                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3986
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * District of Minnesota.
                                        *
Michael Scott Wahlstrom,                *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 23, 2009
                                Filed: December 1, 2009
                                 ___________

Before LOKEN, Chief Judge, MURPHY, and MELLOY, Circuit Judges.
                             ___________

MURPHY, Circuit Judge.

       Michael Scott Wahlstrom pled guilty to seven counts related to possession and
distribution of methamphetamine as well as possession of firearms. The district court1
sentenced Wahlstrom to 384 months, the bottom of the guideline range. Wahlstrom
appeals, arguing that the district court erred in applying a two level enhancement for
obstruction of justice under U.S.S.G. § 3C1.1 and that his sentence was unreasonable.
We affirm.


      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
                                          I.

       In 2006 Michael Wahlstrom was arrested during a traffic stop and found to be
in possession of a small amount of methamphetamine, approximately $1,600 in cash,
and a .22 magnum revolver loaded with hollow point rounds. Several months later,
he sold methamphetamine to a confidential informant in a controlled buy operation.
Police executed search warrants on his residences shortly thereafter and discovered
large quantities of methamphetamine prepared for distribution, an assault rifle, an
automatic pistol, and ammunition. Wahlstrom subsequently admitted that he had been
making approximately $100,000 per month trafficking in kilograms of
methamphetamine, which he received from a Mexican criminal organization and
distributed locally.

       Wahlstrom pled guilty to a seven count indictment based on the conduct and
contraband described above: conspiracy to distribute and possess with intent to
distribute 500 grams or more of methamphetamine, see 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846; possession with intent to distribute 30 grams or more of a mixture
and substance containing a detectable amount of methamphetamine, see id. §§
841(a)(1) and (b)(1)(C); possession of a firearm in furtherance of a drug trafficking
crime, see 18 U.S.C. § 924(c)(1); possession of a firearm and possession of
ammunition by a convicted felon, see id. §§ 922(g)(1) and 924(a)(2); and possession
with intent to distribute 50 grams or more of methamphetamine (actual), see 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A).

      The presentence investigation report prepared for Wahlstrom's case calculated
his guideline range as 324 to 405 months, plus a mandatory 60 month consecutive
term for possession of a firearm in connection with a drug trafficking crime. See 18
U.S.C. § 924(c). This calculation included a two level upward adjustment to the base
offense level for obstruction of justice. See U.S.S.G. § 3C1.1. The obstruction
enhancement was based on evidence that while Wahlstrom was in custody awaiting

                                         -2-
disposition of his charges, he attempted to hire someone to murder the wife of the
Assistant United States Attorney prosecuting his case. Wahlstrom denied this
accusation and objected to the obstruction enhancement.

       The district court held multiple evidentiary hearings on the conduct underlying
the enhancement. The government presented testimony from three inmates who were
in prison with Wahlstrom. These men testified that Wahlstrom told them he intended
to harm the prosecutor's wife because the prosecutor was giving him a lot of time and
was trying to get Wahlstrom's girlfriend involved in the case.

        One of the inmates, Derek Johnson, testified that Wahlstrom asked him whether
he knew anyone who would carry out a hit on the prosecutor's wife. Johnson said that
his brother would do it in exchange for a large amount of money. Wahlstrom told
Johnson that he did not have enough cash, but would discuss giving Johnson's brother
vehicles as payment. In fact, Johnson was cooperating with the government. At the
direction of law enforcement officers, he arranged a telephone call between
Wahlstrom and a deputy sheriff posing as Johnson's brother, ostensibly to discuss
payment for the hit. This call was recorded, and the district court received a transcript
of it into evidence.

       At the beginning of the call, Johnson said to the deputy that he told Wahlstrom
"basically that you were my brother and . . . that you were supposed to be the one to
take care of that business." He said that Wahlstrom would "reassure you that he's
going to pay you, and what he's going to pay you with. Now he's talking about a
special kind of Suburban that's worth $70,000." Before putting Wahlstrom on the
line, Johnson said to him: "Hey check it out, this is the guy who's supposed to be
taking care of that little hit thing that we was talking about right." After discussing
the Suburban, the deputy said to Wahlstrom, "Okay, when you, when you want that
thing done?" Wahlstrom replied, "We'll just play it by ear and that [sic]." The deputy
then said, "You know what, that car man, ya know, I'm kinda interested in some cash."

                                          -3-
Wahlstrom replied that he would "work that out with Derek." When the deputy again
asked when Wahlstrom "want[ed] it done," Wahlstrom said "I'm just saying, just not
talking on these phones dude." He ended the call shortly thereafter.

