                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          February 6, 2007
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                             __________________________                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

           Plaintiff - Appellee,

 v.                                                         No. 05-3428
                                                            (D. Kansas)
 FR ED H OWA RD ,                                   (D.Ct. No. 03-CR-20146-CM )

           Defendant - Appellant.
                          ____________________________

                               OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Fred Howard was charged in a superseding indictment with distribution of

five grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(B)(iii) (Counts 1 and 2), the manufacture and possession

       *
         This order and judgment is not binding precedent except under the doctrines of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.
with intent to distribute fifty grams or more of cocaine base (crack cocaine) in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) (Count 3), and the attempted

intim idation of a w itness in violation of 18 U.S.C. § 1512(b)(1) (Count 4). 1 On

April 2, 2004, Howard pled guilty to Counts 1-3 without benefit of a plea

agreement. O n M ay 3, 2004, Count 4 was dismissed at the government’s request.

Eventually, Howard was allowed to withdraw his plea as to Count 3, which was

subsequently dismissed on February 15, 2005, upon motion of the government.

The Presentence Investigation Report (PSR ) calculated a sentencing range of 188

to 235 months imprisonment. Howard objected to the PSR calculation and argued

the guideline range w as unreasonable under United States v. Booker, 543 U.S. 220

(2005). The district court overruled the objections and sentenced Howard to 188

months imprisonment on October 31, 2005. Howard filed a timely notice of

appeal. W e exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291

and AFFIRM .

                                    BACKGROUND

      The PSR grouped Counts 1 and 2 pursuant to USSG §3D1.2(d). 2 It found

the total amount of drugs involved in the two counts to be the equivalent of




      1
          The original indictment, filed October 16, 2003, contained only Counts 1 and 2.
      2
        The November 2004 edition of the United States Sentencing Guidelines Manual
was used in this case.

                                             -2-
1,404.18 kilograms of marijuana. 3 Under §2D1.1(c)(4), the base offense level for

at least 1,000 kilograms but less than 3,000 kilograms of marijuana was 32. The

PSR then recommended a two level enhancement for Howard’s possession of a

loaded handgun pursuant to §2D1.1(b)(1), as well as a two level enhancement for

obstruction of justice pursuant to §3C1.1 based on his contact with the mother of

a potential government witness. 4 This resulted in a total offense level of 36.

Coupled with Howard’s Criminal History Category of I, the resulting guideline

range was 188 to 235 months imprisonment. The statutory minimum term of

imprisonment was five years and the maximum was forty years. 21 U.S.C. §

841(b)(1)(B).

       H oward filed five objections to the PSR. First, Howard objected to the tw o

level obstruction of justice adjustment. He maintained he never instructed his

father to intimidate the witness or the witness’ mother but rather merely asked his

father to contact the mother to inquire about the witness’ availability for trial.

Howard next challenged the PSR’s determination that a two level downward

adjustment for acceptance of responsibility was not warranted. Howard further

challenged the firearm enhancement and the PSR’s decision not to recommend a


       3
        The PSR attributed 69.8 grams of cocaine base (crack) and 40.9 grams of cocaine
hydrochloride to Howard. Pursuant to Application Notes 6 and 10 to USSG §2D1.1,
these drug amounts were converted to their marijuana equivalents resulting in a total of
1,404.18 kilograms of marijuana.
       4
        It was this contact that served as the basis for Count 4 of the superseding
indictment.

                                            -3-
“safety valve” reduction under USSG §5C1.2. Howard also alleged the

recommended sentence violated his Fifth Amendment due process rights and was

unreasonable under United States v. Booker, 543 U.S. 220 (2005). After

conducting an evidentiary hearing, the district court overruled H oward’s

objections and imposed a sentence at the bottom of the guideline range.

                                    D ISC USSIO N

      Predictably, Howard makes six arguments on appeal: (1) the district court

erred in applying the obstruction of justice adjustment under USSG §3C1.1; (2)

the district court erred in denying him credit for acceptance of responsibility

under USSG §3E1.1; (3) the district court erred in enhancing his sentence for

possession of a firearm under USSG §2D1.1(b)(1); (4) the district court erred by

not applying USSG §5C1.2’s “safety valve”; (5) the district court violated his

Fifth Amendment rights by engaging in judicial fact-finding of relevant conduct;

and (6) the 188 month sentence w as unreasonable under Booker.

