FILED

United States Court of Appeals

Tenth Circuit

July 6, 2022

Christopher M. Wolpert

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-1228

DAVID SIDNEY WELLS,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Colorado

(D.C. NO. 1:19-CR-00160-REB-JMC-1)

Ty Gee (Jenny Braun with him on the briefs), Haddon, Morgan and Foreman,

P.C., Denver, Colorado, for Defendant-Appellant.

Jeffrey K. Graves, Assistant U.S. Attorney (Jason R. Dunn, United States

Attorney, with him on the brief), Durango, Colorado, for Plaintiff-Appellee.

Before MATHESON, MURPHY, and MORITZ, Circuit Judges.

MURPHY, Circuit Judge.

Appellate Case: 20-1228 Document: 010110706158 Date Filed: 07/06/2022 Page: 1
I. INTRODUCTION

David Wells brutally assaulted his wife, V.W. A grand jury issued an

indictment charging Wells with committing: (1) aggravated sexual abuse in

“Indian country,”

1

in violation of 18 U.S.C. §§ 2241(a)(1) and 1153; (2) assault

with the intent to commit aggravated sexual abuse in Indian country, in violation

of 18 U.S.C. §§ 113(a)(1) and 1153; (3) assault resulting in serious bodily injury

in Indian country, in violation of 18 U.S.C. §§ 113(a)(6) and 1153; and (4) assault

with a dangerous weapon in Indian country, in violation of 18 U.S.C. §§ 113(a)(3)

and 1153. After a petit jury convicted Wells on all four counts, the district court

sentenced him to a lengthy term of incarceration. Wells appeals, challenging his

convictions and sentence. None of Wells’s challenges to his conviction are

meritorious. At sentencing, however, the district court erred in adjusting upward

Wells’s total offense level on the basis Wells obstructed justice when he violated

1The terms “Indian” and “Indian county” are used in the United States Code

to denote, inter alia, important jurisdictional concepts. For instance, Wells’s

prosecution took place in federal court pursuant to the terms of 18 U.S.C. § 1153,

titled “Offenses committed within Indian country.” Section 1153(a) provides that

“[a]ny Indian who commits against the person or property of another Indian or

other person any of [a series of listed offenses], shall be subject to the same law

and penalties as all other persons committing any of [the listed offenses] within

the exclusive jurisdiction of the United States.” For this reason alone, we use the

terms “Indian” and “Indian country” in this opinion. The record reveals both

Wells and V.W. are Indians and the attack took place within the boundaries of the

Ute Mountain Ute Indian Reservation. See 18 U.S.C. § 1151 (“Indian country”

includes “all land within the limits of any Indian reservation under the

jurisdiction of the United States Government”).

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an order directing that he have no contact with V.W. See U.S.S.G. § 3C1.1.

Accordingly, this court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a) and remands the matter to the district court for the narrow

purpose of vacating Wells’s sentence and conducting any further necessary

proceeding with regard to the § 3C1.1 obstruction-of-justice adjustment.

II. GENERAL BACKGROUND

2

Wells and V.W. are married and considered “Indians” under federal law.

See supra n.1. On March 9, 2019, Wells and V.W. were alone at Wells’s house

on the Ute Mountain Ute Indian Reservation. Wells accused V.W. of being

pregnant by another man. Frightened, V.W. told Wells she wanted to leave.

Wells responded: “get the fuck out of my house, bitch.” When V.W. tried to flee

through the kitchen, Wells tackled her in the doorway. Wells dragged V.W. by

her hair through the kitchen and into a back bedroom filled with children’s toys

(the “toy room”). Wells told V.W. she “wasn’t leaving, and that he was going to

kill [her].” Once in the toy room, V.W. broke free from Wells and, again, tried to

escape through the kitchen door. Wells caught her and, for a second time,

dragged her by her hair through the kitchen to the toy room. This same pattern of

events then repeated for a third time.

2Set out herein is a general factual recitation of the events directly

surrounding Wells’s assault on V.W. Any additional facts necessary to provide

context to the issues raised by Wells on appeal are set out more fully below.

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During V.W.’s third escape attempt, Wells retrieved a wooden “club” from

the kitchen.

3 Once secluded in the toy room with V.W., Wells struck her

repeatedly with the club, telling her “[she] wasn’t making it out of there walking

or alive.” Wells beat V.W.’s head and legs with the club until she was bloody.

The beating caused V.W. to suffer intense pain. Wells eventually pushed V.W.

onto the floor of the toy room. Wells then repeatedly kicked V.W. in the

stomach, telling her if there was “any chance [she] was pregnant that the baby

would be dead.” As V.W. lay on the floor, bloody and beaten, Wells ripped off

her pants. He attempted to shove the wooden club inside her vagina, asking if

“that’s how it felt” when she was with her “little boyfriend.” Next, Wells inserted

his fingers into V.W.’s vagina. Finally, Wells climbed on top of V.W., placed his

hands around her neck, and said “[h]e was going to kill [her].” V.W. eventually

lost consciousness.

After an unknown amount of time, V.W. awoke on the floor of the toy room

in a pool of her own blood, naked from the waist down. V.W. dressed, washed

the blood from her face, walked to a neighbor’s house, and called the police. A

Bureau of Indian Affairs (“BIA”) officer responded to the call. The officer

immediately noticed injuries to V.W. and called an ambulance. V.W. told the

3The record reveals that the “club” was a “large decorative fork,

approximately the length of a forearm.” Wells broke off the top portion of the

fork to create a wooden club.

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officer Wells “beat her up” using a wooden object. V.W. testified she did not

report the sexual abuse at that time because “it was too shameful.” An ambulance

took V.W. to a hospital in Cortez, Colorado. The BIA officer found Wells at a

nearby residence. Wells tried to hide in a bedroom and gave a false name. His

shorts and shoes were covered in blood and he had noticeably swollen knuckles.

Later that day, while being driven to Shiprock, New Mexico, for medical

clearance, Wells said “I fucked up. . . . I’m sorry, I didn’t mean to do that.”

A BIA Special Agent spoke to V.W. at the hospital. V.W. described

Wells’s attack consistently with her trial testimony, but again omitted Wells’s acts

of sexual abuse because of shame. Due to the severity of V.W.’s injuries, doctors

cut the interview short to life-flight V.W. to St. Anthony’s Hospital in Lakewood,

Colorado. Upon her arrival at St. Anthony’s, V.W. was examined by Dr. Rebecca

Vogel, a trauma surgeon. V.W. told Vogel her injuries were the result of the

attack by Wells and said she “hurt all over.” Vogel noted the existence of

numerous traumatic injuries, including bruising, swelling, and bleeding all over

V.W.’s body. A CAT scan of V.W.’s face revealed a broken orbital bone with

bone fragments and blood in her sinus cavity. A scan of V.W.’s abdomen and

pelvis showed “a lot of inflammation as well as some blood in the area and

swelling” in the duodenum. Vogel admitted V.W. to the hospital’s intensive care

unit. V.W. remained at the hospital for three days, undergoing “[c]ontinued

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examinations of her abdomen, as well as ensuring that she could tolerate food and

water and drinking.” V.W. consented to an exam by a qualified sexual assault

nurse examiner. The nurse documented a host of injuries, including a

1.5-centimeter laceration on V.W.’s labia minora consistent with blunt force

trauma inflicted at the time of Wells’s attack.

A federal grand jury issued a four-count indictment charging Wells with

aggravated sexual abuse, assault with the intent to commit aggravated sexual

abuse, assault resulting in serious bodily injury, and assault with a dangerous

weapon. See supra Section I (setting out the charges against Wells). Following a

jury trial, Wells was convicted on all four counts. During sentencing

proceedings, the district court concluded Wells’s advisory guidelines range under

the United States Sentencing Guidelines was a term of life imprisonment. Despite

labeling Wells a “habitual violent domestic abuser” whose criminal history was

“substantially understated and underrepresented” by the advisory guidelines

range, the district court varied downward to a sentence of 360 months’

imprisonment after analyzing the factors set out in 18 U.S.C. § 3553(a).