       Wahlstrom testified that he thought the telephone conversation was simply
about selling his Suburban. He claimed that Johnson and the other inmates had
concocted the story about the hit in order to obtain favorable treatment in their own
cases. Two other inmates testified on Wahlstrom's behalf. One said that Johnson told
him he could obtain leniency from the government by making up information about
other inmates. The other testified that Johnson specifically told him he had fabricated
the story about Wahlstrom's plot to kill the prosecutor's wife.

       The district court found the government's witnesses credible. Based on their
testimony and the recorded phone call, the court found the government had shown by
a preponderance of the evidence that Wahlstrom had plotted to kill the wife of the
Assistant United States Attorney prosecuting his case and had solicited an attempt on
her life. It found this conduct amounted to an attempt to obstruct or impede the
administration of justice within the meaning of § 3C1.1 and accordingly applied the
two level upward adjustment.

      Including the enhancement and 60 month mandatory consecutive term,
Wahlstrom's guideline range was 384 to 465 months. The district court sentenced him
to 384 months. Wahlstrom timely appealed. He argues that the district court erred in
applying the obstruction of justice enhancement and that his sentence was
unreasonable.

      We review the district court's factual findings for clear error and we review de
novo its application of the guidelines to those facts. United States v. McMannus, 496
F.3d 846, 850 (8th Cir. 2007). We review the reasonableness of the sentence imposed



                                         -4-
"under a 'deferential abuse-of-discretion standard.'" United States v. Battiest, 553 F.3d
1132, 1135 (8th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).

                                           II.

      Wahlstrom challenges the district court's application of U.S.S.G. §3C1.1 in four
ways. First, he argues that the district court clearly erred in concluding that he
engaged in the conduct underlying the enhancement. Second, he argues that the
evidence does not show his conduct rose to the level of an attempt and the
enhancement is therefore inapplicable. Third, Wahlstrom contends that § 3C1.1 does
not apply to actions taken against prosecutors or their family members. Finally, he
maintains that he was motivated by revenge, not the desire to affect the prosecution
of his case, and he therefore lacked the intent necessary for application of the
enhancement. We address each of these arguments in turn.

       Wahlstrom's attack on the district court's factual findings is unavailing. "A
district court's assessment of a witness's credibility is almost never clear error given
that court's comparative advantage at evaluating credibility." United States v.
Killingsworth, 413 F.3d 760, 763 (8th Cir. 2005). In its memorandum and order
applying the enhancement, the district court carefully reviewed the testimony of each
witness and provided specific reasons for its belief of some and disbelief of others.
We will not second guess its judgment.

       Moreover, the court's conclusion was not based solely on credibility judgments.
Wahlstrom's own words in the recorded telephone call are powerful evidence against
him. His claim that the conversation only concerned selling his Suburban cannot be
squared with what he said. For example, the deputy sheriff told Wahlstrom he was
"interested in some cash" and Wahlstrom replied that he would "work that out." The
district court rightly pointed out that if this conversation was really about the sale of
a Suburban, it would make no sense for the ostensible buyer to request cash from the

                                          -5-
seller. In addition, the deputy sheriff asked Wahlstrom, "When you want that thing
done?", to which Wahlstrom replied, "We'll just play it by ear." This exchange shows
that Wahlstrom did not think he was discussing selling a car. We conclude that the
district court did not err in finding that Wahlstrom planned to arrange the murder of
the wife of the Assistant United States Attorney prosecuting his case, and that he took
steps to carry out this plan by seeking out a hitman and discussing payment with him.

      We turn next to the argument that this conduct did not rise to the level of an
attempt. An attempt requires "(1) an intent to engage in criminal conduct, and (2)
conduct constituting a substantial step toward the commission of the substantive
offense which strongly corroborates the actor's criminal intent." United States v.
Lucas, 499 F.3d 769, 781 (8th Cir. 2007) (en banc) (internal quotation marks omitted).
Wahlstrom argues that his scheme was mere talk and that the conversations with
Johnson and the deputy sheriff did not constitute the requisite "substantial step"
toward consummation of his plan.

