United States v. Hopkins

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0862n.06
Filed: October 19, 2005

No. 03-2311

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Western
IVEL RAY HOPKINS, ) District of Michigan
)
Defendant-Appellant. )

Before: BOGGS, Chief Judge; and NORRIS and COOK, Circuit Judges.

PER CURIAM. Defendant-Appellant Ivel Ray Hopkins was convicted on four

counts of mailing threatening communications, in violation of 18 U.S.C. § 876. Although Hopkins

asked the court to instruct the jury on the affirmative defense of duress, the trial judge refused to do

so. At sentencing, the trial judge imposed sentencing enhancements under the United States

Sentencing Guidelines (“Guidelines”) that effectively tripled Hopkins’s sentencing range, increasing

his sentence from 41-51 months to 121-151 months. The judge sentenced Hopkins to 124 months

in prison, at the lower end of the range, followed by 3 years of supervised release. Hopkins contends

on appeal that (1) the district court’s refusal to instruct the jury on the duress defense constituted

reversible error because Hopkins had introduced “ample evidence” to support the instruction; and

(2) the use of the Guidelines to enhance Hopkins’s sentence was unconstitutional because some of

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United States v. Hopkins

the enhancements stemmed from disputed facts that had not been determined by a jury. We affirm

the jury instruction decision but remand for resentencing.

I

In conjunction with fellow inmates at Ionia Maximum Correctional Facility in Ionia,

Michigan, Ivel Ray Hopkins launched a letter-writing campaign in the late spring and summer of

2001 in which he threatened the lives of the nation’s leaders. In Hopkins’s first letter, dated April

25 but received by the Washington, D.C. headquarters of the United States Secret Service on May

2, he demanded that $5 million be sent to the Isle of Man and “our unconditional pardons (freedom)

before May 7th.” If these demands were not met, he threatened “1) George W. Bush or one of his

family members will be shot and possibly killed; 2) A cabinet member will have an accident that

could possibly result in death; 3) Both of the twins are already marked for abduction; 4) George and

Barbara will know unbearable grief as they watch their children die one after the other.”

Furthermore, the letter threatened “if ‘T.J.’ is to die on May 16th, be sure that George W. will be

pushing up daisies, not witnessing it.” As noted at trial, Timothy James McVeigh’s original

execution date had been May 16, 2001. Later in the letter, undersigned as well by Ionia inmates

Joseph Sconyers and Steven Averitt, Hopkins wrote “Three started a revolution, three defeated

Hitler, and the three of us will be the cause of the death of George W., Colin Powel [sic], John

Ashcroft, and Hillary Clinton and there will be no warning.” Upon the letter’s second page, in

which substantially the same words were repeated in a different hand, the phrase “3 4 life” was

inscribed in blood.

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Helpfully, Hopkins and the others had signed their names and attached their prisoner

numbers and prison addresses to the letter. This prompted a visit to the prison by a Secret Service

agent who, along with Ionia’s inspector, warned Hopkins to discontinue writing such letters. Both

at this time and at a later date, Hopkins admitted to the government agents that he wrote the first

letter.

But Hopkins’s letter writing did not stop. On May 18, the United States Marshals Service

in Washington, D.C. received a letter from Ionia Prison bearing the return address of inmate Shawn

Boyer. The Marshals Service transferred the letter to the Secret Service, to whom it was also

addressed. This undated letter, in Hopkins’s handwriting and signed by Hopkins and Sconyers

despite the envelope’s return address, stated, inter alia, “Don’t send another fucking Secret Service

asshole up here as the talking is over. Get the fucking money to the Isle of Man, be a good laddy

or have a dead President.” Unlike its predecessor, this letter directed the money to be sent to a

specific bank. The letter specified May 19 as the new deadline for performance. The Secret Service

interviewed Boyer and found that he had no knowledge of this letter.

On June 15, the Michigan Department of Corrections intercepted another letter containing

Hopkins’s return address. Dated June 4 and addressed to the Secret Service, the letter contained the

same header phrase as Hopkins’s first letter and was signed by Hopkins alone. He first noted that

Sconyers

had all of his legal materials and paper products taken from him as a result of my
letter to the U.S. Marshalls [sic] in D.C. If you don’t correct this shit and give him
back his property ‘NOW’ someone else will have to pay for this because your actions
against us will not be tollerated [sic] and the price may be your lives.

