PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS ARELLANES-PORTILLO, Defendant - Appellant. No. 20-3165

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:17-CR-20074-JAR-11)

________________ _________________ Jacob Rasch-Chabot, Assistant Federal Pub lic Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant. Bryan C. Clark, Assistant United States A ttorney (Duston J. Slinkard, Acting United States Attorney, and James A. Brown, Assist ant United States Attorn ey, with him on the brief), Kansas City, Kansas, for Plaintiff-Appellee.

________________ _________________ Before BACHARACH , SEYMOUR , and PHILLIPS , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ Jesus Arellanes-Portillo pleaded guilty to a collection of federal drug-trafficking, money-laundering, and immi gration crimes. He now challenges the procedural reasonableness of his sentence. Arellanes-Por tillo argues that the district court misapplied FILED United States Court of Appeals Tenth Circuit 

### May 27, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 12 a three-level aggravating-role adjustment in calculating his advisory guideline range for his money-laundering offenses. We hold that the district court plainly erred by basing the aggravating-role adjustment on relevant condu ct for his drug offenses and not exclusively for his money-laundering offenses. That viol ated U.S. Sentencing Guidelines Manual § 2S1.1 Application Note 2(C) (U.S. Sentencing Comm’n 2018). 1 So exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742( a), we vacate and remand for resentencing.
BACKGROUND
I. The Indictment A federal grand jury sitting in the Distri ct of Kansas indict ed multiple defendants for crimes committed on behalf of a Mexican drug-trafficking organi zation operating in Kansas City. The indictment ch arged Arellanes-Portillo with twelve crimes: one count of conspiracy to distribute and to possess with in tent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 8 46, 841(a)(1), 841(b)(1)( A)(ii), 18 U.S.C. § 2, and of conspiracy to distribute and to possess more than 100 kilograms of marijuana, in violation of §§ 846, 841(b)(1 )(B)(vii), 18 U.S.C. § 2; three counts of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), 84 1(b)(1)(B)(ii), 18 U.S.C. § 2; one count of possessing cocaine with intent to distribute, in vi olation of § 841(a)(1) (without designating a subsection (b) penalty pr ovision), 18 U.S.C. § 2; three counts of using a telephone to facilitate the conspiracy , in violation of 21 U.S.C. § 843(b); two

1 Having identified the governing guide line manual, we simply cite the applicable guidelines secti ons throughout the opinion. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 23 counts of money laundering for attempting to transport funds from Kansas to Mexico to promote the conspiracy, in viol ation of 18 U.S.C. §§ 1956(a )(2)(A), 2; and two counts of knowingly possessing false immi gration documents, in viola tion of 18 U.S.C. § 1546(a). 2
II. The Presentence Report Arellanes-Portillo pleaded gu ilty to all counts withou t a plea agreement. In a written plea petition preceding his guilty pleas, he provided a factual basis for each of the charged offenses. In the presentence report (“PSR”), the Un ited States Probation Office calculated the advisory guideline range using the money-laundering guideline, § 2S1.1. Under § 2S1.1(a)(1), the PSR set the § 2S1.1 base offe nse level at 32. It did so by incorporating the offense level from the drug guideline, § 2D1.1(a)(5), (c)(4) for the drug weight involved in Arellanes-Portillo’s offense. 3 Next, the PSR added two levels under § 2S1.1(b)(2)(B), based on Arellanes-Portillo ’s convictions for mo ney laundering under 18 U.S.C. § 1956. After that, the PSR added th ree offense levels for his aggravated role in criminal activity involving five or more participants, ba sed on § 3B1.1(b). Finally, the

2 Arellanes-Portillo’s immigration convicti ons aren’t at issu e in this appeal. They don’t affect his final advi sory guidelines sentencing range. See § 3D1.4(c) (explaining that any group of offenses “9 or more levels less serious” than the group with the highest total offense level don’t af fect the ultimate to tal offense level).