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III. ANALYSIS

A. Challenges to Convictions

1. Waived/Invited Claims of Error

Wells argues that the district court erred in instructing the jury on the

elements of the §§ 2241(a)(1) and 113(a)(1) charges. Wells invited both of these

alleged instructional errors and has, therefore, waived appellate review of the

propriety of both instructions.

a. § 2241(a)(1) Instruction

Section 2241(a)(1) prohibits “knowingly caus[ing] another person to

engage in a sexual act[] by using force against that other person.” Prior to trial,

the parties submitted to the court a package of stipulated jury instructions. R.

Vol. I at 204-41.

4 As relevant here, stipulated Instruction No. 9 provided as

follows:

To find defendant guilty of this crime, the government must

prove each of the following five (5) essential elements beyond a

reasonable doubt:

First: that defendant caused [V.W.] to engage in a sexual act;

and,

Second: that defendant acted knowingly in causing [V.W.] to

engage in the sexual act; and,

4Not only did this package include sixteen instructions to which the parties

stipulated, it also contained competing jury instructions upon which the parties

could not agree and a single non-stipulated, non-competing instruction submitted

by Wells.

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Third: that defendant did so by using force against [V.W.];

and,

Fourth: that defendant is an Indian under federal law; and,

Fifth: that the act occurred within the exterior boundaries of

the Ute Mountain Ute Indian Reservation.

R. Vol. I at 222. Immediately prior to the formal charging conference, the district

court noted it would not take long to review the proposed jury instructions

“[b]ecause many of the instructions are, in fact, stipulated.” R. Vol. VIII at 679.

The district court did note, however, that the stipulated instructions “may be

slightly massaged or tweaked by the Court.” Id. During the formal charging

conference, the district court inquired whether either party had any objections to

proposed Instruction No. 12, the district court’s version of the parties’ stipulated

Instruction No. 9, and both defense counsel and the government disclaimed any

objection. Thus, with only the most trivial stylistic changes, the district court

provided to the jury the parties’ stipulated elements instruction.

For the first time on appeal, Wells asserts the district court committed plain

error in misinstructing the jury as to the essential elements of a § 2241(a) charge.

According to Wells, the district court should have instructed the jury that not only

did the government have to prove that Wells acted knowingly in causing V.W. to

engage in a sexual act, but also that he did so by knowingly using force. Because

Wells invited the alleged error, he has waived appellate review. “Under the

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invited error doctrine, this [c]ourt will not engage in appellate review when a

defendant has waived his right to challenge a jury instruction by affirmatively

approving it at trial. A party that has forfeited a right by failing to make a proper

objection may obtain relief for plain error; but a party that has waived a right is

not entitled to appellate relief.” United States v. Cornelius, 696 F.3d 1307, 1319

(10th Cir. 2012) (quotation and alteration omitted).

Wells claims he did not waive his asserted instructional error because the

record does not demonstrate that his attorney affirmatively stipulated to the jury

instruction. See Wells’s Reply Br. at 20-21 (asserting that the stipulated package

of instructions “is not a stipulation. Mr. Wells’s lawyer did not sign it; only the

government did”). This argument borders on bad faith. All the record evidence

indicates the parties entered into a stipulation as to the relevant instruction. The

prosecutor so attested in a filing in the district court.

5 The stipulated package of

instructions submitted by the prosecutor also sets out specific non-stipulated

instructions being requested by Wells, some of which the prosecution contested

and one of which the prosecutor neither stipulated to nor contested. At no point

did Wells file any document or raise any objection to the prosecutor’s assertion

5Given the arguments set out in Wells’s reply brief, a member of this panel

specifically asked Wells’s appellate counsel whether he was asserting the

prosecutor lied to the district court when he submitted the stipulated package of

jury instructions. Wells’s appellate counsel affirmatively stated he was not

accusing the prosecutor of lying.

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the parties had reached a stipulation as to the elements instruction for the

§ 2241(a)(1) charge. Immediately before the charge conference, Wells did not

correct the district court when it noted the parties had reached a stipulation as to

the bulk of the necessary instructions. In light of all this, we have no doubt

Wells’s trial counsel stipulated to the § 2241(a)(1) elements charge, thereby

waiving appellate review of the instruction.

Alternatively, Wells asserts that because the district court made trivial

stylistic edits to the stipulated instruction, he cannot be said to have stipulated to

the § 2241 elements instruction actually given by the district court. This

argument, too, is frivolous.

The invited-error doctrine prevents a party who induces an erroneous

ruling from being able to have it set aside on appeal. It is based on

reliance interests similar to those that support the doctrines of

equitable and promissory estoppel. Having induced the court to rely

on a particular erroneous proposition of law or fact, a party may not

at a later stage use the error to set aside the immediate consequences

of the error.

United States v. Jereb, 882 F.3d 1325, 1338 (10th Cir. 2018) (quotations,

citations, and alteration omitted). Wells’s complaint about Instruction No. 12 has

nothing to do with the verbiage of the district court’s stylistic changes to the

parties’ stipulated instruction. Instead it relates specifically to the failure of

Instruction No. 12 to apply, allegedly in error, the intent element set out in

§ 2241(a)(1) to both the causing-of-the-victim-to-engage-in-a-sexual-act element

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and the using-force element. That alleged error was directly induced by the

parties’ stipulated instruction. Having led the district court into the error he now

identifies on appeal, Wells has affirmatively waived appellate review.

b. § 113(a)(1) Instruction

Section 113(a)(1) prohibits assault “with intent to commit . . . a violation of

section 2241.” Instruction No. 13 told the jury that to find Wells guilty of

violating § 113(a)(1), it had to find beyond a reasonable doubt the existence of

the following non-jurisdictional elements: “First: that defendant knowingly

assaulted [V.W.]; and Second: that defendant assaulted [V.W.] with the specific

intent to commit aggravated sexual abuse.” R. Vol. I at 360. The instruction

further provided that the term “‘Aggravated sexual abuse’ means the offense

charge[d] in Count 1” of the indictment. Id. As noted above, Count 1 of the

indictment charged a substantive violation of § 2241(a)(1).

For the first time on appeal, Wells asserts Instruction No. 13 misinformed

the jury because it does not specifically state that to find him guilty of the

§ 113(a)(1) charge, the jury had to find he had the specific intent to undertake

every element of § 2241(a)(1). Wells has waived appellate review of this issue by

inviting the alleged error. Instruction No. 13 is, in all material respects, identical

to the stipulated elements instruction, proposed Instruction No. 10, submitted by

the parties. For the same reasons set out above in concluding Wells waived

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appellate review of his challenge to Instruction No. 12, he has also waived

appellate review of Instruction No. 13.

2. Forfeited Claims of Error

Wells raises two additional challenges to his conviction on the § 113(a)(1)

charge—(1) his convictions under §§ 113(a)(1) and 2241(a)(1) are multiplicitous

and (2) § 113(a)(1) is unconstitutionally vague. He separately asserts the district

court erred in admitting testimony from Vogel regarding the risk of death to V.W.

resulting from Wells’s assault upon V.W. Because Wells did not raise these

issues before the district court, and because he did not affirmatively waive them,

he is entitled to relief on appeal if he can satisfy the rigorous plain error standard.