      “W hen reviewing a district court’s application of the Sentencing

Guidelines, we review legal questions de novo and . . . factual findings for clear

error, giving due deference to the district court’s application of the guidelines to

the facts.” United States v. Doe, 398 F.3d 1254, 1257 (10th Cir. 2005)

(quotations omitted). “A district court’s factual finding is clearly erroneous only

if it is without factual support in the record or if this court, after reviewing all the

evidence, is left with a definite and firm conviction that a mistake has been

                                          -4-
made.” United States v. Patron-M ontano, 223 F.3d 1184, 1188 (10th Cir. 2000)

(quotations omitted). “Notably, Booker does not alter the scope of review we

apply to these challenges.” United States v. Apperson, 441 F.3d 1162, 1210 (10th

Cir. 2006), cert. denied, ___ S.Ct. ___, 2007 W L 36247, and sub. nom, ___ S.Ct.

___, 2007 W L 37456 (2007). However, after Booker, we review the sentence

imposed for unreasonableness in light of the factors set forth in 18 U.S.C. §

3553(a). Booker, 543 U.S. at 261; United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006). W e consider each of Howard’s arguments in turn.

I. Obstruction of Justice

      USSG §3C1.1 mandates a two level upward adjustment if the defendant

“willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or

sentencing of the instant offense” and “the obstructive conduct related to [] the

defendant’s offense . . . .” Application Note 4 makes clear that intimidating a

witness, or attempting to do so, qualifies as obstruction of justice. USSG §3C1.1,

comm ent. (n.4(a)). Application Note 9 holds defendants accountable for actions

undertaken by others at their instruction. USSG §3C1.1, comment. (n.9).

      The essence of Howard’s argument is that his conduct does not rise to the

level of witness intimidation. Under his version of events, he simply instructed

his father to contact the mother of a potential witness to check on the witness’

availability for trial, and the actions taken on his behalf “were no different than

                                          -5-
those routinely taken by attorneys and investigators for both the government and

the defense in preparation for trial.” (A ppellant’s Br. at 9.)

      W hat Howard never acknowledges, however, is that the potential witness,

who he repeatedly lists by name, was in fact a confidential informant. Howard

had to identify the informant, locate the informant’s mother, and then direct his

father, with the help of Howard’s girlfriend, to contact the mother. According to

testimony provided at sentencing, the informant’s mother perceived the visit from

Howard’s father and girlfriend as threatening. As the government points out,

regardless of Howard’s intent, “[t]his conduct served the purpose of notifying the

confidential [informant] that his identity was no longer secret and that his family

members could be easily accessed by the defendant.” (A ppellee’s Br. at 12.) If

Howard had simply desired an innocuous check into the availability of a potential

witness, he could have directed the request to his attorney. The district court did

not err in applying the §3C1.1 adjustment.

II. Acceptance of Responsibility

      Section 3E1.1(a) of the sentencing guidelines allows a defendant a

downward adjustment of his offense level “[i]f the defendant clearly demonstrates

acceptance of responsibility for his offense.” Application Note 4 clarifies that

“[c]onduct resulting in an enhancement under §3C1.1 (Obstructing or Impeding

the Administration of Justice) ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct.” USSG §3E1.1, comment. (n.4).

                                          -6-
Thus, Howard’s obstruction of justice adjustment under §3C1.1, which based on

our analysis above was appropriately applied in this case, clearly militates against

granting him a downward adjustment for acceptance of responsibility.

      However, Howard argues he meets the extraordinary circumstances

exception laid out in United States v. Salazar-Samaniega, thus allowing the

district court to grant him an acceptance of responsibility adjustment despite the

§3C1.1 enhancement. 361 F.3d 1271, 1280 (10th Cir. 2004). 5 In Salazar-

Samaneiga, we held “in determining whether a case is ‘extraordinary’ so as to

merit both a § 3E1.1 reduction and a § 3C1.1 enhancement, the sentencing court

must consider the totality of the circumstances, including, but not limited to 1)

whether the obstruction of justice was an isolated incident or an on-going,

systematic effort to obstruct the prosecution, and 2) w hether defendant voluntarily

terminated his obstructive conduct and truthfully admitted the conduct comprising

the offense of conviction.” Id.

