United States v. Ho-Romero

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-3848

D.C. No.

Plaintiff - Appellee,

3:21-cr-00856-

DMS-1

v.

DAVID HO-ROMERO,

OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted August 18, 2025

Pasadena, California

Filed February 18, 2026

Before: Marsha S. Berzon, Mark J. Bennett, and Jennifer

Sung, Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge Bennett

2 USA V. HO-ROMERO

SUMMARY *

Criminal Law

The panel vacated a sentence and remanded for

resentencing in a case in which David Ho-Romero pleaded

guilty to methamphetamine 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

enhancement requires that a “defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of

conviction.” (Emphasis added). The district judge held that

this requirement could be satisfied in some circumstances

without any intent to obstruct justice and found only that Ho-

Romero’s threats could have been understood by the witness

as attempts to obstruct justice. The district court made no

finding as to whether Ho-Romero willfully obstructed or

attempted to obstruct justice.

United States v. Lofton, 905 F.2d 1315 (9th Cir. 1990),

held that a finding of intent to obstruct justice is required

before the obstruction of justice enhancement can be

applied. The panel concluded that Lofton is controlling in the

threat context as in others, and that the district court

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. HO-ROMERO 3

therefore erred in applying the obstruction of justice

enhancement without making any mens rea finding.

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 justice; and that

the district 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 United States Attorney, Chief, Appellate Section;

Criminal Division; Andrew R. Harden, Acting United States

Attorney; Office of the United States Attorney, United States

Department of Justice, San Diego, California; for Plaintiff-

Appellee.

Katherine M. Hurrelbrink (argued), Federal Defenders of

San Diego Inc., San Diego, California, for Defendant-

Appellant.

4 USA V. HO-ROMERO

OPINION

BERZON, Circuit Judge:

David Ho-Romero was sentenced to 60 months

imprisonment and five years of supervised release after

pleading guilty to methamphetamine importation. During

the sentencing hearing, the district court applied an

obstruction of justice enhancement on the basis of alleged

threats Ho-Romero made to a witness who testified in grand

jury proceedings regarding his drug charges. The

enhancement requires that a “defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the

administration of justice with respect 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 requirement could be satisfied in

some circumstances without any intent to obstruct justice

and found only that Ho-Romero’s threats could have been

understood by the witness as attempts to obstruct justice. The

district court made no finding as to whether Ho-Romero

willfully obstructed or attempted to obstruct justice.

United States v. Lofton, 905 F.2d 1315 (9th Cir. 1990),

held that a finding of intent to obstruct justice is required

before the obstruction of justice enhancement can be

applied. We conclude that Lofton is controlling in the threat

context as in others, and that the district court therefore erred

in applying the obstruction of justice enhancement without

making any mens rea finding.

USA V. HO-ROMERO 5

I. Background 1

A. Alleged Obstruction of Justice

On February 20, 2021, border officials stopped David

Ho-Romero as he attempted to enter the United States near

San Diego, California. Officials found in the trunk of his car

two packages containing a total of 11.6 kilograms of

methamphetamine. Ho-Romero was arrested and, after

release on bond, indicted on one count of importing

methamphetamine under 21 U.S.C. §§ 952 and 960.

Five months after Ho-Romero’s arrest, as investigations

into his drug importation activity continued, the prosecution

called Witness 1 to testify in grand jury proceedings against

him. Witness 1 and Ho-Romero were previously in a

romantic relationship. Their relationship was turbulent:

Witness 1 endured physical abuse from Ho-Romero, and

Ho-Romero obtained a restraining order against Witness 1

for her violent conduct against him. Witness 1 and Ho-

Romero maintained contact after their relationship ended.

Juan Cardona, Ho-Romero’s roommate, was also

subpoenaed to testify in Ho-Romero’s grand jury

proceedings. Ho-Romero learned of Witness 1’s testimony

from Cardona, as prosecutors asked Cardona about facts

Witness 1 likely would have known. Cardona accordingly

1

We unseal information contained in the parties’ briefs and the

presentence report only to the extent that unsealing is necessary for

purposes of the public versions of this opinion and of the dissent. We

unseal the sentencing hearing transcript in its entirety, as it was not

sealed when filed in the district court. The sealed materials otherwise

remain sealed. We are filing under seal, concurrently with this opinion

and dissent, versions of the opinion and dissent that rely on record

evidence remaining under seal.

6 USA V. HO-ROMERO

alerted Ho-Romero that Witness 1 probably also appeared

before the grand jury.

Hearing that, Ho-Romero sent text messages to Witness

2, Witness 1’s close friend, writing that he urgently needed

to speak with Witness 1. Witness 2 was with Witness 1 when

Ho-Romero sent the message, and Witness 1 agreed to speak

with Ho-Romero. Both Witness 1 and Witness 2 participated

in the conversation.

In his phone call, Ho-Romero made two statements

central to this appeal. 2 First, he said that, if Witness 1 did not

tell him about her grand jury testimony, he was “going to go

over there.” Second, he said: “If [I] have a problem, [you]

have a problem.” Ho-Romero then made a short second call,

speaking calmly. Neither Witness 1 nor Witness 2 had any

further communications with Ho-Romero regarding his case.

