                                                                        FILED
                                                                 United States Court of
                                                                     Appeals
                                                                     Tenth Circuit
                              PUBLISH

             UNITED STATES COURT OF APPEALS
                                                                      August 19, 2015

                                                                 Elisabeth A. Shumaker
                   FOR THE TENTH CIRCUIT                             Clerk of Court
                   _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                      No. 13-2189

JOSEPH C. KUPFER,

      Defendant - Appellant.
                   _________________________________

           Appeal from the United States District Court
                  for the District of New Mexico
                 (D.C. No. 1:10-CR-03383-WJ-1)
                   _________________________________

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs) Office of the
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Jeremy Pena, Assistant United States Attorney (Damon P. Martinez,
United States Attorney, with him on the brief) Office of the United
States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

                    _________________________________

Before BRISCOE, Chief Judge, BALDOCK, and BACHARACH,
Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
              _________________________________
      According to the government, Mr. Joseph Kupfer and his wife

conspired to enable Dr. Armando Gutierrez (a media consultant) to

increase his compensation under a State contract without any

additional work. In exchange for the increase, Dr. Gutierrez allegedly

gave kickbacks to Mr. Kupfer through Mr. Kupfer’s consulting

company. The government alleged that Dr. Gutierrez had disguised

the kickbacks as payments for Mr. Kupfer’s work on a separate media

campaign involving voter awareness.

      The government successfully prosecuted Mr. Kupfer in two

trials. In the first, the jury found Mr. Kupfer and his wife guilty of

tax evasion. In the second, the jury found Mr. Kupfer guilty of

stealing and participating in a conspiracy to steal federal government

property with a co-defendant, Dr. Gutierrez. The district court

entered a judgment of conviction for these crimes and sentenced

Mr. Kupfer to ten years in prison. Mr. Kupfer appeals the conviction

and sentence on all counts.

      On appeal, we affirm the conviction and reverse and remand to

the district court for resentencing.

I.    Issues Involving the Conviction

      We start with Mr. Kupfer’s challenges to the conviction.




                                   -2-
      A.    Tax Evasion Trial

      Mr. Kupfer and his wife jointly filed federal income taxes from

2004 to 2006, but failed to report over $790,000 in gross income. The

government charged Mr. Kupfer with three counts of tax evasion and

aiding and abetting, one count for each year. See 26 U.S.C. § 7201;

18 U.S.C. § 2. Mr. Kupfer admitted that he had failed to report a

substantial amount of gross income, but denied that his under-

reporting was willful. The jury disagreed and found Mr. Kupfer

guilty on each count. On appeal, he challenges the adequacy of the

jury instructions and the district court’s response to an allegation of

jury misconduct. 1 On both issues, we conclude that the district court

acted within its discretion.

      1.    Jury Instructions

      The district court instructed the jury that it could find guilt

only if Mr. Kupfer’s under-reporting of income had been willful.

According to Mr. Kupfer, the court should have gone further,

instructing the jury that the under-reporting would not have been

considered “willful” if it had been merely negligent, inadvertent,

accidental, mistaken, or reckless. We rejected this contention in

1
      Ms. Elizabeth Kupfer filed her own appeal in the tax evasion
case, and Mr. Kupfer joins in her arguments. See Fed. R. App. P.
28(i). We more fully addressed the issues on the tax counts in United
States v. Kupfer (Elizabeth), No. 13-2138, __ F.3d __, 2015 WL
4081108, at *1-3 (10th Cir. July 7, 2015).
                                   -3-
deciding Ms. Kupfer’s appeal. United States v. Kupfer (Elizabeth),

No. 13-2138, __ F.3d __, 2015 WL 4081108, at *1–3 (10th Cir. July 7,

2015). Based on our opinion in that appeal, we conclude that the

district court acted within its discretion in declining to include Mr.

Kupfer’s proposed language.

      2.    Juror Misconduct

      After the trial ended, Ms. Kupfer submitted an affidavit from a

juror stating that a fellow juror had commented about other charges

during jury deliberations. Based on this affidavit, Mr. Kupfer

requested a new trial on the ground of juror misconduct. The district

court declined to conduct a hearing or grant a mistrial. We conclude

that these rulings fell within the district court’s discretion because

the court could reasonably determine on the record it had that (1) a

hearing was unnecessary and (2) the improper remarks were

harmless.