       We disagree. "'A substantial step . . . . must be necessary to the consummation
of the crime and be of such a nature that a reasonable observer, viewing it in context
could conclude . . . that it was undertaken in accordance with a design to'" commit the
substantive offense. United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987)
(quoting United States v. Mazzella, 768 F.2d 235, 240 (8th Cir. 1985)). Wahlstrom
asked Derek Johnson whether he knew anyone who would carry out a hit on the
prosecutor's wife. When Johnson ostensibly arranged a telephone conversation with
a willing assassin, Wahlstrom discussed payment with him. These actions were both
necessary to the consummation of the scheme and strongly corroborative of
Wahlstrom's criminal intent. See, e.g., United States v. Adipietro, 983 F.2d 1468,
1479–80 (8th Cir. 1993) (affirming application § 3C1.1 where defendant attempted
to bring about harm to witness through communications from jail); United States v.
May, 625 F.2d 186, 194 (8th Cir. 1980) (defendant attempted to conceal government
records where he asked one person to call another to see if records could be

                                         -6-
concealed). Accordingly, the district court did not err in concluding that Wahlstrom's
actions rose to the level of attempt within the meaning of U.S.S.G. § 3C1.1.

      Wahlstrom argues next that the obstruction enhancement does not apply where
a defendant targets a prosecutor or his family. We conclude that the guideline does
apply in these circumstances. Section 3C1.1 provides:

      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 obstructive conduct related to (i) the defendant's
      offense of conviction and any relevant conduct; or (ii) a closely related
      offense, increase the offense level by 2 levels.

       The language of § 3C1.1 is broad, and as the commentary recognizes,
"[o]bstructive conduct can vary widely in nature, degree of planning, and
seriousness." Id. n.3. As an interpretive aid, the guideline's application notes provide
a nonexhaustive list of the types of conduct which fall within its scope. Wahlstrom's
argument rests primarily on the fact that while the notes specifically cover
"threatening, intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror," id. n.4(a), they say nothing about directing such actions toward
prosecutors. Indeed, Wahlstrom suggests that prosecutors may be intentionally
omitted because while witnesses and jurors are crucial to the proof of a case, attorneys
merely present the evidence and advocate a result.

       We are not persuaded. The distinction Wahlstrom advocates has little meaning
in light of the plain language and purpose of the guideline. Threats of harm to
members of a prosecutor's family could be extraordinarily disruptive to the criminal
justice system, and such conduct fits within the guideline. Section 3C1.1 covers
"attempt[s] to obstruct or impede[] the administration of justice," and it makes no
distinction between different actors involved in the justice system.


                                          -7-
       Moreover, as Wahlstrom concedes, the list of covered conduct in the
application notes is not exhaustive, and the absence of prosecutors from that list is
therefore not dispositive. More important than the particular targets of a defendant's
actions are the "nature . . . and seriousness" of the conduct and the likelihood that it
will disrupt the administration of justice. § 3C1.1 n.3. In determining whether
particular conduct is covered in light of these factors, the application notes direct us
to compare the list of examples in application note 4 (covered conduct) with that in
note 5 (conduct ordinarily not covered). Comparison of those lists shows that
Wahlstrom's conduct is within the scope of the guideline. Covered conduct includes,
for example, threatening witnesses and victims as well as perjury. See § 3C1.1 n.4.
Conduct ordinarily not covered includes fleeing from arrest and various immaterial
false statements unlikely to affect the investigation or prosecution of the offense.
Notably, it does not include any kind of threats or violence. See id. nn. 5, 6. Taking
these two sets of examples as our guideposts, it is clear that attempting to procure the
murder of a prosecutor's wife falls well toward the "covered" end of the spectrum.

       Several courts, including ours, have interpreted § 3C1.1 in a similar way,
applying the guideline to threats or attempts to harm prosecutors and judges. See, e.g.,
United States v. Dehghani, 550 F.3d 716, 721–22 (8th Cir. 2008) (approving
application of § 3C1.1 based on defendant's threats toward trial judge); United States
v. Black, 168 F. App'x 272, 275–76 (10th Cir. 2006) (unpublished) (defendant offered
cellmate $50,000 to murder prosecutor); United States v. Bellrichard, 801 F. Supp.
263, 266 (D. Minn. 1992) (defendant "obstructed justice within the meaning of the
guidelines" by sending threatening letters to prosecutor and court personnel). We
conclude that prosecutors are no less significant than witnesses or jurors for purposes
of § 3C1.1. Where the other elements of the guideline are met, threats or attempts to
harm a prosecutor or his family support an upward adjustment for obstruction of
justice.




                                          -8-
       Wahlstrom argues, finally, that even if actions directed at a prosecutor fall
within the scope of § 3C1.1, his conduct is not covered because he lacked the requisite
intent. He contends that §3C1.1 requires that the defendant act with intent to affect
the course of his case and that his motive was pure vengeance. We conclude that the
district court properly applied § 3C1.1 based on the finding that Wahlstrom acted
willfully in attempting to have the prosecutor's wife murdered, regardless of whether
he was motivated by revenge or the desire to affect his case. We note first that
Wahlstrom's claim that he was motivated solely by revenge is only a post hoc
explanation of his behavior. The district court made no explicit finding about his
motive, but its statement of reasons for the sentence—in which it characterized
Wahlstrom's conduct as "an attempt to terrorize an officer of the Court"—suggests it
found he sought to influence the prosecutor's actions. The evidence was certainly
sufficient to support such a conclusion.

