                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53


           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                               Argued April 20, 2005
                               Decided May 27, 2005

                                      Before

                   Hon. JOHN L. COFFEY, Circuit Judge

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

No. 02-3645

UNITED STATES OF AMERICA,                      Appeal from the United States
    Plaintiff-Appellee,                        District Court for the Southern
                                               District of Illinois
      v.
                                               No. 01CR40057-002-JPG
JONI WIGGINS,
     Defendant-Appellant.                      J. Phil Gilbert,
                                               Judge.

                                    ORDER

    Joni Wiggins pleaded guilty without the benefit of a plea agreement to one count
of conspiracy to manufacture more than 500 grams of a mixture or substance
containing methamphetamine, 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to a
term of 240 months’ imprisonment. The district court increased Wiggins’s offense
level by four after concluding that she possessed a firearm during a drug crime,
U.S.S.G. § 2D1.1(b)(1), and obstructed justice, U.S.S.G. § 3C1.1. Wiggins argues
that she is entitled to be resentenced because the district court erroneously placed
the burden of proof on her to disprove the enhancements rather than on the
No. 02-3645                                                                     Page 2

government to establish them by a preponderance of the evidence. The government
concedes error, and we vacate and remand for resentencing.

   Wiggins and four others were indicted in September 2001 for conspiring to
manufacture methamphetamine over a period of several years. The police
investigation as it related to Wiggins culminated with the execution of a search
warrant at her home that yielded methamphetamine, several precursor chemicals,
and seven firearms. Wiggins later explained that the basic outline of the group’s
scheme was for her and another woman to purchase or steal precursor chemicals
and other materials used to make methamphetamine and provide them to two men
who manufactured the drug. After Wiggins was indicted, the government claimed
that she tried to intimidate potential witnesses by doing things such as making
harassing phone calls and disclosing confidential information to the witnesses.

   The probation officer recommended a base offense level of 34 based on his
calculation that Wiggins was responsible for 1.6 kilograms of methamphetamine.
He recommended a two-level increase for obstructing justice and another two-level
increase for possessing a firearm during a drug offense. The district court accepted
the recommendations and also granted a three-level reduction for acceptance of
responsibility. The court acknowledged that “generally when there is an
obstruction enhancement, adjustment for acceptance [of] responsibility is
inconsistent with that,” but it nevertheless granted Wiggins’s motion for the
adjustment because she entered a plea of guilty and faced “a tremendous amount of
time.”

   At sentencing, Wiggins objected to both of the recommended enhancements. She
argued that the firearm enhancement was unwarranted because she said the guns
did not belong to her and were not related to the drug conspiracy. With respect to
the obstruction-of-justice enhancement, Wiggins claimed that she showed
confidential documents to potential witnesses only in an attempt to develop her
defense and that the government could not prove that she intended to harass
witnesses or impede the ongoing investigation. While Wiggins’s attorney was
arguing, the court commented on the burden of proof applicable to the
enhancements: “This is a burden that you have to show, not that the government
has to show it doesn’t apply. . . . [I]t’s your burden, not the government’s burden, on
this issue.” In light of Wiggins’s criminal history category III, the two
enhancements raised her sentencing range to 210 to 262 months, from 135 to 168
months.

   Wiggins argues—and the government does not dispute—that the district court
erred when it imposed the two enhancements because its comment that Wiggins
bore the burden of disproving those enhancements misstated the law. We review
the district court’s legal interpretations of the guidelines de novo and its factual
findings for clear error. United States v. Smith, 332 F.3d 455, 457-58 (7th Cir.
2003). We agree that the district court erred and a resentencing is proper. As for
No. 02-3645                                                                   Page 3

the enhancement for obstruction of justice under U.S.S.G. § 3C1.1, the government
bears the burden of proving by a preponderance of the evidence that such an
enhancement is warranted. United States v. Noble, 246 F.3d 946, 953 (7th Cir.
2001); United States v. Ewing, 129 F.3d 430, 434 (7th Cir. 1997); see also United
States v. Brennan, 326 F.3d 176, 200 (3d Cir. 2003) (district court erred by
requiring defendant to disprove obstruction of justice enhancement, though error
held to be harmless). The trial court, however, did not place the burden on the
government and instead required Wiggins to prove that the enhancement was not
warranted. The district court’s remark also misallocated the burden of proof on the
firearm enhancement. See U.S.S.G. § 2D1.1(b)(1). Under § 2D1.1(b)(1), the
government must first establish by a preponderance of the evidence that the
defendant possessed a gun, and then the defendant must show that it was clearly
improbable that the weapon was connected to the drug offense. United States v.
Starks, 309 F.3d 1017, 1026 (7th Cir. 2002). The government concedes that the
district court’s statement could be interpreted as placing the burden of proof on
Wiggins from the outset, rather than first requiring the government to meet its
burden of proof and then shifting the burden to her.

   Wiggins’s sentence is VACATED and this case is REMANDED for resentencing.
The district court will consider United States v. Booker, 125 S. Ct. 738 (2005), when
reimposing sentence.
