FILED

United States Court of Appeals

Tenth Circuit

July 14, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 06-3194

ANDRE IVORY,

Defendant - Appellant.

_____________________________ 

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

PAMELA RENEA TYLER,

 Defendant - Appellant.

 

No. 06-3217

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NOS. 04-CR-20044-01-KHV and 04-CR-20044-02-KHV)

Robin D. Fowler, Bath & Edmonds, P.A., Overland Park, Kansas, for Defendant -

Appellant, Andre Ivory.

Kurt P. Kerns, Ariagno, Kerns, Mank & White, LLC, Wichita, Kansas, for

Defendant - Appellant, Pamela Renea Tyler.
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Scott C. Rask, Assistant United States Attorney, (Eric F. Melgren, United States

Attorney, with him on the brief), Kansas City, Kansas, for Plaintiff - Appellee,

United States of America.

Before HARTZ, McCONNELL, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Andre Ivory was indicted on federal drug charges after an informant, Tania

Atkins, purchased crack cocaine from him on several occasions. He then

proceeded to make matters worse for himself, and others, by arranging to have

Atkins murdered. Fortunately, that effort failed. There followed a series of

superseding indictments charging additional defendants with drug offenses and

offenses related to the attempted murder. Most of the defendants entered into

plea agreements, and even Mr. Ivory himself pleaded guilty to all but one of the

drug charges against him. Eventually, three defendants were tried in a joint trial: 

Mr. Ivory; his girlfriend, Pamela Renea Tyler; and her brother, Mark McGee. 

Mr. Ivory and Ms. Tyler (the Defendants) were convicted of conspiracy to

kill a witness, see 18 U.S.C. § 1512(a)(1)(A), (k), attempting to kill a witness, see

id. § 1512(a)(1)(A), and use of a firearm in conjunction with a crime of violence,

see id. § 924(c)(1)(A). McGee was acquitted on all charges, the Defendants were

acquitted on a charge of conspiracy to distribute cocaine, and Ms. Tyler was

acquitted on a charge of distributing cocaine. Mr. Ivory was sentenced to life
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imprisonment on the drug counts to which he had pleaded guilty. On the charges

relating to the attempted murder, he was sentenced to 240 months’ imprisonment,

to be served concurrently with his sentence on the drug counts; and on the

firearms charge he was sentenced to 120 months, to be served consecutively to

the other sentences. Ms. Tyler was sentenced to 20 years’ imprisonment on each

of the three counts on which she was convicted, the terms to be served

consecutively to one another. 

The Defendants appeal their jury convictions on the ground that the

prosecutor improperly commented on their failure to testify. They also raise

challenges to their sentences, primarily arguing the insufficiency of the evidence

to support various enhancements under the United States Sentencing Guidelines

(USSG). Exercising jurisdiction under 28 U.S.C. § 1291, we consolidate the two

appeals and affirm.

I. BACKGROUND

Between March 18 and March 24, 2004, Atkins, an informant for the

Lawrence, Kansas, Police Department, purchased crack cocaine from Mr. Ivory

on five occasions. On March 25 Lawrence police officers executed a search

warrant for drug evidence at the residence that Mr. Ivory shared with Ms. Tyler. 

That same day, officers arrested Mr. Ivory on a charge of distributing crack

cocaine.
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On April 29, while Mr. Ivory was still in jail, Atkins was shot while driving

home from work in Lawrence. Kyle Crayton, the assailant, testified at trial that

McGee had offered him money to kill Atkins. He then met with Ms. Tyler,

McGee, and McGee’s girlfriend, Chaconie Edwards, to plan the crime. Kim

Sanders, a friend of Ms. Tyler who helped determine Atkins’s whereabouts,

corroborated Crayton’s testimony that McGee had encouraged Crayton to

participate in the murder plan and that Crayton had been assigned to kill Atkins. 