       We need not pursue Wahlstrom's true motive further, however, because we have
already recognized that conduct such as his will support an obstruction enhancement
whether motivated by the desire to impede the proceedings or by vengeance. In
United States v. Johnson, 978 F. Supp. 1305, 1309 (D. Neb. 1997), the district court
applied § 3C1.1 upon finding that the defendants "willfully attempted to have [a
witness] harmed to silence or punish him." (Emphasis added). We affirmed, holding
that "attempt[ing] to have [a witness] harmed . . . . is sufficient as a matter of law to
warrant a two-level enhancement for obstruction of justice." United States v. Valdez,
146 F.3d 547, 555 (8th Cir. 1998), cert. denied, 525 U.S. 938 (1998).

       Having concluded that there is no material distinction between witnesses and
prosecutors in this case, we find that Valdez controls here. Attempting to harm a
prosecutor's family member is "so inherently obstructive of the administration of
justice that the enhancement should be applied if the defendant deliberately engaged
in that conduct, regardless of [his or] her specific purpose." United States v.
Cassiliano, 137 F.3d 742, 747 (2d Cir. 1998) (internal quotation marks omitted). Put

                                          -9-
another way, some conduct simply is obstruction of justice regardless of the effects
the actor intended or expected. Whether Wahlstrom was motivated by vengeance or
by the desire to affect his case, then, the district court did not err in applying § 3C1.1.

        Wahlstrom cites an unpublished opinion from the Fourth Circuit for the
proposition that § 3C1.1 does not apply if the defendant is motivated solely by
vengeance. See United States v. Gibson, 4 F.3d 987 (table), 1993 WL 343324 (4th
Cir. Sept. 3, 1993) (per curiam). We are of course bound by our own precedent, and
Gibson is at best persuasive authority. We do not find it to rise even to that level here,
for it is distinguishable from Wahlstrom's case. The defendant in Gibson faced state
drug charges, which were dropped after federal charges were instituted. See id. at *2.
During the prosecution of the federal charges, the defendant attempted to hire an
assassin to kill the state prosecutor who had initiated the state charges. Id. The court
found § 3C1.1 inapplicable, noting that "there [was] no evidence that Gibson's plot to
kill the [state] prosecutor was motivated by a desire to impede the [federal]
prosecution." Id.

       Gibson is different from the present case because there the target was involved
in a separate proceeding—state, not federal—which had already terminated by the
time of the defendant's scheme. Thus, killing the state prosecutor could not possibly
have affected the defendant's federal prosecution unless it were intended as an indirect
threat. If the defendant had no such intent, he did not act "with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction," §
3C1.1, and the threshold requirement of the Guideline was not met. The defendant's
motive in Gibson was primarily relevant, then, to the nexus between the obstructive
conduct and the offense of conviction. In Wahlstrom's case, that nexus is




                                           -10-
undisputed—he targeted the family of the prosecutor who was handling his case while
awaiting the disposition of his charges. Gibson is thus inapposite.2

      We conclude that the district court did not err in applying a two level
enhancement pursuant to U.S.S.G. § 3C1.1. We accordingly turn to Wahlstrom's
claim that his sentence was unreasonable.

                                         III.

       In reviewing the reasonableness of a sentence, we apply a "deferential abuse-of-
discretion standard." Battiest, 553 F.3d at 1135. We must "first ensure that the
district court committed no significant procedural error at sentencing. . . . If the
decision was procedurally sound, we then review the substantive reasonableness of
the sentence[,] considering the totality of the circumstances." Id. (internal quotation
marks and citations omitted). As relevant here, a district court commits procedural
error in sentencing when it fails to consider all of the sentencing factors enumerated
in 18 U.S.C. § 3553(a), bases its sentence on clearly erroneous facts, or fails
adequately to explain the chosen sentence. United States v. Smith, 573 F.3d 639, 658
(8th Cir. 2009).




