* After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 6 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. EARL K. SHUMWAY, Defendant Appellant. Nos. 95-4201 & 96-4000

Appeal from the United States District Court

for the District of Utah (D.C. Nos. 94-CR-185 & 95-CR-97)
Wayne T. Dance, Assistant United States Attorney (S cott M. Matheson, United States Attorney, with him on the briefs), Salt Lake City, Utah, for PlaintiffAppellee. G. Fred Metos (Joseph C. Fratto, Jr. with him on th e briefs), Salt Lake City, Utah, for Defendant-Appellant. 96-4000 submitted on the briefs: *

Before SEYMOUR, BRORBY and KELLY , Circuit Judges.-2-

BRORBY , Circuit Judge.

Appellant, Mr. Earl K. Shumway, appeals his convict ion and sentence entered in the United States District Court for the District of Utah. We affirm in part, reverse in part, and remand for resentencing.

I. BACKGROUND On November 16, 1994, Mr. Shumway was charged in a three-count indictment alleging: 1) violation of the Archaeolo gical Resources Protection Act, 16 U.S.C. § 470ee(a) and 18 U.S.C. § 2; 2) a relate d charge of damaging United States property under 18 U.S.C. § 1361 and 18 U.S.C . § 2; and 3) felon in possession of a firearm under 18 U.S.C § 922(g). M r. Shumway pleaded guilty to all three felony counts.

On June 1, 1995, Mr. Shumway was charged in a four- count indictment. Counts one and three alleged violations of the Arch aeological Resources Protection Act, 16 U.S.C. § 470ee and 18 U.S.C. § 2 . Counts two and four alleged related charges of damaging United States p roperty pursuant to 18 U.S.C. § 1361 and 18 U.S.C. § 2. After a trial, a jury co nvicted Mr. Shumway of all charges.2Anasazi is the name assigned by archaeologists to a prehistoric culture

living in the Four Corners area of Utah, Arizona, C olorado, and New Mexico during the Formative Period from 300 A.D. to 1300 A .D.

-3- In a consolidated sentencing, the district court se ntenced Mr. Shumway to seventy-eight months in prison, a three-year term o f supervised release, restitution in the amount of $5,510.28, and a $350 special asse ssment. Mr. Shumway now appeals both his sentence and his jury conviction.

II. FACTS Mr. Shumway's jury conviction stemmed from his unauthorized excavation of two Anasazi 2archeological sites: Dop-Ki Cave and Horse Rock Ruin. Dop-Ki Cave is located on federal lands in Canyonlands Nat ional Park, and Horse Rock Ruin, also known as Cliffdwellers' Pasture or Jack' s Pasture, is located on federal lands near Allen Canyon, Manti-LaSal National Fores t.

At trial, the government introduced evidence to sho w Mr. Shumway met a helicopter mechanic, Michael Miller, at a lounge an d pool hall in Utah and developed a social relationship with him. The two eventually began discussing Mr. Shumway's experience in finding archeological artifacts and his experience in making large amounts of money selling those artifac ts. Mr. Shumway asked Mr.-4-

Miller if he could find a helicopter to fly them ar ound to find archeological artifacts.

Enticed by the prospects of money and Mr. Shumway's apparent knowledge of the subject, Mr. Miller contacted his friend, Jo hn Ruhl, a helicopter pilot. Mr. Miller told Mr. Ruhl of the plan to find and sell a rtifacts and asked Mr. Ruhl to pilot the helicopter to fly Mr. Miller and Mr. Shum way around to look for artifacts. Mr. Ruhl agreed. Mr. Shumway then pose d as a movie scout and called Mr. Ruhl's supervisor at the helicopter company cla iming he needed the helicopter to look for movie sites. Mr. Shumway arranged to h ave Mr. Ruhl fly to Moab, Utah, to pick up Mr. Shumway and Mr. Miller.

Once airborne, Mr. Shumway directed Mr. Ruhl to flyto a particular archaeological site southeast of Moab, but Mr. Shum way had trouble locating the site. Unable to find the particular location, the group eventually landed at Dop-Ki Cave in Canyonlands National Park. Mr. Shumway andMr. Miller began digging in the area. While digging in the cave, Mr. Millerdiscovered the human remains of an infant wrapped in a burial blanket. Mr. Shum way explained to Mr. Miller he had found a burial site. Mr. Shumway then took over the digging. Mr. Shumway fully excavated the infant remains and remo ved the burial blanket-5-

leaving the infant remains on the ground. When the damage to the site was later assessed, the only portion of the infant's skeletonremaining was the skull on top of the dirt pile.

The group then attempted, a second time, to find Mr . Shumway's first intended site. Unable to locate it, Mr. Shumway di rected Mr. Ruhl to land at Horse Rock Ruin. Mr. Miller testified that based o n the directions Mr. Shumway had given, and based on his detailed knowledge of the site, it seemed Mr. Shumway had been to the Horse Rock Ruin site before . The next morning, after spending the night at the site, Mr. Shumway found s andals and a sleeping mat during the dig at the site.

In 1986, Mr. Shumway testified in court regarding h is conduct at Horse Rock Ruin in 1984, the same site referred to in cou nts three and four of the 1995 indictment. The government attempted to admit evid ence of Mr. Shumway's prior illegal activities at Horse Rock Ruin to establish identity, knowledge and intent, pursuant to Fed. R. Evid. 404(b). Mr. Shumway file d a motion in limine to preclude the government from introducing Rule 404(b ) evidence. After the hearing, the district court deemed admissible the e vidence relating to Mr. Shumway's 1984 activities in the Horse Rock Ruin.-6-

Specifically, the district court admitted the follo wing evidence: 1) a certified transcript of Mr. Shumway's sworn colloquy with the court in the 1986 case, redacted to include only admissions concernin g his 1984 conduct at Horse Rock Ruin; 2) a redacted portion of a videotape of Mr. Shumway examining several artifacts he stated he excavated and remove d from Horse Rock Ruin in 1984; 3) the 1986 testimony of United States ForestService Special Agent Craig Endicott summarizing Mr. Shumway's statements aboutremoving and selling artifacts from the Horse Rock Ruin site in 1984; 4) several photographs of artifacts Mr. Shumway removed from Horse Rock Ruin in 1984; and 5) a certified transcript of Mr. Shumway's sworn testimony in United States v. Black, No. CR 67-97 (D. Utah), a case related to the illegal sale of artifacts taken from the Horse Rock Ruin site in 1984. During the motion in limine hearing, Mr. Shumway's counsel informed the court his defense at trial wou ld be that Mr. Shumway was not the person who committed the offenses. The dis trict court therefore deemed this evidence admissible, yet limited the evidence' s admissibility to the purpose of establishing Mr. Shumway's identity.