Edwards corroborated Crayton’s testimony that she and Ms. Tyler had met with

him to plan the murder. To establish Mr. Ivory’s involvement, the government

played tape recordings of a number of phone conversations between Mr. Ivory

and Ms. Tyler while he was in jail.

II. DISCUSSION

A. Prosecutorial Misconduct

The recorded conversations between Mr. Ivory and Ms. Tyler do not

explicitly discuss murdering Atkins. The prosecutor contended at trial that some

of their language was code. In particular, he suggested in closing argument that

they used the word money to mean the planned murder of Atkins. The attorneys

for the Defendants responded that the word money should be taken at face

value—that the two were simply concerned about the need to pay for Mr. Ivory’s

attorney. Counsel for McGee reiterated the point, stating, “[N]ot one witness

[told] you that the reference to money is really reference to a killing. Have you
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heard anybody say that other than [the prosecutor]?” R. Vol. XIII, Doc. 508 at

163. In rebuttal the prosecutor argued:

Let’s really get to the crux of the matter. What does “money” mean? 

Well, the only persons that use the word “money” in those

conversations were not witnesses that could be called by the

Government. The interpretation of the word “money,” then, has to

be determined based upon—

Id. at 169–170. At this point, counsel for all three defendants moved for a

mistrial on the ground that the prosecutor had commented on their clients’ failure

to testify. The court denied the motion but instructed the jury that it should

disregard the prosecutor’s comment, that the defendants had an absolute right not

to testify, and that the jury should not consider their silence.

On appeal the Defendants challenge the denial of the request for a mistrial. 

We review such a denial for abuse of discretion. United States v. Gabaldon, 91

F.3d 91, 94 (10th Cir. 1996). In determining whether a mistrial should have been

granted, we focus on “whether the defendant’s right to a fair and impartial trial

was impaired.” Id. at 93 (ellipses, brackets, and internal quotation marks

omitted).

The Defendants rely on well-settled law protecting a defendant from the

inference that silence at trial implies guilt. The leading case is Griffin v.

California, 380 U.S. 609, 615 (1965). At Griffin’s trial for first-degree murder

the judge instructed the jury that it could infer the truth of evidence against him if

he failed to testify and could “reasonably be expected to deny or explain [the
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evidence] because of facts within his knowledge.” Id. at 610 (internal quotation

marks omitted). The prosecutor asked the jury to draw that inference, pointing to

evidence that Griffin had been seen with the victim on the evening of the murder,

listing facts that he would know, and then asserting that “[t]hese things he has not

seen fit to take the stand and deny or explain. And in the whole world, if

anybody would know, this defendant would know. [The victim] is dead, she can’t

tell you her side of the story. The defendant won’t.” Id. at 611 (internal

quotation marks omitted). The Supreme Court held that both the court’s

instructions and the prosecutor’s remarks violated Griffin’s privilege against selfincrimination. Id. at 615. As the Court later explained, “Griffin prohibits the

judge and prosecutor from suggesting to the jury that it may treat the defendant’s

silence as substantive evidence of guilt.” Baxter v. Palmigiano, 425 U.S. 308,

319 (1976). We have held that

[t]he test . . . to determine whether the prosecutor’s remark will be

considered a comment on the defendant’s failure to testify is whether

the language used was manifestly intended or was of such character

that the jury would naturally and necessarily take it to be a comment

on the failure of the accused to testify.

United States v. Barton, 731 F.2d 669, 674 (10th Cir. 1984) (internal quotation

marks omitted).