Based on the phone call, the government charged

Ho-Romero with two counts of witness tampering. 3 The

prosecution called Witness 2 to testify in Ho-Romero’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 maintained that he was innocent of

the two counts of witness tampering and did not plead guilty

to those charges. The parties eventually reached an

agreement that, in 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 Witness 2 was uncontroverted and

2

The conversation took place in Spanish.

3

The first charge cited a violation of 18 U.S.C. § 1512(b)(1) and

(b)(2)(A); the second cited a violation of 18 U.S.C. § 1512(b)(3).

USA V. HO-ROMERO 7

“admissible as substantive evidence at any hearing” in the

case. After dropping the witness tampering counts, the

government relied on the evidence underlying the indictment

on those counts to seek an obstruction of justice

enhancement under § 3C1.1 of the United States Sentencing

Guidelines.

B. Sentencing

The district court ordered a presentence report (“PSR”).

In the PSR, the probation officer recommended that Ho-

Romero receive an obstruction of justice enhancement. 4

Defense counsel filed a formal objection to the PSR, arguing

as to the obstruction of justice enhancement that Ho-Romero

did not willfully obstruct or attempt to impede the

administration 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 enhancement. The court

asked the prosecutor (Ms. Rene) what standard the

obstruction of justice enhancement requires:

THE COURT: The willfulness [standard] on

the obstruction, that is an objective standard.

Am I correct?

MS. RENE: I believe that is correct, Your

Honor.

4

Although the PSR calculated an advisory Guidelines Range of 210 to

262 months, the probation officer recommended a sentence of 36 months

with five years of supervised release in view of the factors in 18 U.S.C.

§ 3553(a). The probation officer also recommended that Ho-Romero

receive three years of supervised release, instead of five, should he later

qualify for “safety valve” relief under 18 U.S.C. § 3553(f).

8 USA V. HO-ROMERO

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 straightforward call, in

my view. This is an objective test, an

objective standard because the government

has to prove it by a preponderance, and

willfulness, the using [of] words or conduct

to intimidate or dissuade others from

participating in the process with respect to

these charges, this case. And just looking at

the words and the context in which you made

them and the timing of what was going on, it

clearly seems to me that the government has

met its burden based on the objective

evidence. That these statements, because

words matter in the context when you say,

essentially, if you have a problem they have

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 under these circumstances at the time

they are going to view it, as they testified and

stated they viewed it, and that is as a threat.

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 enhancement, the Guidelines sentence

USA V. HO-ROMERO 9

range was 135 to 168 months. The parties each

recommended a sentence well below that range: the

government recommended 96 months, and the defense

recommended 30 months. Looking to the factors described

in 18 U.S.C. § 3553(a), and based on the “very significant

mitigating factors” in the case, the court decided to depart

downward from the Guidelines range. The court sentenced

Ho-Romero to 60 months imprisonment with five years of

supervised release. Ho-Romero timely appealed the court’s

sentence.

II. Standard of Review

Ho-Romero argues that the district court misinterpreted

the Sentencing Guidelines and so erroneously applied the

obstruction of justice enhancement to his sentence. “We

review the district court’s identification of the correct legal

standard de novo, its factual findings for clear 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. Mootness

Ho-Romero has finished serving his 60-month sentence

and is now subject to a five-year period of supervised

release. United States v. Allen held that if a defendant has

completed an imprisonment sentence but “has received a

sentence that includes a period of supervised release, a

challenge to the length of his sentence of imprisonment is

not moot,” as long as, should the defendant 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. HO-ROMERO

Here, Ho-Romero was convicted under 21 U.S.C. §§ 952

and 960. Section 960(b)(1) specifies a five-year term of

supervised release for importation of methamphetamine in a

quantity greater than 50 grams. “A district court must

sentence a defendant to supervised release if the statute so

requires.” Id. Ho-Romero was discovered at the border with

11.60 kilograms of methamphetamine and so ordinarily

would be subject to the five-year minimum term of

supervised release. But in Ho-Romero’s PSR, the probation

officer recommended a three-year term of supervised

release, as is permissible, should Ho-Romero “qualif[y] for

safety valve at a later time.” See 18 U.S.C. § 3553(f). At the

sentencing hearing, the district court acknowledged that,

because Ho-Romero qualified for the safety valve provision,

there was no longer a mandatory five-year supervised

released term, but the court sentenced him to a five-year

supervised release term anyway. On a remand for

resentencing, the district court could change that decision

and reduce Ho-Romero’s period of supervised release. See,

e.g., United States v. Verdin, 243 F.3d 1174, 1179 (9th Cir.

2001). Ho-Romero’s appeal is therefore not moot.

B. Obstruction of Justice Enhancement

For an obstruction of justice enhancement to apply,

§ 3C1.1 of the Sentencing Guidelines requires that a

“defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect

to the investigation, prosecution, or sentencing of the instant

offense of conviction.” U.S.S.G. § 3C1.1. The enhancement

can apply where a defendant “threaten[s], intimidat[es], or

otherwise unlawfully influenc[es] a co-defendant, witness,

or juror, directly or indirectly, or attempt[s] to do so.” Id.

cmt. n.4(A). The government argues that, as this case

involved alleged threats, we should depart from this court’s

USA V. HO-ROMERO 11

prior interpretations of the “willfully” element in § 3C1.1 as

including a mens rea requirement and instead affirm the

district court’s “objective” application of the Guideline to

Ho-Romero’s sentence. We decline to do so.