During trial, the government requested the districtcourt to reconsider and broaden its previous ruling to allow the 404(b) evi dence to prove knowledge and intent in addition to identity. The court determin ed that absent a stipulation by-7-

Mr. Shumway that identity was the only issue involv ed, the 404(b) evidence also would be admitted to prove knowledge and intent. A ccordingly, the court instructed the jury as to the limited purpose of th e 404(b) evidence to establish intent, knowledge and identity.

After the jury convicted Mr. Shumway on all four co unts, the district court consolidated for purposes of sentencing the 1994 ca se that resulted in Mr. Shumway's guilty plea. At sentencing, the court en hanced Mr. Shumway's base offense level as follows: two points for the vulne rable victim adjustment, pursuant to United States Sentencing Guidelines Manual§ 3A1.1(b) (1995) (hereinafter USSG); two points for obstruction of j ustice, pursuant to USSG § 3C1.1; and nine points for calculating the loss at $138,000 or more, pursuant to USSG § 2B1.1. Relying on USSG § 4A1.3, the court a lso departed upward from the Guidelines by increasing Mr. Shumway's criminal history category from III to IV. After the adjustments, Mr. Shumway's total off ense level was twenty-two and his criminal history level IV, which resulted in a sentencing range of 63 to 78 months. The district court sentenced Mr. Shumway t o seventy-eight months incarceration.-8-

On consolidated appeal we consider five issues: 1) whether the district court erred in admitting evidence of Mr. Shumway's prior acts at Horse Rock Ruin pursuant to Fed. R. Evid. 404(b); 2) whether the di strict court erred in enhancing Mr. Shumway's offense level by imposing a vulnerabl e victim adjustment pursuant to USSG § 3A1.1(b); 3) whether the distric t court erred in enhancing the offense level for obstruction of justice pursuant t o USSG § 3C1.1; 4) whether the district court erred in calculating the loss sustai ned under USSG § 2B1.1; and 5) whether the district court erred in departing upwar d from the Guidelines by increasing Mr. Shumway's criminal history category from III to IV under USSG § 4A1.3.

III. 404(b) Evidence Mr. Shumway argues the district court erred in admi tting the evidence regarding his 1984 acts in Horse Rock Ruin for purp oses of identity, knowledge and intent. Specifically, Mr. Shumway argues the 1 984 evidence lacked the "signature quality" necessary to show identity and was highly prejudicial to Mr. Shumway.

We review the district court's admission of evidenc e under Fed. R. Evid. 404(b) for an abuse of discretion. United States v. Wilson , 107 F.3d 774, 782-9-

(10th Cir. 1997). "An abuse of discretion occurs w hen a judicial determination is arbitrary, capricious or whimsical." United States v. Wright , 826 F.2d 938, 943 (10th Cir. 1987). We will not overturn a discretio nary judgment by the trial court where it falls within the "'bounds of permissible c hoice in the circumstances.'" United States v. Dorrough , 84 F.3d 1309, 1311 (10th Cir.) (quoting Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994)), cert. denied, 117 S. Ct. 446 (1996).

Under Fed. R. Evid. 404(b): Evidence of other crimes, wrongs, or acts is not ad missible to prove the character of a person in order to show action i n conformity therewith. It may, however, be admissible for othe r purposes, such as proof of motive, opportunity, intent, preparatio n, plan, knowledge, identity, or absence of mistake or accident ....
In determining whether the admission of 404(b) evid ence was proper, we apply a four-part test, which requires the following: 1) the evidence was offered for a proper purpose; 2) the evidence was relevant; 3) th e trial court properly determined under Fed. R. Evid. 403 the probative va lue of the similar-acts evidence was not substantially outweighed by its po tential for unfair prejudice; and 4) the trial court gave the jury proper limitin g instructions upon request. Huddleston v. United States , 485 U.S. 681, 691-92 (1988); United States v. Hill ,3 To the extent Mr. Shumway argues this court's dec ision in United States

v. Harrison , 942 F.2d 751, 759-60 (10th Cir. 1991) is inconsis tent with Huddleston 's four-part test, we disagree and reject the argum ent.

-10- 60 F.3d 672, 676 (10th Cir.), cert. denied, 116 S. Ct. 432 (1995). 3 Because all four parts of the Huddleston test are satisfied, we conclude the district courtdid not abuse its discretion in admitting evidence of M r. Shumway's prior illegal acts at Horse Rock Ruin.

A. Proper Purpose and Relevance First, the government offered, and the district cou rt admitted, the evidence of Mr. Shumway's prior activities at Horse Rock Rui n for proper purposes under Fed. R. Evid. 404(b): identity, knowledge, and inte nt. Second, the evidence was relevant as to each of these factors.

1. Relevance--Identity As stated, at a pretrial hearing on Mr. Shumway's m otion in limine to exclude the evidence, Mr. Shumway's counsel stated his main defense would be that Mr. Shumway was not the person involved. Afte r the hearing, the district court determined it would allow the prior evidence only to show identity. The court held, and we agree, the evidence of Mr. Shumw ay's 1984 prior activities at-11-

Horse Rock Ruin, the exact same site as that specif ied in two counts of the 1995 indictment, made more likely the inference the same person looted the same site on both occasions.