3 As we discuss later, the district c ourt at the sentencing hearing upped the incorporated § 2D1.1 “offense level” by anot her two offense levels to 34 after finding Arellanes-Portillo responsibl e for maintaining a drug prem ises under § 2D1.1(b)(12). Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 34 PSR subtracted three offense levels for Arellanes-Portillo’s timely acceptance of responsibility.
III. PSR Objections & Sentencing Before the sentencing hearing, Arellanes- Portillo objected to the three-level role adjustment. In an Addendum to the PSR, the probation office restated ArellanesPortillo’s objection in thes e words: “Mr. Arellanes-Portillo was not the manager, someone named Bolo was. We do not belie ve that the enhancement should apply.” 4 R. vol. 3 at 38. The government defended the PSR’ s aggravating-role ad justment on grounds that “[t]he Tenth Circuit has consistently held that the ‘enhancement under § 3B1.1(b) applies to a defendant who exercised some de gree of control or organizational authority over someone subordinate to hi m in the drug distribution scheme.’” R. vol. 3 at 38–39 (quoting United States v. Cordoba , 71 F.3d 1543, 1547 (10th Cir. 1995)). The government also cited evidence of Arellanes-Portillo’s role in the drug organization. The probation office sided w ith the government and retained the aggravating-role adjustment in the PSR. It found that Arellanes-Portillo qualified as a manager under § 3B1.1(b) because “[h]e was the known leader of the Kansas City cell and directed CI1 and CI2 in their drug trafficki ng activities.” R. vol. 3 at 39. So we see that the probation

4 Neither the written objection nor the government’s written response are in the record on appeal, so we rely on the Adden dum to the PSR for the parties’ positions. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 45 office and the parties evaluated the aggrav ating-role adjustment based on ArellanesPortillo’s drug activity, not his money-laundering activity. At the sentencing hearing, Arellanes-Portillo renewed his objection to the threelevel adjustment for his aggravating role in th e offense. He contended that he had merely served as a mouthpiece for his superior in the organization, Portillo-Uranga, and that he had lacked “any autonomy in directing th e way the organization runs, the way money comes in and out of the countr y or when drugs come in and out of the country.” R. vol. 2 at 205–06. So he argued that he shouldn’t qualify fo r an aggravated-role adjustment. In response, the government rested on its earli er written response to Arellanes-Portillo’s PSR objection. After hearing from the parties, the distri ct court ruled that Arellanes-Portillo had acted as a manager or supervis or as provided in § 3B1.1(b ). In support, the court cited testimony that Arellanes-Portillo had been Po rtillo-Uranga’s “right hand man” and been referred to as “the head of the Kansas City cell.” R. vol. 2 at 20 6. Among other things, the court noted that Portillo-Uranga had dele gated some of his authority to ArellanesPortillo “to contact Mike for purposes of delivering money to him to get to the suppliers[.]” R. vol. 2 at 207. It also determined that Arellanes-Portillo had been higher in the organization than some others “in terms of finding stash houses , using them, dropping them when they t hought there was law enforc ement heat on them.” R. vol. 2 at 207. From recorded phone calls, th e court found that Arellanes-Por tillo “directed people to go pick up drugs or deliver money, agai n, at the behest of Mr. Po rtillo-Uranga but, nevertheless, Mr. Portillo-Uranga didn’t tell them directly ne cessarily. He used the defendant to do that Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 56 because the defendant operated as a manage r or supervisor.” R. vol. 2 at 207–08. The court further pointed out that Arellanes-Portillo had the author ity to cut (dilu te) the drugs, that he knew the identity of customers, and that he could set the drug price for some customers. From this, we see that the dist rict court also relied on Arellanes-Portillo’s drug activity in assessing the aggravated-role adjustment, t hough it also mentioned some of his associated involv ement with transporting dr ug proceeds to Mexico. In the end, the district court accepted the PSR’s sentencing recommendations with one exception—it added two offense levels to § 2S1.1(a)(1)’s base offense level for Arellanes-Portillo’s maintenance of a drug premises under § 2D1.1(b)(12). Thus, the offense level for the money-laun dering offenses rose to 39, mi nus three offense levels for the timely acceptance of responsibility, which left a total offense level of 36. That, combined with criminal -history category of I, resulted in an advisory guidelines range of 188–235 months of imprisonment. From that , the court imposed a term of 188 months. Arellanes-Portillo appealed. He no longer argues that his drug activity failed to support an aggravated-role ad justment for his drug offens es. Instead, now alert to § 2S1.1’s Application Note 2(C), he challe nges the district court’s aggravated-role adjustment on a different basis—that it e rred by basing the adjustment on relevant conduct for his drug offenses, and not excl usively on relevant conduct for his moneylaundering offenses. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 67 DISCUSSION
I. Drugs and Money-Laun dering Convictions In evaluating this appeal, it helps to re view how the probation office should have structured the PSR and how its skipping steps has led to the need for a resentencing. First, as mentioned, the PSR didn’t separate the drug and money-laundering counts into two separate gro ups of closely related counts. Instead, citing § 3D1.2(d), the PSR immediately lumped the seven drug-rela ted counts and the two money-launderingrelated counts into a single “Count Group 1.” Apparently, the probation office mistakenly believed that the drug and mo ney-laundering offenses i mmediately grouped together because their separate guide lines—§§ 2S1.1 and 2D1.1—ar e listed in the table at § 3D1.2(d) (though, importa ntly, in separate rows). 5 Second, the PSR should have calculated a total offense level for each of the two groups of closely related counts. For the dr ug-conviction group, the PSR should have calculated a base offense level of 32, added two levels for maintaining a drug premises, and then added three more levels fo r an aggravating-role adjustment. 6 That minus three