      2
        Wahlstrom also relies on United States v. Haddad, 10 F.3d 1252 (7th Cir.
1993). In that case the district court applied the obstruction enhancement because the
defendant said "I want to kill somebody" as a prosecutor walked past him outside the
courtroom. See id. at 1263. The court of appeals concluded that § 3C1.1 did not
apply to this conduct because "it is obvious that [it was] not committed 'in the course
of attempting to avoid responsibility for the offense of conviction.'" Id. at 1266
(quoting U.S.S.G. § 1B1.3). The court found the record inadequate to show that the
defendant's comment was intended as any sort of threat at all, for little "factual
information" had been furnished. See id. (emphasis in original). The record here is
significantly different.

                                         -11-
       Wahlstrom argues that the district court committed procedural error by failing
adequately to consider his "history and characteristics." 18 U.S.C. § 3553(a)(1). In
particular, Wahlstrom contends that the district court's refusal to hear from witnesses
who attended the sentencing hearing to testify on his behalf shows that the court gave
inadequate consideration to these factors. We disagree.

       We look to "the entire sentencing record, not merely the district court's
statements at the hearing" in order to determine whether the court addressed the
relevant considerations. Battiest, 553 F.3d at 1135. In this case the record shows that
the district court was presented with, and properly considered, a great deal of
information about Wahlstrom's personal history. The court heard testimony during
one of the evidentiary hearings from Wahlstrom's brother and two longtime
acquaintances. It also heard from Wahlstrom himself at the sentencing hearing. The
information provided by these witnesses and the presentence investigation report
provided an adequate basis for the district court to consider Wahlstrom's history and
characteristics. The court was accordingly within its discretion in declining to take
further testimony at the sentencing hearing.

       Nothing in the record indicates that the district court failed to consider any one
of the § 3553(a) factors, nor was its explanation of the sentence inadequate. "[W]hen
a judge decides simply to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation." Rita v. United States, 551 U.S. 338, 356–57
(2007). While the court did not explain extensively its treatment of each individual
factor, it did discuss those factors it found salient. Given that the sentence was within
the guidelines range, no more explanation was required. Id. at 357. The district court
committed no procedural error in sentencing Wahlstrom.

       We turn finally to Wahlstrom's argument that his sentence is substantively
unreasonable. We judge the substantive reasonableness of the sentence with reference
to the factors enumerated in 18 U.S.C. § 3553(a). United States v. Killgo, 397 F.3d

                                          -12-
628, 630–31 (8th Cir. 2005). "Where, as here, the sentence imposed is within the
advisory guideline range, we accord it a presumption of reasonableness." Battiest,
553 F.3d at 1136 (internal alterations and citations omitted).

       Paralleling his claim of procedural error, Wahlstrom argues first that the district
court gave inadequate weight to his "history and circumstances." 18 U.S.C. §
3553(a)(1). We cannot conclude that the district court abused its discretion in
weighing Wahlstrom's background as it did. As discussed, the court was presented
with extensive information about Wahlstrom's painful personal history, and its
statement of reasons for the sentence acknowledged his "difficult childhood." The
fact that the court imposed a sentence at the bottom of the guideline range further
supports the conclusion that it gave adequate weight to Wahlstrom's history.

       Wahlstrom also argues that the guidelines overstated the severity of his criminal
history and that the district court abused its discretion in failing to account for this
fact. We are not persuaded. The district court acknowledged that Wahlstrom's
criminal history was nonviolent, but it was within its discretion in finding that history
"exceptional" in its extent and continuity. Indeed, even conceding that some of
Wahlstrom's criminal history points were attributable to minor offenses, his criminal
history category would not have decreased unless the court were to ignore more than
30 of his 43 total criminal history points. The district court did not abuse its discretion
in declining to do so.

       Wahlstrom finally argues that the district court gave too much weight to the
conduct underlying the obstruction of justice enhancement. We disagree. Wahlstrom
concedes that this conduct could properly be considered under § 3553(a); he simply
contends again that his actions were nothing more than empty threats and the district
court gave them too much weight. To the contrary, we have already concluded that
the district court properly found Wahlstrom attempted to arrange the murder of his
prosecutor's wife. It was well within its discretion in taking this conduct seriously.

                                           -13-
Moreover, the fact that the court sentenced Wahlstrom at the bottom of the guideline
range shows that it did not give undue weight to this factor.

       None of Wahlstrom's arguments shows that the district court abused its
discretion in weighing the various sentencing factors as it did. Affording the district
court's sentencing decision the significant deference it is due, see Gall, 552 U.S. at
52–53, we do not believe that Wahlstrom's sentence is unreasonable.

                                         IV.

       We conclude that the district court did not err in applying a two level upward
adjustment to Wahlstrom's offense level under U.S.S.G. § 3C1.1. We also conclude
that the sentence imposed by the district court was not unreasonable. Accordingly,
we affirm the sentence.

                       ______________________________




                                         -14-