See United States v. Courtney, 816 F.3d 681, 683 (10th Cir. 2016). The burden of

establishing the existence of plain error is a heavy one not often satisfied. See

United States v. Crowe, 735 F.3d 1229, 1242 (10th Cir. 2013). Under the plain

error standard, a defendant must establish “(1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Wright, 848 F.3d

1274, 1278 (10th Cir. 2017) (quotation and citations omitted). “An error is plain

if it is clear or obvious under current, well-settled law. In general, for an error to

be contrary to well-settled law, either the Supreme Court or this court must have

addressed the issue.” United States v. DeChristopher, 695 F.3d 1082, 1091 (10th

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Cir. 2012) (quotation and citation omitted); see also United States v. Finnesy, 953

F.3d 675, 696-97 (10th Cir. 2020) (emphasizing the rigorousness of the plainness

prong of the plain error test).

a. Entry of Judgment on the § 113(a)(1) Count

Wells claims the district court erred in failing to, sua sponte, set aside his

conviction for violating § 113(a)(1). According to Wells, (1) his § 113(a)(1) and

§ 2241(a)(1) convictions are multiplicitous, and (2) § 113(a)(1) is so

incomprehensible that a conviction thereunder violates due process. Wells has

failed to demonstrate the existence of a plain error as to either of these arguments.

i. Multiplicity

Multiplicity occurs when two separate criminal counts cover the same

criminal behavior. United States v. McCollough, 457 F.3d 1150, 1162 (10th Cir.

2006). “Multiplicity is not fatal to an indictment. Indeed, the government may

submit multiplicitous charges to the jury. But multiplicitous sentences violate the

Double Jeopardy Clause, so if a defendant is convicted of both charges, the

district court must vacate one of the convictions.” United States v. Frierson, 698

F.3d 1267, 1269 (10th Cir. 2012) (quotations and citations omitted).

6

“If ‘the

6To be precise,

Multiplicitous sentences are not wholly proscribed; if multiple counts

for which a defendant is convicted cover the same criminal behavior,

our review is limited to whether Congress intended multiple

(continued...)

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same act or transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other does not.’”

United States v. Benoit, 713 F.3d 1, 12 (10th Cir. 2013) (quoting Blockburger v.

United States, 284 U.S. 299, 304 (1932)).

Based on the arguments presented by Wells on appeal, this court cannot

conclude the district court plainly erred in failing to, sua sponte, vacate his

§ 113(a)(1) conviction. Count 1 of the indictment, which charges a violation of

§ 2241(a)(1), requires proof (1) force was employed (2) to knowingly cause a sex

act. United States v. Martin, 528 F.3d 746, 752 (10th Cir. 2008). Count 2 of the

indictment, which charges a violation of § 113(a)(1), requires neither the

6

(...continued)

convictions and sentences under the statutes. We presume that where

two statutory provisions proscribe the same offense, a legislature

does not intend to impose two punishments for that offense.

However, this presumption is not controlling if “there is a clear

indication of contrary legislative intent.”

United States v. Benoit, 713 F.3d 1, 12 (10th Cir. 2013) (quoting Missouri v.

Hunter, 459 U.S. 359, 367 (1983) (other quotations and citations omitted)). On

plain error review, it is Wells’s burden to demonstrate the existence of a plain

error. As to this particular claim of error, Benoit clearly demonstrates that to

prevail on any claimed double jeopardy violation, Wells must demonstrate not

only multiplicity, but also that there is no clear indication Congress intended to

impose two punishments for the same offense. Id. Notably, Wells does not even

attempt to carry this burden. This failure does not ultimately matter, however,

because Wells has failed to demonstrate the § 2241(a)(1) and § 113(a)(1)

convictions are plainly multiplicitous.

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application of force nor a resulting sex act. Instead, a § 113(a)(1) charge requires

proof of an assault with specific intent to violate § 2241. Wells asserts the

existence of multiplicity by conflating assault and force. These terms are not the

same, however, and an assault under § 113(a)(1) will not necessarily satisfy the

force requirement in § 2241(a)(1). Compare United States v. Cates, 973 F.3d

742, 745-46 (7th Cir. 2020) (“[F]orce in § 2241(a)(1) is the exertion of physical

power upon another to overcome that individual’s will to resist.” (quotation

omitted)), with United States v. Gauvin, 173 F.3d 798, 802 (10th Cir. 1999)

(holding that the term “assault” in a federal criminal statute is defined “as an

attempted battery or as placing another in reasonable apprehension of a battery”

unless the statute specifically provides otherwise).

Likewise, contrary to Wells’s arguments, it is not plain that every

completed violation of § 2241(a)(1) will also constitute a violation of § 113(a)(1).

Wells argues that § 113(a)(1) is a lesser-included offense of § 2241(a)(1) because

any act of force under § 2241(a)(1) will necessarily involve an assault. The only

authority Wells cites to support this argument is an unpublished decision holding

that a defendant’s prior state-court convictions for assault and battery required a

sufficient use of force under state law to qualify as violent felonies under the

Armed Career Criminal Act (“ACCA”). United States v. Harrison, 785 F. App’x

534, 538 (10th Cir. 2019). Even assuming this unpublished decision could help

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establish clear, well-settled law, Wells does not explain why this case would stand

for the proposition that any use of force necessarily involves an assault, nor does

he acknowledge the limited usefulness of Harrison in this context given the

difference between the proof necessary to establish § 2241(a)(1)’s force element

and the level of force necessary for a prior conviction to be defined as a violent

felony under the ACCA. Compare United States v. Holly, 488 F.3d 1298,

1302-03 (10th Cir. 2007) (holding that § 2241(a)(1)’s “element of force does not

require proof of actual violence” and “may be inferred by such facts as disparity

in size between victim and assailant, or disparity in coercive power” (quotation

omitted)), with United States v. Garcia, 877 F.3d 944, 950 (10th Cir. 2017)

(“Reduced to its essence the ACCA requires violent physical force.”). The

requirement of force under § 2241(a)(1) “may be satisfied by a showing of

restraint sufficient to prevent the victim from escaping the sexual conduct,” and a

jury may infer force under § 2241(a)(1) based on size disparities or coercive

power dynamics, such as might exist between a sheriff and the prisoners under his

authority. Holly, 488 at 1403. Wells acknowledges that “‘force’ includes a wide

range of conduct,” Well’s Opening Br. at 26, but he fails to support his argument

that this entire range of conduct necessarily and obviously includes, in every

instance, an assault under § 113(a)(1), thus rendering it a lesser-included offense

of § 2241(a)(1). See United States v. Gerhard, 615 F.3d 7, 19 (1st Cir. 2010)

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(“The conduct described in one offense must necessarily include the conduct of

the second offense to result in a double jeopardy violation.”); Benoit, 713 F.3d at

13 (“[T]he test articulated in Blockburger can be met even with ‘substantial

overlap in the proof offered to establish the crimes.’” (quoting Iannelli v. United

States, 420 U.S. 770, 785 n. 17 (1975)). Moreover, he concedes that “[n]o court

has applied the Blockburger test to § 2241(a)(1) and § 113(a)(1).” Wells’s

Opening Br. at 27. This state of the law “generally preclude[s] a finding of plain

error.” United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012). We

therefore hold that Wells has not met his burden of showing a “clear or obvious

[error] under current, well-settled law.” DeChristopher, 695 F.3d at 1091.

7

7Given that the double-jeopardy/multiplicity issue is before the court on

plain error review, and given that the burden is on Wells to demonstrate the

existence of a plain error, we resolve the issue on the basis of the arguments

Wells has presented to the court, and we do not address any other potential issues

or arguments. In particular, we note that Wells applies the Blockburger test to

§ 2241(a)(1) specifically, not to § 2241(a) as a whole. Section 2241(a) provides:

(a) By Force or Threat.—Whoever, in the special maritime

and territorial jurisdiction of the United States . . . knowingly causes

another person to engage in a sexual act—

(1) by using force against that other person; or

(2) by threatening or placing that other person in

fear that any person will be subjected to death, serious

bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, imprisoned for

any term of years or life, or both.

(continued...)

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ii. Vagueness

8

Wells asserts § 113(a)(1) is unconstitutionally vague because it imposes a

mental state that is impossible for a person to hold, i.e., the statute prohibits a

person from specifically intending to knowingly violate § 2241. To prevail on a

preserved vagueness claim, Wells would have to show “(1) that ordinary people

cannot understand what conduct the statute prohibits, and (2) that the statute does

not establish minimal guidelines to govern law enforcement.” United States v.