5 If the Guidelines Manual contemplated this immediate grouping across the § 3D1.2(d) table’s rows, it wouldn’t need to direct that the closel y related groups of drug convictions and of money-laundering convictions later be grouped under § 3D1.2(c). See § 2S1.1 cmt. n.6. In grouping under § 3D1.2(c), a court must calculate the total offense leve ls for each group so that it can apply the one with the highest total level. See § 3D1.3(a); see also § 3D1.3 cmt. n.2.

6 As we understand it, Arellanes-Portillo no longer contests that he would qualify for the three-level aggravating-role adjustment for his drug offenses. Even if he did, having reviewed the record, we s ee more than sufficien t evidence to support it. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 78 levels for timely acceptance of responsibility would leave a to tal offense level of 34. As for the money-laundering group, the PSR should have calculated a base offense level of 34 (the Chapter Two calculation for the under lying drug offenses, as explained above); added two levels for the convictions under 18 U.S.C. § 1956; added zero, two, or three levels for an aggravating-role adjustment (aft er applying § 1B1.3 to isolate any acts and omissions qualifying as relevant conduct to the money-laun dering offenses as then applied to § 3B1.1); and then subtracted th ree levels for acceptance of responsibility. That would leave a total offe nse level of 33, 35, or 36. 7 Third, under § 3D1.2(c), as directed by § 2S1.1’s Application Note 6, the PSR should have grouped the two separate drug and money-laundering groups. Under that grouping rule, the PSR would apply whicheve r group yielded the hi gher total offense level. 8
II. Standard of Review Because Arellanes-Portillo contends th at the district court misapplied the guidelines, we would ordina rily review de novo. See United States v. Ford , 613 F.3d 1263, 1268 (10th Cir. 2010). But he concedes that in the district court he didn’t raise an objection based on § 2S1.1’s A pplication Note 2(C). So we review for plain error. See