      When a defendant presents credible evidence of prejudicial

information during jury deliberations, a presumption of prejudice

arises and the trial court must investigate. United States v. Davis, 60

F.3d 1479, 1484–85 (10th Cir. 1995). To carry out that duty, trial

courts must ordinarily hold a hearing; but in rare exceptions, the

court need not hold a hearing if it would not be useful. United States

v. McVeigh, 153 F.3d 1166, 1186 (10th Cir. 1998).

                                   -4-
      As explained in our opinion addressing Ms. Kupfer’s appeal,

the district court acted within its discretion in declining to conduct a

hearing and in denying the motion for a mistrial. United States v.

Kupfer (Elizabeth), No. 13-2138, __ F.3d __, 2015 WL 4081108, at

*3–6 (10th Cir. July 7, 2015).

      B.    Conspiracy Trial

      The conspiracy trial involved allegations of overpayment to

Mr. Kupfer, ostensibly based on his subcontract to help on a media

campaign. This media campaign grew out of a federal grant to the

State of New Mexico to increase voter awareness. With this grant,

the State paid millions to a consultant (Dr. Gutierrez), who in turn

paid over $740,000 to Mr. Kupfer.

      Dr. Gutierrez also had two other State contracts. One involved

an anti-smoking campaign; the other involved an elder-abuse

campaign.

      No misconduct is alleged with the elder-abuse campaign. But

the government argued at trial that Mr. Kupfer had influenced the

State to amend the contract for the anti-smoking campaign, allowing

Dr. Gutierrez to obtain more than $950,000 in extra compensation.

      According to the government, Mr. Kupfer earned only a small

fraction of the $950,000+. The remainder, according to the

government, was a kickback to Mr. Kupfer for his role in getting

                                   -5-
Dr. Gutierrez the increased compensation on his anti-smoking

contract.

      Invoking this theory, the government charged Mr. Kupfer with

one count of conspiracy and three counts of stealing federal money or

assisting another in stealing federal money. The jury found Mr.

Kupfer guilty on all counts, and he argues that the district court erred

by admitting evidence of the anti-smoking and elder-abuse contracts.

      1.    Evidence Involving the Anti-Smoking Contract

      At trial, the government presented evidence of Mr. Kupfer’s

role in a contract between the New Mexico Attorney General’s Office

and Dr. Gutierrez. This contract called for Dr. Gutierrez to produce

commercials on smoking prevention and cessation.

      Mr. Kupfer moved to preclude evidence of this contract,

arguing that (1) the evidence was not relevant and (2) it constituted

inadmissible evidence of uncharged misconduct under Federal Rule

of Evidence 404(b). The court overruled the objection, holding that

(1) the evidence was probative as intrinsic evidence and (2) the

probative value was not substantially outweighed by the danger of




                                  -6-
unfair prejudice. 2 We conclude that the district court acted within its

discretion in admitting the evidence.

      a.    Intrinsic Evidence

      Mr. Kupfer challenges the characterization of the anti-smoking

contract as intrinsic evidence. We reject that challenge. The district

court acted within its discretion in concluding that the evidence was

inextricably intertwined with the charged conduct.

      When we apply Rule 404(b), we distinguish between evidence

that is extrinsic or intrinsic to the charged crime. United States v.

Pace, 981 F.2d 1123, 1135 (10th Cir. 1992), abrogated on other

grounds as recognized in United States v. Bell, 154 F.3d 1205, 1209–

10 (10th Cir. 1998). Evidence of other acts may be inadmissible

under Federal Rule of Evidence 404(b), but this rule does not cover

evidence that is considered “intrinsic.” United States v. Irving, 665

F.3d 1184, 1212 (10th Cir. 2011).

      Evidence is considered

           “intrinsic” when it is “directly connected to the factual
            circumstances of the crime and provides contextual or
            background information to the jury,” and

           “extrinsic” when it “is extraneous and is not intimately
            connected or blended with the factual circumstances of
            the charged offense.”

2
      In the alterative, the district court held that the evidence would
be admissible as extrinsic evidence. We need not address the
alternative rationale.
                                   -7-
United States v. Parker, 553 F.3d 1309, 1314 (10th Cir. 2009)

(quoting Thomas M. DiBiagio, Intrinsic and Extrinsic Evidence in

Federal Criminal Trials: Is the Admission of Collateral Other-

Crimes Evidence Disconnected to the Fundamental Right to a Fair

Trial, 47 Syracuse L. Rev. 1229, 1231 (1997)).