Mr. Shumway argues, however, the prior act evidence was not relevant under 404(b) because the prior act lacked the "sign ature quality" necessary to show identity. Specifically, Mr. Shumway argues th e 1984 act was not sufficiently similar to the acts at issue in the pr esent case to be probative of identity because the methods used to excavate the s ites were not sufficiently similar. Additionally, Mr. Shumway argues the prio r act is not probative of identity because it preceded the acts at issue in t he trial by seven years. We disagree.

We have held that to prove identity, evidence of pr ior illegal acts need not be identical to the crime charged, so long as, base d on a "totality of the comparison," the acts share enough elements to cons titute a "signature quality." United States v. Patterson , 20 F.3d 809, 813 (10th Cir.), cert. denied, 513 U.S. 841 (1994); United States v. Ingraham , 832 F.2d 229, 233 (1st Cir. 1987); United States v. Gutierrez , 696 F.2d 753, 754 (10th Cir. 1982), cert. denied, 461 U.S. 909 and 461 U.S. 910 (1983).-12-

Elements relevant to a "signature quality" determin ation include the following: geographic location, United States v. Porter , 881 F.2d 878, 887 (10th Cir. 1989) (fact that all crimes took place in smal l rural Kansas communities relevant to "signature quality" determination); United States v. Stubbins , 887 F.2d 42, 44 (11th Cir. 1989) (that both offenses occurre d at the same premises was probative of identity); the unusual quality of the crime, Patterson , 20 F.3d at 813 (fact that hijacking is an unusual crime was a rele vant factor in "signature quality" determination); the skill necessary to com mit the acts, United States v.
Barrett , 539 F.2d 244, 248 (1st Cir. 1976) (ability to byp ass burglar alarm a "distinctive feature" of crime); United States v. Garcia , 880 F.2d 1277, 1278 (11th Cir. 1989) (defendant's skill in forging docu ments relevant to show identity); or use of a distinctive device, United States v. Trenkler , 61 F.3d 45, 55 (1st Cir. 1995) (defendant's prior use of distincti ve remote-control car bombs relevant in determining whether same person built b oth bombs); United States v. Andrini , 685 F.2d 1094, 1097 (9th Cir. 1982) (defendant's description of distinctive incendiary devise used in crime "suffic iently distinctive to show identity.").

These enumerated elements relevant to a "signature quality" determination are not inclusive. Furthermore, the weight to be g iven to any one element and the-13-

number of elements necessary to constitute a "signature" are highly dependent on the elements' uniqueness in the context of a partic ular case. In other words, a few highly unique factors may constitute a "signature," while a number of lesser unique factors "although insufficient to generate astrong inference of identity if considered separately, may be of significant probat ive value when considered together." United States v. Myers , 550 F.2d 1036, 1045 (5th Cir. 1977).

It is by this reasoning we are guided in making our"signature quality" determination. Here, the evidence of Mr. Shumway's prior activities at Horse Rock Ruin and the activities charged at trial share at least two distinctive features such that they demonstrate a "signature quality": the unique geographical location, and the skill and specialized knowledge n ecessary to commit both acts. See United States v. Stubbins , 877 F.2d 42 (11th Cir.), cert. denied, 493 U.S. 940 (1989); United States v. Barrett , 539 F.2d 244, 248 (1st Cir. 1976).

First, Mr. Shumway visited Horse Rock Ruin to loot its contents once before. In Stubbins , the defendant was tried for conspiracy and distri bution of crack cocaine. His main defense at trial was mista ken identity. 877 F.2d at 43. The prosecution attempted to admit evidence of a pr ior similar drug sale that took place at the same address as the location of the of fense at issue during trial. Id

.-14-

The court held the prior acts evidence was admissib le and relevant to show identity under Fed. R. Evid. 404(b). Id. at 44. Specifically, the court held one distinctive feature of both offenses was that they occurred at the same address, a factor "sufficiently unusual and distinctive" as to be probative of identity. Id. at 44. The same is true here. An expert testified du ring Mr. Shumway's trial there are approximately 22,000 documented archaeological sites located within San Juan County, Utah, alone; however, Mr. Shumway chos e the exact same site once before to search for artifacts. Consequently, whil e the methods employed at the Horse Rock Ruin site may not have been identical, g iven the context of this case, both acts share as a distinctive element the exact same location.

Also, Mr. Shumway's prior activities and the acts c harged share a second distinctive feature: the skill and specialized kno wledge necessary to commit both
acts. Barrett , 539 F.2d at 248. In Barrett , the defendant was charged with crimes arising from the theft of a collection of postage s tamps from a museum. Id. at 245. During the investigation it was discovered th e burglars had bypassed the alarm system using sophisticated methods requiring skill and specialized knowledge. Id. at 246, 248. The circuit court affirmed the distr ict court's decision to allow testimony portraying the defendant as one knowledgeable in the workings of burglar alarms. Id. at 247-49. In so holding, the court explained-15-

because the knowledge and expertise necessary to co mmit the crime was "so distinctive a feature" of the crime, evidence of th e defendant's knowledge was relevant to establish identity. Id. at 248.

We find Barrett's reasoning persuasive here. The existence of 22, 000 sites in San Juan County alone, the remoteness of the loc ation, the difficulty of access, and the varying concentration of artifacts, all sug gest the person who committed both the prior act and the charged acts was one pos sessing distinctive, unique and unusual skills necessary to locate and excavate the artifacts. Extensive testimony was introduced showing that Mr. Shumway's statement s and actions demonstrated substantial specialized knowledge and prior visits to the site. Mr. Miller testified Mr. Shumway had detailed knowledge as to how to getto the site and had a high degree of familiarity with the Horse Rock Ruin site . Particularly, Mr. Miller testified Mr. Shumway knew precisely where at the H orse Rock Ruin site to find artifacts. The prior acts evidence Mr. Shumway hadlooted the Horse Rock Ruin site once before therefore is probative to show he was one with specialized skill and knowledge sufficient to commit the acts charged . The fact Mr. Shumway not only looted before, but looted the Horse Rock Ruin once before, shows he had knowledge of the site's location and means of acces s, as well as the artifacts to be found there.-16-

Therefore, we hold the two features shared by the p rior and charged acts -- location and skill -- are sufficient under the circ umstances of this case to constitute a "signature quality" such that commissi on of the prior act was relevant to show identity.