There is, however, an important limitation on this doctrine. If a statement

by the prosecutor that might otherwise be construed as a comment on a

defendant’s failure to testify is a fair response to an argument by a defendant, we
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are unlikely to find error. This proposition was adopted by the Supreme Court in

United States v. Robinson, 485 U.S. 25 (1988). In that case defense counsel had

argued that the government had not allowed the defendant to give his side of the

story. In response the prosecutor pointed out that the defendant “‘could have

taken the stand and explained it to you . . . .’” Id. at 26. The Court held that the

defendant’s right not to testify was not infringed. It reasoned:

[I]t is important that both the defendant and the prosecutor have the

opportunity to meet fairly the evidence and arguments of one

another. The broad dicta in Griffin to the effect that the Fifth

Amendment, “forbids . . . comment by the prosecution on the

accused’s silence,” must be taken in the light of the facts of that

case. It is one thing to hold, as we did in Griffin, that the prosecutor

may not treat a defendant’s exercise of his right to remain silent at

trial as substantive evidence of guilt; it is quite another to urge, as

defendant does here, that the same reasoning would prohibit the

prosecutor from fairly responding to an argument of the defendant by

adverting to that silence. There may be some “cost” to the defendant

in having remained silent in each situation, but we decline to expand

Griffin to preclude a fair response by the prosecutor in situations

such as the present one.

Id. at 33–34 (citation omitted).

We think that Robinson controls this case. After defense counsel stated

that no witness had testified that money was a code word for the murder plot, the

prosecutor could fairly point out that the only persons who used the term money

in the recorded conversations “were not witnesses that could be called by the

Government,” and therefore “[t]he interpretation of the word ‘money’ has to be

determined based upon—.” R. Vol. XIII, Doc. 508 at 169–170. Not only would
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it be “unfair” to forbid the prosecutor to explain why the government produced no

witness who could testify to what the Defendants meant in their conversations,

but the context of the prosecutor’s remark in itself lessened the danger that the

jury would infer guilt from silence. To be sure, the prosecutor’s remark referred

to the failure of the Defendants to testify, but the remark’s purpose was not to

encourage the jury to infer guilt from silence by suggesting that a defendant who

does not testify must have something to hide. Rather, the clear intent was to

explain why the jury must rely on circumstantial evidence to interpret the

recorded conversation. Indeed, the prosecutor did not even suggest that the

failure of the Defendants to testify must mean that the word money referred to the

planned murder. Because the prosecutor focused on a proper inference to draw

from the Defendants’ silence— the need to use other evidence to interpret their

conversations—the jury was less likely to consider other (improper) inferences

that might be drawn. Moreover, the district court’s instruction to the jury, which

we assume that the jury tried to obey, see United States v. Templeman, 481 F.3d

1263, 1266 (10th Cir. 2007), further reduced the danger that the jury would infer

guilt from silence. We do not mean to suggest that absent defense counsel’s

argument (that the government had not produced witnesses to declare the meaning

of the word money), the government’s comment would have been acceptable, even

with the district court’s instruction. But the lessened potential for unfair
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prejudice to the Defendants reinforces our view that the prosecutor’s response

was permissible.

Further supporting our conclusion are opinions from our sister circuits. In

United States v. Beverly, 369 F.3d 516, 543–44 (6th Cir. 2003), defense counsel

argued that if the defendant had committed the robberies with which he was

charged, he would not have stayed in the area. As counsel put it: “‘[T]he

government says this man robbed four banks, he stuck around Columbus for five

years, he waited as his buddies . . . made deals, ignored [the government’s] offer

and then counted on twelve white folks to set him free.’” Id. at 544. The

prosecutor responded, “We found another interesting concept of the law is if you

don’t run, you are not guilty. Ladies and gentlemen, why [the defendant] did

what he did, only he can answer. But he figured probably he didn’t get arrested

in ‘95 or ‘96, so he was okay, that these guys haven’t snitched on him.” Id. at

543–44. The circuit court affirmed the conviction because the prosecutor’s

remark, although indirectly referring to the defendants’ failure to testify to his

motive for not fleeing, was a proper response to defense counsel’s argument.

