                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                  November 23, 2007
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 06-2356
          v.                                             (D. of N.M.)
 MELISSA SAENZ,                                   (D.C. No. CR-06-863-JP)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. **


      Melissa Saenz pleaded guilty to threatening or intimidating a witness in

violation of 18 U.S.C. § 1513. Based on an offense level of 23 and a criminal

history of II, Saenz fell within an advisory sentence range of 51–63 months under

the United States Sentencing Guidelines. Before the sentencing hearing, Saenz

objected to a conclusion in her Presentence Report (PSR) that she threatened a



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
witness “in order to obstruct the administration of justice.” Aple. App. at 10,

¶ 13. Finding by a preponderance of the evidence that Saenz did threaten the

witness in order to obstruct prosecution, the district court sentenced Saenz to a

within guidelines term of 51 months. Saenz timely appealed the district court’s

use of the preponderance of the evidence instead of the beyond a reasonable doubt

standard to find a sentencing fact.

        We AFFIRM.

                                          I.

        The government filed an information charging Saenz with threatening or

intimidating a witness in violation of 18 U.S.C. § 1513. She pleaded guilty, and

the PSR related the following: On February 13, 2006, police arrested Saenz’s

brother when he delivered crack cocaine to an undercover agent. Shortly

thereafter, Saenz called the agent from her brother’s phone and left the agent a

threatening message. When the agent returned Saenz’s call, she told him, “mark

my words[,] I’m going to kill you.” Id. at 8, ¶ 5. The PSR concluded Saenz

threatened the agent “in order to obstruct the administration of justice.” Id. at 10,

¶ 13.

        Before sentencing, Saenz filed a sentencing memorandum disputing the

accuracy of the PSR. Specifically, Saenz alleged she did not know she was

calling an undercover agent. Thus, Saenz argued, she could not have been acting

“in order to obstruct the administration of justice” and, instead, was merely

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threatening a drug dealer who had set up her brother. R., Doc. 22 at 2, ¶ 9

(emphasis omitted). The government objected to Saenz’s characterization. At

sentencing, the district court inferred by a preponderance of the evidence that

Saenz knew the threatened person was “involved in the prosecution” of her

brother. Aplt. App. at 7. Saenz did not object to the district court’s use of the

preponderance of the evidence standard.

                                           II.

      On appeal, Saenz argues the district court erred in finding sentencing facts

by a preponderance of the evidence rather than beyond a reasonable doubt.

Because Saenz did not raise this argument at sentencing, we review only for plain

error. See United States v. Traxler, 477 F.3d 1243, 1250 (10th Cir. 2007). “Plain

error occurs when there is (i) error, (ii) that is plain, which (iii) affects the

defendant’s substantial rights, and which (iv) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).

      Saenz’s argument lacks merit and need not detain us long. We have clearly

explained, “[b]ecause the post-Booker Guidelines are discretionary, a district

court may continue to find [sentencing] facts . . . by a preponderance of the

evidence.” United States v. Hall, 473 F.3d 1295, 1312 (10th Cir. 2007) (citing

United States v. Rodriguez-Felix, 450 F.3d 1117, 1130–31 (10th Cir. 2006)).

Under applicable case authority, the district court therefore committed no error,

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plain or otherwise, in finding by a preponderance of the evidence that Saenz

threatened an undercover agent in order to obstruct the administration of justice.

      Saenz also appears to challenge the reasonableness of her sentence. On

appeal, her within guidelines sentence is presumptively reasonable, United States

v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006), and she had pointed to no error

by the district court in applying the sentencing factors set forth in 18 U.S.C.

§ 3553(a). We thus find no legal error in the length of her sentence.

                                        III.

      Accordingly, the district court’s sentence is AFFIRMED.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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