1.

This court long ago established that the term “willfully”

in § 3C1.1 “contains a clear mens rea requirement,” which

limits the Guideline’s scope to defendants who “consciously

act with the purpose of obstructing justice.” Lofton, 905 F.2d

at 1316–17 (emphasis in original) (quoting United States v.

Stroud, 893 F.2d 504, 507 (2d Cir. 1990)). Relying on

Lofton and the text of the Sentencing Guidelines, we have

repeatedly affirmed that the “willfully” element in § 3C1.1

connotes a mens rea requirement. For example, United

States v. Taylor quoted Lofton in a § 3C1.1 false testimony

case and held that a district court must make “sufficient

findings that the defendant acted willfully.” 749 F.3d 842,

848 (9th Cir. 2014); see also United States v. Gardner,

988 F.2d 82, 83–84 (9th Cir. 1993) (citing Lofton in § 3C1.1

case involving the defendant’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 adjustment, as “calculated” to influence

a witness’s cooperation with law enforcement officials).

We have also specifically addressed the application of

§ 3C1.1 to alleged threats. See United States v. Jackson,

974 F.2d 104 (9th Cir. 1992). Jackson first inquired as to

whether the defendant’s conduct in that case could be

reasonably construed as a threat and concluded that the

defendant’s statements were “sufficiently threatening to

qualify as obstruction.” Id. at 106. “Where a defendant’s

statements can be reasonably construed as a threat, even if

12 USA V. HO-ROMERO

they are not made directly to the threatened person,” Jackson

stated, “the defendant has obstructed justice.” Id. (citing

United States v. Shoulberg, 895 F.2d 882, 885–86 (2d Cir.

1990)). Jackson then addressed whether the defendant

intended to obstruct justice by threatening the witness in the

case. As to that issue, the district court in Jackson had found

that the defendant “acted with the conscious intent to

obstruct justice” to deter the witness from testifying, a

finding Jackson held was not clearly erroneous. Id.

Jackson’s reliance on the district court’s “conscious intent”

finding confirms that the mens rea requirement described 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

enhancement for perjury also confirm the provision’s mens

rea requirement. To apply a § 3C1.1 enhancement for

perjury, we require a district court to find that “(1) the

defendant gave false testimony, (2) on a material matter,

(3) with willful intent.” United States v. Castro-Ponce,

770 F.3d 819, 822 (9th Cir. 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 justice by lying under

oath.

The “willful intent” requirement in perjury cases

recognizes that a defendant who intentionally lies while

testifying may do so without willfully intending to obstruct

justice. For example, a defendant may misrepresent the

amount of money he received in a robbery. His motivation

to lie may be to “minimize his embarrassment” about his

crime, see, e.g., United States v. Parker, 25 F.3d 442, 448

(7th Cir. 1994), or to protect a relative from humiliation, not

USA V. HO-ROMERO 13

to avoid conviction. A defendant may therefore intentionally

give inaccurate testimony for reasons unrelated to the

administration of justice. We have held that a § 3C1.1

enhancement must be vacated where a district court fails to

find that the inaccurate testimony was willfully made to

obstruct justice. See, e.g., United States v. Herrera-Rivera,

832 F.3d 1166, 1175 (9th Cir. 2016).

Imported into the threat context, the reasoning in the

perjury cases suggests there are instances in which, though a

speaker was perceived as threatening, the speaker did not

purposely or knowingly intend to be understood as making a

threat for the purpose of obstructing justice. In such

instances, the obstruction of justice enhancement is not

applicable. We may not “giv[e] the same word, in the same

statutory provision, different meanings 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 application of § 3C1.1 to alleged

threats absent a finding of any mens rea would contravene

Santos’s command.

Lastly, the First Amendment “true threats” cases confirm

that a mens rea finding is necessary under § 3C1.1. Speech

is a true threat when “the speaker means to communicate 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 threat, where a speaker directs

a threat . . . with the intent of placing the victim in fear of

bodily harm or death.” Id. at 359–60.

14 USA V. HO-ROMERO

Counterman v. Colorado recently addressed more

specifically the mens rea on the speaker’s part

constitutionally required in true threats cases. 600 U.S. 66,

73 (2023). Counterman determined that uttering words

reasonably perceived by others as a threat is constitutionally

insufficient for conviction. Id. at 78.

Counterman then held that a mens rea of recklessness is

constitutionally sufficient to show that a defendant intended

to make a threat. Id. at 79. But § 3C1.1 requires that an

action—including a threat—was made willfully for the

purposes of obstructing or impeding justice. As § 3C1.1 is

specific as to the mens rea required, the slightly less rigorous

constitutional mens rea required by the statute approved in

Counterman is inapplicable. At the same time, Counterman

demonstrates that the purely objective standard the district

court adopted at Ho-Romero’s sentencing hearing could

raise constitutional issues. 5

In sum, Lofton controls here. The “willfully” element in

§ 3C1.1 requires a finding in threats cases that the defendant

made a threat with specific intent to convey that the witness

could be harmed if the witness participates in legal

proceedings adversely to the defendant.

