USA v. Ho-Romero - Criminal Case Sentencing Vacated

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT UNITED STATES OF AMER ICA, Plaintiff - Appellee, v. DAVID HO - ROMERO, Defend ant - Appellant. No. 23-3848 D.C. No. 3:21- cr -00856- DMS -1 OPINION Appeal from the United States D istrict Court for the Southern Distric t of California Dana M. Sabraw, District Judge, Presiding Argued and Submitted August 18, 2025 Pasaden a, Calif orni a Filed February 18, 2026 Before: Marsh a S. Berzon, Mark J. Bennett, and Jennifer Sung, Circuit Judges. Opinion by Judge Berzo n; Dissent by Judge Bennett

2 USA V. H O -R OMER O SUMMARY * Criminal Law The panel vacated a sentence and remand ed for resenten cing i n a case in which Davi d Ho - Romero pleaded guilty to metha mphetamine importation. The district court applied an obstruction of justice enhancement under U.S.S.G. § 3C1.1 on the basis of alleged threats Ho - Romero made to a witness who testified in grand jury proceedings regarding his drug charges. The enhanc ement requ ires that a “def enda nt willfully obstructed or impeded, or attempted to obstruct or impede, the administra tion of justice with re spect to the investigation, prosecution, or sentencing of the instant offense of conviction.” (Emphasis added). The district judge held that this r equirement could b e sati sfied i n some circu mstan ces without any intent to obstruct justice and found only that Ho - Romero’s threats could have be en understood by the witness as attemp ts to obstruct justice. The distric t court made no finding as to whether H o-Romero willfully obstructed or attempted to obstruct justic e. United States v. Lofton, 905 F.2d 1315 (9th Cir. 1990), held that a finding of intent to obstruct justi ce is required before the obstruction of justice enhanc ement can be applied. The panel concluded that Lofton is controlling in the threat context as in others, and tha t the district court * This summary cons titutes no part of the o pinion o f the court. It has been pre pared by c ourt staff for the convenie nce of t he reader.

USA V. H O -R OMER O 3 therefore erred in applying the obstruction of justice enhancement without making any mens rea findin g. Judge Bennett dissented. He wrote that the district court was bound to conclude from Ho - Romero’s statements and conduct that, more likely than not, Ho - Romero subjectively intended to threaten the witness and obstruct j ustice; and that the distric t court’s identification of the wrong legal rule was thus harmless. The panel concurrently filed under seal versions of the opinion and dissent that rely on record evidence that remains under seal. COUNSEL Mark R. Rehe (argued), Joseph Orabona, and Loren G. Renner, Assistant United States Attorneys; Daniel E. Zipp, Assistant Un ited States A ttorney, Chief, Appellate Sec tion; Criminal Divisio n; Andrew R. H arden, Acting United States Attorney; Office of the Uni ted States Attor ney, United States Depar tment of Justice, San Diego, Califor nia; for Plaintiff - Appell ee. Katherine M. Hurrelbrink (argued), Federa l Def enders of San Diego Inc., San Diego, California, f or Defendant - Appellant.

4 USA V. H O -R OMER O OPINION BERZON, Circuit Judge: David Ho - Rom ero wa s sentenced to 60 months imprisonment and five years of supervised rel eas e after pleading guilty to methamphetamine importation. During the sentencing hearing, t he district court applied an obstruction of justice enha ncement on the basis of allege d threats Ho - Romero made to a witn ess who testified in gra nd jury proceedings regarding his drug charges. T he enhanc ement requires t hat a “def endant willfully obstructed or impeded, or attempted to obstruct or impede, the administra tion of justice with re spect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. (emphasis added). The district judge held that this re quireme nt could be satisfied in some circ umstances w ithout any intent to obstr uct justice and found only that Ho - Romero’s threa ts could have been understood by the witness as attempts to obstruct justice. The district co urt made no finding as to whether Ho - Rom ero willfully obstruc ted or attempted to obstruct justice. United States v. Lofton, 905 F.2d 1315 (9th Cir. 1990), held that a finding of intent to obstruct justic e is required before the obstruction of justice enhanc ement can be applied. We con clud e that Lofton i s controlling in the threat context as in others, and that the district court therefore erred in applying the obstruction of justice enha ncement wit hout making any mens rea finding.

USA V. H O -R OMER O 5 I. Background 1 A. Alleged Obs truction of Jus tice On February 20, 2021, border officials stopped David Ho - Romero as he atte mpted to enter the United Sta tes near San Diego, California. Officials found in the trunk of his car two packag es con tai n ing a total of 11.6 kilograms of methamphe tamine. Ho - Romero was arr ested and, after release on bond, indicted on one count o f importing methamphetamine under 21 U.S.C. §§ 952 and 960. Five months after Ho - Romero’s arrest, a s investigation s into his drug importation activity continued, the prosecution called Witnes s 1 to testify in grand jury proceedings agai nst him. Witness 1 and Ho -Romero were previously in a romantic relationship. Th eir relationship was turbulent: Witnes s 1 endured physi cal abuse from Ho -Romero, and Ho - Romero obtained a restraining order against Wit ness 1 for her violent conduct against him. Wi tness 1 and Ho - Romero maintai ned cont act aft er thei r relationship ended. Juan Cardona, Ho - Romero’s r oommate, was also subpoenaed to testify in Ho - Romero’s grand jury proceedings. Ho - Romero learned o f Witn ess 1 ’s testimony from Cardona, as p rosecutors asked Cardona about facts Witnes s 1 likely would have known. C ardona accordingly 1 We unse al informa tion cont ained in t he parti es’ bri efs and t he present ence report only to t he ext ent that u nseali ng is ne cessar y for purpose s of the public ve rsions of this opinion a nd of t he dis sent. W e unseal the sentencin g hearing tran script in its entir ety, as it was not sealed when filed in the district court. The sealed materials otherwise remain s ealed. We are fil ing under seal, c oncurrentl y with this opi nion and diss ent, versi ons of the opini on and dis sent that rely on record evidence remai ning unde r seal.