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United States v. Hopkins

After again demanding money to be sent to the Isle of Man and unconditional pardons for himself

and Sconyers, Hopkins repeated his threats to “Bush, his wife, the twins, a member of his cabinet,

or someone else connected to him.”

More than a month later, the Secret Service received a fourth letter from Hopkins, dated July

19. Signed by Hopkins and Sconyers, but penned in Hopkins’s script, the letter recited various

restrictions and punishments the authors had suffered since their letter-writing campaign began, most

notably the fact that “people refuse to pass our legal correspondences” between Sconyers and

Hopkins “and have taken me out of unit #1 placing me in unit #2 seperating [sic] us so that I can’t

assist Mr. Sconyers in legal research and litigation . . . .”1 Following these and other complaints,

Hopkins repeated his demands for money and freedom and his familiar threats to assassinate the

president, members of his family, and other federal officials. This was the last threatening letter that

Hopkins drafted.

More than a year passed before the government began to prosecute Hopkins in earnest. In

the summer of 2002, Hopkins was notified that he would be asked to provide handwriting exemplars

to the grand jury on August 13, 2002. On August 8, a prison guard at Ionia found a handwritten

letter in Hopkins’s script. In this letter, dated July 29 and addressed to Sconyers but never sent,

1
Hopkins and Sconyers were each kept in the prison’s high-security buildings. Prisoners
in those units spend 23 hours in individual cells, eating and sleeping in the cell. For the one hour
that the prisoners are allowed out of their cells to exercise, they are led, individually, by two
guards to a small stainless steel “yard module” where they remain alone for the duration of their
exercise period. The prisoners thus do not directly interact with one another. The last prisoner-
on-prisoner assault at Ionia occurred more than three years before Hopkins’s trial.

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Hopkins noted that the government’s agents had told him they had no intention of “going after”

Sconyers, and that because of “all the changes in the law with all the terrorist attacks” Hopkins was

asking Sconyers to write an affidavit that Sconyers “coer[c]ed Ivel Ray Hopkins (by dictation) to

write letters in his own handwriting or I [Sconyers] would kill his family.” Hopkins surmised that

“this protects me on the handwriting exemplars and makes them prosecute both of us if they want

me (then if you say I’ll do it). Note: I’m not going without you and that’s final.” Separately, and

possibly independently, Sconyers drafted an affidavit, dated July 24, in which he claimed “that I

alone chose which target would be picked for extortion and terroristic threats,” “that I wrote the

letters that were to be sent,” and “that I personally coerced Ivel Ray Hopkins to sign a blank sheet

of paper, which I later wrote threats on.”

Before the grand jury on August 13, 2002, Hopkins refused to provide a writing exemplar

and, as a result, he was found to be in civil contempt by Judge Bell on September 20. As a result

of Hopkins’s consistent refusals to comply with the subpoena, the government obtained a total of

twenty-eight samples of Hopkins’s handwriting from his prisoner file. Based on these samples,

Todd Welch, a handwriting expert with the Michigan police, confirmed that Hopkins had written

all of the letters.

Strange though it was, Hopkins’s was not Ionia’s only campaign of making serious threats

to national officials. As the prosecution noted during the sentencing hearing, other prisoners

associated with Sconyers have sent similar letters, and some have even mailed packages containing

white powder to government officials. Because Hopkins depended on obtaining a duress instruction,

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United States v. Hopkins

a more detailed examination of the deeds and claims of inmate Joseph Sconyers is required to

complete the story of Hopkins’s writing campaign.

During its investigation, the government had come to understand that Sconyers sought to

orchestrate these campaigns in order to be prosecuted federally and thereby be removed from the

Michigan state system into federal facilities. At Hopkins’s trial on May 6, 2003, Sconyers testified

on behalf of the defendant. In his testimony, Sconyers claimed to be a former member of the Black

Muslims but, because he had testified for the government against that group in 1993, a contract had

been placed on his life. This forced the government to segregate him from the general prison

population for his safety. For a short time following his 1993 testimony, Sconyers was placed in a

federal facility for his safety and, since he decided that his treatment had been better in that facility

than in the state system, he wanted to return to federal prison. According to his testimony, Sconyers

first learned about the crime of extorting federal officials from one of his cellmates in the federal

facility and he thereafter concocted a plan for obtaining a transfer to the federal system by extorting

federal officials himself. Sconyers testified that he had begun his campaign of extortionate writing

even before he was transferred to Ionia, but his plans were interrupted when Ionia’s officials

restricted his ability to obtain pen and paper.