7 An offense level of 34 isn’t possibl e, because § 3B1.1 has a minimum twolevel adjustment.

8 Without this § 3D1.2(c) grouping, Arella nes-Portillo’s ultimate total offense level would have risen by tw o offense levels because his drug a nd money-laundering groups yielded total offense levels within four levels of each other. § 3D1.4(a). Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 89 United States v. Poe , 556 F.3d 1113, 1128 (10th Cir. 20 09). Thus, Arellanes-Portillo must show: “(1) error, (2) that is plain, (3) which affects the party’s substantial rights, and (4) which seriously affects the fairness, inte grity, or public reputation of judicial proceedings.” Id. (cleaned up).
III. Analysis
A. Error The district court erred by misapplyin g the Chapter Three aggravated-role adjustment to Arellanes-Portillo’s guidelin es calculation for his money-laundering convictions. Tracking the probation office and th e parties, the district court ran afoul of the guidelines’ precise rules for the app lication of Chapter Three adjustments. First, when Chapter Two sentencing ca lculations are self-contained in the guideline of the offense of conviction, §§ 1B 1.1(a)(3) and 1B1.2(b) direct courts to calculate Chapter Three adjustments using the relevant conduct of the offense of conviction. Thus, for example, had the PSR calculated the total offense level for the group of closely related drug o ffenses, it would have used re levant conduct for the drug offenses in evaluating any Chapter Three adjustments. This is illustrated by ArellanesPortillo’s case, in which the Chapter Two offe nse-level calculation was self-contained in the drug guideline, § 2D1.1, and didn’t di vert to a different Chapter Two offense guideline by cross reference or special instruction. Second, when sentencing calculations aren’t self-contained in the guideline of the offense of conviction, § 1B1.5(c) generally in structs courts to calc ulate the Chapter Three adjustments using relevant conduct from the offense associated w ith the incorporated Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 910 guideline. 9 But in the following terms, § 1B1.5(c) also alerts courts that exceptions may apply: “If the offense level is determined by a reference to a nother guideline under subsection (a) or (b)(1) above, the adjustment s in Chapter Three (A djustments) also are determined in respect to the referenced offense guideline, except as otherwise expressly provided. ” § 1B1.5(c) (emphasis added). 10 Here, the probation office, the parties, and the district court overlooked the exception found at § 2S1.1’s Application No te 2(C). That note instructs courts to calculate the Chapter Three ad justments for § 2S1.1 based on relevant conduct on the money-laundering offenses, a nd “not on the underlying o ffense from which the laundered funds were derived”: Application of Chapt er Three Adjustments— Notwithstanding § 1B1.5(c), in cases in which subsection (a)(1) [of § 2S1.1] applies, application of any Chapter Three adjustments shall be de termined based on the offense covered by the guideline ( i.e. , the laundering of criminally derived funds) and not on the underlying offense from which th e laundered funds were derived. § 2S1.1 cmt. n.2(C). As discussed earlier, the district cour t largely based its aggravating-role adjustment for the money-laundering offens es on relevant conduct from the drug

9 Section 2S1.1(a)(1) provides an exampl e of this situati on. That subsection uses the underlying offense’s of fense level in setting its own base offense level.

10 Subsections § 1B1.5(a) and (b)(1) pertain to cross references and instructions to appl y another guideline. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 1011 offenses. In doing so, the court followed the le ad of the probation office and the parties and proceeded as if the general rule foun d at § 1B1.5(c) applied. That was error. 11 Even so, the government argues that the distri ct court didn’t err at all. It contends that “Arellanes-Portillo’s role in the dr ug-trafficking organiza tion as a whole was relevant conduct with respect to his role in the money-laundering offenses, and the district court properly considered it in fi nding that Arellanes-Portillo qualified for the enhancement.” 12 Appellee’s Br. at 15. This fundament ally misunderstands what relevant conduct is under § 1B1.3—an d it contradicts § 2S1.1’s Application Note 2(C)’s command. Section 1B1.3 doesn’t leave room for comp eting versions of what qualifies as “relevant conduct.” Section 1B1.3 sets precis e boundaries. It declares whose and what