United States v. Isaac, 134 F.3d 199 (3d Cir. 1998), is similar. Isaac was

charged with transporting marijuana in a boat from Jamaica to St. Thomas in the

Virgin Islands. To prove the charge, the government relied on the testimony of

two confederates, Brown and Reid. (A fourth person involved in the drug

shipment had been left behind in Jamaica.) During closing argument Isaac had
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attacked the credibility of the two witnesses, who apparently did not possess

sterling characters. The prosecutor explained to the jury that his two witnesses

were the best he could do:

Raymond Isaac captained that boat from Jamaica, and the only

people who would know that Raymond Isaac captained that boat from

Jamaica are Raymond Isaac, Conrad Brown, Irvin Reid, and the

fourth individual in Jamaica. Those are the only people.

Id. at 206 (internal quotation marks omitted). On appeal Isaac argued that the

prosecutor had implied that Isaac’s failure to testify was evidence of his guilt. 

Relying on Robinson, the court rejected the argument, even though the

prosecutor’s statement came “close to violating Griffin.” Id. It reasoned:

Much of [defendants’] argument was an attack on the credibility of

Brown and Reid, whose testimony was key to proving numerous

elements of the government’s case. The prosecutor began his

rebuttal by conceding that Brown and Reid were probably not the

most upstanding individuals; however, there were no paragons of

virtue present during the smuggling operation who could testify

about it. In this context, the prosecutor’s declaration . . . comes

across as an assertion that the government obtained its evidence from

the only available sources.

Id. at 207. Here, likewise, the prosecutor was trying to explain that the only

available sources for proving the meaning of money were circumstantial evidence.

Cf. United States v. Virgen-Moreno, 265 F.3d 276, 291-92 (5th Cir. 2001)

(prosecutor’s comment that the defendant had failed to call family members as

witnesses to explain tape-recorded conversations was an appropriate response to

statement by defense counsel that the government had not called scientific experts
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to identify the voices on the recordings); United States v. Coleman, 349 F.3d

1077, 1087–88 (8th Cir. 2003) (prosecutor’s comment that a particular witness

not called by the government could have exercised her privilege against selfincrimination was a fair response to defendant’s suggestion that the government

should have called the witness).

The Defendants’ reliance on Berryman v. Colbert, 538 F.2d 1247 (6th Cir.

1976), is misplaced. In that case the government made five comments regarding

the defendant’s failure to testify, including the following:

All right. Now, finally, to establish the robbery murder, the felony

murder, we are relying almost entirely upon circumstantial evidence.

Nobody was there when the robbery took place. Nobody that we can

bring here to testify. The defendants here, yes, but we can’t get them

to testify. So, it is a matter of relying upon physical facts that were

described to you by the police officer, and from those physical facts,

then you must make an inference, you must say, beyond a reasonable

doubt certain things did happen.

Id. at 1249 (internal quotation marks omitted). The Sixth Circuit concluded that

this argument, particularly the italicized sentence, was “in square violation” of

Griffin. Id. at 1250. But the prosecutor in that case had not been responding to

an argument by defense counsel. Berryman, which was decided before Robinson,

therefore had no occasion to consider the issue that was decisive in Robinson and

is therefore distinguishable on that ground from the case before us. 

Finally, Ms. Tyler argues that the prejudicial impact on her of the

prosecutor’s comment cannot be justified by any need to respond to the comment
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by counsel for McGee. But that comment concerned an element of the case

against all three defendants at trial, so the prosecutor could not have responded in

a manner that related only to McGee. It does not matter which defense counsel

made the comment or whether all defense counsel had agreed to divide up their

arguments and assigned a particular attorney to make the comment. Cf. United

States v. Martinez-Larraga, 517 F.3d 258, 267–69 & n.8 (5th Cir. 2008)

(prosecutor’s reference to defendants’ post-arrest silence was proper response to

argument by counsel for one of the defendants). We hold that the prosecutor’s

comment did not deprive the Defendants of a fair trial and therefore denial of the

motion for a mistrial was not an abuse of discretion.