Sconyers, who could not hope for a release from prison earlier than the year 2022, testified

that he first befriended Hopkins and then threatened Hopkins’s life and the life of Hopkins’s mother

unless Hopkins drafted extortionate letters on Sconyers’s behalf. Sconyers claimed that his threats

were made more realistic by his continuing membership in a criminal organization called the

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United States v. Hopkins

Gangsta Disciples, providing, he claimed, the ability to order the assassination of people outside the

prison system. Sconyers testified that the letters were written at his behest, that he had personally

approved the language, and that Hopkins only wrote them under duress. Sconyers was the only

witness to testify on Hopkins’s behalf, and his testimony constitutes the only evidence of duress that

Hopkins introduced.

According to Sconyers, the letter writing campaign ended when both he and Hopkins were

placed on paper restriction, after which it “was very, very hard to get anything done.” In September

2001, Sconyers left the unit that he had shared with Hopkins. As a result, he

had no way to make sure that Mr. Hopkins would do exactly what he said to do
because if [he] is off the block, [he] can threaten him, but [he] would have to send
[letters] from one unit to another unit, and that would be no good because staff would
open that up and find them threats.

After that date, Hopkins “was basically no more use” to Sconyers.

On May 6, 2003, Hopkins was tried on four counts of mailing threatening communications,

in violation of 18 U.S.C. § 876. Although the defendant requested a jury instruction on a defense

of duress, the district court decided not to issue the instruction “for a variety of reasons. For one

thing, the defendant has not testified, and I think the defendant’s testimony is critical to this

instruction.” The jury convicted Hopkins on all four counts. At the sentencing hearing, the

government noted that it had decided to prosecute him in order to deter the other prisoners at Ionia

from continuing their own letter-writing campaigns. During the trial, the government had admitted

that it did not want to try Sconyers for this crime “because that would just be giving [him] what [he]

claim[s he] want[s].” Hopkins’s initial sentence range under the Federal Sentencing Guidelines was

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United States v. Hopkins

41-51 months, but due to sentence enhancements, the final sentencing range was calculated to be

121-151 months. Prior to the sentencing hearing, defense counsel challenged the finding that

Hopkins had demanded $5 million, on the grounds that the demand represented an empty threat, not

an actual loss. The court ruled, however, that the demand for $5 million was a “face demand for

money.” The judge sentenced Hopkins to 124 months, to be followed by 3 years of supervised

release.

II

This court “reviews jury instructions as a whole to determine whether they fairly and

adequately submitted the issues and applicable law to the jury.” United States v. Brown, 367 F.3d

549, 555 (6th Cir. 2004) (citing United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991)).

A district court judge’s refusal to give requested jury instructions is reversible error only if “(1) the

instructions are correct statements of the law; (2) the instructions are not substantially covered by

other delivered charges; and (3) the failure to give the instruction impairs the defendant’s theory of

the case.” United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993). Whether a defendant has

established a defense of duress is a question of law and, on review, this court considers it de novo.

United States v. Johnson, No. 04-5611, 2005 U.S. App. LEXIS 16152 at *8 (6th Cir. Aug. 5, 2005)

(citing United States v. Jankowski, 194 F.3d 878, 882 (8th Cir. 1999) and United States v. Moreno,

102 F.3d 994, 997 (9th Cir. 1996)).

A defendant requesting an instruction “has a preliminary burden to introduce some evidence

to trigger consideration of the defense, although that burden is not a heavy one.” United States v.

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Riffe, 28 F.3d 565, 569 (6th Cir. 1994). “Although a jury instruction should not be given if it lacks

evidentiary support or is based upon mere suspicion or speculation, so long as there is even weak

supporting evidence, [a] trial court commits reversible error in a criminal case when it fails to give

an adequate presentation of a theory of defense.” Newcomb, 6 F.3d at 1132 (internal quotations and

citations omitted). A court “is certainly not required to instruct the jury on a defense the theory of

which is not even supported by the testimony of the defendant adduced at trial.” United States v.