2.

The mens rea approach in Lofton contrasts with the

government’s position in this case. The government cites no

Ninth Circuit case disavowing or disagreeing with Lofton.

Instead, the government argues that this court should adopt

5

We do not decide whether Counterman applies in the Guidelines

context.

USA V. HO-ROMERO 15

the Second Circuit’s “inherently obstructive” line of

authority.

In the Second Circuit, if certain conduct is “inherently

obstructive of the administration 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 witnesses are an “extreme” obstacle to the

administration of justice, the government argues here, so,

applying the Reed approach, Lofton should be inapplicable

in threats cases. No finding of intent to obstruct justice is

necessary, the government maintains, where the language

used would reasonably be viewed by a potential witness as

intended to discourage their participation in legal

proceedings.

Even if we were free to do so—which we are not—we

would reject, for several reasons, the government’s

invitation to alter or adjust our interpretation of § 3C1.1 in

reliance on Second Circuit case law. 6

First, what Reed actually held is unclear. Reed concluded

that remand was required in that case because the district

court failed to make “findings that the conduct it believed

was obstructive was willfully so.” 49 F.3d at 901.

The defendant in Reed pleaded guilty to mail-fraud and

narcotics-distribution conspiracy charges. Id. at 897.

6

We are bound by the precedential aspects of our prior decision in Lofton

under the “law of the circuit” rule, United States v. Washington,

593 F.3d 790, 798 n.9 (9th Cir. 2010), and we must follow published

decisions of this court “unless and until overruled by a body competent

to do so,” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012)

(quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)).

16 USA V. HO-ROMERO

Pursuant to a plea bargain, Reed agreed to testify against his

co-conspirators, provided that the government agreed to

support a motion for his release on bail. Id. In the bail order,

the district court ordered that Reed “appear at all

proceedings as required,” but Reed failed to appear at his

sentencing hearing and “dove out of a window” when

officers attempted to arrest him. Id.

Reed stated that “intentionally failing to appear as

required at judicial proceedings” is “inherently obstructive

of the administration of justice.” Id. at 900. But then, in

accord with the text of the § 3C1.1 Guideline, Reed held that

there were insufficient findings by the district court to infer

whether Reed’s conduct was a “willful” obstruction of

justice. For example, there were no findings as to 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 attempted to arrest him were law enforcement

officers. Id. at 901–02. So, notwithstanding the delay of the

original sentencing hearing caused by Reed’s absence, Reed

concluded that remand was required because the record was

“unclear as to what basis the sentencing court adopted in

enhancing Reed’s offense level for obstruction of justice.”

Id. at 902. The “inherently obstructive” test established by

Reed thus appears limited to the necessary impact of certain

behavior—there, not appearing in court and thereby delaying

proceedings. But it did not eliminate a district court’s

obligation to base its application of a § 3C1.1 enhancement

on findings of intent to cause that impact.

Second, the Second Circuit itself has required a showing

of intent to obstruct justice in threats cases decided after

Reed. For example, United States v. Hernandez held in a

threats case that, “[f]or an obstruction of justice to be found,

a court must establish that the defendant had the specific

USA V. HO-ROMERO 17

intent to obstruct justice.” 83 F.3d 582, 585 (2d Cir. 1996).

So whatever the “inherently obstructive” language in Reed

means, it does not include threats.

Finally, the “inherently obstructive” test, even if more

broadly understood, would provide little utility to

prosecutors or district courts. If certain conduct is indeed

inherently indicative of a purpose to obstruct the

administration of justice, then the government should have

little trouble proving that it was willfully done to obstruct

justice, by relying on a strong inference derived from the

objective circumstances.

We conclude that there is no basis for limiting Lofton. It

remains the law of this circuit, in threat cases as in others,

that the obstruction of justice 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 the district court applies the wrong legal standard

and so makes no findings on a necessary element of a

Guidelines provision, it is the district court, not this court,

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-Gaytan, 265 F.3d 837,

844 (9th Cir. 2001). The government proposes otherwise,

arguing that remand is unnecessary in Ho-Romero’s case

because “the record is already complete on the issue of

obstruction.”

18 USA V. HO-ROMERO

We cannot agree. Whether the record is complete is

beside the point. 7 Jimenez-Ortega and Ochoa-Gaytan—and

many other cases—stand for the general principle that

remand is appropriate in sentencing appeals where further

factfinding is necessary to determine the proper Guidelines

calculation. See Jimenez-Ortega, 472 F.3d at 1104 (holding

that a district judge must make 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 respect to Ho-Romero’s intent under § 3C1.1 as

required by Lofton, so remand is required. 9

7

That Ho-Romero stipulated that grand jury testimony provided by

Witness 1 and Witness 2 would be “uncontroverted” for purposes of “any

hearing” in the case is also beside the point. “Uncontradicted testimony

is not necessarily undisputed evidence.” United States v. Sandoval-

Mendoza, 472 F.3d 645, 649 (9th Cir. 2006). “[T]he court is not bound

to accept uncontroverted testimony at face value if it is improbable,

unreasonable or otherwise questionable.” Wilbur-Ellis Co. v. The M/V

Captayannis “S”, 451 F.2d 973, 974 (9th Cir. 1971) (per curiam).