     We regard evidence as intrinsic when it

          was “inextricably intertwined” with the charged conduct, 3

          occurred within the same time frame as the activity in the
           conspiracy being charged, 4

          was a necessary preliminary to the charged conspiracy, 5

          provided direct proof of the defendant’s involvement with
           the charged crimes, 6

          was “entirely germane background information, . . .
           ‘directly connected to the factual circumstances of the
           crime,’” 7 or



3
      United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993)
(quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.
1990)).
4
     See United States v. Parker, 553 F.3d 1309, 1315 (10th Cir.
2009) (“The three transactions within the charged conspiracy time-
frame are intrinsic to the crime and substantiate the criminal
conspiracy.”).
5
     Lambert, 995 F.2d at 1007.
6
     Parker, 553 F.3d at 1314–15.
7
     United States v. Irving, 665 F.3d 1184, 1212–13 (10th Cir.
2011) (quoting Parker, 553 F.3d at 1314).
                                  -8-
          was necessary to provide the jury with background and
           context of the nature of the defendant’s relationship to
           his accomplice. 8
The district court could reasonably conclude that evidence of the

anti-smoking contract had satisfied these criteria: Dr. Gutierrez’s

payments to Mr. Kupfer and the anti-smoking contract amendments

occurred together within a short time-period and tended to show the

conspiracy being charged and Mr. Kupfer’s involvement. See United

States v. Parker, 553 F.3d 1309, 1315 (10th Cir. 2009).

     The district court regarded the anti-smoking contract as

intrinsic because it (1) was intertwined with payments Dr. Gutierrez

had made to Mr. Kupfer and (2) showed Elizabeth Kupfer’s

involvement in issuing payments. R., vol. VIII, at 3081–82. The

district court based its ruling on the government’s theory of the

intertwined relationship between the federal grant and the anti-

smoking contract amendments, which is reflected by the timing of the

payments to Mr. Kupfer.

     Within five months of receiving a $250,000 increase in the

anti-smoking contract, Dr. Gutierrez paid $140,000 to Mr. Kupfer’s

consulting company even though it had not yet begun work on the

project. Id. at 1866–67, 2620–21. The court could wonder why Dr.


8
     United States v. Hall, 508 F. App’x 776, 779–80 (10th Cir.
2013) (unpublished).
                                  -9-
Gutierrez was willing to pay Mr. Kupfer’s consulting company in

advance. See id. at 1808 (discussing the facts that “the contract

became effective 9-9-04, and that invoice [for $2 million] came in

the day after”).

      Then, within thirteen months of the largest price increase under

the anti-smoking contract ($350,000), Dr. Gutierrez made three more

monthly payments (totaling $200,000) to Mr. Kupfer’s consulting

company.

      Based on this timing, the jury could infer a connection between

(1) Dr. Gutierrez’s price increases under the anti-smoking contract

and (2) his payments to Mr. Kupfer under the voter-awareness

contract.

      Mr. Kupfer argues that the voter-awareness and anti-smoking

contracts were distinct because the contracts involved different

agencies, only one of the contracts involved federal funds, and the

anti-smoking contract preceded the voter-awareness contract by four

years. It is true that the contracts were distinct. But the government

theorized that Dr. Gutierrez had used money from the voter-

awareness contract to pay Mr. Kupfer for increasing the payments

under the anti-smoking contract. Under this theory, both contracts

(the voter-awareness and the anti-smoking contracts) were integral to



                                  -10-
the scheme. The differences between the contracts did not invalidate

the government’s theory.

     According to Mr. Kupfer, the government changed its theory at

trial, characterizing the payments to Mr. Kupfer as kickbacks on the

voter-awareness contract (rather than for the price increases on the

anti-smoking contract). This argument reflects Mr. Kupfer’s

confusion over the government’s theory.

     The government never accused Mr. Kupfer of doing something

illegal to get Dr. Gutierrez the voter-awareness contract; the

government’s theory―before, during, and after the trial―was that

Mr. Kupfer and his wife had worked to land Dr. Gutierrez over

$950,000 in additional payments under the anti-smoking contract.

     Under the government’s theory, Dr. Gutierrez had to pay

Mr. Kupfer to secure the extra payments. Mr. Kupfer had no

responsibilities under the anti-smoking contract, but he had a

subcontract to help Dr. Gutierrez with the voter-awareness contract.