Mr. Shumway also argues because the first occurrenc e at Horse Rock Ruin was seven years prior to the second, it was not pro bative of identity. However, "'[t]here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonablene ss standard and examines the facts and circumstances of each case.'" United States v. Franklin , 704 F.2d 1183, 1189 (10th Cir.) (quoting United States v. Engleman , 648 F.2d 473, 479 (8th Cir. 1981)), cert. denied, 464 U.S. 845 (1983). Here, the district court co nsidered the seven-year time span when deciding whether the evid ence was probative; Mr. Shumway fails to convince us the district court abu sed its discretion in reaching its conclusion the evidence was probative as to ide ntity.

2. Relevance--Intent and Knowledge As stated, the district court initially allowed the prior acts evidence only to show identity. However, during trial, the court re considered its decision and admitted the evidence also to show knowledge and intent. The district court held-17-

since knowledge and intent were required elements, and since Mr. Shumway had not stipulated that the only contested issue was id entity, the 404(b) evidence was admissible to show knowledge and intent as well as identity. We agree.

The 404(b) evidence was relevant to show intent. M r. Shumway was charged with violating 18 U.S.C. § 1361, which requ ires the government prove the accused acted "willfully." Therefore, Mr. Shum way's intent was an essential element of the crime charged. By standing on his n ot guilty plea, and by failing to give enforceable pretrial assurances he did not intend to dispute criminal intent, the government may "'include such extrinsic offense evidence as would be admissible if intent were actively contested.'" Franklin , 704 F.2d at 1188 (quoting United States v. Webb , 625 F.2d 709, 710 (5th Cir. 1980)). See also Hill , 60 F.3d at 676. Prior acts evidence is "clearly" relevant to show an essential element of the charged offense. Hill , 60 F.3d at 676. Therefore, the 404(b) evidence was relevant to show the essential intent elements of 18 U.S.C. § 1361.

The 404(b) evidence was also relevant to show "know ledge" as to the charged violation of 16 U.S.C. § 470ee(a). Under § 470ee(a), no person may excavate, remove, etc. any archaeological resource located on public lands. 16 U.S.C. 470ee(a) (1994). Here, the 404(b) evidence tended to show Mr. Shumway-18-

knew the objects he was excavating were archaeologi cal resources. See Hill , 60 F.3d at 676 (evidence of prior cocaine possessions admissible to show the defendant knew the substance he possessed was cocai ne). Consequently, we hold the prior acts evidence was relevant to show identi ty, knowledge and intent as well as identity.

B. Probative Value Versus Prejudice Mr. Shumway argues admission of the 404(b) evidence was highly prejudicial under Fed. R. Evid. 403 and therefore t he district court erred in admitting the 404(b) evidence under Huddleston 's second prong. However, the district court explicitly found the probative value of the 404(b) evidence was not substantially outweighed by its potential for preju dice. The trial court is vested with broad discretion in determining whether eviden ce's probative value is substantially outweighed by its potential to cause prejudice. Patterson , 20 F.3d at 814. "Evidence of prior bad acts will always be pr ejudicial, and it is the trial court's job to evaluate whether the guaranteed riskof prejudice outweighs the legitimate contribution of the evidence." Id. Mr. Shumway makes no more than conclusory statements the district court admission of the 404(b) evidence was prejudicial to his defense. However, "we are requi red to give the trial court 'substantial deference' in Rule 403 rulings." Id. In light of the district court's-19-

explicit findings the 404(b) evidence's probative v alue was not substantially outweighed by its potential for prejudice, and because Mr. Shumway fails to convince us otherwise, we find no abuse of discreti on. Therefore, we affirm the district court's determination the probative value of the 404(b) evidence was not substantially outweighed by its potential for preju dice.

C. Limiting Instruction Huddleston 's fourth prong requires the district court, upon r equest, to instruct the jury that the 404(b) evidence is to be considered only for the proper purpose for which it was admitted. 485 U.S. at 691 -92. Here, the district court properly gave such a limiting instruction to the ju ry that the 404(b) evidence was to be considered only for the purposes of intent, knowledge and identity. Having therefore determined the admission of the 404(b) ev idence satisfied every element of Huddleston , 485 U.S. at 691-92, we hold the district court di d not abuse its discretion in admitting the prior acts evidence und er Fed. R. Evid. 404(b).

IV. SENTENCING--Base Level Enhancements A. Vulnerable Victim At sentencing, the district court enhanced Mr. Shum way's base offense level by two points under USSG § 3A1.1(b), which pr ovides:4This is not to say, however, that we do not recog nize the special import

of this case's context. We are aware of the increa sing need for the protection of Native American burial sites, and we in no way inte nd to diminish the cultural importance of those sites nor the importance of a c ommitment to the preservation of those sites. Nevertheless, we are left with som ewhat of a conundrum. Grave robbing, especially grave robbing the sacred object s of Native Americans, is undoubtedly detestable conduct worthy of severe cas tigation; however, such castigation cannot come at the expense of reason an d common sense. Certainly, better means exist to deter the loathsome conduct o f grave robbers than to drain the term "vulnerable victim" of any reasonable mean ing.

-20- If the defendant knew or should have known that a v ictim of the offense was unusually vulnerable due to age, physic al or mental condition, or that a victim was otherwise particularly susceptible to the criminal conduct, increase by 2 levels. We must now decide whether the human skeleton of anAnasazi infant is a "vulnerable victim" for purposes of § 3A1.1(b) of the Sentencing Guidelines.