      Howard asserts the district court erred by not considering his exceptional

circumstances and we should remand so the district court can “address the

Salazar[-Samaniega] standard.” (A ppellant’s Br. at 13.) The district court’s

omission of a discussion of Salazar-Samaniega’s exceptional circumstances




      5
          This exception is based on Application Note 4’s acknowledgment that “[t]here
may . . . be extraordinary cases in which adjustments under both §§3C1.1 and 3E1.1 may
apply.” USSG §3E1.1, comment. (n.4).

                                          -7-
standard is understandable, for the simple reason that Howard did not raise it

below. W hile he claimed his case was of the extraordinary nature mentioned in

Application Note 4, see supra n.5, he never expressly raised Salazar-Samaniega.

M oreover, his objection to the PSR’s failure to award an acceptance of

responsibility adjustment was largely confined to the appropriateness of the

obstruction of justice adjustment. As a general rule, this Court will not consider a

new theory on appeal, even one “that falls under the same general category as an

argument presented [below.]” Bancamerica Commercial Corp. v. M osher Steel of

Kan., Inc., 100 F.3d 792, 798-99 (10th Cir.) (quotation omitted), opinion amended

on other grounds by 103 F.3d 80 (10th Cir. 1996).

      Nevertheless, even if we were to consider this argument, Howard fails to

meet the requirements of Salazar-Samaniega for two reasons. First, as the

government points out, Howard’s conduct was not an isolated event. Howard had

to discover the confidential informant’s identity, locate the informant’s mother,

write to his father to request that he contact the informant’s mother, arrange

transportation for his father, and call his father to ensure the mother would be

contacted prior to trial. Such conduct hardly qualifies as an “isolated incident,”

but rather is an “on-going systematic effort” to obstruct justice. Salazar-

Samaniega, 361 F.3d at 1280. Second, Howard failed to establish he voluntarily

terminated his obstructive conduct. Because of H oward’s efforts, the informant’s

mother had to be relocated, precluding further contact. After being indicted for

                                         -8-
attempted intimidation of a witness, Howard pled guilty to the drug trafficking

charges. His plea, entered immediately prior to trial, obviated the need for any

further contact with the confidential informant or his mother. Howard fails to

satisfy the exceptional circumstances standard. See United States v. Buckley, 192

F.3d 708, 711 (7th Cir. 1999) (“The fact that a defendant having done everything

he could to obstruct justice runs out of tricks, throws in the towel, and pleads

guilty does not make him a prime candidate for rehabilitation.”).

III. Possession of a Firearm

      USSG §2D1.1(b)(1) provides for a two level increase in the offense level

for drug offenses “[i]f a dangerous weapon (including a firearm) w as possessed . .

. .” W eapon possession for purposes of §2D1.1(b)(1) “is established if the

government proves by a preponderance of the evidence that a temporal and spatial

relation existed between the weapon, the drug trafficking activity, and the

defendant.” United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993)

(quotations omitted). This is generally accomplished if “the government . . .

provide[s] evidence that the weapon was found in the same location where drugs

or drug paraphernalia are stored or where part of the transaction occurred.” Id. at

983 (quotations omitted). Once the government has made a sufficient showing,

the burden is on the defendant to prove that it was “clearly improbable that the

weapon was related to the offense.” United States v. Robertson, 45 F.3d 1423,

1449 (10th Cir. 1995) (quotations omitted).

                                         -9-
       Howard denies he possessed the firearm found in the house outside of

which he w as arrested. He argues the government failed to adequately establish

by “direct evidence” that he possessed the gun. (Appellant’s Br. at 15.) In

support, he cites the lack of “photographic, DNA, fingerprint, or registration

evidence” showing he possessed the gun. (Id.) Failing that, Howard argues the

government did not establish his possession of the firearm was related to his drug

activities.