That subcontract involved Mr. Kupfer’s production-related work on a

short training video. For that work, Dr. Gutierrez paid Mr. Kupfer

over $740,000. The government attributed those payments to

kickbacks for the anti-smoking contract’s price increases. The

kickbacks, however, were disguised as payments for Mr. Kupfer’s

work on the voter-awareness contract.

                                 -11-
     Mr. Kupfer contends that the government dropped this theory at

trial, but the government never wavered from this theory. At trial,

for example, the government explained its conspiracy allegation in

opening statements:

            And you may ask why during the course of this
     trial, why the Defendant Gutierrez would pay $750,000 to
     Defendant Joseph Kupfer. The evidence, as I previously
     mentioned, is going to show that there were favors back
     and forth between these two men over the course of the
     years, political allies, friends. But $750,000? Here’s what
     you’re also going to learn, that in addition to the [voter-
     awareness] contract that the defendant had with the
     Secretary of State’s office during this time frame, he also

                                 -12-
      had contracts with the Attorney General’s office where
      Elizabeth Kupfer was the chief financial officer. And
      these were lucrative contracts, you will learn.

R., vol. VIII, at 1383–84. The government then discussed the

amendments to Dr. Gutierrez’s anti-smoking contract, which

increased his pay from $150,000 to over $1,100,000. Id. at 1384. The

government repeated this theory in closing argument. Id. at 2931–33.

In our view, the government’s theory has been consistent throughout

the proceedings.

      In these circumstances, the district court had the discretion to

treat the evidence as intrinsic.

      b.    Unfair Prejudice

      Mr. Kupfer also contends that the district court erred in

applying Federal Rule of Evidence 403. Under this rule, the district

court can exclude evidence if the probative value is substantially

outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. The

district court concluded that the danger of unfair prejudice did not

require exclusion.

      In reviewing this conclusion, we apply the abuse-of-discretion

standard. United States v. Archuleta, 737 F.3d 1287, 1292 (10th Cir.

2013). Under this standard, the ruling was permissible.

      The court could reasonably view the evidence as highly

probative. Mr. Kupfer acknowledges that the anti-smoking contract

                                   -13-
was “highly suspicious” because it “ballooned Gutierrez’s pay by

over $800,000.” Appellant’s Opening Br. at 31.



     The Increases in Dr. Gutierrez’s Anti-Smoking Contract




     The biggest jumps occurred in May 2004 and December 2004,

with amendments that increased Dr. Gutierrez’s compensation by

$250,000 and then $350,000. Between these two huge jumps, Dr.

Gutierrez paid Mr. Kupfer’s company $140,000, before Mr. Kupfer

had done any work on the anti-smoking campaign.

     And within thirteen months of obtaining the unexplained

increase of $350,000 under the anti-smoking contract, Dr. Gutierrez

paid Mr. Kupfer’s company another $200,000. Mr. Kupfer ultimately


                                -14-
collected a total of $746,375 for work on the voter-awareness

contract.

      But even after being subpoenaed, Dr. Gutierrez never furnished

a contract between himself and Mr. Kupfer (or Mr. Kupfer’s

consulting company) and took two years to furnish invoices that had

been subpoenaed. And in the invoices eventually furnished, Mr.

Kupfer had provided only vague descriptions of his work (without

any itemization).

      In these circumstances, the district court could view the

$746,375 in payments to Mr. Kupfer’s company as compensation for

the extraordinary increases in Dr. Gutierrez’s anti-smoking contract.

As a result, the court could reasonably view evidence of the anti-

smoking contract as highly probative.

      Under Rule 403, the court could still exclude the evidence if

the probative value was substantially outweighed by the danger of

unfair prejudice. But the court could reasonably view any prejudice

as fair, rather than unfair.

      In urging unfair prejudice, Mr. Kupfer denies involvement in

the numerous increases in Dr. Gutierrez’s anti-smoking contract.

Mr. Kupfer says it was his wife, not himself, with the connections

and position to engineer these price increases. According to Mr.

Kupfer, the evidence was unfairly prejudicial because the jury could

                                 -15-
impermissibly find him guilty by association because of his wife’s

conduct, without finding any wrongdoing on the part of Mr. Kupfer.