6 USA V. H O -R OMER O alerted Ho - Romero that Witnes s 1 probably also appear ed before the grand jury. Hearing t hat, Ho - Ro mero s ent text messag es to Witnes s 2, Wi tness 1 ’s cl ose frien d, writing that he urgently needed to speak with Witn ess 1. Witness 2 w as with Witness 1 when Ho - Romero sent th e message, and Wit ness 1 a greed to speak with Ho - Rom ero. Both W itness 1 and Witnes s 2 partici pated in the conversation. In his phone call, Ho -Romero made two s tatements central t o this appeal. 2 First, he sa id that, if Witn ess 1 did not tell him about her grand j ury testimony, he was “going to go over ther e.” Second, he said: “If [I] h ave a problem, [you] have a problem.” Ho - Romero th en made a sh ort s econd call, speaking calmly. Neither Witness 1 nor Wi tness 2 had any further communications with Ho - Romero reg ardi ng hi s case. B ased on the phone call, the government charged Ho - Romero with two counts of witness tampering. 3 Th e prosecution called Witn ess 2 to testify in Ho - Rom ero’s grand jury proceedings on the witness tampering counts. The grand jury indicted Ho-Romero for witness tampering. Ho - Romero pleaded guilty without a plea agreement to drug importation. But he maintaine d that he was innocent of the two counts of witness tampering and did not ple ad guilty to those charges. The parties eve ntually reached an agreem ent that, i n exchange for dismissal of the witness tampering counts included in the superseding indictment, Ho -Romero would stipulate that the grand jury testimony of both Witness 1 and Witne ss 2 was uncontrove rted and 2 The conver sation to ok place i n Spanis h. 3 The first charge ci ted a vi olation of 18 U.S.C. § 15 12(b)(1) and (b)(2)(A); the sec ond cite d a vi olation of 18 U.S.C. § 1 512(b)(3).

USA V. H O -R OMER O 7 “admissible as substantive evidence at any hearing” in the case. After dropping the witness tamperin g counts, t he government r elied on the evidence underlying the indictment on those counts to s eek an obstruction of justice enhancement under § 3C1.1 of the United States Sentenc ing Guidelines. B. Sentencing The district court ordered a presentenc e report (“ PSR ”). In th e PSR, the probati on officer recommended that Ho - Romero receive an obstru ction of justice enhancem ent. 4 Defense counsel filed a formal objection to the PSR, arguing as to the obstruction of justice enhanc ement t hat Ho -Romero did not willfully obstruct or a ttempt to impede the administra tion of justice. At the sentencing hearing, the court announced its tentative inclination to overrule objections to the PSR and to apply the obstruction of justice enhancem ent. The court asked the prosecutor (Ms. Rene) what standard the obstruction of justice enh ancement requi res: THE COURT: T he willfulness [stand ard ] on the obstruction, that is an objective standard. Am I corr ect? MS. R ENE: I bel ieve t hat is correct, Your Honor. 4 Although the PSR calcula ted an advis ory Guideline s Rang e of 210 to 262 months, the proba tion offi cer recommende d a sentence of 36 mont hs with five years of supe rvised release in view of the fac tors i n 18 U.S.C. § 3553(a). The probati on officer a lso reco mmended that Ho - Ro mero receive three years of supervised release, inst ead of five, shoul d he later qualify f or “safet y valve” relie f under 18 U.S.C. § 3553(f).

8 USA V. H O -R OMER O THE COURT: And the finding in order to adjust and make that obstruction finding and adjust upward is by a preponderance. MS. RENE: That is correct, Your Honor. The court then ruled as follows: Here, this is a pretty str aightforwa rd call, in my view. This is an objective test, an objective standard because the government has to prove it by a pr eponderance, and willfulness, the using [of] words or conduct to intimidate or dissuade others from participating in the process with respe ct to these charges, this case. And just looking a t the words and the context in which you made them and the timing of w hat was going on, it clearly s eems to m e that the government has met its burden based on the objectiv e evidence. That these s tatem ents, becau se words matter in the context when you say, essentially, if you have a problem they ha ve a problem, and that you are going to go over there and find them. Objectively when you say that to somebody in the context of this case unde r these ci rcum stances at the ti me they are going to view it, as they testified and stated they vi ewed it, and t hat is as a t hreat. And so I do find that the plus two obstruction is met. The district court concluded that, with the addition of the obstruction of justice enhanceme nt, t he Guid elines senten ce

USA V. H O -R OMER O 9 range was 135 to 168 months. The parties each recommen ded a sentence well below that range: the government recommended 96 months, and the defense recommended 30 months. Looking to t he factors described in 18 U.S.C. § 3553 (a), and based on the “ver y signi ficant mitigating fa ctors” in the case, the court d ecided to d epart downward from the Guidelines range. The court sentenced Ho - Romero to 60 months imprisonment wit h five years of supervi sed rel ease. Ho - Romero timely appealed the court’s sentence. II. Stand ard of Review Ho - Romero a rgues that the distr ict court misinte rpreted the Sentenci ng Guidelines and so err oneously appl ied th e obstruction of justice enhancement to his sent ence. “ We review the district c ourt’s identification of the correc t legal standard de novo, its factual findings for clea r error, and its application of the legal standard to the facts for abuse of discretion.” United States v. Rodriguez, 44 F.4th 1229, 1234 (9th Cir. 2022). III. Discussion A. Mootnes s Ho - Romero has finished serving his 60 - month sentenc e and is now subject to a f ive - year period of supervised releas e. United States v. Allen held that if a defe ndant has completed an imprisonment sentence but “h as receiv ed a sentence t hat in cludes a period of supervi sed release, a challenge to the length of his sentence of imprisonment is not moot,” as long as, should the de fendant succeed on appeal in challenging the imprisonment sentence, the district court “can change the supervised release period.” 434 F.3d 1166, 1170 (9th Cir. 2006).

10 USA V. H O -R OMER O Here, Ho - Rome ro was convicted unde r 21 U.S.C. §§ 952 and 960. Section 960(b)(1) sp ecifi es a fiv e - year t erm of supervised release for importation of methamphetamine in a quantity greater than 50 grams. “A district court must sentence a def endant to s upervis ed rel ease if the statu te so requires.” Id. Ho -Romero was discovered at the border with 11.60 kilograms of methamphetamine and so ordinarily would be subject to t h e five - yea r minimum term of supervi sed rel ease. But i n Ho - R omero’s PSR, the probation officer recommend ed a th ree - year term of supervised releas e, as is permissible, should Ho - Romero “quali f[y] for safety val ve at a lat er ti me.” See 18 U.S.C. § 3553(f). A t the sentenci ng hearing, the district court acknowledged that, because Ho - Rom ero qualified for the safety valve provision, the re was no longer a mandatory five - ye ar s upervised releas ed term, but the court sentenced h im to a five - year supervi sed rele ase ter m anyway. On a remand for resenten cing, the district court could change th at decis ion and reduce Ho - Ro mero’s period of supervised release. S ee, e.g., United States v. Ve r din, 243 F.3d 1174, 1179 (9th Cir. 2001). Ho - Romero’s app eal is therefo re not moot. B. Obstructio n of Justic e Enhance ment For an obstruction of justice enhancement to apply, § 3C1.1 of the Sentencing Guidelines requir es that a “defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administra tion of justice with re spect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. The enhancement can apply wh ere a defen dant “t hreaten [s], i ntim idat[es ], or otherwise unlawfully influenc[e s] a co - defendant, witness, or juror, directly or indirec tly, or attempt[s] to do so.” Id. cmt. n.4(A). The gover nment argues that, as thi s case involved alleg ed threats, we should depart from this court’s