       Howard misjudges the amount and nature of the evidence sufficient to find

possession of a firearm for purposes of §2D1.1(b)(1). W hile the government

adduced none of the evidence cited by Howard, it did establish a significant

connection between Howard, his drug activity and the firearm: Howard was

arrested outside a house in Kansas City, Kansas, in which the firearm and drugs

were found; Howard had keys to the house; there was evidence he was directing

his mother to make payments on the house; a K ansas identification card issued to

Howard, a receipt to Howard documenting his down payment for the purchase of

the house, items associated with the manufacture of crack cocaine and 24.5 grams

of crack cocaine were found in the kitchen; two Kansas driver’s licenses issued to

Howard, a bill in his name and 40.9 grams of cocaine hydrochloride were found

in the northeast bedroom, where the firearm and drugs w ere found; and, most

significantly, the firearm was found in the pocket of a shirt hanging next to other




                                        -10-
shirts with dry cleaning tags bearing Howard’s name. 6 This evidence is more than

sufficient to establish that “the weapon was found in the same location where

drugs or drug paraphernalia are stored or where part of the transaction occurred.”

Roederer, 11 F.3d at 983 (quotations omitted).

       Howard’s bald assertions that other people had access to the home or could

have owned the firearm do not establish that it was “clearly improbable” the gun

was related to his drug offenses. Based on this evidence, the district court did not

err in applying the §2D1.1(b)(1) enhancement.

IV. Safety Valve

       The “safety valve” in §5C1.2(a) allows a court to sentence a defendant

below the statutory minimum if “the defendant meets the criteria in 18 U.S.C. §

3553(f)(1)-(5).” Among the listed criteria is the requirement that “not later than

the time of the sentencing hearing, the defendant has truthfully provided to the

Government all information and evidence the defendant has concerning the

offense or offenses that were part of the same course of conduct or of a common




       6
         The crack cocaine and cocaine hydrochloride found in the house served as the
basis for Count 3, possession with intent to distribute at least fifty grams of cocaine base
(crack cocaine). Howard originally pled guilty to Count 3, but was permitted to withdraw
the plea when it was discovered a lab report had mistakenly identified all of the drugs as
crack cocaine, when 40.9 grams were actually cocaine hydrochloride. The government
then moved to dismiss Count 3 as it specifically alleged fifty grams of cocaine base. The
motion was granted.

                                            -11-
scheme or plan . . . .” 7 18 U.S.C. § 3553(f)(5); USSG §5C1.2(a)(5)

      In this case, the district court found Howard “ha[d] not provided [the]

government all information and evidence [he had] concerning the offense or

offenses. Therefore, [the] court would find that he did not provide complete and

truthful information to the government regarding his criminal conduct, and is

therefore not eligible for a safety valve reduction . . . .” (R. Vol. V at 102.) W e

are inclined to agree. As the government pointed out at sentencing, Howard was

not entirely forthcoming about the drugs located in the house. Those drugs served

as the basis of Count 3, to which Howard originally pled guilty and then withdrew

his plea. W hen questioned about the drugs, Howard did not answer.

      Howard argues he nevertheless provided truthful information about the

charged offenses against him and that he should be exempted from any additional

disclosure because it could be used against him in a future prosecution. Howard

misreads §5C1.2(a)(5). Not only must he provide “all information and evidence

[he] has concerning the offense[s]” with which he was charged, but also “offenses

that were part of the same course of conduct or of a common scheme or plan” in



      7
         The defendant also must not have “use[d] violence or credible threats of violence
or possess[ed] a firearm or other dangerous weapon . . . in connection with the offense.”
18 U.S.C. § 3553(f)(2); USSG §5C1.2(a)(2). In light of the district court’s finding with
respect to the §2D1.1(b)(1) enhancement, i.e., that Howard possessed a firearm, this
requirement seems the most immediate obstacle to Howard’s quest for the application of
the safety valve. However, we have previously held that enhancement under
§2D1.1(b)(1) and the grant of the safety valve are not necessarily mutually exclusive. See
United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1188 (10th Cir. 2004).

                                           -12-
order to take advantage of the safety valve. This he plainly did not do with

respect to the drugs found in the house. M oreover, even if the additional drugs

were not “part of the same course of conduct or of a common scheme or plan,”

which is hard to imagine, Howard’s argument ignores that he was originally

charged in Count 3 with possession of the Brickel drugs. W hile Howard has

every right to decline to answer questions pursuant to his Fifth Amendment right

to remain silent, exercising such right may come at the expense of the benefit of

the safety valve in §5C1.2(a)(5), as it did here. See United States v. W arren, 338

F.3d 258, 266-67 (3d Cir. 2003) (holding the safety valve qualifies as a denied

benefit, not a penalty for purposes of Fifth Amendment rights).

