (Long). The United States said that the Court’s proposed definition of threat would strip the United States of its ability to ensure that such a defendant receives the appropriate sentence for threatening to kill a judge. See Tr. at 12:5-13 (Long).
When K. Ulibarri took the lectern, he said that he did not address the Court’s concerns in the briefing, because there is a lot of case law which says that a threat
[I]t is not necessary to show that the defendant intended to carry out the threat, nor is it necessary to prove that the defendant actually had the apparent ability to carry out the threat. The question is whether those who hear or read the threat reasonably consider that an actual threat has been made. It is the making of the threat, not the intention to carry it out, that violates the law.
Tr. at 17:9-16 (Couleur)(quoting United States v. Martin,
The Court then read from United States v. Heineman,
We read [Virginia v.] Black, [538 U.S. 343 ,155 L.Ed.2d 535 (2003),] as establishing that a defendant can be constitutionally convicted of making a true threat only, if the defendant intended the recipient of the threat to feel threatened. The majority of the Court said that “‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
Tr. at 19:1-20:9 (Court)(emphasis in United States v. Heineman). K. Ulibarri responded that, if threat requires intent, then he would agree with the Court that he did' not threaten CHS-2. See Tr, at 21:21-24 (Couleur). K. Ulibarri said that, even if § 2J1.2(b)(l)(B) does not require that the defendant intended to communicate the threat to the victim, the adjustment still does not apply, because he did not intend to obstruct justice. See Tr. at 22:4-9 (Couleur).
The Court said that it disagreed with K. Ulibarri on the latter point, noting that there probably is enough evidence to conclude by a preponderance of the evidence that he intended to hire a hitman. See Tr. at 22:21-23:24 (Court). In response, K. Ulibarri reiterated his arguments from the Amended Objections and the Reply— namely, that the United States has offered only his statements to show that he intended to hire a hitman and has not produced any other evidence to corroborate its theory. See Tr. at 24:23-28:7 (Couleur). K. Ulibarri concluded his argument by noting that there is no evidence contradicting his version of eyents, ie., that he wanted only to steal money from CHS-1. See Tr. at-29:11-19. (Couleur).
As the United States started its rebuttal, the Court asked what it thought of Judge Hartz’ definition of threat in United States v. Heineman; the United States responded that, “to do any justice to the . Court’s question, [it would] probably, have to review the case, and then [the] statute that was at issue,” which is 18 U.S.C. § 875. Tr. at 31:13-17 (Long). When pressed, the United States noted . that § 875 is in a different chapter of the United States Code from § 1512(c) — the
The Court said that, although it agreed with the United States’ concerns about the consequences of defining threat narrowly under § 2J1.2(b)(l)(B), it is stuck with the Sentencing Commission’s use of the word “threatening” rather than “attempted or intended to cause.” Tr. at 35:11-14 (Court).. The Court reiterated that the United States’ definition reads additional words into § 2J1.2(b)(l)(B). See Tr. at 35:16-20 (Court). The Court asked the United States why, if the Sentencing Commission intended § 2J1.2(b)(l)(B) to have the meaning that the United States proposes, it did not use the words “attempted or intended to cause” in that section. Tr. at 38:18-21 (Court). The United States replied:
I think that a common sensé interpretation that[,] if the offense involved threatening to cause physical injury ..., when you have someone who is putting together a hitman to1 kill a defendant, I think that that would be satisfied____ So I don’t think the Court should be asking could it have been written better? Yes. As it’s written, should it, as a matter of policy, encompass the conduct before the Court today? Yes.
Tr. at 38:22-39:10 (Long).
Addressing his second objection to the PSR, K, Ulibarri reiterated the arguments from the Amended Objections, and noted that the PSR’s inclusion of the distribution-of-heroin charge from this case under “Other Arrests” is “without -form or substance,” because there was only one arrest that resulted in the two cases. Tr. at 41:10-16 (Couleur). The United States responded that the PSR’s explanation that the circumstances of that arrest are the same as those in the case’s offense should address K. Ulibarri’s concern. See Tr. at 42:1-5 (Long). The United States added, however, that there is no harm in removing the PSR’s reference to the charge under “Other Arrests.” Tr. at 42:6-7 (Long). The Court said that it, would take both of K. Ulibarri’s objections under advisement, and would try to issue an opinion and order as soon as possible. See Tr. at 44:4-15 '(Court).