      But the district court could view the situation differently. There

was evidence that both Kupfers (not just Ms. Kupfer) had strong ties

to the Secretary of State. And sandwiched between two extraordinary

compensation increases for Dr. Gutierrez were equally generous,

unexplained payments from Dr. Gutierrez to the company owned by

Mr. Kupfer, not his wife. In these circumstances, the district court

could reasonably conclude that Mr. Kupfer was being held

accountable for his own role―not his wife’s―in the huge increases

paid to Dr. Gutierrez under the anti-smoking contract. 9 Thus, the

district court did not abuse its discretion in applying Rule 403.

      2.    Elder-Abuse Contract

      The district court allowed the government to use evidence of a

contract between Dr. Gutierrez and the Attorney General’s office to

create media materials raising awareness of elder abuse, dubbing the

9
      Mr. Kupfer relies on United States v. Cardall, 885 F.2d 656,
671 (10th Cir. 1989). Cardall does not support Mr. Kupfer’s
argument. There we explained that the government must give a
precise reason for introduction of evidence requiring a prior bad act,
and the reason must involve the defendant’s participation in the bad
act. 885 F.2d at 671.

      Here, the government provided the precise reason for
introduction of the evidence; that reason involved Mr. Kupfer’s own
“bad act,” a scheme to obtain kickbacks for inflating Dr. Gutierrez’s
payments from the State.
                                 -16-
contract the “Elder-Abuse Contract.” The government alleged no

wrongdoing with respect to that contract, offering it only as an

example of a legitimate baseline to compare the cost of the anti-

smoking campaign. Mr. Kupfer argues the district court erred in

allowing use of the elder-abuse contract because there was no link

between him and the evidence. We need not reach this argument for

two reasons:

      1.    The elder-abuse contract could have been admissible as
            probative evidence unrelated to character.

      2.    Any error in admitting the evidence would have been
            harmless.

      a.    The Admissibility of the Elder-Abuse Contract

      Under Federal Rule of Evidence 402, all relevant evidence is

admissible unless otherwise stated by federal law or rule. Rule

404(b) provides an example of a rule stating otherwise, for this rule

precludes evidence of other acts. United States v. Commanche, 577

F.3d 1261, 1267 (10th Cir. 2009). But this rule precludes the use of

evidence only when it is offered to attack a witness’s character. Fed.

R. Evid. 404(b); see United States v. Kendall, 766 F.2d 1426, 1436

n.5 (10th Cir. 1985) (“To fall within the scope of 404(b), an act need

not be criminal, so long as it tends to impugn a defendant’s

character.”).



                                 -17-
     The evidence of an elder-abuse contract is not subject to Rule

404(b) because it does not concern character. The government

offered the evidence only to illustrate a legitimate contract between

Dr. Gutierrez and the New Mexico Attorney General’s Office. Under

the contract, Dr. Gutierrez received $63,418.92 (for which there was

no allegation of wrongdoing). R., vol. VIII, at 1861–62. By

comparison, Dr. Gutierrez received over $1.1 million for similar

work under the suspect anti-smoking contract. Id. at 1867.

     Once the anti-smoking contract was admitted, the elder-abuse

contract became relevant to show Dr. Gutierrez’s normal billing rate

for a legitimate media contract. Because there was no suggestion of

wrongdoing in connection with the elder-abuse contract, there was no

danger involving use of the contract as character evidence.

     Minimal danger arose from this benign evidence and it had

probative value; thus, the evidence was relevant and was not subject

to exclusion under Rule 403 or Rule 404(b).

     b.    Harmless Error

     Even if the district court had erred in admitting the elder-abuse

contract evidence, it would have been harmless.

     We will not reverse a defendant’s conviction on the basis of a

district court’s erroneous admission of evidence if the error was



                                 -18-
harmless to the defendant. United States v. Blechman, 657 F.3d 1052,

1067 (10th Cir. 2011).

     Under this standard, we ask if the error had a “substantial

influence” on the trial’s outcome or generates “‘grave doubt’ as to

whether it had such effect.” United States v. Rivera, 900 F.2d 1462,

1470 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United States,

328 U.S. 750, 756 (1946)). To make this assessment, we review the

entire record de novo, “examining the context, timing, and use of the

erroneously admitted evidence at trial and how it compares to

properly admitted evidence.” United States v. Hanzlicek, 187 F.3d

1228, 1237 (10th Cir. 1999).

     The government showed that any error would have been

harmless, for the elder-abuse contract had played only a minor role in

the trial. On that contract, the government asked one witness five

general questions. R., vol. VIII, at 1861–62. These questions

pertained only to the amount of the fees ($63,418.92) and

identification of Ms. Kupfer as the person overseeing the contract.