B. Sentencing

The Defendants contend that there was insufficient evidence to support the

district court’s imposition of the following enhancements in calculating their

offense levels under the Sentencing Guidelines: (1) a four-level enhancement for

the offer of money to kill a witness, see USSG § 2A2.1(b)(2); (2) a four-level

enhancement for their leadership roles in the murder conspiracy and a two-level

enhancement to Mr. Ivory’s sentence for his role on the drug counts, see id.

§ 3B1.1(a), (c); (3) an enhancement to Mr. Ivory’s sentence based on the district

court’s drug-quantity calculation, see id. § 2D1.1(a)(3); (4) a two-level

enhancement to Ms. Tyler’s sentence for restraint of the victim, see id. § 3A1.3;

(5) a two-level enhancement to Ms. Tyler’s sentence for the use of juveniles in
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the murder conspiracy, see id. § 3B1.4; and (6) a two-level enhancement to

Ms. Tyler’s sentence for obstruction of justice, see id. § 3C1.1 (2004). Ms. Tyler

also contends that the district court’s use of the preponderance-of-the-evidence

standard in determining the appropriate Guidelines range violated her rights under

the Sixth Amendment, that the district court failed to give proper consideration to

sentencing disparities, and that the discrepancy between her sentence and the

statutory penalty for attempted murder makes her sentence unreasonable.

1. Preponderance-of-the-Evidence Standard

Because of its potential impact on the other sentencing issues raised on

appeal, we first address Ms. Tyler’s contention that the district court’s use of the

preponderance-of-the-evidence standard in determining the appropriate

Guidelines range violated her Sixth Amendment rights. She relies on United

States v. Booker, 543 U.S. 220 (2005), and Cunningham v. California, 549 U.S.

270 (2007), which held that contested factual predicates for increasing a

sentencing range under mandatory guidelines must be found by a jury beyond a

reasonable doubt. We have held, however, that these holdings do not apply to

advisory guidelines, such as the federal Sentencing Guidelines. See United States

v. Rodriguez-Felix, 450 F.3d 1117, 1130 (10th Cir. 2006) (even after Booker,

district court calculating Guidelines sentencing range “may continue to find facts

by a preponderance of the evidence” because court “applies such facts in a

discretionary manner”); United States v. Ellis, 525 F.3d 960, 965 (10th Cir. 2008)
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(distinguishing Cunningham on the ground that it concerned a mandatory, rather

than an advisory, sentencing scheme). We therefore reject this contention. 

Accordingly, our standard of appellate review is the same as before Booker. We

review “factual findings for clear error, reversing only if a finding is wholly

without factual support in the record, or after reviewing the evidence, we are

definitively and firmly convinced that a mistake has been made.” RodriguezFelix, 450 F.3d at 1130. We review de novo any claims of legal error. Ellis, 525

F.3d at 964. We address the remaining challenges below and reject them all.

2. Offer of Money to Commit Murder

USSG § 2A2.1(b)(2) provides: “If the offense involved the offer or the

receipt of anything of pecuniary value for undertaking the murder, increase by 4

levels.” The district court applied this enhancement based on (1) Crayton’s

testimony that McGee had offered him money to murder Atkins and (2) a phone

conversation between Ms. Tyler and Mr. Ivory from which it inferred that they

were complicit in McGee’s offer to Crayton. Although the Defendants point out

weaknesses in the evidence relied on by the court, the court’s finding had

adequate evidentiary support. 

3. Leadership Roles in the Offenses

USSG § 3B1.1 states:

Based on the defendant’s role in the offense, increase the offense

level as follows:
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(a) If the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was

otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or

more participants or was otherwise extensive, increase by 3

levels.

(c) If the defendant was an organizer, leader, manager, or

supervisor in any criminal activity other than described in (a)

or (b), increase by 2 levels.

