                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1746
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Northern
                                        * District of Iowa.
Miguel Carrillo,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 9, 2004
                                Filed: August 25, 2004
                                 ___________

Before MURPHY, HEANEY, and SMITH, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Miguel Carrillo appeals the district court's1 denial of a two-level downward
safety-valve adjustment and the assessment of a two-level upward adjustment for
obstruction of justice. We affirm.

                                   I. Background
      Police arrested Carrillo and Melvin Fluhr on March 28, 2002, after the two sold
one-half pound of methamphetamine to an undercover officer. After his arrest, Fluhr

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
gave the police a voluntary confession and made statements regarding Carrillo's
involvement in the drug sale. Carrillo received conditional pre-trial release. During
his release, police again arrested Carrillo for possession of 108.62 grams of
methamphetamine.

       Prior to trial, Carrillo and two other men assaulted Fluhr in jail in an alleged
attempt to prevent Fluhr from testifying against Carrillo. One inmate held Fluhr in
Carrillo's cell while Carrillo and the other man attacked Fluhr. The jail's security
video camera recorded part of the assault. Carrillo threatened Fluhr's family should
Fluhr testify against him. Carrillo and the other inmates were charged with the
assault.

       On July 25, 2002, Carrillo pleaded guilty to possession with intent to distribute
methamphetamine while on pre-trial release. Prior to sentencing, Carrillo contested
the facts in the presentence investigation report ("PSR") and the plea agreement's
stipulation of facts regarding the prison assault. The stipulation of facts contained not
only the factual basis for the drug charge, but a summary of the jail fight perpetrated
by Carrillo. Paragraph H, which detailed the jail fight, was marked through in the
stipulation of facts. However, prior to sentencing, Carrillo submitted a sentencing
memorandum that indicated that he admitted to the conduct at the jail, but that he
continued to claim that he was eligible for the safety-valve adjustment to his
sentence.2 In addition, at sentencing, Carrillo withdrew his objection to the proposed
stipulated facts. Specifically, the district judge asked, "So, Mr. Carrillo, you're no
longer saying you didn't do what's in the stipulation of facts, is that fair?" Carrillo


      2
        The government filed a motion to supplement the record on appeal to include
Carrillo's sentencing memorandum, which was omitted from the record. This
memorandum, filed by Carrillo's attorney, indicates that Carrillo only challenged
whether the jail assault was connected to the charged offense for purposes of the
safety-valve adjustment. We hereby grant the government's motion to supplement the
record on appeal.

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answered, "Yeah." The district judge clarified by asking, "You're admitting that you
did it?" Carrillo again answered, "Yeah." The only disputed issue during sentencing
continued to be whether Carrillo was eligible for the safety-valve adjustment. His
eligibility turned on whether his attack on Fluhr constituted obstructionist conduct or
conduct connected to the underlying drug offense. The district court denied the
safety-valve adjustment and sentenced Carrillo to 210 months' imprisonment and four
years' supervised release.

                                      II. Analysis
       As a preliminary matter, we address Carrillo's argument first raised in his reply
brief.3 Carrillo contends that he objected to the facts supporting the obstructionist
conduct–the jail fight–before sentencing and that he did not stipulate to these facts
in his plea agreement. Thus, he argues, these matters were preserved. However, as
noted, Carrillo filed a prehearing sentencing memorandum that indicated that he
admitted to the conduct at the jail, but that he continued to claim that he was eligible
for the safety-valve adjustment to his sentence. Thereafter, Carrillo conceded at the
sentencing hearing that he no longer objected to the proposed stipulated facts in the
plea agreement–which included paragraph H's summary of the assault on Fluhr. In
addition, Carrillo's counsel indicated at sentencing that Carrillo conceded to the
conduct, but not to whether it constituted conduct "in connection with the offense."
Although this series of objections and concessions is somewhat convoluted, our
review indicates that Carrillo's concessions in his prehearing sentencing
memorandum and during the sentencing hearing render moot any fact issue regarding
his involvement in the jail fight. We will instead address the legal issue of whether


      3
         Typically, absent some reason for failing to raise an argument in an opening
brief, we do not consider an argument first raised in a reply brief. United States v.
Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995). Carrillo has offered no justification
for his failure to raise these issues in its initial brief; consequently, we can choose not
to review it. United States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997). However, we
briefly address his claims here for clarity.