USA V. H O -R OMER O 11 prior interpreta tion s of the “willf ully” element in § 3C1.1 as including a mens rea req uirement and ins tead affirm th e district co urt’s “objective ” application of the Guideline to Ho - Romero ’s senten ce. We decli ne to do so. 1. This court long ago establ ished that t he term “willfully” in § 3C 1.1 “con tains a cl ear mens rea requi rement,” which limits the Guideline’s sco pe to defendants who “consciously act with the purpose of ob structi ng justice. ” Lofton, 905 F.2d at 1316–17 (emphasis in original) (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990)). Rel ying on Lofton and the text of the Sentencing Guidelines, we h ave repea tedly affirmed tha t the “willfully” element in § 3C1.1 connotes a m ens rea requirement. For examp le, United States v. Taylor quot ed Lofton in a § 3C1.1 false testimony case and held that a district c ourt must ma ke “suff icient findings that the defendant ac ted willfully. ” 749 F.3d 842, 848 (9th Cir. 2014); s ee also United States v. Gardner, 988 F.2d 82, 83 – 84 (9th Cir. 1993) (citing Lofton in § 3C1.1 case involving the defenda nt’s assault on a prison guard); United States v. White, 974 F.2d 1135, 1140 (9th Cir. 1992) (describing the defendant’s violent conduct, in a case affirming a § 3C1.1 adjustm ent, as “calculated” to influence a witness’s cooperation with law enforcement officials). We have als o speci fical ly addres sed the app licati on o f § 3C1.1 to alleged threats. See United States v. Jackson, 974 F.2d 104 (9th Cir. 1992). Jackson first inquired a s to whether the defendant’s conduct in that case could be reasonably construed as a threat and conclude d that the defendant ’s st atement s were “suffici ent ly threa teni ng to qualify as obstruction.” Id. at 106. “W her e a de fendant ’s statem ents can b e reason ably cons trued as a threat, even if

12 USA V. H O -R OMER O they are not made directly to the threatened person, ” Jac kson stated, “ the defendant has obstructed justice.” Id. (c iting United States v. Shoulberg, 895 F.2d 882, 885 – 86 (2d Cir. 1990)). Jackso n then addressed whether the defendant intended to obstruct justice by threaten ing the witness in the case. As to that issue, the district cour t in Jacks on had found that the defendant “acted with the conscious intent to obstruct jus tice” to deter the witne ss from testifying, a finding Jackson held was not clearly erroneous. Id. Jackson ’s r eliance on the district court’s “conscious intent” finding confirms that the men s rea r equiremen t de scribed in Lofton applies in the threat context. See also United States v. Pascucci, 943 F.2d 1032, 1037 – 38 (9th Cir. 1991) (citing Lofton in a § 3C1.1 threats to witness case). The Ninth Circuit’s cases applying the § 3C1.1 enhanc ement for perjury als o confirm th e provision’s mens rea requi rement. To apply a § 3C1.1 enhancement for perjury, we require a district court to find tha t “(1) the defendant gave false testimony, (2) on a mater ial m atter, (3) with willful inte nt.” United States v. Castro -Ponce, 770 F.3d 819, 822 (9th C ir. 2014) (quoting United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008)). In perjury cases, the express requirement for a finding of “willful intent ” means an intent to obstruct justic e by lying under oath. Th e “willfu l intent” req uirement i n perj ury cas es recogniz es that a defendant who intentionally lies while testifying may do so without willfully intending to obstruct just ice. For ex ampl e, a defen dant may misrep resent the amount of money he received in a robbery. His motivation to lie may be to “minimize his e mbarrassment ” about his crime, s ee, e.g., United States v. Parker, 25 F.3d 442, 448 (7th Cir. 1994), or to protec t a relative from humiliation, not

USA V. H O -R OMER O 13 to avoid conviction. A defendant may therefore intentionally give i naccurat e testimony for reasons unrelated to the administra tion of justice. We hav e held th at a § 3C1.1 enhanc ement mu st be vacat ed wher e a di strict co urt fail s to find that the inaccur ate testimony wa s willfully ma de to obstruct justice. See, e.g., United Sta tes v. Herrer a - Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016). Imported into the threat context, th e reasoning in the perjury cas es suggests t here are instances in which, though a speaker was perceived as threatening, the spe aker did not purposely or knowingly intend to be understood as making a threat for the purpose of obstructing just ice. In such instances, the obstruction of justice enhancement is not applicab le. W e may not “giv[e] the sa me word, i n the same statutory provision, different mea nings in different factual contexts. ” United States v. Santos, 553 U.S. 507, 522 (2008) (emphasis in original). To require a showing of willful intent for some conduct— for example, perjury under Castro - Ponce — but to permit the a pplication of § 3C1.1 to alleg ed threats absent a finding of a ny mens rea would contravene Santos ’s command. Lastly, t he First Ame ndment “true threats” cas es co nfirm that a m ens rea finding i s necessary under § 3C1. 1. Speech is a tru e threat when “the s peaker m eans t o com municat e a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). “The speaker need not actually intend to carry out the threat,” but intimidation is “ a type of true thr eat, where a spea ker directs a thre at. . . with the intent of placing the victim in fear of bodily harm or death.” Id. at 359–60.

14 USA V. H O -R OMER O Counterman v. Colorado rec ently add ressed mor e specific ally the mens rea on th e speak er’s p art constitutiona lly requi red in true th reats cases. 600 U.S. 66, 73 (2023). Count erman determi ned that u ttering words reasonabl y percei ved b y others as a threat is constitutiona lly insufficient for conviction. Id. at 78. Counterman then held th at a mens rea of reckles snes s is constitutiona lly sufficient to show that a d efendant intended to make a t hreat. Id. at 79. But § 3C1.1 req uires that an action — i ncluding a threat — was m ade willfully for the purposes of obstructing or imped ing justice. As § 3C1.1 is specifi c as to the mens r ea required, the slightly les s rigorous constitutiona l mens rea r equired by the statute approved in Counterman i s inapplicable. At the same time, Counterman demons trates that the purely objective standard the district court adopted at Ho - Romero’s sentencing hearing could raise c onstitutional issues. 5 In su m, Lof ton cont rols h ere. The “willfully” element in § 3C1.1 requires a finding in threats cases that the defenda nt made a th reat with spe cific intent to co nvey that the witne ss could be harmed if the witness par ticipate s in legal proceedings adversely to the defendant. 2. The mens r ea app roach in Lofton contrasts with the government’s position in th is case. The government cites no Ninth Circuit c ase disavowing or disagreeing with Lofton. Instead, the government a rgues that this court should adopt 5 We do not dec ide whethe r Count erman applies in the Guid elines context.