RELEVANT LAW REGARDING THE GUIDELINES
In United States v. Booker,
(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, § 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 ciimes; 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 Tenth Circuit have clarified that, while the Guidelines are one of several factors enumerated in § 3553(a), they are entitled to considerable deference. See Rita v. United States,
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,
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,
LAW REGARDING THE BURDEN OF PROOF REQUIRED FOR ENHANCEMENTS UNDER THE GUIDELINES
In Apprendi v. New Jersey,
In United States v. Magallanez,
The Tenth Circuit, while “recognizing ‘strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof,’ ” has “long held that sentencing facts in the ‘ordinary case’ need only be proven by a preponderance.” United States v. Olsen,
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 sentence, as well as the maximum sentence, it does not prohibit district judges from continuing to find advisory sentencing factors by apreponderance of the evidence. See [United States v. Sangiovanni, No. CR 10-3239 JB,] 2014 WL 4347131 , at. *22-26 [ (D.N.M., Aug. 29, 2014) (Browning, J.)].
United States v. Cervantes-Chavez,
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.
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 thé commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that of-'fense;
(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-r evidence standard. See United States v. Vigil,
Supreme Court precedent on relevant conduct comes primarily from two cases: Witte v. United States,
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
The Supreme Court granted certiorari to resolve the conflict between the circuits and affirmed the Fifth Circuit. See
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
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,
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
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,
In- United States v. Washington,
The Court has previously held that it may consider a* defendant’s refusal to answer questions for the PSR, while not drawing an adverse inference from the refusal. See United States v. Goree, No. CR 11-0285 JB,
ANALYSIS
The Court will sustain K. Ulibarri’s first objection to the PSR, but overrule the second objection. First, the Court will sustain K. Ulibarri’s-objection to the PSR’s application of § 2J1.2(b)(l)(B), because his offense did not involve threatening to cause physical injury to CHS-2 to obstruct the administration of justice. Second, the Court will not strike the description of K. Ulibarri’s distribution-of-heroin charge in paragraph 70 of the PSR, because the Guide to Judiciary Policy requires, the USPO to include all prior criminal history in the PSR, because the PSR specifies that the circumstances of K Ulibarri’s distribution-of-heroin charge in CR 14-2211 MV are the same as that in this case, and because K. Ulibarri will not suffer any prejudice if the Court leaves that information in paragraph 70 of the PSR.
I. THE COURT WILL SUSTAIN K ULIBARRI’S OBJECTION TO THE PSR’S APPLICATION OF § 2J1.2(b)(l)(B).
Section 2J1.2(b)(l)(B) states: “If the offense involved causing or threatening to cause physical injury to a person .., in order to obstruct the administration of justice, increase by 8 levels.” U.S.S.G. § 2Jl:2(b)(l)(B). The United States concedes — as it must, given the lack of evidence — that K. Ulibarri did not cause physical injury to a person. See Tr. at 4:17-5:2 (Court, Long). Instead, the United-States asserts that K. Ulibarri’s offense involved threatening to cause physical injury to a person to obstruct the administration of justice. See Tr. at 9:16-10:17 (Long). The Court first concludes that § 2J1.2(b)(l)(B) does not require that the defendant intended the target of the threat to feel threatened. The Court next holds that § 2J1.2(b)(l)(B) does not apply, because K. Ulibarri’s offense did not involve threatening to cause physical injury to CHS-2 to obstruct the administration of justice. The Court will therefore sustain K Ulibarri’s objection to.the PSR’s application of § 2J1.2(b)(l)(B).
A. SECTION 211.2(b)(1)(B) DOES NOT REQUIRE THAT THE DEFENDANT INTENDED THE TARGET OF THE THREAT TO FEEL THREATENED.
The Tenth Circuit “.‘interprets the Sentencing Guidelines according to accepted rules of statutory construction.’” United States v. Hammons, No. CR 07-1164 JB,
1. The Dictionary Definitions of Threat Do Not Require that the Speaker Intended the Target of the Threat to Feel Threatened.