8

See also, e.g., United States v. Grimaldo, 993 F.3d 1077, 1082–83 (9th

Cir. 2021) (concluding remand was required where the district court

applied a four-level § 2K2.1(b)(6)(B) enhancement but did not make

findings sufficient to connect the defendant’s possession of a firearm

with his likelihood of owning illegal narcotics); United States v.

Gutierrez-Hernandez, 94 F.3d 582, 585–86 (9th Cir. 1996) (instructing

the district court on remand to “make express factual findings” as

required by the Guidelines); United States v. Navarro, 979 F.2d 786, 790

(9th Cir. 1992) (same).

9

Ho-Romero contends that remand is also required under Federal Rule

of Criminal Procedure 32(i)(3)(B). As remand is necessary because the

district court did not make a finding on the “willfully” element, we do

not reach the Rule 32 issue.

USA V. HO-ROMERO 19

D. Harmless Error

Toward the same end—avoiding remand—the

government maintains that any error in Ho-Romero’s

sentencing was harmless. The government makes two

arguments as to harmless error: First, that, given

overwhelming record evidence, the district court would have

found the requisite mens rea under § 3C1.1 had it applied the

subjective intent element; and second, that any error in a

Guidelines calculation is harmless where the district court

issues a below-Guidelines sentence and specifies that the 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 district court’s legal error

in interpreting the Guidelines enhancement is harmless

because there is “overwhelming evidence” of Ho-Romero’s

intent to obstruct justice. The “overwhelming evidence”

standard proposed by the government emanates from cases

holding that a district court’s omission of a necessary

element in jury instructions, although a violation of the Sixth

Amendment’s jury trial guarantee, can be harmless. See

Neder v. United States, 527 U.S. 1, 15–20 (1999); United

States v. Hansen, 97 F.4th 677, 681 (9th Cir. 2024). This

court has not established the standard for harmless error

review of a district court’s Guidelines calculation under the

circumstances present here–that is, where the district court

did not make findings on an essential Guidelines element.

Such an error involves no violation of the right to a jury

trial. 10

10

As we explain later, infra at 26, the distinct question whether the

district court would have imposed the same sentence had it calculated

20 USA V. HO-ROMERO

Neder is nevertheless instructive. To establish the

standard for harmless error review for omitted elements in

jury instructions, Neder turned to Chapman v. California,

386 U.S. 18 (1967). As Neder explained, Chapman held that

constitutional errors during criminal trials are harmless when

“it appears ‘beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.’”

Neder, 527 U.S. at 15 (quoting Chapman, 386 U.S. at 24).

“Beyond a reasonable doubt” is, of course, the standard for

conviction in criminal cases, and so “a familiar standard to

all courts.” Chapman, 386 U.S. at 24. Neder then concluded

that the harmless error inquiry for omitted elements in jury

instructions must be substantially similar to other instances

of constitutional error, and that a court 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. Neder adopted the

“overwhelming evidence” of the omitted element

requirement as an application of the Chapman reasonable

doubt standard for the element-omission context. Id. at 16–

17.

We take an approach to deriving a harmless error

standard similar to Neder’s and so root our harmless error

standard in the role of district courts with regards to

Guidelines decisions. As the application of a Guidelines

standard to a set of facts, the district court’s finding as to

whether Ho-Romero acted with the conscious purpose of

obstructing justice needed 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 Guidelines range properly is ordinarily not subject to harmless error

review.

USA V. HO-ROMERO 21

a district court’s application of the Sentencing Guidelines to

the facts of a case for abuse of discretion. See United States

v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en

banc). So, to conduct the harmless error analysis here, we

proceed by assessing whether the district court would have

abused its discretion if it concluded by a preponderance of

the evidence that Ho-Romero did not “consciously act 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 harmless; otherwise, it is not. By

preserving the primary district court role in sentencing, this

approach is appropriately stringent and helps ensure that the

Guidelines process functions properly.

We note that in United States v. Evans, 883 F.3d 1154

(9th Cir. 2018), we held that a district court’s legal error in

applying a Guidelines enhancement was harmless. There,

the district court found that the defendant used a firearm in

the commission of an aggravated assault, and so applied

§ 2A2.2(a) and (b)(2)(A) of the Guidelines to enhance the

defendant’s sentence. Evans, 883 F.3d at 1158–59. The

defendant argued that the district court’s finding was

erroneous because he used the firearm in self-defense. Id. at

1159. Evans concluded that the district court’s failure to

place the burden of proof on the government to disprove self-

defense was error but was harmless, because surveillance

footage “clearly showed” that the defendant “opened fire on

a fleeing man.” Id.

Evans involved a procedural error, not the failure to

make a necessary finding of fact. And, given the availability

of conclusive video evidence, Evans had no reason to

announce any applicable standard for determining when a

Guidelines application error is harmless. In any event,

applying the standard we adopt here, it would clearly have

22 USA V. HO-ROMERO

been an abuse of discretion in Evans, given the video

evidence, for the district court to have found that the

government did not meet its burden of disproving self-

defense.

2.