USA V. H O -R OMER O 15 the Second Circuit’s “inherently obstructive” line of authority. In the Second Circuit, if certain conduct is “inherently obstructive of the administra tion of justice,” a court may find “that the defendant willfully engaged in the underlying conduct, regardless of his specific purpose.” United States v. Reed, 49 F.3d 895, 900 (2d Cir. 1995); see also United States v. Cassiliano, 137 F.3d 742, 747 (2d Cir. 1998). Threats to wi tnesses are a n “extr eme” ob stacle to the administra tion of justice, the gove rnment argues here, so, applying the Reed approach, Lofton should be in applica ble in thr eats cases. No finding of intent to obstruct justice is necessa ry, the government maintains, where the language used would reason ably b e viewed by a potent ial w itness as intended to discour a ge their participa tion in legal proceedings. Even if w e were free t o do so — wh ich we a re no t — we would reje ct, fo r sev eral reasons, the government’s invitation to a lter or adjust our in terpreta tion of § 3C1.1 in reliance o n Seco nd Cir cuit case law. 6 First, what Reed actually held is unclear. Reed conclude d that rem and was requi red i n that case because t he di strict court failed to make “findings that the conduct it believed was obstructive was willfully so.” 49 F.3d at 901. The defendant in R eed pleaded guilty to mail - frau d and narcoti cs - distribution conspiracy charges. Id. at 897. 6 We are bound by the precede ntial aspects of our prior dec isio n in Lofton under the “ law of the c ircuit ” rule, United States v. Washi ngton, 593 F.3d 790, 798 n.9 (9t h Cir. 201 0), and we must fol low publi shed decisi ons of t his court “unles s and u ntil ove rruled by a b ody compete nt to do so,” G onza lez v. A rizon a, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (quotin g Hart v. Mas sanari, 266 F.3 d 1155, 1 170 (9th Cir. 2 001)).

16 USA V. H O -R OMER O Pursuant to a plea bargain, Reed agreed to testify against his co -conspirators, provide d that the government a greed to support a motion for his release on ba il. Id. In the ba il order, the dis trict co urt o rdered t hat R eed “app ear at all proceedings as required,” but R eed f ailed t o app ear at his sentencing hearing and “dove out of a window” when office rs attempted to arrest him. Id. Reed st ated that “intentionally f ailing to appear as required at judicial proceedings” is “inherently o bstructive of the a dministration of jus tice. ” Id. at 900. But t h en, i n accord w ith th e text of t he § 3C 1.1 Guideline, R eed he ld that there we re insuff icien t findings by the distr ict court t o infer whether Reed’s conduct was a “ willful ” obstruction of justice. F or example, there were no findings as t o whether Reed knew his sentencing had been rescheduled for the date he failed to appear, nor as to whether Reed knew that the men who at tempt ed to arres t him w ere law enfo rcement officers. Id. at 90 1–02. So, notwithstanding the delay of the original sentencing hearing caused by Reed ’s abs ence, Reed concluded that rem and was requir ed becau se th e record was “unclear as to what basis the sentenc ing court adopted in enhancing Reed’s offense level for obstruc tion of justice.” Id. at 902. T he “inherently obstructive” test established by Reed thus ap pears limite d to the necess ary impact of certain behavior— there, not appearing in court and thereby delaying proceedings. But it did not eliminate a district c ourt’s obligation t o base its applica tion of a § 3C1.1 enhancem ent on findings of intent to cause t hat im pact. Second, t he Second Circuit itself has required a sh owing of intent to o bstruct justice in thr eats cas es dec ided aft er Reed. For example, United States v. Hernandez held in a threats case that, “[f]or an obstruction of justice to be found, a court m ust est ablish that the def endant had t he speci fic

USA V. H O -R OMER O 17 intent to obstr uct justice.” 83 F.3d 582, 585 (2d C ir. 1996). So whatever the “inherently obstructive” language in Reed means, it does not include threats. Finally, the “inherently obstructive” test, even if m ore broadly understood, would provide little utility to prosecutors or district courts. If cert ain conduct is indeed inherently indicative of a purpose to obstruc t the administration of justice, then the government should have little trouble proving tha t it was willful ly done to obstruct justice, by re lying on a strong inference derive d from the objecti ve circum stan ces. We concl ude that there is no basis for limit ing Lofton. It remains th e law of this c ircuit, in threat cases as i n others, that the obstruction of justi ce enhancement applies only if the defendant “consciously act[s] with the purpose of obstructing justice.” Lofton, 905 F.2d at 1317 (emphasis in original) (quoting Stroud, 893 F.2d at 507). C. Remand Where th e dist rict court applies the wrong lega l standard and so makes no findings on a ne cessary element of a Guidelines provision, it is the distric t court, not this cour t, that must make those findings. See, e.g., United States v. Jimenez - Ortega, 472 F.3d 1102, 1103 – 04 (9th Cir. 2007) (per curiam); United States v. Ochoa - Gayta n, 265 F.3d 837, 844 (9th Cir. 2001). The government proposes otherwise, arguing that remand is unnecessary in Ho - Romer o’s case because “the reco rd is al ready comp lete on t he is sue of obstruction.”