First, the dictionary definitions of threat do not require that the speaker intended the target of the threat to feel threatened. Black’s Law Dictionary defines threat as “[a] communicated intent to inflict harm or loss on another or on another’s property, especially] one that might diminish a person’s freedom to act voluntarily or with lawful consent.” Black’s Law Dictionary 1618 (10th ed.2014). The Oxford English Dictionary defines threat as “declaring] (usually conditionally) one’s intention of inflicting injury upon” a person. 11 Oxford English Dictionary 352 (2d ed.1998). Webster’s Third New International Dictionary defines threat as an “expression of an intention to inflict loss or harm on another by illegal means and especially] by means involving coercion or duress of the person threatened.” Webster’s Third New International Dictionary 2382 (1993). Other dictionaries offer similarly broad definitions of threat. See American Heritage Dictionary of the English Language 1801 (4th ed. 2000)(“An expression of an intention to inflict pain, injury, evil, or punishment.”); Random House Unabridged Dictionary 1975 (2d ed. 1987)(“[A] declaration of an intention or determination to inflict punishment, injury, etc., in retaliation for, or conditionally upon, some action or course.”). None of these definitions require that the defendant intended the recipient of the threat to feel threatened.
2. The Supreme Court’s Holding in El-onis v. United States,
Second, the Supreme Court’s recent holding in Elonis v. United States does not require the Court to interpret § 2J1.2(b)(l)(B) as requiring that the defendant intended the target of the threat to feel threatened. That case involved Anthony Elonis, who posted rap lyrics on his Facebook
The Supreme Court reversed. See
Unlike § 875(c), § 2J1.2(b)(l)(B) of the Sentencing Guidelines already contains a mens rea requirement. For § 2J1.2(b)(l)(B) to apply, the defendant must have acted “in order to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(l)(B)(emphasis added). See United States v. Blount,
3. The First Amendment of the Constitution of the United States of America Does Not Require the Court to Read § 2J1.2(b)(l)(B) as Requiring that the Defendant Intended the Target of the Threat to Feel Threatened.
The First Amendment does not require the Court to read an additional mens rea element into § 2J1.2(b)(l)(B). The First Amendment protects “vehement, caustic, and sometimes unpleasantly sharp attacks,” and language that is “vituperative, abusive, and inexact.” Watts v. United States,
The First Amendment does have limits,, however. Speech integral to criminal conduct — such as fighting words, true threats, and solicitations — remain categorically outside its protection. See United States v. Williams,
Like the examples. above, § 2J1.2(b)(l)(B) contains a mens rea “hook”: it does not prohibit mere speech, but is instead limited to situations in which the defendant acts “in order to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(l)(B). Given the importance of witnesses and their testimony to the prop-
er administration of justice, the Court sees no reason why the First Amendment would or should protect such statements. Cf. Pennekamp v. Florida,
For § 2J1.2(b)(l)(B) to apply,' the United States must prove two elements by a preponderance of the evidence. First', K. Ulibarri’s offense must involve “threatening to cause physical injury to a person.” U.S.S.G. § 2J1.2(b)(l)(B). This element requires that K. Ulibarri “communicate[d an] intent to inflict [physical injury] on another,” Black’s Law Dictionary 1618; it does not require, however, that K. Ulibarri communicated the threat to CHS-2, United States v. Grap,
As an initial matter, that K. Uli-barri pled to obstruction of justice under § 1512(c)(2) does not mean that § 2J1.2(b)(l)(B) automatically applies. Section 1512(c)(2) requires only that the defendant “corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so.” 18 U.S.C. § 1512(c)(2). As K. Ulibarri correctly observes, the Tenth Circuit has held that
Reviewing K. Ulibarri’s relevant conduct in this case, the Court concludes that § 2J1.2(b)(l)(B) does not apply. By explaining his murder-for-hire plot to CHS-1, K. Ulibarri communicated his intent to inflict physical injury on CHS-2. K. Ulibarri also intended to obstruct the administration of justice by killing CHS-2 and preventing him from cooperating with the United States. There is insufficient evidence, however, that K. Ulibarri made his threat — ie., his statement to CHS-2— specifically “to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(l)(B). There is no indication that K. Ulibarri intended CHS-1 to tell CHS-2 about the threat or that K. Ulibarri intended for his threat to cause CHS-1 to prevent CHS-2 from cooperating with the United States. There is no evidence that CHS-1 or CHS-2 were friends or family members, or that K. Ulibarri believed that they had a sufficiently close relationship such that CHS-1 would likely tell CHS-2 about the threat. There is no evidence that K. Ulibarri made the threat among a group of CHS-2’s friends or family members, or with anyone else who would be likely to tell CHS-2 about the threat or otherwise prevent CHS-2 from cooperating with the United States. K Ulibarri did not say to CHS-1 that CHS-2 “should keep his mouth shut” or that he “should be careful who he talks to.” K. Ulibarri said nothing whatsoever to CHS-1 about warning CHS-2 of the consequences of his continued cooperation with the United States.