Normally, a district court's determination of a "vu lnerable victim" for purposes of USSG § 3A1.1(b) is a question of fact r eviewable for clear error. United States v. Hardesty , 105 F.3d 558, 559 (10th Cir. 1997). Here, howeve r, the question is not so clear-cut; rather, the quest ion is whether USSG § 3A1.1(b) properly is interpreted to include skeletal remains as "vulnerable victims." This question deals with the district court's interpretation of the Guidelines, which we review de novo. United States v. Frazier , 53 F.3d 1105, 1111 (10th Cir. 1995). We hold USSG § 3A1.1(b) does not apply to prehistor ic human skeletal remains. 4-21-

We are convinced that to interpret "vulnerable vict im" to include skeletal remains would stretch the imagination, and would render app lication of USSG § 3A1.1(b) potentially absurd.

The status of "vulnerable victim" hinges on the ide a that some characteristic renders a victim "particularly susce ptible" to the criminal conduct. In other words, the "vulnerable victim" is someone who is unable to protect himself or herself from criminal conduct, and is th erefore in need of greater societal protection than the average citizen. United States v. Brunson , 54 F.3d 673, 676 (10th Cir.), cert. denied, 116 S. Ct. 397 (1995). Skeletons certainly are completely unable to defend against criminal conduc t. However, to illustrate the absurdity of applying the "vulnerable victim" statu s to a skeleton, consider for example, a pile of cremated remains, or a pile of d irt that was once a pile of bones; if skeletal remains are "vulnerable victims, " certainly, then, these types of remains also should qualify. These types of human remains are undoubtably no more able to guard against criminal harm than a bur ied infant skeleton, yet can they qualify as a victim? Our answer is an unquali fied no. These examples illustrate the untenable results application of the Guidelines to skeletal remains would have, and this we refuse to justify.5USSG § 5K2.8 (1995), which has remained unchanged since its original

effective date, provides: If the defendant's conduct was unusually heinous, c ruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the co nduct. Examples of extreme conduct include torture of a victim, gratui tous infliction of injury, or prolonging of pain or humiliation. -22- In support of the proposition the infant skeleton q ualifies as a "vulnerable victim" under USSG § 3A1.1(b), the government relie s on United States v. Roberson , 872 F.2d 597 (5th Cir.), cert. denied, 493 U.S. 861 (1989), and United States v. Quintero , 21 F.3d 885 (9th Cir. 1994). In Roberson , the defendant's eighty-four-year-old roommate died after falling an d hitting his head on a table. 872 F.2d at 599. The defendant feared the police w ould think he killed the man, so he put the body in his car and drove around Texa s for several days. Id. During this time, the defendant charged several thousands of dollars on the dead man's credit card. Id. After a few days, the defendant put the body in agarbage dumpster, doused it with diesel fuel, and burned itbeyond recognition. Id. The defendant was convicted of credit card fraud. Id. at 600. The district court enhanced the defendant's offense level pursuant to USSG § 3A1.1's "vulnerable victim" provision, id. , and departed upward from the guideline range find ing his conduct constituted "extreme conduct" pursuant to U SSG § 5K2.8. 5 Id. at 602.-23-

On appeal, the Fifth Circuit held the district court did not err in applying either provision to the defendant's sentencing calc ulation. Id. at 608, 612. However, the circuit court did not specifically add ress the defendant's argument that the body could not be a "victim." Id. at 604. Rather, the circuit court focused on rejecting the defendant's argument the o wner of the credit card could not be a "victim" for purposes of the Guidelines if he was not a "victim" of the crime of conviction. Id. at 605, 608-09. The court held the Guidelines req uired no such nexus -- USSG § 5K2.8 and § 3A1.1 did not r equire the "victim" for purposes of the sentencing departure to be the "vic tim" for purposes of the crime. Id. at 609. The court glossed the issue of whether a victim must be alive or dead. Consequently, Roberson is not particularly helpful to our "vulnerable vic tim" analysis.

We have a similar problem applying Quintero . In Quintero , after the defendant's two-year-old daughter died, to avoid di scovery, the defendant burned the body, removed the head with a shovel, and left it at a different location several miles away. 21 F.3d at 889. At sentencing , the district court departed upward from the sentencing range finding the defend ant's conduct after the girl's death constituted "extreme conduct" for purposes of USSG § 5K2.8. Id. at 893. On appeal, the defendant argued USSG § 5K2.8 applie d only to live victims. Id.-24-

at 894. The Ninth Circuit affirmed the "extreme co nduct" departure holding "[t]he section focuses on the defendant's conduct, not the characteristics of the victim." Id. The court went on to explain the term "victim" as used in USSG § 5K2.8 was meant simply to modify "degrading," andwas not meant to distract from the provision's focus on the offender's conduc t: The phrase "to the victim" appears to modify the te rm "degrading," making the point that the Sentencing Commission was not concerned about conduct that might be degrading to the offend er. By contrast, the terms "heinous," "cruel," or "brutal" conduct n eed no such clarification. Id. at 894 n.8. The Quintero analysis does not apply here. It is true the Guideline's "vulnerable victim" provision does, as do all the provisions, deal generally with the offender's conduct; the evident purpose of the guideline is "to punish more severely conduct that is morally more c ulpable and to protect such victims by adding more deterrence." United States v. Gill , 99 F.3d 484, 488 (1st Cir. 1996). However, unlike the "extreme conduct" provision, which focuses on the nature of the offender's conduct, the "vulnerab le victim" enhancement focuses heavily on the characteristics of the crime's victi m. This, we find, is a compelling distinction, for in provisions such as the USSG § 5 K2.8 "extreme conduct" provision, the state of the victim, living or dead, is of far less consequence. As a result, our holding here is not intended to limit t he application of provisions such as § 5K2.8, which focus on the offender's conduct. We leave for another day the6Mr. Shumway also makes the following two argument s the "vulnerable

victim" enhancement was in error: the "vulnerable victim" enhancement was improper because there was no evidence Mr. Shumway "targeted" the victim, and the enhancement was improper because the skeletal r emains did not constitute an "unusually vulnerable victim." See, e.g., Hardesty , 105 F.3d at 560; Brunson , 54 F.3d at 677. Because we reverse the district court 's application of the enhancement to Mr. Shumway's sentence on other grou nds, we need not address these arguments.