                                           -3-
Carrillo's conduct affects his eligibility for sentence adjustments under the
Guidelines.

                                A. Obstruction of Justice
       Carrillo first argues that the district court erred in applying a two-level increase
for obstruction of justice based on Carrillo's physical assault of Fluhr to prevent him
from testifying against Carrillo. Carrillo asserts that the government failed to prove
that he willfully attempted to obstruct or impede the administration of justice. The
government responds that a person's intent can be inferred from his voluntary actions,
and that Carrillo's attack on Fluhr, combined with his threat regarding Fluhr's family,
clearly demonstrated Carrillo's intent to willfully obstruct justice.

       In considering an obstruction of justice sentencing issue, we typically review
the district court's factual findings for clear error, and its application of the Guidelines
de novo. United States v. Plumley, 207 F.3d 1086, 1090 (8th Cir. 2000); United States
v. Hunt, 171 F.3d 1192, 1195 (8th Cir. 1999). However, the government asserts that
Carrillo failed to object to the increase at sentencing because he admitted to the
conduct and agreed that he was subject to the two-level increase. Therefore, the
government argues that we should review the matter for plain error. Under the plain
error standard of review, Carrillo would have to show a plain error that affects his
substantial rights. United States v. Cook, 356 F.3d 913, 919 (8th Cir. 2004); United
States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003). If he can make such a showing,
we have "discretion to correct a forfeited error if 'the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). Given the record before us, we find that
the district court did not err in assessing a two-level increase for obstruction of justice
under either standard of review.

      A two-level increase in a defendant's offense level is appropriate if the
defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the

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administration of justice during the . . . prosecution, or sentencing of the instant
offense." United States Sentencing Guidelines ("U.S.S.G.") § 3C1.1. The Guidelines
describe obstructive behavior as "threatening, intimidating, or otherwise unlawfully
influencing a . . . witness . . . directly or indirectly, or attempting to do so." See id.,
application note 3(a), (i); 18 U.S.C. § 1512(b)(1), § 1512(b)(2)(A). "'An attempt to
intimidate or threaten a witness, even if unsuccessful, is sufficient to sustain a
two-level enhancement for obstruction of justice.'" United States v. Vaca, 289 F.3d
1046, 1049 (8th Cir. 2002); United States v. Thompson, 210 F.3d 855, 861 (8th Cir.
2000); United States v. Moss, 138 F.3d 742, 746 (8th Cir. 1998)). Under U.S.S.G. §
3C1.1, the defendant must have "willfully" obstructed justice, which requires that he
knew that he was under investigation or had "'a correct belief that an investigation
[was] probably underway.'" Brown v. United States, 169 F.3d 531, 536 (8th Cir.
1999) (quoting United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir. 1993)).

        In Thompson, for example, the evidence showed that the defendant intimidated
two prosecution witnesses. Prior to trial, the defendant telephoned one witness and
demanded that he swear on the lives of his children that he had not cooperated with
authorities. The defendant also warned the witness that he could expect a visit from
him once he was released from prison. At trial, the defendant directed similar threats
to the other witness, calling the witness derogatory names and making a throat-cutting
gesture while the witness testified. The district court interpreted these acts as attempts
to impermissibly influence or intimidate a witness under § 3C1.1, and we determined
that the district court did not clearly err. Thompson, 210 F.3d at 861; See also Moss,
138 F.3d at 745–46 (finding defendant's "cutthroat" gesture to witness during trial
was obstruction of justice); United States v. Nunn, 940 F.2d 1128, 1133 (8th Cir.
1991) (finding a telephone threat made to a potential witness constituted obstruction
of justice).

      The district court specifically found that Carrillo's assault on Fluhr–who had
furnished evidence against Carrillo and, at the time of the attack, was scheduled to

                                           -5-
testify against Carrillo–occurred in the course of attempting to avoid responsibility
for the offense. The district court also determined that Carrillo used violence or
credible threats of violence in connection with the offense. Given these facts, whether
reviewed for clear error or plain error, we hold that the district court did not err in
assessing a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.