Plummer, 789 F.2d 435, 438 (6th Cir. 1986) (quoting United States v. Williams, 604 F.2d 277 (4th

Cir.), cert. denied, 444 U.S. 967 (1979)).2 “Therefore, where the evidence is insufficient as a matter

of law to support a duress defense, a trial judge should exclude that evidence.” United States v.

Johnson, 2005 U.S. App. LEXIS 16152 at *8.

Under this circuit’s law, a defendant in a prosecution for possession of a firearm as a felon

may assert the defense of necessity or justification. In United States v. Singleton, 902 F.2d 471 (6th

Cir.), cert. denied, 498 U.S. 872 (1990), this court found persuasive the reasoning of United States

v. Gant, 691 F.2d 1159 (5th Cir. 1982), and United States v. Stover, 822 F.2d 48 (8th Cir. 1987),

which established a five-factor test for the defendant to prove a defense of necessity. However, the

defense is appropriate only in “rare situations[,] . . . should be construed very narrowly,” and a

2
In Williams, the defendant’s own trial testimony did not support the duress defense and
may have even contradicted it. United States v. Williams, 604 F.2d at 281. “When a theory of
defense finds some support in the evidence and in the law, a defendant is entitled to some
mention of that in the instructions. Even when the supporting evidence is weak or of doubtful
credibility its presence requires an instruction on the theory of defense.” United States v.
Garner, 529 F.2d 962, 969-70 (6th Cir. 1976).

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district court will not err “in refusing to instruct the jury on this defense if the evidence could not

support a verdict based on it.” Singleton, 902 F.2d at 472-73 (citing United States v. Bailey, 444

U.S. 394, 398-99 (1980)). Under the rule of Singleton, instructions on the defense of necessity are

proper if the defendant has produced evidence upon which a reasonable jury could conclude by a

preponderance of the evidence that each of the following five circumstances exist:

(1) defendant was under an unlawful and present, imminent, and impending threat of such
a nature as to induce a well-grounded apprehension of death or serious bodily injury;

(2) defendant had not recklessly or negligently placed himself in a situation in which it was
probable that he would be forced to choose the criminal conduct;

(3) defendant had no reasonable, legal alternative to violating the law, a chance both to
refuse to do the criminal act and also to avoid the threatened harm;

(4) a direct causal relationship may be reasonably anticipated between the criminal action
taken and the avoidance of the threatened harm; and

(5) defendant did not maintain the illegal conduct any longer than absolutely necessary.

Singleton, 902 F.2d at 472-73 (emphasis added); Newcomb, 6 F.3d at 1134-35; United States v.

Hargrove, 416 F.3d 486, 490 (6th Cir. 2005). “[T]he keystone of the analysis is that the defendant

must have no alternative – either before or during the event – to avoid violating the law.” United

States v. Lacy, No. 90-6161, 1991 U.S. App. LEXIS 28776 at *9 (6th Cir. Dec. 2, 1991) (emphasis

in original).

Although Singleton involved a case of a felon’s firearm possession, this circuit has since

recognized the test’s potential applicability in cases in which the defendant stands accused of

robbery (United States v. White, No. 03-5735, 2005 U.S. App. LEXIS 10300 (6th Cir. May 31,

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2005)), conspiracy to distribute marijuana and aiding and abetting the use of the mail to facilitate

the distribution of marijuana in prison (Riffe, 28 F.3d 565), and mail or wire fraud (United States v.

Milligan, 17 F.3d 177 (6th Cir. 1994)). This comports with the logic of United States v. Bailey, in

which the Supreme Court stated that “Congress in enacting criminal statutes legislates against a

background of Anglo-Saxon common law.” Bailey, 444 U.S. at 415, n. 11. For this reason, common

law defenses may be employed as defenses to a statutory crime. Id. at 408-09. By extension, this

court employs the Singleton test to assess whether the district court should have issued a jury

instruction on duress in a case of mailing threatening communications.