On the record at the sentencing proceeding, the district

court would not have abused its discretion by determining

that Ho-Romero did not act with the conscious purpose of

obstructing justice. So the error here is not harmless. 11 Here

is why:

A defendant’s objectively threatening conduct can be

motivated by various purposes. For example, United States

v. Hernandez involved six incidents of intimidation by a

defendant against witnesses. 83 F.3d at 584. The defendant

called a witness “the devil,” attempted to contact that witness

on the first day of trial, and yelled at another witness to “die,

die, die” prior to the sentencing hearing. Id. Hernandez held

that the § 3C1.1 enhancement could not be applied in that

case absent some additional evidence of the defendant’s

purpose, because “[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, there was no evidence that she made “statement[s]

in order to get [the witness] to change his testimony at the

sentencing hearing,” so the obstruction of justice

enhancement was inapplicable. Id.

11

We note that there are circumstances in which harmless error review

would be inappropriate. For example, if the defendant was precluded

from presenting evidence regarding a necessary element, the district

court’s Guidelines holding would likely be an abuse of discretion

without regard to any harmless error analysis based on the record that

was made.

USA V. HO-ROMERO 23

Similarly, given both “the face” and “context” of Ho-

Romero’s statements, a district court could find, without

abusing its discretion, that the government had not proven

Ho-Romero’s conscious purpose to prevent Witness 1 or

Witness 2 from participating in proceedings related to his

case. United States v. Archer, 671 F.3d 149, 167 n.11 (2d

Cir. 2011). 12 In his phone call to Witness 1 and Witness 2,

Ho-Romero made two statements that served as the basis for

the § 3C1.1 enhancement:

• Ho-Romero said that, if Witness 1 did not tell

him about her grand jury testimony, he was

“going to go over there.”

• “If [I] have a problem, [you] have a

problem.”

In his first statement, Ho-Romero warned that he would

seek out Witness 1 if she declined to share her grand jury

testimony with him. The government argues the record

“leaves no doubt” Ho-Romero already knew what Witness 1

said in her testimony, and so he must have instead intended

his statement to intimidate Witness 1, thereby obstructing

proceedings in his case; the dissent adopts this view of the

record. See Dissent at 33. That 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 Guidelines note to take

a defendant’s statements “in a light most favorable” to him. Archer, 671

F.3d at 167 n.11 (citing U.S.S.G. § 3C1.1 cmt. n.1 (1995), repealed by

U.S.S.G. App’x C, amd. 566 (1997)). Yet Archer reaffirmed

Hernandez’s holding because “its conclusion was largely based on the

total lack of evidence showing any intent [by the defendant] to obstruct

justice,” any changes to the Guidelines notwithstanding. Id.

24 USA V. HO-ROMERO

said one thing but subjectively meant to convey something

different: Although he said he would go to where Witness 1

was if she did not tell him what she’d said, he meant her to

understand that, even if she now did give him a full account

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 Witness 1

testified is distinct from knowledge of the content of Witness

1’s testimony. All Ho-Romero knew about the content of

Witness 1’s testimony was partial and based on inferences

from what Cardona was asked. True, Ho-Romero was

apparently desperate to know what the government knew

about his activities and motivated by “fury.” Hernandez, 83

F.3d at 586. But that could be because he wanted to

formulate his strategy with his lawyer with complete

knowledge of what information the government had

gathered. The district court would not have abused its

discretion in finding the government had not shown by a

preponderance of the evidence that Ho-Romero made his

first statement with the conscious purpose of preventing

Witness 1’s participation in judicial proceedings. 13

13

The dissent emphasizes Ho-Romero’s earlier violent treatment of

Witness 1 as context supporting the inference that Ho-Romero meant to

threaten physical violence when he said he would come to Witness 1’s

location. See Dissent at 30–32. The question pertinent to the § 3C1.1

inquiry is whether Ho-Romero acted with the conscious purpose of

obstructing justice. So although the grand jury testimony describing Ho-

Romero’s relationship with Witness 1 demonstrates that he is capable of

coercion, that evidence does not necessarily support the separate

inference required to apply the obstruction of justice enhancement: that

Ho-Romero made his statements with the express purpose of preventing

Witness 1 from participating in judicial proceedings.

USA V. HO-ROMERO 25

Nor is the intent behind Ho-Romero’s second statement

self-evident. He said Witness 1 or Witness 2 would “have a

problem” if he “[had] a problem.” Ho-Romero contends the

statement could be found not to have an obstruction of

justice purpose: Ho-Romero could have meant that Witness

1’s testimony would either implicate them in his trafficking

activities or reveal that Witness 1 was violating the terms of

the restraining order against her by speaking with Ho-

Romero. The government maintains instead that Ho-Romero

must have intended to threaten Witness 1 and Witness 2 by

insinuating they would face consequences generated by Ho-

Romero for cooperating with law enforcement.

The record does not necessarily support either parties’

interpretation. Witness 2 never explained why or how he felt

threatened or what he expected Ho-Romero to do after the

phone call. Witness 2 did state, however, that Ho-Romero

was completely calm when he made a second, brief phone

call.

Sentencing is the prerogative of the district court,

Williams v. United States, 503 U.S. 193, 205 (1992), which

“may draw all reasonable inferences from the words used

and from the pertinent circumstances” to determine whether

the defendant made a threat, Shoulberg, 895 F.2d at 885. In

making findings on remand, the district court could

determine without abusing its discretion that there is

sufficient evidence of Ho-Romero’s conscious purpose to

obstruct justice, and so reimpose the § 3C1.1 enhancement.