To the contrary, it appears that K. Uli-barri expected CHS-1 to keep the murder-for-hire plan secret. K Ulibarri had every reason to believe that CHS-1 would not tell CHS-2 or anyone else about the plan, because CHS-1 was now involved in a conspiracy to commit murder and could face prosecution for a serious crime if the plot were discovered. Co-conspirators typically do not expect their conspiracy to be made public. In fact, they fully expect and hope that their conspiracy stays secret so that they may accomplish their goal and also avoid prosecution. CHS-1 never gave K. Ulibarri any indication that CHS-1 planned to tell CHS-2 or anyone else about the plot, and K. Ulibarri never asked or suggested that CHS-1 should do so. Absent some additional piece of evidence— something hinting that K. Ulibarri wanted his threat to chill CHS-2’s cooperation with the United States — the United States has failed to meet its burden, and § 2J1.2(b)(l)(B) does not apply.
The United States contends that the Court’s interpretation of § 2J1.2(b)(l)(B) may lead to absurd results. The United States says that, under the Court’s interpretation, § 2J1.2(b)(l)(B) would not apply to a defendant who tries, but fails, to kill a witness but has no intent to'obstruct justice; it would apply, however, to a defendant who threatens to kill a witness solely to obstruct justice and with no intention of carrying out his plan. As an initial matter, much of the United States’ concern is ameliorated by the fact that § 2A2.1 provides a base offense level of 33 for attempted first-degree murder, which is 11 levels above the offense level of 22 that results from adding the base offense level of 14 under § 2J1.2(a) to the 8-level adjustment available under § 2J1.2(b)(l)(B). Section 2A2.1 would likely cover the most egregious situ
More significantly, however, the United States’ intérpretation reads additional words into the Guideline. Section § 2J1.2(b)(l)(B) is limited to situations in which the defendant’s offense involves “causing” or “threatening to cause” physical injury to a person “in order to obstruct the administration of justice.” U.S.S.G. § 2J1.2(b)(l)(B). If the Sentencing Commission wanted to include “attempting” to obstruct the administration of justice under § 2J1.2(b)(l)(B)’s purview, it could have substituted “attempting” for “threatening.” It chose not to do so. The Court’s task “is to apply the text, not improve upon it.” Pavelic & Le Flore v. Marvel Enter. Grp., 493 U.S. 120, 126, 110 S.Ct. 456,
II THE COURT WILL OVERRULE K. ULIBARRES OBJECTION TO THE PSR’S INCLUSION OF HIS DISTRIBUTION OF HEROIN CHARGE FROM THIS CASE UNDER “OTHER ARRESTS. ”
K. Ulibarri next objects to . paragraph 70 of the PSR, which lists his distribution-of-heroin charge from CR 14-2211 MV under “Other Arrests.” Amended Objections at '4 (quoting PSR ¶ 70, at 17-18)(internal quotation marks omitted). K. Ulibarri says, that, after he-informally objected. to this paragraph, the USPO declined to remove it, because “it is not the same case, as it is associated with a different Docket Number.” Amended Objections at 4. K. Ulibarri points out that the United States dismissed that indictment from CR 14-2211 MV after filing the Superseding Indictment in this case, which charged K. Ulibarri for the same distribution-of-heroin offense. See Amended Objections at 4.