                              B. Safety-Valve Reduction
       Carrillo next argues that the district court erred in denying the two-level
downward safety-valve adjustment in U.S.S.G. § 5C1.2. He asserts that the court
erred in determining that his jailhouse attack on Fluhr was "in connection with" the
charged crime and that he was attempting to avoid responsibility for the drug crime
by threatening, attacking, and intimidating Fluhr. Carrillo concedes that if the attack
was an attempt to avoid responsibility for the drug offense, the court's denial of the
reduction was correct. Carrillo asserts, however, that his attack on Fluhr occurred
because he "reacted criminally out of anger" rather than because he was attempting
to avoid responsibility. The government responds that Carrillo failed to prove that the
assault was not "in connection with" his drug offense. The government asserts that
because Carrillo's attack "obstructed justice," he cannot meet the requirements of the
safety-valve provision. The government further notes that even if Carrillo's attack
arose from a spontaneous burst of anger, it was still in an attempt to dissuade Fluhr
from testifying, as evidenced by Carrillo's threat against Fluhr's family.

        The safety-valve provision permits a court to impose a sentence without regard
to a statutory minimum if certain conditions are met. A defendant seeking relief under
the safety valve has the burden to show that each condition of the statute has been
satisfied. Wright v. United States, 113 F.3d 133, 134 (8th Cir. 1997). The standard of
review for such a finding is clear error. United States v. Quintana, 340 F.3d 700, 702
(8th Cir. 2003); United States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999).




                                         -6-
       Sentencing Guideline § 5C1.2 and 18 U.S.C. § 3553(f) establish five criteria
that a defendant must meet to be entitled to the safety-valve reduction, including:

      (1) The defendant does not have more than 1 criminal history point, as
      determined under the sentencing guidelines before application of
      subsection (b) of 4A1.3 (Departures Based on Inadequacy of Criminal
      History Category);

      (2) The defendant did not use violence or credible threats of violence or
      possess a firearm or other dangerous weapon (or induce another
      participant to do so) in connection with the offense;

      (3) The offense did not result in death or serious bodily injury to any
      person;

      (4) The defendant was not an organizer, leader, manager, or supervisor
      of others in the offense, as determined under the sentencing guidelines
      and was not engaged in a continuing criminal enterprise, as defined in
      21 U.S.C. § 848; and

      (5) 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 scheme or plan, but the fact that
      the defendant has no relevant or useful other information to provide or
      that the Government is already aware of the information shall not
      preclude a determination by the court that the defendant has complied
      with this requirement.

U.S.S.G. § 5C1.2.

      The parties agree that Carrillo met four of the five criteria. However, they
dispute whether he met the second provision for using "violence or credible threats
of violence . . . (or induce another participant to do so) in connection with the
offense."

                                        -7-
       The term "offense," as used in subsections (a)(2), (3), and (4), and "offense or
offenses that were part of the same course of conduct or of a common scheme or
plan," as used in subsection (a)(5), mean the offense of conviction and all relevant
conduct. U.S.S.G. § 5C1.2 cmt. n.3. Furthermore, Guideline § 1B1.3 notes that
"relevant conduct" includes:

      (1)(A) all acts and omissions committed, aided, abetted, counseled,
      commanded, induced, procured, or willfully caused by the defendant;
      and

      (B) in the case of a jointly undertaken criminal activity (a criminal plan,
      scheme, endeavor, or enterprise undertaken by the defendant in concert
      with others, whether or not charged as a conspiracy), all reasonably
      foreseeable acts and omissions of others in furtherance of the jointly
      undertaken criminal activity, that occurred during the commission of the
      offense of conviction, in preparation for that offense, or in the course
      of attempting to avoid detection or responsibility for that offense
      ....

(Emphasis added.) Pursuant to these provisions, because Carrillo's conduct qualified
as an attempt "to avoid detection or responsibility for that offense" (i.e. threatening
and attacking a witness to dissuade him from testifying at trial against the defendant),
that same conduct would also apply to defeat a request for a safety-valve reduction.
As such, we conclude that the district court did not clearly err in denying a safety-
valve reduction to Carrillo.

      For the foregoing reasons, we affirm the district court's judgment.
                      ______________________________




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