Graham, 305 F.3d 1094, 1105 (10th Cir. 2002). Because § 113(a)(1) does not

implicate First Amendment freedoms, vagueness challenges like the one at issue

here “must be examined in the light of the facts of the case at hand.” United

States v. Mazurie, 419 U.S. 544, 550 (1975). An appellant “who engages in some

conduct that is clearly proscribed cannot complain of the vagueness of the law as

7

(...continued)

This statute might arguably be considered to set out only a single crime that can

be accomplished by two different means, see generally Mathis v. United States,

579 U.S. 500 (2016), but Wells does not even hint at this possibility.

Accordingly, he does not address how the Blockburger test would apply if

§ 2241(a) set out only a single crime. Our resolution of his arguments should not

be seen to have, sub silentio, resolved whether § 2241(a) sets out two crimes with

separate elements or only one crime with alternate means.

8To the extent Wells’s vagueness claims serve as an alternate avenue to

challenge the elements instructions provided to the jury on the §§ 2241(a)(1) and

113(a)(1) convictions, those challenges are waived because Wells invited any

alleged errors. See supra III.A.1.

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applied to the conduct of others.” Vill. of Hoffman Ests. v. Flipside, Hoffman

Ests., Inc., 455 U.S. 489, 495 (1982).

Wells asserts as follows, without any citation to authority: “Section

113(a)(1) makes it illegal to assault another with the ‘intent’ to ‘knowingly’ cause

another person to engage in a sexual act by using force against that other person.

The statute on its face is incomprehensible.” Wells’s Opening Br. at 28.

Although not entirely clear, it appears Wells is asserting that when a specific

intent crime incorporates a general intent crime (or a crime with some general

intent elements), the general intent elements continue to exist. Compare

18 U.S.C. § 113(a)(1) (criminalizing assault with the intent to violate, inter alia,

§ 2241), with 18 U.S.C. § 2241(a)(1) (criminalizing the use of force against

another person to knowingly cause that person to engage in a sexual act). It is far

from clear § 113(a)(1) operates in the fashion described by Wells.

In any event, this court need go no further than the facts of the case to

resolve Wells’s vagueness challenge. Mazurie, 419 U.S. at 550; Vill. of Hoffman

Ests., 455 U.S. at 495. Wells’s assault against V.W. was prolonged, involved,

and brutal. The assaultive conduct was unmistakably done with the specific intent

to commit aggravated sexual abuse. For instance, during the attempted

penetration with the wooden club, Wells asked V.W. if “that’s how it felt” when

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V.W. was with her “little boyfriend.” R. Vol. VIII at 177. An ordinary person

would understand such conduct was prohibited by § 113(a)(1).

For those reasons set out above, the district court did not err in failing to,

sua sponte, set aside Wells’s § 113(a)(1) conviction as “incomprehensible” or

“impossible.”

b. Evidence Regarding V.W.’s “Risk of Death”

At trial, Dr. Rebecca Vogel testified as to the nature and extent of V.W.’s

injuries. In so doing, she testified as to, inter alia, damage to V.W.’s abdominal

and pelvic regions, as revealed in medical imaging. That imaging revealed “a lot

of inflammation as well as some blood” in the part of the gastrointestinal system

known as the duodenum. R. Vol. VIII at 512. Vogel testified the duodenum is a

particularly important part of the gastrointestinal system.

9 She further noted the

danger inherent in trauma to that organ, particularly identifying the difficulty of

surgical intervention and, even absent the need for surgery, risk of tissue

9Vogel testified as follows:

The duodenum is so important not only because it’s the first

part coming out of your stomach and into your small intestine, but

it’s also where your liver drains something called bile that is

necessary for life, as well as the pancreas which helps you with

digestive enzymes, insulin, and multiple other functions.

R. Vol. VIII at 513.

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damage.

10 As to complications flowing from surgery on the duodenum, Vogel

noted that both death and “long-standing infection” were significant possibilities.

Id. at 514. Vogel testified that the percentage of morbidity associated with

trauma to the duodenum—ranging from infection to “prolonged hospitalization”—

exceeded sixty percent. Id. As to the question of mortality, Vogel testified that

simple damage to the duodenum (i.e., damage not coupled with associated

trauma), even if diagnosed and treated promptly, resulted in death in

approximately six percent of cases. She also explained that delays in treatment

and/or duodenum injury with associated trauma significantly increased the

chances of mortality, to as much as forty percent.

10

In response to a question from the prosecution regarding medical concerns

associated with damage to the duodenum, Vogel testified as follows:

One, it’s an incredibly difficult area to surgically treat. It is a

large, extensive operation to be able to address injuries here.

And, number two, when you look at the stomach, which has

acid in it, which is a very low pH, that can damage tissues around it

quite extensively, as well as the pancreas actually has very, um, toxic

enzymes that can eat away at the tissue in that area.

And so when you have an injury to that area, if there’s a lot of

fluid, it carries a very high risk of having complications or even

death if misdiagnosed or not diagnosed properly.

R. Vol. VIII at 513.

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On appeal, Wells asserts all of the testimony recounted above is irrelevant,

and its admission improper, because V.W. never faced a risk of death.

11 Wells

has not shown the admission of Vogel’s testimony was error, let alone plain error.

As a general matter, relevant evidence is admissible. See Fed. R. Evid. 402

(providing relevant evidence is admissible unless prohibited by the United States

Constitution, a federal statute, the Federal Rules of Evidence, or other rules

prescribed by the Supreme Court). To be relevant, evidence need only have “any

tendency” to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence. Fed. R. Evid. 401. This standard is not intended to impose

a high burden to admissibility. Id. cmt. (“The standard of probability under the

rule is ‘more . . . probable than it would be without the evidence.’ Any more

stringent requirement is unworkable and unrealistic.” (alteration in original));

United States v. Leonard, 439 F.3d 648, 651 (10th Cir. 2006) (“Rule 401 is a

liberal standard.”). “[A] fact is of consequence when its existence would provide

the fact-finder with a basis for making some inference, or chain of inferences,

about an issue that is necessary to a verdict,” but it only needs to have “any

11The narrowness of Wells’s challenge—one based exclusively on the

question of relevance and not in any way based on Fed. R. Evid. 403—is

confirmed by his reply brief. Wells’s Reply Br. at 32 (asserting the government

“set up a straw man” by raising Fed. R. Evid. 403 balancing and clarifying that

the argument as to Vogel’s testimony was based exclusively on the claim her

testimony was irrelevant).

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tendency” to do so. United States v. McVeigh, 153 F.3d 1166, 1190 (10th Cir.

1998) (quotations omitted); see also id. (“The rule establishes that even a minimal

degree of probability—i.e., any tendency—that the asserted fact exists is

sufficient to find the proffered evidence relevant.” (quotation omitted)); United

States v. Jordan, 485 F.3d 1214, 1218 (10th Cir. 2007) (“The bar for admission

under Rule 401 is very low.” (quotation omitted)). Notably, because our review

of this issue is for plain error, Wells can only prevail by demonstrating Vogel’s

testimony is so obviously irrelevant that, despite his failure to object, the district

court should have, sua sponte, excluded the evidence. See United States v.

Brooks, 736 F.3d 921, 934 (10th Cir. 2013).

The jury was instructed that to find Wells guilty, it had to find beyond a

reasonable doubt, inter alia, Wells knowingly assaulted V.W. and, “as a result of

the assault, [V.W.] suffered serious bodily injury.” R. Vol. I at 362; see 18

U.S.C. §§ 113(a)(6), 1365(h)(3). Consistent with the provisions of § 1365(h)(3),

the jury was instructed that “‘serious bodily injury’ means bodily injury which

involves a substantial risk of death[;] extreme physical pain[;] protracted and

obvious disfigurement[;] or protracted loss or impairment of the function of a

bodily member, organ, or mental faculty.” R. Vol. I at 362. Thus, the critical

question is whether Vogel’s testimony had “any tendency” to demonstrate V.W.

suffered such an injury. The answer to that question is “yes.”