18 USA V. H O -R OMER O We c annot agree. Whether the reco rd is complet e is beside the point. 7 Jimenez - Ortega and Ochoa-Gaytan —and many ot her cases — st and f or the gener al pri ncip le that remand is appropriate in sent encing ap peals wh ere further factfinding is necessary to determine the proper Guidelines calculat ion. S ee Jimen ez - Or tega, 472 F.3d at 1104 (holding that a distr ict judge must mak e a finding of materiality before enhancing a defendant’s sentence for obstruction of justice based on perjury under § 3C1.1). 8 The government offers no authority to the contrary. The district court made no findings with respe ct to Ho - Romero’s intent under § 3C1.1 as required by Lofton, so remand is required. 9 7 That Ho - Romer o stipul ated t hat grand j ury testi mony provide d by Witness 1 and Witness 2 would be “uncont roverte d” for pu rpose s of “any hearing” in the case is also be side the point. “U ncontradi cted t estimony is not ne cessari ly undisput ed evidenc e.” Uni ted States v. Sandov al - Mendoza, 472 F. 3d 645, 649 (9th Ci r. 2006). “ [T]he court i s not bou nd to accept uncontr overted t estimony a t face value i f it is i mprobable, unreasonabl e or ot herwise questi onable.” Wilbur - Ellis Co. v. The M/V Captayanni s “ S”, 451 F.2 d 973, 97 4 (9th Ci r. 1971) (pe r curi am). 8 See also, e.g., United Sta tes v. Grimaldo, 99 3 F. 3d 1077, 10 82 – 83 (9 th Cir. 2021) (conclu ding rema nd was requi red where the dis trict c ourt applied a four - level § 2K2.1(b)(6) (B) en hancement but di d not make findings s ufficient to connec t the de fendant’s posses sion of a fir earm with hi s likel ihood of owning i llegal narcot ics); United States v. Gutie rrez - Hernandez, 94 F.3d 582, 585 – 86 (9t h Cir. 19 96) (ins tructing the district court on remand to “make express fact ual findings” as required by the Gui delines); Unit ed States v. Navarr o, 979 F.2d 7 86, 7 90 (9th Cir. 1992) (same). 9 Ho - Romero conte nds that r emand is also required under Federal Rule of Criminal P rocedure 32(i)(3)(B). As r emand is necessary because the distri ct court di d not make a f inding on the “wi llfully” eleme nt, we do not reach t he Rule 32 iss ue.

USA V. H O -R OMER O 19 D. Harmles s Error T oward the s ame en d — avoiding remand —t he government maintains that any error in Ho - Rom ero’s sentencing was harmless. The government m akes t wo arguments as t o har mless err or: F irst, that, given overwhelming record evidence, the district court w ould have found the requisite mens rea under § 3C1.1 had it a pplied the subjective intent eleme nt; and second, that any error in a Guideline s calculatio n is harmless where the district court issues a bel ow - Guidel ines sentenc e and speci fies t hat th e 18 U.S.C. § 3553(a) factors, not the Guidelines, controlled the sentence. We take each argument in turn. 1. The government avers that the d istrict court’ s legal error in interpreting the Guidelines enhancement is harmless because th ere is “overwh elmi ng evid ence” of Ho - Romero’s intent to obstruct justice. The “overwhelming evidence” standard proposed by the government emanate s fr om cases holding that a district co urt’s omi ssion of a nec essary element in jury instructio ns, although a violation of the Sixth Amendment’s jury trial guarantee, can be h arml ess. See Neder v. United States, 527 U.S. 1, 15 – 20 (1999); United States v. Hansen, 97 F.4t h 677, 681 (9th Cir. 2024). This court has not established the standard for harml ess error review of a district court’ s Guideline s calculation under the circums tances presen t here – that is, wher e the di stri ct court did not make findings on an essential Guide lines element. Such an error involves no violation of the right to a jury trial. 10 10 As we explain later, infra at 26, the di stinct question whet her the district court would have i mposed the same sentence had it calculated

20 USA V. H O -R OMER O Neder is nevertheless instruc tive. To esta blish the standard for h armles s err or revi ew fo r omit ted el ements i n jury instructions, Neder turned to Chapman v. California, 386 U.S. 18 (1967). As N eder explained, Chapman held that constitutional errors during cr iminal trials are har mless when “ it appears ‘ beyond a reasonable doubt that the er ror complained of did not contribute to the verdict obtained. ’ ” Neder, 527 U.S. at 15 (q uoting Chapman, 386 U.S. at 24). “Beyond a reasonable doubt” is, of course, the standard for conviction in criminal ca ses, and so “a fa miliar standard to all courts.” Chapman, 386 U.S. at 24. Neder then conclude d that the ha rmless error inquiry for omitted elements in jury instructions must be substantia lly similar to other ins tances of constitutional error, and that a c ourt must therefore ask whether “it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[. ]” 527 U.S. at 18. N eder adopted the “overwh elmin g eviden ce” of the omitted element requirem ent as an application of the Chapman r easonabl e doubt standard fo r t he elem ent - omission context. Id. at 16 – 17. We take an approa ch to deriving a harmless error standard similar to Neder ’s and so ro ot our harml ess error standard in the role of distric t courts with rega rds to Guidelines decisions. As the application of a Guidelines standard to a set of fa cts, the district court’s fin ding as to whether Ho - Romero acted with the conscious purpose of obstructing justice need ed only to be supported by a preponderance of the evidence. See United States v. Armstrong, 620 F.3d 1172, 1176 (9th Cir. 2010). We review the Guide lines range properl y is or dinarily not s ubject t o harml ess error review.

USA V. H O -R OMER O 21 a district c ourt’s application of the Sentencing Guidelin es to the facts of a case for ab use of d iscreti on. See United States v. Gasca - Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2 017) (en banc). So, t o conduct the harmles s error an alysi s here, we proceed by asse ssing whether the district court would have abused its discretion if it concluded by a preponderance of the evid ence that H o - Romero did not “consciously ac t with the purpose of obstructing justice.” Lofton, 905 F.2d at 1317 (emphasis in original) (quoting Stroud, 893 F.2d at 507). If so, the error here is h armless; otherwise, it is not. By preserving the primary district court role in sentencing, t his approach is a ppropriately st ringent and helps ensu re that the Guidelines process functions properly. We note th at i n United States v. Evans, 883 F.3 d 1154 (9th Cir. 2018), we held t hat a district court’s legal error in applying a Guidelines enhance ment was harmless. There, the district court found that the de fendant used a firea rm in the commission of an aggravated assault, and so applied § 2A2.2(a) and (b)(2)(A) of the Guidelines to enha nce the defendant ’s sen tence. E vans, 883 F.3d at 1158 – 59. The defendant argued that the district court’s finding was erroneous because he used the firea rm in self-defense. Id. at 1159. Evans concluded that the district c ourt’s failure t o place the burden of proof on the government to disprove self - defense was erro r but w as harmless, becaus e sur veill ance footage “clearly showed” that the defendant “opened fire on a fleeing man. ” Id. Evans involved a procedural error, not the failure to make a nece ssary finding of fact. And, given the ava ilability of conclusive video evidence, Evans had no reason to announce any applicable standard for determining when a Guideline s applicatio n error is harmless. In any event, applying the standard we adopt here, it would clearly have