Id. In these questions and answers, there was no suggestion of

wrongdoing with respect to that contract. Id. And in closing

argument, the prosecutor never even mentioned the elder-abuse

contract. In these circumstances, we conclude that the evidence

regarding the elder-abuse contract did not substantially influence the

                                 -19-
trial or generate grave doubt about the outcome. Accordingly, any

error would have been harmless.

II.   Issues Involving Procedural Reasonableness of the
      Sentence

      After entering a judgment of conviction, the district court

sentenced Mr. Kupfer for all offenses. In deciding on the sentence,

the court calculated the guideline range. According to Mr. Kupfer,

the calculations were incorrect because the court had (1) selected the

wrong guideline for the offense, and (2) improperly enhanced the

sentence based on obstruction of justice. We agree with both of

Mr. Kupfer’s arguments.

      A.    Applicable Offense Guideline

      When calculating the appropriate guideline, the district court

started by evaluating the trial evidence. R., vol. VIII, at 3253–61.

Mr. Kupfer argues this approach constituted error because the court

should have considered only the offense of conviction as charged and

presented to the jury. We agree.

      In reviewing the district court’s selection of the applicable

offense guideline, we engage in de novo review. See United States v.

Neilson, 721 F.3d 1185, 1187 (10th Cir. 2013). 10 Applying de novo


10
      The government argues that the clear-error standard applies
because the selection of the offense guideline turns on factual
findings. As discussed below, we disagree. The district court
                                   -20-
review, we conclude that the district court incorrectly chose the

offense guideline.

      To determine the offense guideline in this case, the court had to

engage in a three-step process 11:

      1.      identifying the charge from the indictment and jury
              instructions,

      2.      finding the substantive offense in the guidelines’
              statutory index, and

      3.      finding the applicable guideline range.

See U.S. Sentencing Guidelines Manual § 1B1.2 (U.S. Sentencing

Comm’n 2012) (explaining the process for determining the applicable

guideline).

      The district court should have begun by identifying the charge

as one involving conspiracy to steal funds. In the superseding

indictment, Mr. Kupfer was charged with two types of conspiracy

under 18 U.S.C. § 371: (1) to steal federal money in violation of 18

U.S.C. § 641, and (2) to defraud the federal government. R., vol. I, at

11–20 (Count 1). But the court instructed the jury only on the first


mistakenly relied on trial evidence to select the offense guideline. As
we explain, selection of the offense guideline entails a three-step
process involving legal determinations rather than factual findings.
11
      We do not necessarily prescribe this three-step process in every
case. In our case, however, these three steps are necessary for the
court to identify the offense guideline based on the indictment and
jury instructions.
                                     -21-
type of conspiracy: to steal federal money in violation of 18 U.S.C.

§ 641. The jury was never instructed on the government’s fraud

theory. Thus, we know that Mr. Kupfer was ultimately convicted

under 18 U.S.C. § 641 for conspiracy to steal federal money.

     When assessing a conspiracy conviction, the sentencing

guidelines instruct courts to choose the guideline provision that best

fits the substantive offense underlying the conspiracy or use the

general conspiracy guideline. U.S. Sentencing Guidelines Manual

§§ 1B1.2, 2X1.1 (U.S. Sentencing Comm’n 2012). Here, the

substantive offense involves a violation of 18 U.S.C. § 641. Thus, we

turn to the statutory index to determine the guideline provision for

§ 641.

     In the guidelines’ statutory index, § 641 is paired with two

possible guidelines: (1) § 2B1.5 and (2) § 2B1.1.

     The first possibility (§ 2B1.5) involves stealing or damaging

cultural heritage and paleontological resources. U.S. Sentencing

Guidelines Manual § 2B1.5 (U.S. Sentencing Comm’n 2012). That

provision is obviously inapplicable to our facts.

     The second option (§ 2B1.1) is a general provision covering

theft, which fits the conspiracy to steal federal money. Thus, § 2B1.1

provides the applicable offense guideline.



                                 -22-
       The government disagrees, arguing that the applicable offense

guideline is § 2C1.1. To get to § 2C1.1, the government points out

that the conspiracy was charged under 18 U.S.C. § 371. Section 371

appears in the statutory index and is paired with multiple guidelines.