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Vogel, a trauma surgeon, testified Wells’s assault on V.W. (1) left V.W.

with numerous traumatic injuries, including bruising, swelling, and bleeding all

over her body; and (2) “a lot of inflammation as well as some blood in the area

and swelling” in the duodenum. R. Vol. VIII at 512. Vogel testified that a

duodenal injury without associated trauma, even if such an injury receives

immediate treatment, carries a 6% risk of death. Critically, however, such

injuries accompanied by associated trauma, such as that suffered by V.W., result

in a 40% risk of death. Wells does not contend that a 40% chance that death will

result is anything other than substantial. Thus, Vogel’s testimony had a clear

tendency to prove a necessary element as to Wells’s guilt on the § 113(a)(6)

charge and was, therefore, relevant.

To the extent Wells’s brief asserts Vogel’s testimony was irrelevant

because none of the risks associated with his assault on V.W. ultimately came to

pass, his assertion is completely lacking in supporting precedent. Indeed, our

limited precedents reject the notion a criminal defendant can escape § 113(a)(6)

liability merely because timely medical treatment prevents risks associated with

an assault from coming to fruition. See United States v. Whitethorne, No. 97-

2165, 1998 WL 165167, at *2 (10th Cir. April 9, 1998) (unpublished disposition

cited solely for its persuasive value) (“The question whether an injury is life

threatening must be viewed at the time of the injury rather than, as defendant

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argues, after medical treatment.”). This court and others have employed this same

reasoning in analyzing the applicability of closely related provisions of the

Sentencing Guidelines. See United States v. Tindall, 519 F.3d 1057, 1064 (10th

Cir. 2008); see also United States v. Smith, 461 F. App’x 647, 649 (9th Cir.

2011); United States v. Young, 144 F. App’x 33, 36 (11th Cir. 2005).

The district court did not err, let alone plainly err, in failing to, sua sponte,

exclude Vogel’s testimony.

B. Challenges to Sentence

Wells asserts the district court erred in the following three particulars in

calculating his offense level for purposes of arriving at an advisory Sentencing

Guidelines range: (1) applying the “abduction” enhancement set out at U.S.S.G.

§ 2A3.1(b)(5); (2) concluding V.W. suffered life-threatening bodily injury for

purposes of U.S.S.G. § 2A3.1(b)(4); and (3) applying the enhancement set out at

U.S.S.G. § 3C1.1 for obstructing or impeding the administration of justice. Each

of these issues raise a challenge to the procedural reasonableness of Wells’s

sentence. For instance, “[a] challenge to the application of a sentencing

enhancement tests the procedural reasonableness of a sentence, which requires,

among other things, a properly calculated Guidelines range.” United States v.

Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (quotation omitted). Likewise,

“[s]electing a sentence based on clearly erroneous facts is a procedural error.” Id.

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(quotation omitted). When a criminal defendant challenges the procedural

reasonableness of his sentence on appeal, this court reviews “a district court’s

legal interpretation of the Guidelines de novo and its factual findings for clear

error.” Id. (quotation omitted).

1. “Abduction” Enhancement

Section 2A3.1(b)(5) of the Sentencing Guidelines provides for a four-level

increase to a defendant’s offense level if the victim was “abducted.” The term

“abducted” is defined in the commentary to U.S.S.G. § 1B1.1: “‘Abducted’ means

that a victim was forced to accompany an offender to a different location.”

U.S.S.G. § 1B1.1 cmt. n.1(a). As an example, the Guidelines commentary notes

as follows: “[A] bank robber’s forcing a bank teller from the bank into a getaway

car would constitute an abduction.” Id. The district court denied Wells’s belated

objection to the application of § 2A3.1(b)(5) to the calculation of his offense

level:

[T]he defendant in his sentencing memorandum objects to the

assessment of 4 offense levels under Guidelines Section 2A3.1(b)(5)

for essentially abduction. Here, this objection is not timely presented

and may be overruled on that basis alone. Substantively, the facts

here indicate that the defendant forcibly dragged the victim from the

precipice of the door to the house into a back bedroom for purposes

of facilitating his ongoing and unrelenting physical and sexual

assault not less than three times. Controlling Tenth Circuit

precedent, I cite to [United States v. Archuleta, 865 F.3d 1280, 1288

(10th Cir. 2017)], requires that this objection be overruled and that

the offense level be increased by 4 levels for abduction under

Guidelines Section 2A3.1(b)(5).

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R. Vol. VIII at 762.

12

Wells argues the district court erred in relying on Archuleta to support the

conclusion he abducted V.W. to facilitate his sexual assault of her. Wells’s

argument is devoid of merit. Although Archuleta involved a bank robbery in

which the defendant’s offense level was calculated pursuant to U.S.S.G. § 2B3.1,

that provision also includes a four-level enhancement “[i]f any person was

abducted to facilitate commission of the offense.” U.S.S.G. § 2B3.1(b)(4);

Archuleta, 865 F.3d at 1285. Like the enhancement at issue in this case (i.e.,

12As this passage makes clear, the district court denied Wells’s objection to

the application of § 2A3.1(b)(5) on two independent bases: (1) he failed to file a

timely objection to the applicability of that provision; and (2) his actions

amounted to abduction under the interpretation of that term set out in Archuleta.

Under Federal Rule of Criminal Procedure 32(f)(1), the parties in a criminal trial

must make written objections to the Presentence Report within fourteen days.

Although a district court can allow for the filing of additional objections at any

time before sentencing if a party makes a showing of “good cause,” Fed. R. Crim.

P. 32(i)(1)(D), a review of the transcript of the sentencing hearing shows no

effort on the part of Wells to make such a showing. R. Vol. VIII at 749-55. Such

a set of affairs fully supports the district court’s determination that Wells’s

objection should be rejected as untimely. See United States v. Zubia-Torres, 550

F.3d 1202, 1208 (10th Cir. 2008) (“Here, the defense made no objection to the

PSR within the fourteen day period and did not ask the court to allow new

objections after that point.”). When a district court rejects a claim on two

independent grounds, an appellant must challenge each ground or risk waiver of

the issue generally. Starkey v. Boulder Cty. Soc. Servs., 569 F.3d 1244, 1252

(10th Cir. 2009) (“When an appellant does not challenge a district court’s

alternate ground for its ruling, we may affirm the ruling.”). Given Wells’s failure

to address the district court’s timeliness basis for denying his objection, this court

would be fully justified in summarily affirming. Because, however, it is clear

Wells’s challenge to the applicability of § 2A3.1(b)(5) fails on the merits, this

court chooses to resolve the appeal on that basis.

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§ 2A3.1(b)(5)), § 2B3.1(b)(4) draws its definition of “abducted” from the

application notes to U.S.S.G. § 1B1.1. See U.S.S.G. § 2B3.1 cmt. n1. Relying on

the plain meaning of the term “location” in note one to § 1B1.1, Archuleta held as

follows: a person is “abducted” if “(1) he or she is forced to move from his or her

original position with sufficient force that a reasonable person would not believe

he or she was at liberty to refuse; (2) the offender accompanies the person to the

new location; and (3) the relocation of the person was in order to further either

the commission of the crime or the offender’s escape.” 865 F.3d at 1288

(equating, under a plain meaning analysis, location with position). Given that

definition, Archuleta held that forcing a bank teller from the bank lobby “around

a corner and into a separate vault area” amounted to an abduction. Id.

According to Wells, the definition of “abducted” adopted in Archuleta is

not applicable here because that case involved robbery, while this case involves

sexual assault. The problem, of course, is that the definition of “abducted” at

issue in Archuleta is the same definition at issue here: the one set out in § 1B1.1

cmt. n.1(A). This court does not see how, consistent with principles of stare

decisis, we could adopt a reading of “abducted” that requires more, in a

contextually appropriate case, than movement from one location in a building to

another. See United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000) (“Under

the doctrine of stare decisis, this panel cannot overturn the decision of another

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panel of this court. . . . The precedent of prior panels which this court must

follow includes not only the very narrow holdings of those prior cases, but also

the reasoning underlying those holdings, particularly when such reasoning

articulates a point of law.”) In any event, we can perceive of no principled reason

to depart from the definition of “abducted” set out in Archuleta.