11 Section 2S1.1 has a leakproof valve for admitting or excluding drug-related relevant conduct into th e money-laundering sentenci ng calculation. First, by including the underlying drug offense’s “offense level” as its own base offense level, § 2S1.1(a)(1) necessarily incorporates drug -related relevant conduct—here, relevant conduct in support of the drug-weight and the drug-prem ises enhancements under § 2D1.1. Second, by instructing th at any Chapter Three adjustments not be determined based on relevant conduct for the offenses underlying the moneylaundering offenses, § 2S1.1’s Application Note 2(C) seal s off drug-offense relevant conduct from the money-laundering calcula tion for Chapter Three adjustments.

12 On the other hand, Arellanes-Portillo c ontends that relevant conduct doesn’t even apply here. He says that § 2S1.1’s A pplication Note 2(C) activates the “[u]nless otherwise specified” preface to § 1B1.3. This is wrong. Section 1B1. 1(a)(3) directs courts to use relevant conduct to assess specific offense characteristics, adjustments, cross references, and special instructions. Nothing in Application Note 2( C) says otherwise. Instead, that note concerns what relevant conduct applies in assessing Chapter Three adjustments. It opts for relevant conduct for the money-laundering o ffense, not relevant conduct for the underlying offense. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 1112 “ acts and omissions ” count as relevant conduct in a ssessing the applicability of base offense levels, specific offense characteristics, cross references , special instructions, and Chapter Three adjustments. See §§ 1B1.1(a)(1)–(3); 1B1.2; 1B1.3(a), (b). Those precise acts and omissions are the relevant conduct available for use in determining the applicability of Chapters Tw o and Three sentencing slots. 13 In short, the government must justify an aggravating -role adjustment for money-la undering convictions with money-laundering relevant conduct. But in the district court, the gove rnment didn’t isolat e § 1B1.3 “acts and omissions” from Arellanes-Por tillo’s money-laundering offen ses and explain how they would justify the role adju stment under § 3B1.1(b). 14 And on appeal, the government goes far afield of § 1B1.3’s precise terms by morphing relevant con duct into something that supplants the n eeded “act or omission” with a legal determination instead—that

13 For instance, if Arellanes-Portillo ha d used a minor in a drug transaction, that “act” would be relevant conduct to the application of § 3D1.4 (“Using a Minor to Commit a Crime”) in calculati ng the advisory range und er § 2D1.1, but it wouldn’t be relevant conduct in calculating the adviso ry range under § 2S1.1. Conversely, if Arellanes-Portillo had gotten in a high-speed chase and reck lessly endangered others while taking drug proceeds to Mexico, th at act would be relevant conduct to the application of § 3C1.2 (“Reckless Endange rment During Flight) in calculating the advisory guideline range under § 2S1.1, but not under § 2D1.1.

14 We agree that a § 1B1.3 “act or omission” for one offe nse could be an act or omission for another offense too. In United States v. Irvin , 682 F.3d 1254, 1277 (10th Cir. 2012), we stated that acts relevant to a bank-fraud conspi racy could also be relevant to money laundering. But such a dual “act or omission” could achieve that status only by independently charting through § 1B1.3 for each of the offenses. It may be much easier to do that for the two offenses in Irvin than for the drug and money laundering offens es in this case. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 1213 “Arellanes-Portillo’s role in the drug-traffick ing organization as a whole” qualifies as “relevant conduct with resp ect to his role in the mo ney-laundering offenses[.]” Appellant’s Br. at 15. 15 We will stick with § 1B1.3 as written.
B. Plain Error Error may be plain based on the te xt of statutes or Guidelines. See United States v. Powell , 767 F.3d 1026, 1035 (10th Cir. 2014). As mentioned, § 2S1.1’ s Application Note 2(C) requires that all Chapter Three adju stments “be determined based on the offense covered by [the money- laundering] guideline ( i.e. , the laundering of criminally derived funds) and not on the underlying offense from whic h the funds were derived.” § 2S1.1(a)(1) cmt. n.2(C) (emphasis added). Faili ng to heed this instruction is error that is plain. See del Carpio Frescas , 932 F.3d at 332 (concluding th e district court plainly erred by basing an aggravated-role adjustment “on del Carpio’s wire fraud conduct, not his money laundering conduct” contrary to § 2S1.1’s A pplication Note 2(C) (emphasis in original)); Capps , 977 F.3d at 257 (“[T]he District Court erred in applying the 2-level