The commentary to § 3B1.1 provides the following guidance for

determining which enhancement is appropriate:

In distinguishing a leadership and organizational role from one of

mere management or supervision, titles such as “kingpin” or “boss”

are not controlling. Factors the court should consider include the

exercise of decision making authority, the nature of participation in

the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the nature and

scope of the illegal activity, and the degree of control and authority

exercised over others. There can, of course, be more than one person

who qualifies as a leader or organizer of a criminal association or

conspiracy. This adjustment does not apply to a defendant who

merely suggests committing the offense.

Id., cmt. n.4. The Defendants challenge the four-level enhancement for their roles

in the murder conspiracy and Mr. Ivory challenges the two-level enhancement on

the drug counts.

There is no dispute that the murder conspiracy involved at least five

participants. But Mr. Ivory contends that “[t]he evidence . . . did not establish

that [he] gave directions to anyone regarding any plot to kill Tania Atkins” and
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that his conversations with Ms. Tyler did not “constitute being an organizer or

leader.” Ivory Br. at 42. We disagree. The district court could properly

determine that Mr. Ivory was a leader based on his phone calls with Ms. Tyler, in

which, it could be inferred, he pressured her to carry out the plan to kill Atkins

and discussed with her both who could be chosen to perform the murder and the

best time of day for the crime. After all, he was the one who would benefit most

from the murder. As for Ms. Tyler, she claims that she was merely a manager of

the murder conspiracy and that she therefore should have received only a threelevel enhancement for her role. But the court reasonably found that she was the

“pivot point” of the conspiracy. R. Vol. VII, Doc. 502 at 15:10.

Turning to the drug charge against Mr. Ivory, it involved fewer than five

participants, so § 3B1.1(c) applied. Under that provision the defendant “needs

merely to give some form of direction or supervision to someone subordinate in

the criminal activity for which the sentence is given.” United States v. Backas,

901 F.2d 1528, 1530 (10th Cir. 1990) (defendant was a supervisor under USSG

§ 3B1.1(c) because he supervised another person, a doorman, in a drugdistribution scheme). The district court based this enhancement on Cheek’s

testimony that she called Mr. Ivory to purchase drugs and Mr. Ivory sent a person

to deliver drugs to her at a convenience store. Although Mr. Ivory contends that

“[t]here was no evidence as to what the respective roles were between [Mr. Ivory]

and [the delivery person],” Ivory Br. at 40, the court could reasonably believe
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Cheek’s testimony and find that Mr. Ivory had directed a subordinate to make the

delivery.

4. Drug Quantity Calculation

Mr. Ivory’s sentence on the drug charges to which he pleaded guilty was

based on the quantity of drugs involved in this criminal activity. See USSG

§ 2D1.1(a)(3). The district court found that quantity to be 170.1 grams of crack

cocaine and therefore calculated an offense level based on at least 150 grams of

crack cocaine. See id. § 2D1.1(c)(3). Of the total 170.1 grams, 102 grams was

attributed in the presentence investigation report (PSR) to Mr. Ivory’s sales to

Cheek. On appeal Mr. Ivory contends only that Cheek’s testimony does not

support a finding of 102 grams but a “drug amount closer to 70 than 100 grams.” 

Ivory Br. at 39. Reducing the 102 grams to 70 grams would reduce the 170.1

gram total to 138.1 grams, which is about 12 grams below the 150-gram threshold

for the enhancement imposed by the court. 

In our view, the evidence supported the district court’s choice of the

offense level. The court could reasonably view the PSR calculation as a

conservative estimate; and the court further observed that the PSR had not relied

on drug transactions referred to in Ms. Tyler’s grand jury testimony, which could

“offset” a reduction for any excess in the PSR calculation (by accounting for at

least 12 grams). R. Vol. II, Doc. 486 at 84. We note that Mr. Ivory raises no

challenge on appeal to the district court’s reliance on Ms. Tyler’s testimony. The
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district court’s attribution to Mr. Ivory of at least 150 grams of crack cocaine was

not clearly erroneous.