“But in imposing enhancements under the Guidelines, we

cannot be swayed by speculation or convinced by

conjecture.” 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 lacked specific intent

to obstruct justice under § 3C1.1. The district court’s error

26 USA V. HO-ROMERO

in applying the obstruction of justice enhancement was

therefore not harmless.

3.

That Ho-Romero was sentenced below the proper

Guidelines calculation were the obstruction of justice

enhancement excluded also does not obviate the need for

remand. A district court must calculate 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. 2011) (per curiam) (quoting Kimbrough v. United

States, 552 U.S. 85, 108 (2007)). “The Sentencing

Guidelines are advisory, but any calculation error is a

significant procedural error that requires us to remand for

resentencing.” United States v. Brown, 879 F.3d 1043, 1050

(9th Cir. 2018) (citation and quotation marks omitted).

Here, the district court applied the obstruction of justice

enhancement without making necessary mens rea findings

and so did not calculate the Guidelines sentence range

correctly. The court would have calculated a different

Guidelines range if it did not apply the two-level obstruction

of justice enhancement. Using a different Guidelines range,

the court may have arrived at a different sentence—for

example, one below the new, lower Guidelines range to the

same degree the previous sentence was below the higher

Guidelines range originally calculated.

There is a narrow exception to the remand requirement

where the district court unequivocally states during the

sentencing hearing what the sentence would have been were

the Guidelines calculation otherwise. The district court must

“acknowledge[] that the correct Guidelines range is in

dispute and perform[] its sentencing analysis twice,

USA V. HO-ROMERO 27

beginning with both the correct 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-all explanation” for a

sentence premised on an incorrect Guidelines range

“ordinarily does not suffice” to avoid remand. Munoz-

Camarena, 631 F.3d at 1031.

Here, the prosecution tried but failed to elicit a specific

attestation from the district court as to how an alternative

Guidelines calculation would affect Ho-Romero’s sentence.

When asked by the prosecution whether the court would

have given Ho-Romero the same 60-month sentence without

the obstruction enhancement, the district court said, “I am

not quite sure how to answer the question.” The court then

stressed that the Guidelines range “inform[ed] the [§] 3553

analysis” and is “the benchmark” and “important.” The

district court also said that the § 3553 analysis was “most

meaningful,” but never stated “that he would impose the

same sentence regardless of the Guidelines calculation

because of the mitigation factors.” United States v. Leal-

Vega, 680 F.3d 1160, 1170 (9th Cir. 2012).

A “conclusory” statement that the district court would

impose the same sentence no matter the correct Guidelines

calculation “does not demonstrate that the district court

conducted the sentencing a second time starting with the

correct range and keeping it in mind throughout the process,”

and so would not suffice to obviate the need for remand.

Dominguez-Caicedo, 40 F.4th at 964. Here, there was not

even such a conclusory statement. There was no statement at

all concerning the sentence the district court would impose

without the obstruction enhancement, despite the

prosecution’s invitation to make such a statement. Remand

28 USA V. HO-ROMERO

is therefore necessary in accord with our usual procedure.

See Brown, 879 F.3d at 1050.

Nor is our analysis altered by the fact that Ho-Romero

has completed his incarceration sentence and is now serving

a five-year term of supervised release. The Sentencing

Guidelines require that a term of supervised release “shall

not be less than any statutorily required minimum term.”

U.S.S.G. § 5D1.2(a). At the sentencing hearing, defense

counsel objected to the procedural reasonableness of Ho-

Romero’s sentence and noted that the Guidelines did not

require five years of supervised release because Ho-Romero

qualified for “safety valve” under 18 U.S.C. § 3553(f). The

district court agreed that the supervised release range “would

be three to five” years but nevertheless concluded that “five

[was] the right term” for Ho-Romero without providing

further reasoning. We have held that harmless error can

apply when the district court chooses a “within-Guidelines

sentence that falls within both the incorrect and the correct

Guidelines range and explains the chosen sentence

adequately,” or when the district court “performs the

sentencing analysis with respect to an incorrect Guidelines

range that overlaps substantially with a correct Guidelines

range such that the explanation for the sentence imposed is

sufficient even as to the correct range.” Munoz-Camarena,

631 F.3d at 1030 n.5. But the district court did not explain

with any detail its decision to sentence Ho-Romero to five

years of supervised release, so it is not clear whether he

would have sentenced Ho-Romero to the same supervised

release term absent the obstruction of justice enhancement.

We conclude that remand for resentencing is required.

USA V. HO-ROMERO 29

IV. Conclusion

The district court erred by applying an obstruction of

justice enhancement to Ho-Romero’s sentence without

making any findings as to his conscious purpose to obstruct

justice. The 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 respectfully dissent, in part.

“When an ‘alleged error is harmless [it is] not a ground

for resentencing.’” United States v. Ali, 620 F.3d 1062, 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 appellate court determines that the

sentencing court misapplied the guidelines,” it need not

remand if “it determines that ‘the error was harmless . . . .’”

United States v. Crawford, 185 F.3d 1024, 1029 (9th Cir.