15 In support of its contrary view, the government cites United States v. Lopez , 743 F. App’x 489 (3d Cir. 2018) and United States v. Ramirez , 555 Fed. App’x 315, 322 (5th Cir. 2014). But even assu ming these unpublished cases support the government’s view, they would succumb to published cases from the same circuits enforcing § 2S1.1’s Application Note (2)(C). See United States v. Capps , 977 F.3d 250, 256–57 (3d Cir. 2020) (confining the § 2S1.1 aggrav ating-role analysis to money-laundering conduct a nd excluding all underlying mail -fraud conduct from that analysis); United States v. del Carpio Frescas , 932 F.3d 324, 332 (5th Cir. 2019) (reversing a district court’s abuse-of-trust adjustment for money laundering, because “the [district] court fixa ted on the wire fraud conduc t, not the money laundering conduct”). Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 1314 abuse of trust adjustment [based on ma il fraud] to the money laundering offense calculation. Given the text of Commentary No te 2(c), we think the error is plain.”). Moreover, our court has instructed that Chapter Three adjustments for moneylaundering offenses and their underlying offenses are indepe ndently calculated on their own relevant conduct. See, e.g. , United States v. Keck , 643 F.3d 789, 800–01 (10th Cir. 2009) (interpreting “Applica tion Note 2(C) as governi ng only the applicability of adjustments on money-laundering convictions, as opposed to the offense calculations of other, related offenses”). And our fellow circuit courts uniformly abide by the direction given at § 2S1.1’s Application Note 2(C). See United States v. Salgado , 745 F.3d 1135, 1138 (11th Cir. 2014) (“When the district court calculated Salgado’s offense level under § 2S1.1(a)(1), it could base a role enhancem ent on his conduct in the money laundering conspiracy but not on his conduct in the underlying dr ug conspiracy.”); United States v. Rushton , 738 F.3d 854, 859 (7th Ci r. 2013) (“The ranges would not have been the same had the 2–level enhancement for abuse of trust been permissible. It is permissible in a money laundering case—but only when the abuse of trust relates to the money laundering itself rather than to th e underlying offense[.]”); United States v. Anderson , 526 F.3d 319, 328–29 (6th Cir. 2008) (relying on § 2S1.1’s Application Note 2(C) to reverse the district court’s transporting a drug-offe nse-related Chapter Three mitig ating-role adjustment to the sentencing calculation for the money-laundering crimes).
C. Substantial Prejudice Next, Arellanes-Portillo must establish that the error affected his substantial rights. To do so, he must sh ow that “an error was prejudicial, meaning that there is a reasonable Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 1415 probability that, but for the error claimed, the result of the proceeding w ould have been different.” United States v. Bustamante-Conchas , 850 F.3d 1130, 1138 (10th Cir. 2017) (en banc) (quotation omitted). “A reasonable probability is a proba bility sufficient to undermine confidence in the outcome.” United States v. Hasan , 526 F.3d 653, 665 (10th Cir. 2008) (quoting Sallahdin v. Gibson , 275 F.3d 1211, 1 235 (10th Cir. 2002)). “Confidence in the outcome can be undermined even if [his] showing would not satisfy the preponderance-of-the-evidence standard.” United States v. Yurek , 925 F.3d 423, 446 (10th Cir. 2019). The government contends th at Arellanes-Portillo has failed to show substantial prejudice, relying partly on United States v. Gehrmann , 966 F.3d 1074 (10th Cir. 2020). In that case, we affirmed an aggravated-role adjustment after concluding that “[t]he district court’s findings as supplemented by undisputed f acts show that Dr. Gehrmann acted as an organizer[.]” Id. at 1084. The government asks us to affirm based on undisputed evidence here too. But as Arellanes-Portillo notes, the go vernment doesn’t have equally strong underlying district-court fi ndings and undisputed facts here as compared to Gehrmann