5. Restraint of the Victim

USSG § 3A1.3 provides a two-level increase in the offense level for any

offense when “a victim was physically restrained in the course of the offense.” 

The commentary to section 1B1.1 defines physically restrained as “the forcible

restraint of the victim such as by being tied, bound, or locked up.” Id. § 1B1.1,

cmt. n.1(K). The examples in the commentary are illustrative but not exhaustive. 

See United States v. Roberts, 898 F.2d 1465, 1470 (10th Cir. 1990). 

At trial Crayton testified that he drove a stolen car to Atkins’s place of

work in Lawrence, rammed the stolen vehicle into the front of her van as she was

leaving work, and shot at her through her windshield as she tried to back up. 

(Fortunately, his gun jammed so he had to flee—in Edwards’s nearby

car—without accomplishing his task.) The district court ruled that Atkins was

physically restrained during the offense: 

Crayton carried out this attempted murder by forcibly restraining the

victim by blocking her car so that she could not escape while he shot

at her and he intentionally rammed the stolen Oldsmobile into her

mini van. And in doing so, temporarily prevented her from

continuing on her way home from work or from escaping in the

attack. 

R. Vol. VII, Doc. 502 at 9.
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On appeal Ms. Tyler does not challenge the underlying facts but argues, in

essence, that Atkins was not physically restrained because she was not chased and

tackled, as in United States v. Checora, 175 F.3d 782, 790 (10th Cir. 1999)

(victim physically restrained within the meaning of § 3A1.3 when two defendants

chased and tackled him to prevent his escape). But Checora stated that restraint

occurs when “the defendant’s conduct . . . ke[pt] the victim within bounds or

under control.” Id. at 791. In this case the record supports a finding that the

purpose of ramming Atkins’s vehicle was to trap or immobilize her; because she

could not move forward, Crayton could more readily shoot her. She was being

kept “within bounds or under control” to make her a better target. We find no

error in the district court’s decision to impose the two-level enhancement.

6. Use of Juveniles

USSG § 3B1.4 provides, “If the defendant used or attempted to use a

person less than eighteen years of age to commit the offense or assist in avoiding

detection of, or apprehension for, the offense, increase by 2 levels.” The

commentary to § 3B1.4 defines “used or attempted to use” to include “directing,

commanding, encouraging, intimidating, counseling, training, procuring,

recruiting, or soliciting,” see id., cmt. n.1. Ms. Tyler challenges the district

court’s finding that she had enlisted the help of two juveniles—Martinez and

Cortez—in the murder conspiracy, contending that (1) the court erred in applying

this enhancement because there was no evidence regarding their ages; and (2)
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even though Martinez and Cortez had assisted in transporting to Lawrence the

stolen car used by Crayton when shooting at Atkins several days later, the

enhancement does not apply because transporting the vehicle was not part of the

offense. 

On the first point, contrary to the assertion in her appellate brief, Ms. Tyler

did not object in district court to the PSR’s statements regarding the ages of

Martinez and Cortez. The court therefore could properly deem the ages to be

admitted. See United States v. Tindall, 519 F.3d 1057, 1061–62 (10th Cir. 2008).

As for the juveniles’ role in the conspiracy, Martinez and Cortez were

needed because Crayton refused to drive the stolen car from Ms. Tyler’s house in

Kansas City, Kansas, to Lawrence, where Atkins was to be killed. In United

States v. Tran, 285 F.3d 934, 937–38 (10th Cir. 2002), we held that the

defendants had “used” a juvenile to commit bank fraud when they had employed a

16-year-old driver to transport them from the airport to local banks, where the

defendants cashed counterfeit checks. Here, two juveniles, at Ms. Tyler’s

request, facilitated the offense by transporting the stolen vehicle to a more

convenient location for use in the murder plan. The district court properly

applied § 3B1.4.