-25- question whether the "extreme conduct" provision, o r like provisions, could properly apply to this case, or any case where the supposed "victim" is no longer among the living.

For all these reasons, we hold the skeletal remains in this case could not constitute a "vulnerable victim" for purposes of se ntencing enhancement under § 3A1.1(b). Consequently, we remand this case for resentencing without the "vulnerable victim" two-part enhancement. 6

B. Calculation of Loss Mr. Shumway argues the district court erred in its method of calculating loss. On appeal, while we review the district court's factual findings for clear error, we review de novo questions of what factors the district court may c onsider in assessing loss under the Guidelines. United States v. Williams , 50 F.3d 863, 864 (10th Cir. 1995).7Specifically, 43 C.F.R. § 7.14 provides:

§ 7.14 Determination of archaeological or commercia l value and -26- The district court applied USSG § 2B1.3 when it cal culated Mr. Shumway's offense level. Section 2B1.3(b)(1) directs the cou rt to § 2B1.1 to calculate loss. The district court calculated loss at "[m]ore than $120,000," which, pursuant to USSG §2B1.1(b)(1)(J), increased Mr. Shumway's offen se level by nine points.

Application note 2 of § 2B1.1 explains that when pr operty is taken or destroyed, "loss is the fair market value" of the p roperty taken, and when property is damaged, "loss is the cost of repairs, not to ex ceed the loss had the property been destroyed." Application note 2 also provides: "Where the market value is difficult to ascertain or inadequate to measure har m to the victim, the court may measure loss in some other way." USSG § 2B1.1 comm ent. (n.2). Specifically relying on this second provision, the district court turned to the regulations promulgated pursuant to the Archaeological Resource s Protection Act to calculate loss. 16 U.S.C. § 470ii ; 43 C.F.R. § 7.14. Secti on 470ee of the Archaeological Resources Protection Act, the statute under which M r. Shumway was convicted and which he admitted violating, identifies archaeo logical value and cost of repair as relevant factors in determining the violation's severity. 16 U.S.C. § 470ee(d). 43 C.F.R. § 7.14 defines both "archaeological value " and "cost of repair." 7cost of restoration and repair (a) Archaeological value . ... [T]he archaeological value of any archaeological resource involved in a violation of the prohibitions in § 7.4 ... shall be the value of the information ass ociated with the archaeological resource. This value shall be appra ised in terms of the costs of the retrieval of the scientific inform ation which would have been obtainable prior to the violation. These costs may include, but need not be limited to, the cost of preparing aresearch design, conducting field work, carrying out laboratory anal ysis, and preparing report as would be necessary to realize the information potential.

... (c) Cost of restoration and repair . ... [T]he cost of restoration and repair of archaeological resources damaged as aresult of a violation of prohibitions or conditions ... shall b e the sum of the costs already incurred for emergency and restoratio n or repair work, plus those costs projected to be necessary to compl ete restoration and repair ....

-27- During Mr. Shumway's trial, two archaeologists test ified as to both "archaelogical value" and "cost of restoration and repair," as det ermined under 43 C.F.R. § 7.14, and estimated the total damage to both the Dop-Ki C ave and Horse Rock Ruin at about $96,500. Also, an archaeological damage asse ssment report was prepared for the two additional sites damaged in the counts to which Mr. Shumway pleaded guilty. The damage report estimated damage to thos e additional sites at about $40,700. Because the sentencing was consolidated t o sentence Mr. Shumway both for the results of his conviction and for the results of his guilty plea, the-28-

district court added these two estimates of loss as calculated pursuant to 43 C.F.R. § 7.14 to enhance Mr. Shumway's sentence.

Mr. Shumway argues the court should have relied sol ely on the cost of repairs to the sites and the fair market value of t he artifacts taken to calculate a loss of $9,122. Mr. Shumway argues the court's method of calculation was not one contemplated by the Guidelines and resulted in an incorrect standard of measure. We disagree.

For purposes of determining an appropriate offense level under the Guidelines, "loss" is not simply intended to be a m easure of net monetary damage. "Loss" also serves to "gauge the severity of a part icular offense." United States v.
Lara , 956 F.2d 994, 999 (10th Cir. 1992). Here, the di strict court quoted part of USSG § 2B1.1's application note 2, and specificallyrelied on the language stating where the market value of the property at issue is "inadequate to measure harm to the victim," the court may determine loss some othe r way. By expressly relying on this language, the district court implicitly fou nd the fair market value of the artifacts inadequately reflected the level of harm Mr. Shumway inflicted. As a result, the district court turned to the objective measure of damage as reflected in-29-

regulations specific to the statute Mr. Shumway was convicted of violating -- 43 C.F.R. § 7.14.

Congress enacted the Archaeological Resources Prote ction Act to ensure for the present and future benefit of the American people, irreplaceable aspects of Native American history and culture. 16 U.S.C. § 4 70aa(a), (b). We agree with the district court the paltry sum of $9,122, the as serted cost of the artifact's fair market value and cost of restoration and repair, fa ils to reflect adequately the extent of damage Mr. Shumway inflicted. The fair m arket value and cost of repair calculation was grossly insufficient to quantify the devastating and irremediable cultural, scientific and spiritual dam age Mr. Shumway caused to the American people in general and to the Native Americ an community in particular. The Guidelines provided the district court could ca lculate loss in some way other than fair market value and cost of repair, if those calculations were inadequate. USSG § 2B1.1 comment. (n.2). The district court re lied on this flexible provision and used a reasonable and objective measure specifi cally formulated to calculate damages under the statute Mr. Shumway was convictedof violating to calculate loss for purposes of sentencing. 43 C.F.R. § 7.14. We hold the district court's method of calculating loss for the purposes of sent encing was proper.-30-

C. Obstruction of Justice Mr. Shumway argues the district court erred in enhancing his offense level for obstruction of justice pursuant to USSG § 3C1.1 . On appeal, we review the district court's factual findings on this issue forclear error and its legal conclusions de novo

. United States v. Pretty , 98 F.3d 1213, 1221 (10th Cir. 1996), petition for cert. filed (U.S. Feb. 5, 1997) (No. 96-7768).