. For instance, here we lack critical district -court findings about the identity or number of “participants,” as needed to apply § 3B1.1(b). This means that the government is asking us to determine—in the first instance—what persons qualify as participants in the moneylaundering offenses. In doing so, we would have to determine what persons are “criminally responsible for the commission of the offense,” including those persons not even convicted. See § 3B1.1 cmt. n.1. That calls for de terminations of witness credibility Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 1516 and of offense elements including knowledge and intent. From a cold record, that is a tall order. We conclude that those determinations are best left to the district court on remand. Alternatively, the government asks us to affirm on ground s that the criminal activity was “otherwise extensive.” See § 3B1.1(b). And it correctly notes that in Gehrmann , we acknowledged that we could reach th is issue even if the district court hadn’t. 966 F.3d at 1082 (citing United States v. Belfrey , 928 F.3d 746, 751 (8th Cir. 2019)). But we agree with Arella nes-Portillo that this isn’t an appropriate case to do so. As he points out, this issue first arises in the government ’s appellate response brief. We again think it best to leav e this to the district court to address on remand. With all this in mind, we return to whether Are llanes-Portillo has shown a “reasonable probability” that “but for the error,” “the result of the pr oceeding would have been different.” Bustamante-Conchas , 850 F.3d at 1138. We are satisfied that he has shown that reasonable probability. If, on remand, th e district court were to determine only that the money-laundering offenses involved fewer than five participants, ArellanesPortillo’s aggravating-role adjustment would fall one offense level, leaving his advisory range at 168–210 months of impr isonment. And if the district court were to decline to apply an aggravating-role adjustment, his to tal offense level would fall two levels to 34 (as the drug convictions would provide a hi gher total offense level then). That would leave an advisory gu ideline range of 151–188 months of imprisonment. For all reasons Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 1617 given, our confidence in the outcome is unde rmined. So we conclude that ArellanesPortillo has shown substantial prejudice.
D. Fairness, Integrity, or Public Re putation of Judicial Proceedings For the fourth prong of plain-error analys is, Arellanes-Portillo must show that the error “affects the fairness, integrity, or pu blic reputation of judicial proceedings.” United States v. Sabillon-Umana , 772 F.3d 1328, 1333 (10th Cir. 20 14). We conclude that he has met that burden here. Ordinar ily, when an error affects the calculation of a defendant’s guideline range and the first th ree prongs are satisfied, the fourth prong is also met. See Yurek , 925 F.3d at 447. That is because reasonable citizens would “bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threat en to require individuals to linger longer in federal prison than the law demands[.]” Sabillon-Umana , 722 F.3d at 1333–34. Though Arellanes-Portillo may ultimately fail in lowe ring his advisory guid eline range, we see a sufficient basis on which the district court might impose a lower advisory guideline range. In that circumstance, we conclude that he has met his needed showing on this final prong of plain-error review.
CONCLUSION In sum, Arellanes-Portillo has met hi s burden under the pl ain-error standard regarding the three-level aggravating-role ad justment. So we vacate his sentence and remand for resentencing consistent with this opinion. Appellate Case: 20-3165 Document: 010110690171 Date Filed: 05/27/2022 Page: 17