13 The risks of

isolation due to abduction in sexual abuse cases are, most certainly, no less

present than in a robbery. United States v. Saknikent, 30 F.3d 1012, 1013 (8th

Cir. 1994) (“Abduction increases the gravity of sexual assault or other crimes

because the perpetrator’s ability to isolate the victim increases the likelihood that

the victim will be harmed.”).

Wells claims that applying Archuleta’s definition of abduction in sexual

assault cases involving § 2241(a)(1) will result in double-counting because any

use of force, a required element of § 2241(a)(1), would cause a victim to alter

13We note one way in which the test for “abduction” under U.S.S.G.

§ 2A3.1(b)(5) could be held to differ from the three-part test articulated in

Archuleta. Specifically, the third element of the Archuleta test—“the relocation

of the person was in order to further either the commission of the crime or the

offender’s escape,” 865 F.3d at 1288—appears to be derived not from the

underlying definition provided in § 1B1.1, but rather from the specific language

of the robbery abduction enhancement, which applies “[i]f any person was

abducted to facilitate commission of the offense,” U.S.S.G. § 2B3.1(b)(4)

(emphasis added). Section 2A3.1(b)(5) does not contain this limiting language,

but rather applies simply if “the victim was abducted.” Thus, only the first two

elements of the Archuleta test would seem necessary to establish abduction under

§ 2A3.1(b)(5). This issue has not been squarely presented in this case, however,

and removing this element from the Archuleta definition would not benefit Wells

in any event. We accordingly do not resolve this potential issue in this appeal.

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“position,” no matter how trivially. Compare U.S.S.G. § 2A3.1(b)(1) (providing

for a four-level increase to a defendant’s offense level if the “offense involved

conduct described in 18 U.S.C. § 2241(a) or (b)”),

14 with U.S.S.G. § 2A3.1(b)(5)

(requiring a four-level increase to a defendant’s offense level if the victim was

abducted). Wells’s arguments appear to be based on the analysis set out in the

Archuleta dissent. See 865 F.3d at 1292-95 (Seymour, J., dissenting). The

Archuleta majority, on the other hand, specifically rejected the notion its

definition of “abduction” would cause necessary overlap between use-of-force

and abduction enhancements. Id. at 1288 n.5; see also United States v. Joe, 696

F.3d 1066, 1070 (10th Cir. 2012) (holding that, in the ordinary case,

“impermissible double counting occurs when the same conduct on the part of the

defendant is used to support separate increases under separate enhancement

provisions which necessarily overlap, are indistinct, and serve identical purposes”

(quotations omitted)). We are not entitled to disregard the holding in Archuleta in

favor of the rule advocated by the dissent. Meyers, 200 F.3d at 720.

In any event, the standard set out in Archuleta neither requires nor suggests

the absurd result posited by Wells. In Archuleta, the enhancement applied to

14

In United States v. Joe, 696 F.3d 1066, 1071-73 (10th Cir. 2012), this

court concluded, at least for purposes of applying the sentencing adjustment set

out in U.S.S.G. § 3A1.3, that § 2A3.1(b)(1) must be considered a use-of-force

enhancement. For those reasons set out below in footnote 15, Wells’s reliance on

Joe in support of his double-counting argument is misplaced.

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movement from the lobby of a bank to the vault—one location to another. 865

F.3d at 1282. Furthermore, to satisfy the Archuleta test, the defendant must

accompany the victim “to the new location.” Id. at 1288. Thus, the Archuleta

standard clearly requires more than trivial movement. And, to be clear, V.W.’s

movement was anything but trivial. Wells grabbed her by the hair at the precipice

of the door exiting the house, dragged her through a kitchen into a back bedroom.

He did this three times. He did so because, in Wells’s words, V.W. “wasn’t

leaving, and . . . he was going to kill [her].” R. Vol. VIII at 169. The abduction

and “use-of-force” enhancements in this case do not necessarily overlap.

The district court did not err when it concluded Wells abducted V.W. for

purposes of § 2A3.1(b)(5). The district court’s conclusion in that regard does not

lead to any impermissible double counting with the sentencing enhancement set

out in § 2A3.1(b)(1).

15

15Wells’s reliance on Joe to support the notion double counting will occur if

this court uses the Archuleta definition of “abducted” in the context of sexual

assault crimes is entirely misplaced. As Joe makes clear, the double-counting

analysis employed therein is not generally applicable because it was interpreting a

Guideline provision that contained specific language precluding a particular type

of sentencing overlap. 696 F.3d at 1070 (“We note for clarification that most

cases from our court dealing with the issue of ‘double counting’ in the context of

sentencing enhancements employ an analysis different from the one we apply

here.”); see also U.S.S.G. § 3A1.3 & cmt. n.2 (2009) (setting out a two-level

upward adjustment for physical restraint of the victim, but providing that the

adjustment does not apply “where the unlawful restraint of a victim is an element

of the offense itself”). In calculating Wells’s total offense level, the district court

did not employ the adjustment set out in § 3A1.1. Accordingly, Joe simply does

(continued...)

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2. “Permanent or Life-Threatening Bodily Harm” Enhancement

Section 2A3.1(b)(4) of the Sentencing Guidelines provides for a four-level

increase in a defendant’s offense level if the “victim sustained permanent or lifethreatening bodily injury.” The Guidelines define “permanent or life-threatening

bodily injury” as, inter alia, “injury involving a substantial risk of death.”

U.S.S.G. § 1B1.1 cmt. n.1(K). The district court applied this enhancement in

calculating Wells’s total offense level.

16 Wells asserts the district court

committed clear error in concluding V.W.’s injuries involved a substantial risk of

death. Cf. United States v. Perkins, 132 F.3d 1324, 1326 (10th Cir. 1997)

(holding that the “district court’s determination of the significance of a bodily

injury is a finding of fact we review for clear error”). Because the district court’s

finding is fully supported by the testimony of Vogel, a trauma surgeon and V.W.’s

15

(...continued)

not speak at all to the issue before the court in this case.

16The district court found as follows:

At trial credible testimony demonstrated that the victim

required emergency medical evacuation by airplane from Cortez,

Colorado, to Lakewood, Colorado, due to the nature and extent of her

serious injuries. The trauma surgeon who treated her testified that

the victim had internal bleeding to her duodenum and opined that risk

of death for this injury was approximately at least 20 percent, 1 in 5,

and if untreated within 48 hours was 40 percent. A 20 to 40 percent

risk of death, given the nature and extent of the injuries sustained by

the defendant, is clearly substantial.

R. Vol. VIII at 761-62.

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treating physician, the district court did not clearly err in finding that the injuries

Wells visited upon V.W. resulted in life-threatening bodily injury.

Vogel’s testimony is recounted above. See supra Section III.A.2.b. That

uncontradicted testimony is more than sufficient to support the district court’s

finding that V.W.’s injuries carried with them a substantial risk of death. See

Tindall, 519 F.3d at 1064 (“An undisputed statement by the treating doctor, in the

absence of contrary evidence, can . . . amount to a preponderance of the

evidence.”). In arguing for the opposite result, Wells asserts Vogel’s testimony

was based on hypotheticals and contingencies that did not come to pass. The

problem for Wells, however, is that the applicability of § 2A3.1(b)(4)’s four-level

enhancement is “risk” based, and risk is measured at the time of the assault. See

id. (“When we say ‘life-threatening,’ we do not mean ‘actually resulting in loss of

life.’ Rather, the term ‘threaten’ denotes only ‘the probable visitation of some

evil or affliction.’ Webster’s Third New International Dictionary 2382 (2002).