1999) (quoting Williams v. United States, 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 preponderance-of-the-evidence

standard in finding evidence supported sentence

enhancements, the panel affirmed, finding error harmless

1

Concurrently filed with this dissent is a version of the dissent filed

under seal, which quotes record evidence that remains under seal.

30 USA V. HO-ROMERO

because evidence satisfied clear-and-convincing standard);

United States v. Merke, 246 F. App’x 494, 497 (9th Cir. Aug.

29, 2007) (same).

The district court correctly identified that it had to make

the obstruction finding by a preponderance of the evidence.

I agree with the majority, however, that the district court

erroneously applied an objective standard rather than a

subjective standard. Nonetheless, had it applied the correct,

subjective standard, the district court would still have been

bound to apply the enhancement. We review for abuse of

discretion a district court’s application of the correct legal

standard to the facts. United States v. Rodriguez, 44 F.4th

1229, 1234 (9th Cir. 2022). Here, the district court would

have abused its discretion if it did not conclude by a

preponderance of the evidence that there was a subjective

intent to obstruct justice. Thus, although the district court

erred by applying an objective 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 ground supported by the record, even

if it differs from the rationale of the district 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

enhancement. We can thus “say with certainty that the

district court’s sentencing error was harmless.” United

States v. Bankston, 901 F.3d 1100, 1108 (9th Cir. 2018).

When determining whether to apply the obstruction-of-

justice enhancement, courts can find evidence of the intent

to obstruct “either on the face of the statements or in their

context.” See United States v. Archer, 671 F.3d 149, 167

n.11 (2d Cir. 2011). The context here is important and

compelling. Ho-Romero is a dangerous, violent person, and

there was “a history of violence and threats amongst not only

USA V. HO-ROMERO 31

[Ho-Romero] and [Witness] 1 but also [Ho-Romero] and

[Witness] 2,” the other victim of the witness tampering.

Sealed but uncontroverted evidence in the record confirms

that Ho-Romero had a history of violence toward Witness 1

and Witness 2, a history of traveling to commit that violence,

and a history of locating Witness 1 and Witness 2 and of

turning up without invitation.

In this context, the district court would have abused its

discretion had it not found by a preponderance of the

evidence that Ho-Romero’s statements 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,” and stated that “he was going to go

there and find them.” 2 Uncontroverted sealed testimony

suggests that Ho-Romero already knew the content of

Witness 1’s testimony and that he threatened to find and

approach her. Given Ho-Romero’s history with Witness 1

and Witness 2, these statements clearly demonstrate an

intent to intimidate and obstruct justice.

The majority relies on United States v. Hernandez, a

nearly thirty-year-old Second Circuit 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 distinguishable from

2

These statements, by themselves, at least come right to the door of

meeting the relevant standard. Ho-Romero knew Witness 1 had testified

before the grand jury. He told Witness 1 that if he got in trouble (which,

in context, can only mean through the actions of the federal prosecutor),

there would be consequences for her. But, of course, this was not all the

evidence before the district court. When combined with the undisputed,

extraordinary facts related to Ho-Romero’s dangerousness and

violence—all known to Witness 1—the evidence would satisfy the clear-

and-convincing standard were that the standard.

32 USA V. HO-ROMERO

the case before us. In Hernandez, the defendant called a

witness “the devil” and yelled “die, die, die” at another

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 based on the

total lack of evidence showing any intent [by the defendant]

to obstruct justice.” Archer, 671 F.3d at 167 n.11 (emphasis

added) (explaining why Hernandez was not abrogated by the

repeal of a Sentencing Guideline note “requiring the court to

take the defendant’s statements ‘in a light most favorable to’

her” (citation omitted)). Further, the Hernandez court found

that “[f]ury may be exceedingly unpleasant, but alone, it

bespeaks no intent to obstruct justice” in the absence of

“statement[s] in order to get [the witness] to change his

testimony at the sentencing hearing.” 83 F.3d at 586. Here,

by contrast, statements of exactly 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 problems,” which is both an

outright threat and a statement made “in order to get”

Witness 1 “to change h[er] testimony.”

3

The Second Circuit did consider a voicemail received by two witnesses

in which a male voice stated, “We heard you are rats. You rat out people.

You rat out people and rats gotta die. We gonna come visit you. Bye.”

Hernandez, 83 F.3d at 584. The court described this voicemail as “a

threat” and stated that it “could certainly amount to an attempt to obstruct

justice.” Id. at 586. But the court did “not reach the issue of whether

this tape-recorded message was so intended because nothing connect[ed]

the defendant,” who was female, “to the threat.” Id.

USA V. HO-ROMERO 33

The majority’s alternate interpretation of Ho-Romero’s

statements is unrealistic. As counsel for the United States

stated in its brief, “if a loan shark tries to pressure a victim

into paying a debt by saying he will face ‘problems’ or

‘consequences’ otherwise, the intent to threaten is manifest.”

And while the majority insists that “Ho-Romero’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 needed to conclude

by a preponderance of the evidence that Ho-Romero

subjectively intended to threaten Witness 1 and obstruct

justice, we should find that the enhancement in U.S.S.G.

§ 3C1.1 applies and that the district court’s identification of

the wrong legal rule was harmless.