22 USA V. H O -R OMER O been an abuse of discretion in Evans, given t he video evidence, for the district court to have found that the government did not meet its burden of disproving self - defense. 2. On the r ecord at th e sent encing p roceedi ng, the district court would not have abused its discretion by deter mining that Ho - Romero did not act with the conscious purpose of obstructing justice. So the e rror here is not harmless. 11 Here is why: A defendant’s objectively threatening conduct c an be motivated by various purposes. For examp le, Unit ed States v. Hernandez involved six incidents of intimidation by a defendant again st wit nesses. 83 F.3d at 584. The defendant called a wi tness “t he dev il,” attemp ted to co ntact that witness on the first day of trial, and yelled a t a nother w itness to “die, die, die” prior to the sent encing hearing. Id. Hernandez held that the § 3C1.1 enhancement could not be applied in that case absent some additional ev idence of the defendant’s purpose, be cause “[f ] ury may be exceedingly unpleasant, but alone, it bespeaks no intent to obstruct justice.” Id. at 586. Even if the defendant wished the witness dead, Hernandez reasoned, th ere was no ev idence th at she mad e “sta temen t[s] in order to get [the witness] to change his testimony at the sentencing hearing,” so the obstruction of justice enhanc ement was inappl icabl e. Id. 11 We note that there are circu mstances in which harmless error review would be ina ppropri ate. For exa mple, if the defendant was pre cluded from presenting evidence regarding a necessary element, the district court’s Guide lines hol ding would likely be a n abuse o f discret ion without regard to a ny harmle ss er r or ana lysis based on the record t ha t was made.

USA V. H O -R OMER O 23 Similarly, given both “the fac e ” and “ cont ext” of Ho - Romero’s s tatements, a district court could find, without abusing its discretion, that the government h ad not proven Ho - Romero’s conscious purpose to prevent Witnes s 1 or Witnes s 2 from participa ting in proceedings related to his case. United St ates v. Ar cher, 671 F. 3d 149, 16 7 n.11 (2d Cir. 2011). 12 In his phone call to Witness 1 and Wi tness 2, Ho - Romero ma de two statements that se rved as the basis for the § 3C1.1 enhancement: • Ho - Romero said that, if W itness 1 did not tell him about her grand jury testimony, he was “going to go over there.” • “If [I] hav e a problem, [you] have a problem.” In his f irst statemen t, Ho - Romero warned that he would seek out Witness 1 if she declined to share her grand jury testimony with him. The gover nment argues the record “leaves no doubt” Ho - Ro mero alr eady kn ew wh at Wit ness 1 said in her testimony, and so he mus t have instead intended his stateme nt to in timida te Witnes s 1, thereby obstructing proceedings in his case; the dissent adopts this view of the record. See Dissent a t 33. T hat interpretation of Ho - Romero’s statement rests on the proposition that Ho - Romero 12 Archer, another case assessing alleged threats in the § 3C1.1 context, notes that Hernandez followed the now - repealed G uidelines note to take a defenda nt’s statemen ts “in a light m ost favorable” to him. Archer, 671 F.3d at 167 n.1 1 (citi ng U.S.S.G. § 3C1.1 cmt. n. 1 (1995), repeal ed by U.S.S.G. App’x C, a md. 566 (199 7)). Yet Arch er reaffirm ed Hernandez ’s holding because “ its concl usion was largely bas ed on the total l ack of evide nce showi ng any inte nt [by the defen dant] to obstruct justice,” any changes t o the Gui delines not withst anding. Id.

24 USA V. H O -R OMER O said one thing but subjectively meant to conv ey something different: Although he said he would go to where Witn ess 1 was if she did not tell hi m what she’d said, he meant her to understand that, even if she now did give him a full acco unt of her grand jury testimony, he would come over to hurt her unless she promised not to cooperate further with the police. Further, Ho - Romero’s knowledge that Wit ness 1 testified is distinct from knowledge of the content of Wit ness 1 ’s testimony. A ll Ho - Romero knew about the content of Witnes s 1 ’s testimony w as parti al and based on i nferen ces from what Cardona was asked. True, Ho -Romero was apparently desper ate to know what the gove rnment knew about his activitie s and mot ivated by “fury. ” Hernandez, 83 F.3d at 586. But t hat could be b ecau se he wanted to formulate his strategy with his lawyer with comple te knowledge of what information the government had gathered. T he district court would not have abused its discretion in finding the government had not shown by a prepond eranc e of th e ev idence th at Ho - R omero mad e his first statement with the consc ious purpose of preventing Witnes s 1 ’s participation in judi cial procee dings. 13 13 The dissent emphasizes Ho - Romero’ s earlier violent treatment of Witness 1 as context s upporti ng the inf erence t hat Ho - Romer o meant to threate n physica l violence when he s aid he would co me to Witness 1 ’s location. Se e Dissent at 30– 32. The question per tinent to the § 3C1.1 inquiry is whethe r Ho - Romero ac ted with t he consc ious purp ose of obstruct ing jus tice. S o althoug h t he gra nd jury t estimon y desc ribing Ho - Romero’ s relationsh ip with Witne ss 1 demonstra te s that he is capable of coercion, that evide nce does not necessarily support t he separate inference required t o apply th e obstruct ion of justic e enhan cement: t ha t Ho - Rom ero made h is statement s with the e xpr ess purpose of pre venting Witness 1 from partici pating i n judicial proceedi ngs.

USA V. H O -R OMER O 25 Nor is the intent behind Ho - Romero’s s econd statem ent self -evident. H e said Wit ness 1 or Wit ness 2 would “ hav e a problem” if he “ [had] a problem.” Ho - Romero contends the statemen t could be found not to have an obstruction of justice purpose: Ho -Romero could h ave mean t tha t Witn ess 1 ’s testimony would either implicate them in his t rafficking activities or reveal tha t Wi tness 1 was violatin g the terms of the restraining order agains t her by speaking with Ho - Romero. The government maintains instead that Ho - Romero must have int ended t o th reaten Witness 1 and Wi tness 2 by insinuating they would face consequence s gen erated by Ho - Romero for cooperating with law enforcement. T he record does not necessari ly support either parti es’ interpretation. Wi tness 2 never explained why or how he felt threaten ed or what h e expect ed Ho - Romero to do after t he phone call. Witness 2 did state, how ever, that Ho - Ro mero was completely calm when he made a second, brief phone call. Sentencing is the prerogative of the district court, Williams v. U nited States, 503 U.S. 193, 205 (1992), which “may draw al l reason able i nferences from the w ords used and from t he perti nent cir cums tances” to determ ine whet her the def endant m ade a thr eat, Shoulberg, 895 F.2d at 885. In making findings on remand, the district court could determi ne without abu sing its discretion that there is sufficient evidence of Ho - Romero’s conscious purpose to obstruct jus tice, and so reimpose the § 3C1.1 enhancement. “But in imposing enhanc ements under the Guidelines, we cannot be swayed by speculation or convi nced by conjectu re.” Grimaldo, 993 F.3d at 1082. On the record before us, the district court would not have abused its discretion by finding that Ho - Romero lack ed specific intent to obstruct ju stice under § 3C1.1. The dist rict cou rt’s erro r