That the injury is ultimately cured does not answer whether the injury was

‘life-threatening’ when inflicted.”); Black’s Law Dictionary at 1442 (9th ed.

1990) (defining “risk” as follows: “The uncertainty of a result, happening, or loss;

the chance of injury, damage, or loss; esp., the existence and extent of the

possibility of harm <many feel that skydiving is not worth the risk>.”). Here, the

district court did not clearly err in finding that at the time of the assault—which

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left V.W. bloody, unconscious, alone in a back room of the residence, with a

significant injury to her duodenum—V.W. was subject to a substantial risk of

death.

3. “Obstruction of Justice” Enhancement

The Sentencing Guidelines set out a two level-adjustment to a defendant’s

total offense level

[i]f (1) the 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, and (2) the obstructive conduct related to (A) the

defendant’s offense of conviction and any relevant conduct; or (B) a

closely related offense . . . .

U.S.S.G. § 3C1.1

a. Factual Background

The indictment against Wells issued on April 5, 2019. Wells was arrested

on April 24, and the government moved for a no-contact order on April 25. A

magistrate judge granted the government’s request and entered a no-contact order

on April 25. The no-contact order provided as follows: “[U]ntil further Order by

this Court, the defendant, David Sidney Wells, IS PROHIBITED FROM

CONTACTING V.W., either directly or indirectly by telephone, electronic mail,

mail, or by any other means, including through friends, acquaintances, and family

members.” R. Vol. I at 44. In a hearing on April 29, the magistrate judge advised

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Wells as to the existence of the no-contact order and confirmed Wells understood

both the requirements of the order and the consequences for non-compliance.

The jury found Wells guilty on all charges on February 7, 2020. Wells’s

sentencing hearing was set for June 8. On February 21, the government submitted

a sentencing statement. The government asserted, inter alia, that a sentence of at

least thirty years’ imprisonment was necessary to vindicate the sentencing factors

set out in 18 U.S.C. § 3353. Wells submitted a response sentencing statement on

March 6. Wells’s sentencing statement noted that he was without resources to

pay a fine or restitution, asserted several of the sentencing enhancements relied

upon by the government were not applicable, and claimed the § 3553 sentencing

factors could be satisfied by giving Wells a shorter sentence than that advocated

for by the government.

Thereafter, on April 6, the government moved for an order to show cause

why Wells should not be held in contempt for violating the no-contact order. The

motion said V.W. contacted the government and reported that she had received a

letter from Wells.

17 The letter is dated February 9, which was two days after the

jury returned its guilty verdicts. It had been placed in V.W.’s personal belongings

at the jail in which she was currently incarcerated. In the letter, which was

17Wells has never admitted he authored this letter and insists the

government has not carried its burden of proving he did so. This court need not

take up this question in order to resolve this appeal.

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attached to the government’s motion, Wells laments how both of their lives have

turned out and expresses sorrow for their children. Consistent with the competing

sentencing memoranda filed by the parties, Wells indicated he was likely to be

sentenced to a thirty-year term of incarceration. R. Vol. I at 418 (“So I guess I

have to pay with the rest of my life in prison. They gunna try & give me thirty

years to life but I gunna appeal it. So I am gunna try and call my public offender

so he can start the paperwork for an appeal.”). Wells filed a response to the

government’s motion; he asserted his right to have criminal contempt proved

beyond a reasonable doubt at a criminal trial. In particular, Wells’s response

argued as follows:

Without making any admission or waiving any of his rights to

have any of the Government’s accusations of contempt proven

beyond a reasonable doubt, assuming arguendo V.W.’s receipt of a

letter from the Defendant after her testimony at the jury trial,

although a technical violation of the Court’s Order of no contact, the

substance of the letter does not invoke the furtherance of violence,

coercion, retaliation, or make any attempt at intimidation or

preventing V.W. from taking any action, but merely expresses overall

sorrow, regret and feelings for their children. Defendant submits that

such conduct, if proven, did not bring about a substantial interference

with the orderly administration of justice.

R. Vol. I at 424-25 (quotation and citation omitted). The district court set a

hearing on the government’s motion for June 10, 2020, two days after the

scheduled sentencing hearing.

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On May 4, 2020, a United States Probation Officer submitted a presentence

investigation report (“PSR”), which sought a § 3C1.1 two-level adjustment to

Wells’s total offense level for obstruction of justice. The basis for the

obstruction adjustment was Wells’s violation of the no-contact order. The PSR

noted that the no-contact order prohibited direct or indirect contact by any means

and that Wells stated he understood the effect of the order and the consequences

for failing to comply with its dictates. With that background in place, the PSR

asserted Wells’s conduct fell within the parameters of § 3C1.1 for two reasons:

(1) the no-contact order was comparable to the types of restraining orders set out

in note 4(J) to § 3C1.1; and (2) the letter was an attempt to unlawfully influence

V.W., a potential witness at sentencing, either directly or indirectly, as described

in note 4(A) to § 3C1.1.

Wells filed a timely objection to this aspect of the PSR. He again invoked

his right to a trial in which the allegations of contempt must be proved beyond a

reasonable doubt and argued that if such a trial were held, double jeopardy

principles would prevent application of the obstruction enhancement. In

response, the government recognized the double jeopardy risk posed by punishing

Wells twice for the same conduct—once for “obstruction of justice,” and then

again for contempt. It stated, however, that it would move to dismiss the

contempt charge if the court were to apply the § 3C1.1 obstruction enhancement.

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Wells renewed his objection to the adjustment in his final sentencing

memorandum, repeating that he “only stands accused of contempt and he has

made no admission.” R. Vol. I at 452.

At the sentencing hearing, the government noted V.W. did not attend the

sentencing proceeding. The government acknowledged “there’s no way to tell

what impact” the letter “may or may not have had,” but argued that “the very

purpose of having no contact orders in domestic violence cases, that the defendant

violated by sending that letter, is to avoid any implication or suspicion of

coercion.” R. Vol. VIII at 758. The district court overruled Wells’s objection to

the obstruction adjustment, concluding as follows:

At the time of the relevant conduct here, the defendant was subject to

a no contact order which quintessentially is a restraining order in that

it enjoined and restrained contact of any kind, including by

correspondence, by the defendant to the victim. . . . Viewing the

record as a whole, it is clear that Mr. Wells intended to exert

influence and control over the victim. That is precisely the case with

the letter dated February 9, 2020, regardless of how innocuous

otherwise it may appear, when considered in the totality of the

conduct of Mr. Wells vis-à-vis this victim. This is an effort to

willfully obstruct, impede, or attempt to obstruct and impede the

administration of justice.

Id. at 762-63. The district court offered no further factual findings regarding

obstruction and did not ask the government to produce any evidence in support of

the assertion Wells’s intent in sending the letter to V.W. was to dissuade her from

attending and/or testifying at the sentencing proceeding. After sentencing, the

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government moved to withdraw its motion to show cause, and the hearing date

was vacated.

b. Analysis

Wells asserts the application of § 3C1.1’s obstruction enhancement cannot

be supported on either basis identified by the district court. In particular, he

asserts the district court erred to the extent it concluded his violation of the nocontact order is obstruction per se because a no-contact order is analogous to the

types of restraining orders set out in § 3C1.1’s note 4(J). Additionally Wells

asserts the district court’s finding, for purposes of § 3C1.1’s note 4(A), that he

sent the letter to V.W. for the purpose of influencing V.W.’s potential testimony

at his sentencing proceeding is not supported by a preponderance of the evidence.

This court agrees with Wells’s contentions and concludes that, on this record, the

district court erred in adjusting Wells’s offense level upward for obstruction of

justice.