As noted previously, the district judge denied the defendant’s proposed instruction on the

issue of duress “for a variety of reasons. For one thing, the defendant has not testified, and I think

the defendant’s testimony is critical to this instruction.” Although it is obviously not required as a

matter of law that the defendant testify in order to satisfy Singleton, it is undeniable that the

defendant’s personal testimony might provide evidentiary support for meeting his preliminary

burden under Singleton, and without such testimony it is equally undeniable that the actual evidence

proffered might be insufficient as a matter of law. We therefore must assess all of the evidence to

determine whether the evidence actually submitted meets Singleton’s threshold.

Singleton’s first factor concerns whether the defendant was under an “unlawful and present,

imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death

or serious bodily injury.” Singleton, 902 F.2d at 472. This court has previously upheld a

defendant’s right to an instruction on duress when the witness himself and several other witnesses

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testified to the threats he had received from a prison gang, substantiated by the fact that the witness

had been stabbed in the chest while in the prison’s protective custody. Riffe, 28 F.3d at 568.

Similarly, in Singleton this court viewed as sufficient the defendant’s testimony that he had obtained

the firearm while escaping from a kidnapper who had threatened to kill him. Singleton, 902 F.2d

at 472-73. In Newcomb, the defendant’s necessity defense (for possession of an unregistered

firearm) was substantiated by three witnesses, including the defendant himself, who stated that the

defendant had been told by his girlfriend that her son had just walked out of the house, gun in hand,

after threatening to kill someone. Newcomb, 6 F.3d at 1136. Yet this court has also rejected the

defendant’s duress instruction when the threat in question came from an unknown and unarmed man

who suggested “he wasn’t supposed to be” in a particular neighborhood and asked “[d]o you want

a drive-by or your family to go down or something?” Hargrove, 416 F.3d at 490. If the threat is

merely speculative or conjectural, or if the evidence is simply too thin to substantiate the claim, then

the district court could properly reject a duress defense based on Singleton’s first factor.

Sconyers’s testimony constituted the only evidence that Hopkins adduced at trial. According

to Sconyers’s testimony, Hopkins only wrote the letters after Sconyers threatened to have him and

his mother assassinated, and the credibility of this threat rests largely on the witness’s assertion of

membership in the Gangsta Disciples. As Hopkins himself did not testify at trial and no written

threats were introduced, there was no evidence to substantiate Sconyers’s claims. Indeed, no

evidence was introduced to suggest that Hopkins was at all fearful.

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Moreover, Sconyers admitted in his direct testimony that he possessed a motive and scheme

for incriminating himself in federal court and that his ability to communicate with and threaten

Hopkins was gravely hampered after the prison separated the two inmates. He also strongly

suggested that his threats to Hopkins and Hopkins’s mother were not legitimate. Yet Hopkins wrote

his fourth letter after the two had been separated, at a time when Sconyers himself admitted that any

ability to threaten Hopkins had withered. Furthermore, the defendant introduced no evidence to

substantiate Sconyers’s claims regarding his membership in and influence with the Gangsta

Disciples, nor did the defendant introduce any evidence of a legitimate threat to Hopkins’s mother

beyond Sconyers’s mere possession of the unfortunate woman’s name and home address. To

compound any doubts as to Sconyers’s credibility in this matter, the government introduced

handwritten letters in which Sconyers expressed friendship, intimacy, and close familiarity with

Hopkins, both before and after the letter-writing campaign. The district court noted that the

defendant could have established the elements of the Singleton test had he himself testified, but in

the absence of his testimony or other evidence, the court was left to rely solely on Sconyers’s

testimony and to infer from it that Hopkins possessed a well-founded fear. Because Hopkins’s

assertion of a duress defense rests solely on Sconyers’s self-interested and unsubstantiated

testimony, a reasonable person could not find, as a matter of law, that Hopkins had demonstrated

that he was under a threat and possessed a well-grounded fear of that threat by a preponderance of

the evidence.

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Singleton’s third factor inquires as to the availability to the defendant of a reasonable, legal

alternative to violating the law. Singleton, 902 F.2d at 472-73. In Riffe, the court accepted as

sufficient the testimony of several witnesses that the defendant could not reasonably escape the

danger posed by the prison gang, and this was reinforced by the fact that the defendant had been

stabbed in the chest while in the prison’s protective custody. Riffe, 28 F.3d at 568. In our case, the

defendant’s evidence rests solely on the testimony of Sconyers, the progenitor of the supposed

threats, who was a present and former member of several criminal organizations that could, he

claims, assassinate selected targets beyond the prison’s walls. Since Sconyers’s testimony was

entirely unsubstantiated, there was no evidence to suggest that Hopkins did take, or should have

reasonably taken, Sconyers’s supposed threats seriously.