The USPO says that the offense listed in paragraph 70 is associated with a different docket number as this case. See Adden-' dum at 2. The USPO points out that the narrative' in paragraph 70 notes that the circumstances of that arrest are the sanie as those of the offense in this case. See Addendum at 2. The USPO asserts that the PSR lists all arrests and docket numbers that are associated with K. Ulibarri, in accordance .with the Guide to Judiciary Policy, which states that, presentence reports must contain “any prior criminal record.” Addendum at 2 (citation omitted)(internal quotation marks omitted).
The Court-agrees with the USPO. Section 435 of the Guide to Judiciary Policy states:
The officer reports [in the PSR] the criminal record in chronological order beginning with the earliest offense and ending'with the most recent. The officer provides arrest dates, charges, jurisdiction, disposition* and sources such as the arresting agency, NCIC, and state or local agencies. In a narrative section, •the officer describes the defendant’s supervision status and- compliance and notes any outstanding warrants or de-tainers.
The Court can conclude that the Honorable Martha J. Vazquez, United States District Judge, has a related case, even though that fact is unlikely to have any impact on the sentence that the Court will give in this case. Information does not have to be decisive or a significant factor in the ultimate sentence to be included in .the PSR.- PSRs contain a lot of information, that, in the. end, may not be helpful to the Court’s sentencing decision, but the USPO may not know, that when it. writes the PSR, and the Court may not ' know that when it reads the PSR for the first time. Ultimately, if K. Ulibarri suffers no prejudice from leaving this information in the PSR, the Court sees no reason to strike it. The Court will there-' fore overrule K. Ulibarri’s objection to the PSR’s inclusion of his distribution of heroin charge from CR 14-2211 MV under “Other Arrests.”
IT IS ORDERED that the Amended Objections to PSR [and] Sentencing Memorandum, filed May 6, 201.5 (Doc. 894), is sustained in part and overruled in part. Defendant Kenneth Ulibarri’s objection to paragraph 23 of the Presentence Investigation Report, disclosed April 16, 2015 (“PSR”), is sustained, and his objection to paragraph 70 of the PSR is overruled.
. In its Sealed Memorandum Opinion and Order, filed June 29, 2015 (Doc. 979)(‘‘Sealed MOO”), the Court inquired whether the parties had any proposed redactions to protect confidential information- within the Sealed MOO before the Court published a public version of the Sealed MOO. Sealed MOO at 1 n. 1. The Court gave the parties 14 calendar days to provide notice of any proposed redac-tions. See Sealed MOO at 1 n, 1. The parties have not contacted the Court or made any filings within CM/ECF to indicate that they have any proposed redactions. Consequently, the Court is now re-filing the' Sealed MOO in its unsealed form.
. Defendant Kenneth Ulibarri filed his Objections to PSR [and] Sentencing Memorandum on May 5, 2015 (Doc. 891)("Objections”). He filed the Amended Objections the following day, noting that “counsel inadvertently filed an unedited draft version of this document’’ and that “[t]his amended document corrects the first three paragraphs, and adds the first paragraph on page 4.” Amended Objections at 1 n. 1. Because the Amended Objections incorporate K. Ulibarri’s arguments from the Objections, the Court will address only the Amended Objections.
. The USPO disclosed two prior versions of the PSR, see Presentence Investigation Report (disclosed July 9, 2013); Presentence Investigation Report (disclosed August 12, 2013), but, as the USPO disclosed the final PSR before any of the parties' objections or briefing on sentencing, the Court will not explain how and why the final PSR differs from the two prior versions.
.The Court includes facts from the Response and the Indictment that are not set forth in the PSR solely to provide context to how K. Ulibarri’s charges arose and how they relate to the United States’ investigation into co-Defendant Christopher Roybal’s drug-trafficking organization. K. Ulibarri does not dispute these facts, and, in any event, the Court does not rely on these facts in its Analysis.