To the extent the district court adopted the PSR’s assertion that Wells’s

violation of the no-contact order, standing alone, triggered application of

§ 3C1.1—because a no-contact order is analogous to the types of restraining

orders identified in note 4(J)—the district court erred. Cf. R. Vol. VIII at 762-63

(“At the time of the relevant conduct here, the defendant was subject to a no

contact order which quintessentially is a restraining order in that it enjoined and

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restrained contact of any kind, including by correspondence, by the defendant to

the victim.”). The United States has not cited any precedent that supports such a

per-se rule, and this court has not found any supporting case law. Instead, it

appears that each court that has considered the issue has concluded that violations

of no-contact orders only amount to obstruction if the violation was a willful

attempt to impede the administration of justice. See United States v. Burgess, 22

F.4th 680, 686-87 (7th Cir. 2022); United States v. McHenry, 849 F.3d 699, 707

(8th Cir. 2017); United States v. Strode, 552 F.3d 630, 634-35 (7th Cir. 2009);

United States v. Mugan, 441 F.3d 622, 631-32 (8th Cir. 2006).

Nor is it remotely accurate to analogize the no-contact order at issue here to

the statutory restraining orders identified in note 4(J). Note 4(J) provides that a

§ 3C1.1 adjustment is appropriate if the defendant fails “to comply with a

restraining order or injunction issued pursuant to 21 U.S.C. § 853(e) or with an

order to repatriate property issued pursuant to 21 U.S.C. § 853(p).” The

identified provisions of subchapter I of chapter 13 of title 21 relate to drug abuse

prevention and control. Section 853(e) provides for the issuance of various types

of protective orders to preserve for criminal forfeiture assets of the drug trade.

Section 853(p) authorizes an order to “the defendant to return [property subject to

criminal forfeiture] to the jurisdiction of the court so that the property may be

seized and forfeited.” Notably, note 4(J) identifies two, narrow, due-process

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laden types of restraining orders and indicates violations of these narrow

provisions are the “types of conduct” to which the obstruction enhancement

applies. U.S.S.G. § 3C1.1 cmt. n.4. This court simply cannot read the

commentary to apply generally to all restraining orders and cannot see how the

no-contact order entered by the district court in this case is analogous to the two

specialized types of restraining orders identified in the body of note 4(J). Given

this state of affairs, we conclude the district court erred to the extent it concluded

a violation of the no-contact order amounted to obstruction because the no-contact

order fell under the rubric of note 4(J).

Alternatively, the district court concluded Wells attempted to exert

influence or control over V.W. for the purpose of obstructing or impeding the

administration of justice. Having scrupulously examined the record in this case,

this court concludes the district court clearly erred in concluding Wells’s

violation of the no-contact order was an attempt by Wells to influence V.W.’s

testimony at the sentencing hearing or her right to obtain restitution.

Although the government speculated at the sentencing hearing that V.W.’s

absence from the hearing could be related to the letter Wells sent to her in

violation of the no-contact order—and speculates on appeal that Wells intended to

deter V.W. from attending the hearing to prevent her from addressing the court

regarding restitution and an appropriate sentence—there is no record evidence to

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support these suppositions. Indeed, at the sentencing hearing, the government

stated that it did not even know if restitution was at issue in the case. See R. Vol.

VIII at 758 (“At this point in time we have not been able to communicate with the

named victim to establish whether or not any restitution may be owed.”). There is

no mention of the issue of restitution in the letter, a document the district court

correctly described as “innocuous” on its face. Furthermore, the PSR indicates

Wells is penniless, cutting against the notion he was motivated to use the

violation of the no-contact order to avoid paying restitution. On this record, it

would be nothing more than speculation to conclude the letter Wells sent to V.W.

was intended to exert influence over her ability to obtain restitution. Cf. United

States v. Delgado-Lopez, 974 F.3d 1188, 1193 (10th Cir. 2020) (“A finding in a

sentencing case must be based on evidence before the court, and thus in the

record, and not on speculation or hypothesis.” (quotation omitted)).

The record is likewise bereft of evidentiary support for a finding that

Wells’s letter to V.W. was an attempt to influence any testimony she might like to

give as to an appropriate sentence for Wells’s brutal crimes against her. In

concluding to the contrary, the district court cited the contents of the letter and

the testimony at trial indicating Wells was a habitual spousal abuser. The

contents of the letter are of course relevant to the resolution of this important

question. See Burgess, 22 F.4th at 686-87 (holding that the substance of any

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violations of a no-contact order are “helpful in evaluating whether [a defendant’s]

violative communications were ‘threatening, intimidating, or otherwise unlawfully

influencing’” (quoting U.S.S.G. § 3C1.1 cmt. n.4(a)). As noted by the district

court, however, the letter on its face is generally “innocuous.” The letter does not

accuse V.W. of providing false trial testimony or suggest she would experience

retaliation for her participation in Wells’s prosecution. Cf. United States v.

Gillespie, 452 F.3d 1183, 1189 (10th Cir. 2006) (upholding obstruction

enhancement where defendant attempted to send victim a letter between

conviction and sentencing that stated in part: “This letter is to thank you for the

lies in your testimony against me. . . . You will pay for every fallen comrade,

Aryan women and child you have harmed. . . . I will be avenged by the sword in

that great day”). Nor does the letter even allude to the possibility that V.W. might

testify at—or decline to attend—Wells’s sentencing hearing. If anything, the

letter’s contents indicate Wells thought a thirty-year sentence was a fait accompli.

R. Vol. I at 418 (“They gunna try & give me thirty years to life but I gunna appeal

it. So I am gunna try and call my public offender so he can start the paperwork

for an appeal.”). In that regard, he bemoans how his treatment of V.W., his

alcoholism, and V.W.’s perceived infidelity led to him spending the rest of his

life in prison. See generally id. at 418-20. And, most importantly, the letter

reflects regret that his actions likely left little chance of a relationship with his

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children. Id. at 418 (“Dam I miss our baby’s they out there by themselves. Sorry

I am just feeling sad for myself I had kids but I just left them.”). There is simply

nothing in the letter that indicates an intention on the part of Wells to influence

V.W.’s potential testimony at the upcoming sentencing hearing.

That leaves the district court’s finding of obstructive intent entirely

dependent on Wells’s lengthy history of domestic abuse and intimidation, as that

history is set out in the trial record. This court must recognize that it would be

plausible for the district court to draw from that evidence an intent on the part of

Wells to make V.W. feel sorry for him and feel bad about herself. The problem,

however, is that there is nothing in that history to indicate Wells did so willfully

for the purpose of influencing V.W.’s potential testimony at the upcoming

sentencing hearing. Seemingly recognizing this evidentiary shortcoming, the

government directs this court to a law review article and asserts that “a nearly

universal obstacle for domestic violence cases is witness tampering.” Gov’t’s Br.

at 40. The government does not identify a source of authority which would

support its request that this court adopt something like the following per se rule:

any violation of a no-contact order in a case involving domestic violence amounts

to obstruction, regardless of the nature or content of the violative contact. The

potential adoption of such a rule seems like a matter best presented to a policy

making body like the Sentencing Commission. In any event, this court must

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evaluate the validity of the district court’s finding based on the appellate record.

And, importantly, it is the United States that carries the burden of demonstrating

the applicability of the adjustment and, therefore, of building the record necessary

to support its application. See Burgess, 22 F.4th at 687 (noting “the importance

of verifying the factual basis for guidelines enhancements and adjustments”).

Here, based on the appellate record, this court concludes the district court clearly

erred in concluding Wells sent the letter to V.W. with the intent of influencing

her testimony at the sentencing hearing. Accordingly, the district court erred in

applying the § 3C1.1 adjustment in calculating Wells’s total offense level.

IV. CONCLUSION

Wells’s challenges to the validity of his convictions are without merit. His

convictions are, therefore, AFFIRMED. Although the district court did not err in

applying the abduction and substantial-risk-of-death enhancements in calculating

Wells’s total offense level, the district court erred in applying the obstruction

adjustment. Accordingly, this court REMANDS the matter to the district court

for the narrow purpose of vacating Wells’s sentence and conducting further

proceedings on the § 3C1.1 obstruction enhancement consistent with this opinion.

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