Setting aside this witness’s admitted motive to be prosecuted for a federal crime and the

natural skepticism that this arouses in a neutral observer, the fact that this witness also admitted that

his ability to communicate with and threaten Hopkins diminished radically after the prison had

separated the two inmates strongly suggests that his supposed threats may have been bombast and

bluff rather than substantial in nature. This suggests that Hopkins could have approached the

prison’s officials regarding Sconyers’s threats. Contrary to the appellant’s assertion, it was not

incumbent on the prosecutor to introduce evidence that the prison system could protect Hopkins or

his mother unless and until Hopkins had introduced sufficient evidence to substantiate his claim to

a reasonable fear of reprisal. The fact that Hopkins drafted his fourth threatening letter after

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Sconyers’s contact with him had ended also suggests the unreasonableness of the defendant’s

unwillingness to find a legal alternative.

Finally, Singleton’s fifth factor inquires whether the defendant maintained the illegal conduct

no longer than was absolutely necessary. Singleton, 902 F.2d at 473. In Singleton itself, the court

accepted as sufficient the defendant’s evidence as to his kidnaping and escape, but because the

defendant remained illegally in possession of the firearm after his escape instead of getting rid of

it and contacting the police or returning to his halfway house, the court ruled that he was not entitled

to his justification defense. Ibid. Here, although the appellant does not specifically address this

factor, it can be surmised from the appellant’s argument that the requirements of Singleton’s fifth

factor were satisfied by the fact that Hopkins ceased writing the letters after Sconyers was

transferred to another unit. However, Hopkins wrote his fourth letter after he had been removed to

another unit and thereby separated from Sconyers, demonstrating that he had been able to

discontinue his illegal activity safely prior to writing that letter.

Hopkins failed to introduce any evidence concerning his supposed duress with the sole

exception of the unsubstantiated and uncorroborated testimony of the author of his supposed duress.

The fact that this witness admitted to a desire to be prosecuted federally and that he claims to have

orchestrated the letter writing campaign in order to obtain a transfer from the Michigan prison to a

federal facility creates a critical problem of credibility. Defendants enjoy a right to have the jury

instructed regarding their preferred defenses, but an affirmative defense such as duress requires

some minimal threshold of evidence to be established. Because he introduced so little evidence, and

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because so much of that evidence is marked with inconsistencies and fundamental problems of

credibility, the defendant in this case failed to present evidence upon which a reasonable juror could

conclude that during the course of three months in 2001, while he wrote four letters threatening the

lives of the nation’s leaders, he possessed a well-founded fear of a threat of imminent serious bodily

harm or death that he could not avoid or safely quit at an earlier stage. Accordingly, the district

court properly denied Hopkins’s request for a duress instruction.

III

Hopkins contests a sentencing enhancement applied by the judge using factual findings not

made by the jury. Hopkins does not contest two of the sentencing enhancements assigned by the

trial judge. However, the judge assigned Hopkins a six-level financial enhancement under U.S.S.G.

§ 2B3.1(b)(7)(G), finding that the defendant had made a demand for between $2.5 million and $5

million in his threatening communications. The effect of this last enhancement was to increase

Hopkins’s potential sentence from 70-87 months to 121-151 months. At sentencing, Hopkins

objected to the judge’s determination of the amount of money in dispute and therefore objected to

the sentence enhancement, but he did not specifically make a Sixth Amendment claim. Nonetheless,

this court reviews sentencing enhancements in violation of the Sixth Amendment under the plain

error rule. United States v. Oliver, 397 F.3d 369, 380-81 (6th Cir. 2005). Because it is unclear

whether the district court treated the Sentencing Guidelines as advisory rather than mandatory,

United States v. Barnett, 398 F.3d 516, 527-28 (6th Cir. 2005), we remand this case to the district

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court for resentencing in a manner consistent with United States v. Booker, 543 U.S. ___, 125 S. Ct.

738 (2005).

IV

For reasons stated above, we AFFIRM the district court’s jury instruction and REMAND

for resentencing pursuant to Barnett.

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