Two of these are § 2X1.1 and § 2C1.1. See U.S. Sentencing

Guidelines Manual app. A, at 537 (U.S. Sentencing Comm’n 2012).

The government insists that of these guidelines, § 2C1.1 presents the

closest fit. 12

       When more than one guideline section is listed, the statutory

index instructs the court to “use the guideline most appropriate for

the offense conduct charged in the count of which the defendant was

convicted.” Id., app. A, at 532. When the conviction involves a

conspiracy, the court must “refer to § 2X1.1 (Attempt, Solicitation,

or Conspiracy) as well as the guideline referenced in the Statutory

Index for the substantive offense.” Id. § 1B1.2(a). Section 2X1.1 is a

general catch-all provision that instructs courts to apply a more

specific guideline section when a conspiracy is expressly covered by

that section. Id. § 2X1.1(c)(1).

       According to the government, the conspiracy is expressly

covered by § 2C1.1. We disagree.

12
      The government acknowledges that the other possible guideline
provisions listed in the statutory index (under 18 U.S.C. § 371) do
not apply. See Appellee’s Br. at 32.
                                   -23-
     To determine whether § 2C1.1 applies, we must determine how

we go about selecting the applicable guideline section. Mr. Kupfer

argues that we simply compare

     ●     the charge in the indictment that resulted in the
           conviction and

     ●     the corresponding provision in the guidelines’ statutory
           index.

The government argues that we should also consider the facts elicited

at the trial about the nature of the charged conspiracy. In our view,

however, that argument is foreclosed by a 2000 amendment to the

sentencing guidelines (Amendment 591).

     Prior to this amendment, the application notes suggested that

the court could often select the offense of conviction based on the

offender’s actual conduct. U.S. Sentencing Guidelines Manual

§ 1B1.2 App. Note 3 (U.S. Sentencing Comm’n 1999). In

Amendment 591, the Sentencing Commission deleted the application

note to clarify that the defendant’s actual conduct bears on “relevant

conduct,” which comes into play only after the court selects the

offense of conviction. U.S. Sentencing Guidelines Manual, App. C

(U.S. Sentencing Comm’n Supp. 2000); see United States v. Moreno,

421 F.3d 1217, 1219 (11th Cir. 2005) (per curiam) (“Amendment

591 requires that the initial selection of the offense guideline be



                                 -24-
based only on the statute or offense of conviction rather than on

judicial findings of actual conduct not made by the jury.”).

      The district court used the pre-2000 method when selecting the

offense of conviction. Instead of focusing solely on the charged

offense, as Amendment 591 requires, the district court relied on the

trial evidence to identify the offense of conviction. In relying on the

trial evidence, the court found that (1) the evidence had shown that

the conspiracy involved fraud against the federal government and (2)

the conspiracy included participation by New Mexico’s Secretary of

State, an elected official. Based on these findings, the court

characterized the conspiracy as one involving fraud and participation

by a public official. With this characterization, the court concluded

that the offense of conviction triggered § 2C1.1.

      Mr. Kupfer argues the court erred by considering these facts

when selecting the applicable provision. We agree.

      Under Amendment 591, a district court may consider other

relevant conduct later in the guideline calculation process, but not

when selecting the offense of conviction. See United States v. Boney,

769 F.3d 153, 161–62 (3d Cir. 2014) (“[T]he Guidelines Manual

makes clear that the sentencing court must select the ‘most

appropriate’ guideline based on the offense charged in the

indictment, not the court’s perception of the facts of the case

                                  -25-
presented at trial.”), cert. denied, __ U.S. __, 135 S. Ct. 1003 (2015);

United States v. Almeida, 710 F.3d 437, 441 (1st Cir. 2013) (“[W]hen

selecting the ‘most appropriate’ guideline, the sentencing court

should look to the conduct alleged in the indictment, and not to

uncharged conduct described in trial testimony.”); United States v.

Aquino, 555 F.3d 124, 129 (3d Cir. 2009) (“[W]e may consider only

offense of conviction conduct, not all relevant conduct, at Step

One.”); see also Thomas W. Hutchison, et al., Fed. Sent. L. & Prac.

§ 1B1.3, Authors’ comment 2 (2015 ed.) (stating that the offense

guideline is based on the offense of conviction, not relevant

conduct).

      The district court determined that § 2C1.1 was appropriate only

by examining the trial evidence in addition to the indictment and jury

instructions. At trial, the government theorized that Mr. Kupfer and

Dr. Gutierrez had conspired with the New Mexico Secretary of State.