26 USA V. H O -R OMER O in applying the obstruction of justice enhancement was therefor e not harmless. 3. That Ho - Rom ero was sentenc ed below the proper Guidelines calculation were the obstruction of justice enhancement excluded also does not obviate the need for remand. A district court must calc ulate the correct Guidelines range and “use that recommendation as the ‘starting point and the initial benchmark’” in sentencing. United States v. Munoz -Camarena, 631 F.3d 1028, 1030 (9th Cir. 201 1) (per curia m) (quoting Kimbrough v. United States, 552 U.S. 85, 108 (2007)). “The Sen tencing Guidelines are advisory, but any calculation error is a significant procedural error that require s us to remand for resenten cing. ” United States v. Brown, 879 F.3d 1043, 1050 (9th Cir. 2018) (cit ation and quotation marks omitted). Here, the district c ourt a pplied the obstruction of justice enhancement without making necessary mens r ea findings and so did not calculat e th e Guid elines senten ce range correct ly. The court would have calcul ated a differen t Guidelines range i f it did not apply the two - level obstruction of just ice enhanc ement. U sing a different Guidelines range, the court may have a rriv ed at a differ ent s entence — fo r example, one below the new, lower Guidelines range to the same deg ree t he prev iou s senten ce was belo w th e higher Guidel ines rang e orig inall y calculat ed. There i s a narr ow ex cept ion to the rem and req uir ement where the district court unequivocally states during the sentencing hearing what the s entence wou ld hav e been were the Guide lines calcu lation otherwise. T he district c ourt must “acknowl edge[] that t he correct Guidel ines r ange i s in dispute and perform[] its sentenc ing analysis twice,

USA V. H O -R OMER O 27 beginning with both the corre ct and incorrect range.” United States v. Dominguez - Caicedo, 40 F.4th 938, 963 (9th Cir. 2022) (citation modified) (quoting Munoz-Camarena, 631 F.3d at 1030 n.5). But “a one - size - fits - al l explan ati on ” for a sentence premised on an incorrect Guidelines range “ ordinarily does not suffice” to avoid reman d. Munoz- Camarena, 631 F.3d at 1031. Here, the prosecut ion tried but faile d to elicit a specif ic attestatio n from the distr ict court as to how an alter native Guidelines cal culati on wo uld affe ct Ho - Romero’s sentence. When asked by the prosecution whether the co urt would have given Ho -Romero the s ame 60 - month sentence without the obstruction enhancement, the district c ourt sai d, “I am not quite sure how to answer the que stion. ” The court then stress ed that t he Guidel ines ran ge “info rm[ed] t he [§] 3553 analysi s” and is “th e benchm ark” and “im portant.” The district co urt also said that the § 3553 analysis was “most meaningful,” but never stated “that he would impose the same sent ence regard less of the Gu idel ines c alculat ion because o f the mi tigat ion factors.” United States v. Leal - Vega, 680 F.3d 1160, 1170 (9th Cir. 2012). A “conclusory” statement that the distr ict court would impos e the sam e sent enc e no matt er th e corr ect Guidelines calculat ion “does not demonstrate that the distric t court conducted the sentencing a second time starting with the correct range and keeping it in mind throughout the process,” and s o would not suffice to obviate the need for remand. Dominguez- Caicedo, 40 F.4th at 964. Here, t here was not even such a co nclusor y st atemen t. T here was no st atement at all concer ning t he senten ce the di strict court wo uld impose without the obstruction enhancement, despite the prosecution’ s invitation to make such a statement. Remand

28 USA V. H O -R OMER O is therefore necessar y in accord with our usual procedure. See Brow n, 879 F.3d at 1050. Nor is our an alysi s alter ed by the fact that Ho - R omero has comp leted hi s incarc eration sentenc e and is now serving a five - ye ar term of superv ised rel ease. Th e Sentenci ng Guidel ines requ ire that a term of su pervised release “sh all not be less than any sta tutorily required minimum term. ” U.S.S.G. § 5D1.2(a). At the sentencing hearing, defens e counsel objected to the procedural reasonableness of Ho - Romero ’s senten ce and noted that the Guidelines did not require five years of supervised re lease be cause H o -Romero qualified for “ safet y valv e” under 18 U.S.C. § 35 53(f). The district co urt agree d that the s upervis ed releas e range “would be three t o fiv e” years b ut neverth eless concluded that “f ive [was] the right term ” for Ho - Ro mero without providing further reasoning. We h ave hel d that h arml ess error can apply when the district court chooses a “within -Guidelines sentence that falls within both the incorrect and the corr ect Guidel ines rang e and explai ns the ch osen sent ence adequatel y,” o r when t he district court “performs t he sentencing analysis with respec t to an incorrect Guidelines range that overlaps substantially with a corre ct Guidelines range such that the explanation for the se ntence imposed is suffici ent even as to the co rrect ran ge.” Munoz-Camarena, 631 F.3d at 1030 n.5. B ut t he district c ourt did not explain with any de tail its decisi on to sentence Ho - Romero to five years of su pervised rele ase, so it is not clear whether he would have sentence d Ho - Ro mero to the same supervised releas e term absent the o bstruction of justice enhancement. We concl ude that reman d for res enten cing is requi red.

USA V. H O -R OMER O 29 IV. Conclusion The district court erred by applying an obstruction of just ice enhancem ent t o Ho - Rom ero’s sent ence without making any findings as to his conscious purpose to obstruct justice. Th e district court’ s sentence is VACATED and REMANDED for further proceedings consistent with this opinion. BENNETT, Circuit Judge, dissenting 1: The district court was bound to conclude from Ho - Romero’s statements and conduct that, more likely than not, he subjectively intended to threaten Witness 1 and obstruct justice. The error below was thus harmless, and I would affirm. I therefore r espect fu lly dissent, in part. “When an ‘alleged error is harmless [it is] not a ground for resentencing.’” United States v. Ali, 620 F.3d 1 062, 1074 (9th Cir. 2010) (alteration in original) (quoting United States v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008)). In other words, “[i]f the appel late cou rt determ ines that th e sentencing court misapplied the guidelines,” it need not remand i f “it deter mines t hat ‘th e error was harm less. . ..’” United States v. Crawford, 185 F.3d 1024, 1029 (9th Cir. 1999) (quoting Williams v. United Stat es, 503 U.S. 193, 203 (1992)); see also, e.g., United States v. Van Aalsburg, 357 F. App’x 783, 783 – 84 (9th Cir. Nov. 19, 2009) (when district court incorrectly applied preponde rance -of-the- evid ence standard in finding evidence supported sentence enhancements, the panel affirmed, finding er ror harmless 1 Concurre ntly file d with thi s diss ent is a ve rsion of the di ssent fi led under seal, whic h quotes re cord evide nce that remains u nder se al.