V. Judicial Fact-Finding--Fifth Amendment

      “[T]he Supreme Court’s holding in Booker” does not prohibit “the district

court from making the same factual findings and applying the same enhancements

and adjustments to [the defendant’s] sentence” that it could before Booker, “as

long as it [does] not apply the Guidelines in a mandatory fashion.” United States

v. Lawrence, 405 F.3d 888, 907 (10th Cir.), cert. denied, 126 S.Ct. 468 (2005).

Rather, “the Supreme Court . . . imposed a global remedy for the Sixth

Amendment difficulties w ith the Sentencing Guidelines, invalidating their

mandatory application and instead requiring district courts to consult them in an

advisory fashion.” United States v. Labastida-Segura, 396 F.3d 1140, 1142 (10th

Cir. 2005) (citing Booker, 543 U.S. at 245); see also United States v. M agallanez,

                                        -13-
408 F.3d 672, 685 (10th Cir. 2005) (“[W ]hen a district court makes a

determination of sentencing facts by a preponderance test under the now-advisory

Guidelines, it is not bound by jury determinations reached through application of

the more onerous reasonable doubt standard. In this respect, the prior Guidelines

scheme is unchanged by the seeming revolution of Booker.”), cert. denied, 126

S.Ct. 1089 (2006). Thus, it is clear that judicial fact-finding under an advisory

guideline scheme does not violate the Sixth Amendment.

      Howard claims, however, that Fifth Amendment due process forbids using

judicial fact-finding regarding relevant conduct to increase a sentence. He

correctly acknowledges we have previously rejected a similar claim. See United

States v. Rines, 419 F.3d 1104, 1106-07 (10th Cir.), cert. denied 126 S.Ct. 468

(2005). Nevertheless, he raises the issue “at least to preserve his claim for further

review” and “asks the Court to rule differently in his case.” (Appellant’s Br. at

25.) W e are bound by our prior precedent “absent en banc reconsideration or a

superseding contrary decision by the Supreme Court,” In re Smith, 10 F.3d 723,

724 (10th Cir. 1993), and decline his request.

VI. Reasonableness of Sentence

      In United States v. Kristl, we fashioned a two-step approach for post-

Booker appellate review of sentences imposed within the applicable guideline

range. 437 F.3d at 1055. First, we determine whether the district court correctly

calculated the applicable guideline range. Id. at 1054-55. If so, the sentence “is

                                         -14-
presumptively reasonable” subject to rebuttal by the defendant “in light of the

other sentencing factors laid out in § 3553(a).” Id. at 1055.

      Under this standard, Howard’s sentence is not unreasonable. As laid out

above, he was sentenced within a correctly calculated guideline range. Thus, the

sentence imposed in this case is presumptively reasonable. Id. Howard has failed

to adequately rebut the presumption of reasonableness by establishing the

sentence was unreasonable in light of the sentencing factors in § 3553(a). W hile

Howard’s lack of a criminal history counsels in favor of a relatively lighter

sentence, the district court considered this when it applied the sentencing factors

in § 3553(a) and sentenced Howard at the bottom of the sentencing range. The

fact H oward’s drugs “went not to the streets, but to law enforcement,”

(Appellant’s Br. at 27), is not a sufficient basis to find his sentence unreasonable.

      W e AFFIRM Howard’s sentence. Counsel for Appellant’s request to

appoint new counsel is D EN IED . Counsel for Appellant’s motion to withdraw

from representation in this matter is GRANTED. Appellant has filed a “M otion

for Leave to File a Pro Se Supplemental Citation to Original Appeal Brief

Pursuant to Rule 28(j) Fed.R.Civ.P.” The motion for leave to file is granted. It

contained Appellant’s arguments and authorities which we have considered.

                                        Entered by the C ourt:

                                        Terrence L. O ’Brien
                                        United States Circuit Judge



                                         -15-