Under the Guidelines, the district court must enhan ce the defendant's offense level by two "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administrationof justice during the investigation, prosecution, or sentencing of the in stant offense." USSG § 3C1.1. Perjury can be the basis for such an enhancement. Id., comment. (n.3(b)). Under § 3C1.1, a defendant commits perjury if he or she " gives false testimony concerning a material matter with the willful inten t to provide false testimony." United States v. Dunnigan , 507 U.S. 87, 94 (1993); Pretty , 98 F.3d at 1221.

The district court enhanced Mr. Shumway's offense l evel by two for obstruction of justice after finding Mr. Shumway co mmitted perjury during the hearing in which he pleaded guilty to the 1994 thre e-count indictment. Specifically, the district court found Mr. Shumway perjured himself by testifying8For purposes of § 3C1.1, "material" is defined as : "evidence, fact,

statement, or information that, if believed, would tend to influence or affect the issue under determination." USSG § 3C1.1, comment. (n.5).

-31- that his codefendant in the 1994 case, Mr. Verchick, did not assist him in any digging, and did not go into the alcoves at issue w ith him. Mr. Verchick later pleaded guilty to the charges against him and testi fied he entered the alcoves with Mr. Shumway. The district court found, therefore, Mr. Shumway had committed perjury and the two-level enhancement pursuant to § 3C1.1 was warranted.

Mr. Shumway argues the obstruction of justice enhan cement was in error because the false statements were not "material" as defined by the Guidelines. 8 Specifically, Mr. Shumway argues because his testim ony did not specifically exculpate his codefendant, Mr. Shumway's false stat ements were not "material" for purposes of § 3C1.1. Because we find no eviden ce the district court's findings are in clear error, and because we find the distric t court's application of the Guideline proper, we affirm the enhancement.

In United States v. Bernaugh , 969 F.2d 858, 862 (10th Cir. 1992), we affirmed the district court's obstruction of justic e enhancement where, during his guilty-plea hearing, the defendant made false state ments regarding his-32-

codefendant's illegal activities. We held the dist rict court's obstruction of justice enhancement was proper because "the section 3C1.1 e nhancement applies where a defendant attempts to obstruct justice in a case cl osely related to his own, such as that of a codefendant." Bernaugh , 969 F.2d at 861. The same is true here. Mr. Shumway made false statements regarding his codefen dant's role in an apparent attempt to relieve his codefendant of criminal liab ility. Mr. Shumway argues that while his testimony regarding his codefendant was " less than forthcoming," the testimony was not "materially" perjurious because M r. Shumway did not provide a story that fully exculpated his codefendant. Howev er, to sustain a USSG § 3C1.1 enhancement, a defendant need not provide a story t hat when believed, would fully exculpate his or her codefendant. Rather, itis enough that a defendant provides false information bearing on the extent of the codefendant's criminal liability. Bernaugh , 969 F.2d at 862. Therefore, because Mr. Shumway made false statements bearing on the criminal liability of his codefendant, we hold the district court properly enhanced his offense level pursuant to USSG § 3C1.1.

V. SENTENCING--Upward Departure The presentence report assigned Mr. Shumway a crimi nal history category of III. Mr. Shumway's criminal history, combined w ith the enhanced offense level of 22, resulted in an applicable sentencing r ange under the Guidelines of 51-33-

to 63 months. During sentencing, the district court relied on USSG § 4A1.3, p.s., which suggests a district court adjust the criminal history category if "reliable information" convinces the court the criminal histo ry category does not adequately reflect the seriousness of the defendant 's past criminal conduct, or likelihood the defendant will commit future crimes. USSG § 4A1.3, p.s. The district court looked to several factors and determ ined Mr. Shumway's criminal history category of III did not adequately reflect the seriousness of his past conduct, nor the likelihood he would commit future crimes. After determining the criminal history category of III was inadequate, th e district court treated Mr. Shumway as if he had one additional felony convicti on, which resulted in an adjusted criminal history category of IV. The court then referenced the sentencing range for a defendant with an offense le vel of 22 and a criminal history category of IV -- 63-78 months -- and sente nced Mr. Shumway to seventyeight months.

Mr. Shumway argues the district court's upward departure was in error for three reasons: 1) the district court did not adequ ately articulate its reasons for departure; 2) the district court was unclear as to whether it considered factors already taken into account by the Guidelines; and 3 ) the departure was not reasonable.-34-

On appeal, we review the district court's decision to depart from the Sentencing Guidelines for an abuse of discretion. United States v. Koon , 116 S. Ct. 2035, 2043 (1996); United States v. Contreras , 108 F.3d 1255, 1270 (10th Cir. 1997). A district court may depart from the applic able sentencing range if "the court finds that there exists an aggravating or mit igating circumstance of a kind, or to a degree, not adequately taken into consideration" by the Guidelines. 18 U.S.C. § 3553(b) (1994); Koon , 116 S. Ct at 2044. "Before a departure is permitted, certain aspects of the case must be foun d unusual enough for it to fall outside the heartland of cases in the Guideline." Koon , 116 S. Ct at 2046. The district court has an "institutional advantage" ove r appellate courts in making these sorts of determinations due to extensive expe rience in applying the Guidelines. Nevertheless, "[a] district court by d efinition abuses its discretion when it makes an error of law," such that "[t]he ab use of discretion standard includes review to determine that the discretion wa s not guided by erroneous legal conclusions." Koon , 116 S. Ct. at 2047-48. Once we determine whetherthe district court has abused its discretion in departi ng from the Guidelines, we review the departure for reasonableness. 18 U.S.C. § 3742(e)(3); United States v. White , 893 F.2d 276, 278 (10th Cir. 1990); cf. Williams v. United States , 503 U.S. 193, 204 (1992) (even if district court departs fro m the Guidelines based on an erroneous factor, appellate court may affirm the se ntence if it is satisfied the-35-

district court would have made the same sentence wi thout the erroneous factor, and the degree of departure is reasonable).