30 USA V. H O -R OMER O because eviden ce sat isfied clear - and - convincing standard); United States v. Merke, 246 F. App’x 494, 497 (9th Cir. Aug. 29, 2007) (same). The distric t court correctly iden tified that it had to make the obstruction finding by a pre ponderance of the evidence. I agree with the majority, however, that the district court erroneously applied an objective standard rather than a subject ive st andard. Nonetheless, had it applied the correct, subjective standard, the district court would still have been bound to apply the enhancement. W e review for abuse of discretio n a district co urt’s applic ation of the c orrect le gal standard to the facts. United States v. Rodriguez, 44 F.4th 1229, 1234 (9th Cir. 2022). Her e, the district court would have abused its discretion if it did not concl ude by a prepond eranc e of the ev idence t hat ther e was a subject ive intent to obstruct justice. Thus, although the district court erred by applying an objec tive standard, had it applied the correct legal standard, it would have abused its discretion had it found no intent to obstruct justice. Because “[w]e may affirm the order on any gr ound supported by the record, even if it diff ers from the ration ale of the d istrict court,” United States v. Perez - Garcia, 96 F.4th 1166, 1172 (9th Cir. 2024), I would find that the district court was bound to apply the enhanc ement. We can thus “say wit h certai nty that t he dist rict court ’s sent encin g error w as harmles s.” Unit ed States v. Bankston, 901 F.3d 1100, 1108 (9th Cir. 2018). When determining whether to apply the obstructi on -of- justice enhancement, courts can f ind evidence of the intent to obstruct “e ither on the face of the sta tements or in their context.” See United S tat es v. Arch er, 671 F.3d 149, 167 n.11 (2d Cir. 2011). The context here is important and compelling. Ho - Romero is a dangerous, violent p erson, and there was “a history of violence and threats amongst not only

USA V. H O -R OMER O 31 [Ho - Romero] and [Witness] 1 but also [Ho - Ro mero] and [Witness] 2,” the other vic tim of the witness tampering. Sealed but uncontroverted evidence in t he record confirms that Ho - Romero ha d a history of violence toward Witness 1 and Witness 2, a history of t raveling to commit that violen ce, and a history of locating Witness 1 and Witness 2 and of turning up without invitation. In this context, the district court would ha ve abused its discretion had it not found by a preponderance of the evidence that H o - Romero’s statemen ts constituted a threat to obstruct justice. Yelling and upset, Ho - Romero told Witness 1 and Witness 2 that “if I have problems you’re going to have problems,” a nd stated that “he was going to go there and find them.” 2 Uncontroverted sealed testimony suggests that Ho - Romero already knew the cont ent of Witness 1’s testimony and that he threatened to find and approach her. Given Ho - Romero’s history with Witness 1 and Witn ess 2, t hese stat ements clearly dem ons trate an intent to intim idate and ob struct justice. The major ity relies on United States v. Hernandez, a nearly thirty - year - old Second Ci rcuit case, for the principle that objectively threatening conduct might not be motivated by a subjective intent to threaten. 83 F.3d 582, 584 – 86 (2d Cir. 1996). But Hernandez is clearly distinguisha ble from 2 These statements, by themselves, at least come right to the door o f meeting the relevant standard. Ho - Romero knew Witnes s 1 had tes tified before the gra nd jury. He told W itness 1 t hat if he got i n trouble (whi ch, in conte xt, can only m ean thro ugh the ac tions of the federal prosecut or), there woul d be conseque nces for he r. But, of course, this wa s not al l the evidence be fore the di strict court. When c ombined with the undisput ed, extraordinary facts related to Ho - Romero’s danger ousnes s and violence — all kn own to Witness 1 — the evidence would satisfy the clear - and - convincin g standar d were that the s tandard.

32 USA V. H O -R OMER O the case b efor e us. In Hernandez, the defendant called a witnes s “the dev il” and yelled “die, di e, die ” at ano ther witness before sentencing. Id. at 584. But Hernandez did not, like Ho - Romero, state any intent “to go there and find” the witness or warn that the witness was “going to have problems.” 3 And Hernandez had no history of violence toward the witnesses, as Ho - Romero does. In fact, the Hernandez court’s “conclusion was largely bas ed on the total lack of evidence showing any intent [by the defendant] to obstruct justice.” Arch er, 671 F.3d at 167 n.11 (emphasis added) (explaining why Hernandez was not abrogated by the repeal of a Sentencing Guideline note “requiring t he court to take the defendant’s statements ‘in a light most fa vorable to’ her” (citation o mitted)). Fu rther, the Hernandez court found that “[f]ury may be exceedingly unpleasant, but alone, it bespeaks no intent to obstruct just ice” in t he a bsence o f “statement[s] in order to get [the witness] to cha nge his testimony at the sentencing hearing.” 83 F.3d at 5 86. Here, by contrast, statements of exac tly that kind were made. Ho- Romero had a history of violence toward Witness 1. He said he would come and find her. And he said “if I have problems, you’re going to have proble ms,” which is both an outright threat and a statement made “in order to get ” Witness 1 “to change h[er] testimony.” 3 The Second C ircuit di d conside r a voicemai l received by two wit nesses in which a male voi ce st ated, “ We heard y ou are rat s. You ra t out pe ople. You rat out people a nd rats go tta die. We gonna co me visit you. Bye.” Hernandez, 83 F.3d at 5 84. The court describe d this voicemai l as “a threat” and stated that it “could certain ly amount to an attempt to obstru ct justice.” Id. at 586. B ut the court did “not re ach the issue of whethe r this tape - recorded message was s o intended bec ause nothin g connect[ed ] the defendant,” who was female, “to the threat.” Id.

USA V. H O -R OMER O 33 The major ity’s alternate interpr etation of Ho - Romero’s statemen ts is unrealistic. As counsel f or the United States stated in its br ief, “if a loan shark trie s to pressure a victim into paying a debt by s aying he will face ‘problems’ or ‘consequ ences’ o the rwise, the intent to thre aten is manifest.” And while th e majority insists that “Ho - Rom ero’s knowledge that Witness 1 testified is distinct from knowledge of the content of Witness 1’s testimony,” in reality, sealed uncontroverted evidence indicates that Ho - Romero already knew the content of her testimony. Because the district court would have nee ded to conclude by a preponderance of the evidence that Ho - R omero subjectively intended to threaten Witness 1 a nd obstruct justice, we should find that the enhancement in U.S.S.G. § 3C1.1 applies and that the distri ct court’s identification o f the wron g legal ru le was harml ess.