Because the Secretary of State was a public official, the court

thought § 2C1.1 would apply. But Mr. Kupfer would have been guilty

even if the Secretary of State had been blameless. See United States

v. Huizar-Velazquez, 720 F.3d 1189, 1192 (9th Cir. 2013) (holding

that § 2C1.1 did not provide the correct guideline because the crime




                                  -26-
involved a scheme to trick the government out of its money rather

than to corrupt government officials). 13

      Because § 2C1.1 does not expressly cover the offense as

charged, § 2X1.1 would apply if we were to focus on the conspiracy

charge under 18 U.S.C. § 371. Because § 2X1.1 is a general

conspiracy guideline, the court calculates the base offense level by

referring to the guideline for the underlying substantive offense that

was the object of the conspiracy. U.S. Sentencing Guidelines Manual

§ 2X1.1(a) (U.S. Sentencing Comm’n 2012). As discussed above,

§ 2B1.1 appears in the statutory index and fits the substantive

offense that was the objective of the conspiracy (violation of 18


13
      Mr. Kupfer relies on United States v. Neilson, 721 F.3d 1185
(10th Cir. 2013). This reliance is misguided. As Mr. Kupfer points
out, the Neilson panel did choose the offense guideline based in part
on the defendant’s actual conduct. Neilson, 721 F.3d at 1188-89. But
there the defendant pleaded guilty and admitted his conduct in
connection with his guilty plea. Id. at 1186-87.

       Even after adoption of Amendment 591, the guidelines have
provided a narrow exception to the general rule that requires
selection of the offense of conviction based on the offense that was
charged in the indictment and that was the basis for the finding of
guilt. U.S. Sentencing Guidelines Manual § 1B1.2(a) (U.S.
Sentencing Comm’n 2012). This exception involves guilty pleas.
When a defendant pleads guilty and stipulates to a “more serious
offense than the offense of conviction,” the court must use the
offense guideline applicable to the stipulated offense. Id.

      This exception was applied in Neilson because there the
defendant pleaded guilty. Neilson, 721 F.3d at 1186-87. Mr. Kupfer
did not plead guilty, and this exception does not apply here.
                                  -27-
U.S.C. § 641). See id., app. A., at 539. Thus, if we were to focus on

the charge under 18 U.S.C. § 371, we would still need to apply

§ 2B1.1 for the offense guideline.




      When we apply § 2B1.1, we obtain a guideline range of 78–97

months. See R., vol. VIII, at 3254 (the district court’s

acknowledgment that the base-offense level would have been 28

under § 2X1.1). The district court mistakenly used § 2C1.1 as the

offense of conviction, which led to a guideline range of 121–151

months. See id. at 3258 (concluding that the base-offense level was

32 based on § 2C1.1). That error requires reversal.



                                  -28-
      B.    Obstruction of Justice Enhancement

      The district court made a second sentencing error, this one on

the calculation of the total offense level for the tax evasion counts.

In reaching that guideline, the court used an enhanced guideline on

the ground that Mr. Kupfer had obstructed justice by failing to reveal

his under-reporting of income.

      The parties agree that this enhancement constituted error. We

too agree, for we have held that enhancement for obstruction of

justice is improper based on a defendant’s failure to disclose his own

crime. See United States v. Kupfer (Elizabeth), __ F.3d __, 2015 WL

4081108, at *6 (10th Cir. July 7, 2015) (discussing the issue in

connection with the obstruction of justice enhancement for Ms.

Kupfer’s tax-evasion case). The parties also agree that this error

became prejudicial once we concluded that Mr. Kupfer’s total offense

level should have been 28 rather than 32. Oral Arg. at 18:57–19:49. 14

Thus, the enhancement for obstruction of justice constitutes

reversible error.




14
      The prejudice arises because of the corresponding adjustment
to the offense guideline under the grouping rules. See U.S.
Sentencing Guidelines Manual §§ 3D1.1–3D1.5 (U.S. Sentencing
Comm’n 2012).
                                  -29-
III.   Conclusion

       We affirm the conviction. But we reverse and remand on the

sentence with instructions to the district court to vacate the sentence

and resentence Mr. Kupfer by (1) identifying the offense level under

§ 2B1.1 rather than § 2C1.1, and (2) removing the enhancement for

obstruction of justice.




                                  -30-