We now turn to the question whether the district co urt abused its discretion in departing from the Guidelines. The presentence report documented Mr. Shumway's extensive past illegal conduct of looting archaeological sites. Part of this evidence included Mr. Shumway's own statements at a trial related to his 1984 illegal acts at Horse Rock Ruin. Specifically , Mr. Shumway stated under oath he had been digging artifacts from public land s since a young age and had looted archaeological sites "thousands of times." Additionally, Mr. Shumway appeared in a videotaped documentary that focused o n the looting of archaeological sites in San Juan County, Utah. In the documentary, Mr. Shumway discussed how low the chances were of an experience d looter being caught. The presentence report also summarized an article in wh ich Mr. Shumway was quoted as saying: "If the government can come down here and say we don't have the right to dig in a place where we've lived all our l ives, I'd just as soon go to prison. I'm not gonna bring my kid into a world where you c an't go out and dig up an old ruin."-36-

The district court considered this information set out in the presentence report and found Mr. Shumway had looted "at least 1 00 other times" than those which resulted in convictions, and had "made a way of life out of pot hunting down there on government lands and apparently thoug ht or may still think that he has the right to do this". Additionally, the distr ict court found "there's a strong likelihood he will commit other crimes." Based on these findings, the district court treated Mr. Shumway as if he had one addition al felony, and added three criminal history points, which resulted in a crimin al history category of IV.

We conclude the district court did not abuse its di scretion in departing from the Guidelines. The court relied on USSG § 4A1.3, p.s., which allows a court to use "reliable information" in determining whether t o adjust the criminal history category. Specifically, USSG § 4A1.3(e) lists "pri or similar adult conduct not resulting in a criminal conviction" as reliable inf ormation. In determining Mr. Shumway's past criminal conduct was sufficiently un usual to warrant an upward departure from the guideline range, the district co urt relied on Mr. Shumway's own admissions of his repeated illegal looting of archaeological sites, and relied on the probability Mr. Shumway would commit similarcrimes in the future based on his "pot hunting" way of life, and his apparent belief he had every right to engage in such conduct. The district court relied on factors specifically listed in-37-

USSG § 4A1.3, and we remain unconvinced the distric t court abused its discretion in departing from the guideline range based on thes e factors.

Mr. Shumway's arguments the district court failed t o articulate its reasons for departure, and that the district court may have applied factors already taken into account by the Guidelines do not convince us o therwise. The district court articulated the information it relied on in making its decision to depart; it is clear the district court did not rely on factors already taken into account by the Guidelines. Rather, the district court relied on U SSG § 4A1.3(e), p.s., which is an "encouraged factor" for departure. An "encourag ed factor" is one "'the Commission has not been able to take into account f ully in formulating the guidelines.'" Koon , 116 S. Ct. at 2045 (quoting USSG § 5K2.0). Indee d, USSG § 4A1.3 comment. (backg'd.) states: "This policy s tatement recognizes that the criminal history score is unlikely to take into acc ount all the variations in the seriousness of criminal history that may occur." C onsequently, the district court did not erroneously rely on factors the Guidelines had already taken into account. The district court relied on information that was s ufficiently unusual to take Mr. Shumway's case outside the Guidelines' heartland.-38-

Mr. Shumway also argues the district court's departure was not reasonable. We disagree. In assessing whether the degree of de parture was reasonable, we consider the district court's reasons for imposing the particular sentence together with factors such as: "the seriousness of the offe nse, the need for just punishment, deterrence, protection of the public, c orrectional treatment, the sentencing pattern of the Guidelines, the policy st atements contained in the Guidelines, and the need to avoid unwarranted sente ncing disparities." White , 893 F.2d at 278; 18 U.S.C. § 3742(e)(3); 18 U.S.C. § 3553(a); see also Williams , 503 U.S. at 203-04.

The district court added three points to Mr. Shumway's criminal history level after analogizing Mr. Shumway's history to a defendant with one additional felony conviction. Such analogies are specificallyprovided for in USSG § 4A1.3,
p.s.: In considering a departure under this provision, th e Commission intends that the court use, as a referen ce, the guideline range for a defendant with a higher or lower crimin al history category, as applicable. For example, if the courtconcludes that the defendant's criminal history category of III significantly underrepresents the seriousness of the defendant's crimi nal history, and that the seriousness of the defendant's criminal hi story most closely resembles that of most defendants with Criminal His tory Category IV, the court should look to the guideline range sp ecified for a defendant with Criminal History Category IV to guid e its departure.-39-

The district court closely followed this provision by adding the same number of criminal history points as if Mr. Shumway had one a dditional prior felony conviction.

The district court may use any "'reasonable methodo logy hitched to the Sentencing Guidelines to justify the reasonableness of the departure,'" which includes using extrapolation from or analogy to the Guidelines. United States v. Jackson , 921 F.2d 985, 991 (10th Cir. 1990) (quoting United States v. Harris , 907 F.2d 121, 124 (10th Cir. 1990)). Here, the distric t court was explicit in its method of departure. Additionally, the departure i s consistent with the factors to be considered in imposing a sentence under 18 U.S.C . § 3553(a). We hold the district court's degree of departure from the Guide lines was reasonable.

Accordingly, the district court is AFFIRMED in part and REVERSED in part, and we REMAND to the district court for resentencing in accordan ce with this opinion.