7. Obstruction of Justice

USSG § 3C1.1 (2004) provides:
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If (A) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the course of

the investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (i) the

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

closely related offense, increase the offense level by 2 levels.

The enhancement applies to “threatening, intimidating, or otherwise unlawfully

influencing a co-defendant, witness, or juror, directly or indirectly, or attempting

to do so.” Id., cmt. n.4(a). On appeal Ms. Tyler contends that the enhancement

cannot be sustained on the basis of testimony at sentencing by Detective Scott

Bonham regarding various incidents. But the district court imposed the two-level

enhancement based on Edwards’s trial testimony that Ms. Tyler had threatened

her; it did not rely on Bonham’s testimony. Ms. Tyler does not dispute the

sufficiency of Edwards’s testimony to support the enhancement. Because

Ms. Tyler does not challenge the sufficiency of the evidence actually relied upon

by the district court, she is not entitled to relief.

8. Consideration of Sentencing Disparities

Ms. Tyler challenges the procedural reasonableness of the district court’s

sentence, contending that it failed to give proper consideration to the disparity

between similarly situated defendants, as required by 18 U.S.C. § 3553(a)(6). But

§ 3553(a)(6) does not require the sentencing court to compare the sentences of

codefendants; rather, it looks to uniformity on a national scale. See United States

v. Davis, 437 F.3d 989, 997 (10th Cir. 2008). Moreover, a sentencing court is not
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required to provide a specific discussion of the § 3553 factors for a sentence

falling within the range suggested by the Guidelines. See United States v. RuizTerrazas, 477 F.3d 1196, 1202 (10th Cir. 2007). All that is required is that the

court provide “a general statement noting the appropriate guideline range and how

it was calculated.” Id. (internal quotation marks omitted). We are satisfied that

the district court did this. As we stated in United States v. Verdin-Garcia, 516

F.3d 884, 898 (10th Cir. 2008):

[I]t is not enough to say, as Appellants do here, that the court failed

for instance to discuss the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty [of] similar conduct. Appellants must have raised a

nonfrivolous argument below showing, by more than hand-waving or

conclusory statements, the likelihood of a sentencing disparity if the

Guidelines were followed. This they did not do.

(citation and internal quotation marks omitted). Ms. Tyler failed to make such a

showing; indeed, she did not complain in district court about a sentencing

disparity. Therefore she is not entitled to relief.

9. Discrepancy Between Guidelines and Statutory Penalty

Ms. Tyler contends that the district court’s sentence is “presumptively

unreasonable because application of the enhancements far exceed the potential

punishment Congress intended to impose for [her] offense.” Tyler Br. at 43. She

further contends that “[i]f the maximum penalty by statute is 20 years and yet the

guidelines sentence is life, then it seems that guidelines are presumptively
1

A 2008 amendment to 18 U.S.C. § 1512(a)(3)(B)(ii) struck “20 years” and

inserted “30 years” as the maximum punishment for attempted murder of a

witness. Court Security Improvement Act of 2007, Pub. L. No. 110-177, § 205,

121 Stat. 2537 (2008).

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unreasonable since they more than triple the punishment authorized by statute.”1

Id. We disagree. To begin with, Ms. Tyler’s sentence (on her conviction of three

offenses, not just the attempted murder) is 60 years, not life. More importantly,

there is nothing presumptively unreasonable about imposing consecutive

sentences to reach a sentence within the Guidelines range. On the contrary, a

sentence within the Guidelines range is presumptively reasonable. See United

States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Of course, if the

Guidelines range exceeds the statutory maximum, the statute must prevail. But if

the defendant has been convicted of several offenses, it is hardly unreasonable to

stack the statutory sentences to reach a presumptively reasonable Guidelines

sentence. See USSG § 5G1.2(d) (providing for consecutive sentences to produce

combined sentence equal to advisory Guidelines sentence). We discern no error.

III. CONCLUSION

We AFFIRM the convictions and sentences of Mr. Ivory and Ms. Tyler.