. The Plea Agreement says that K. Ulibarri sold four ounces of heroin to CHS-1 on May 16, 2015, for $3,200.00. See Plea Agreement ¶ 10, at 4, filed January 9, 2015 (Doc, 728)(‘;Plea Agreement”). The PSR states that the agents gave CHS-1 only $3,000.00 to purchase four ounces of heroin from K. Ulibarri that day, but then notes that CHS-1 bought the heroin from K. Ulibarri at a price of $800.00 an ounce. See PSR ¶ 12, at 5. It is unclear from the PSR where CHS-1 obtained the extra $200.00 to purchase the heroin, or whether the $3,000,00 that the PSR mentions is an accurate amount.
. The PSR does not provide any additional information about the detectives — e.g., the detectives’ names or to what police department they belong.
. K. Ulibarri originally pled to tampering with a witness. See Information, filed January 9, 2015 (Doc.1725)(‘Tnformation”)(label-ing Count 1 as "Tampering with a Witness,” in violation of 18 U.S.C. § 1512(c)(2)); Plea Agreement ¶ 3, at 2 (''.The Defendant agrees to ... plead guilty to Count 1 of the information, charging a violation of 18 U.S.C. § 1512(c)(2), that being Witness Tampering____”). K. Uli-barri explains in the Amended Objections that, after he informally objected to the PSR, "the Government and the Defendant agreed that Obstruction of Justice is a more appropriate description of the charge” to which he had pled. Amended Objections at 1-2. K. Ulibarri further notes; "The parties do not believe that this requires a new plea proceeding as the conduct and subsection to which the Defendant plead is unchanged, only the description or name of the offense.” Amended Objections at 2. On May 12, 2015, the United States filed the Amended Information, which describes Count 1 as "Obstruction of Justice” rather than witness tampering. Amended Information, filed May 12, 2015 (Doc. 908)("Amended Information”). That same day, K. Ulibarri pled to the Amended Information. See Plea Minute Sheet, filed May 12, 2015 (Doc. 912).
. The Response provides no further information about J, Ulibarri’s "connection," e.g., whether the connection was J. Ulibarri’s -friend, business-associate, or family member.
. The Response does not address K. Ulibarri’s second objection to the PSR.
. The Court’s citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final version may contain slightly different page and/or line numbers.
. Although the Tenth Circuit stated in United States v. Washington that "the issue of a higher than a preponderance standard is foreclosed in this circuit,”
. United States v. Hendrickson is- an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
-In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to d material issue in a case and would assist the court in its disposition, we allow a citation to that decision. i
United States v. Austin,
. Facebook "is an online social networking service” that allows users to “create a user profile, add other users as friends, exchange messages, post status updates and photos, share videos and receive notifications when others update their profiles.” Facebook, Wikipedia.org, ' https://en.wikipedia.org/?title== Facebook (last visited June 24, 2015).
. That K. Ulibarri’s words do not constitute a "true threat” does not alter the Court’s decision. The "true threat” doctrine originat- • ed in Watts v. United States. That case involved Robert Watts, who appealed his conviction for violating 18 U.S.C. § 871, which prohibits any person from "knowingly and willfully ... [making] any threat to take the life of or to inflict bodily harm' upon the President of the United States.” Watts v. United States,
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B J. . .
The Supreme Court reversed Watts’ conviction.
In the wake of United States v. Watts, courts have read into federal criminal threat statutes “any scienter necessary to satisfy the demands of the First Amendment.” United States v. Heineman,
Unlike § 875(c), which would run afoul of the First Amendment absent an imputed mens rea requirement, § 211.2(b)(1)(B)' already contains a mens rea requirement. It is therefore more similar to 18 U.S.C. § 1512(b), which prohibits "knowingly uses intimidation, threatens, or corruptly persuades another person ..., with intent to influence, delay, or prevent the testimony of any person in an official proceeding,” than to 18 U.S.C. § 875(c). Because speech which falls under § 1512(b) merits no First Amendment protection, see United States v. White,
Moreover, the Court questions whether the First Amendment applies to the Sentencing
The rationale behind the "true threat” and other similar First Amendment doctrines— that adding a mens rea requirement to statutes that otherwise have none avoids criminalizing otherwise innocent speech — is absent in the Guidelines context, because the defendant "has demonstrated a .vicious will by committing the principle offense.” United States v. Brantley,