* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 28 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

vs. JIMMY LYNN HORN, Defendant - Appellant. No. 03-6289 (D.C. No. 03-CR-111-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and TYMKOVICH , Circuit Judges.
Petitioner-Appellant Jimmy Lynn Horn appeals from h is sentence upon conviction of being a felon in possession of firearms, 18 U.S.C. § 922(g)(1). Mr. Horn pled guilty and was sentenced to 75 months imp risonment and three years supervised release. On appeal, he argues that the district court improperly enhanced his sentence for obstruction of justice an d that he was improperly denied a downward adjustment to his offense level f or acceptance of responsibility. Our jurisdiction arises under 28 U .S.C. § 1291 and 18 U.S.C.- 2 -

§ 3742(a)(1). We remand with instructions for the district court to vacate the sentence and resentence.

Background Following his arrest, Mr. Horn wrote a letter to hi s girlfriend, Sandra Goad. In the letter, he stated that he “had one shot out of [conviction] and that’s if [his second girlfriend] Mary [Smith] will say she sold [ the guns] to Bobby and say I was just there when it happened . . . I will have t o put it to her and see what she says. She is the only chance I got . . . So if you can do damage control over everyone, please do, whatch [sic] out for Dave & Sh erri or they will snitch us out.” The district court imposed a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice based on the letter and refused to grant a downward adjustment based on acceptance of responsibility un der § 3E1.1.

Discussion A. Obstruction of Justice Section 3C1.1 of the Sentencing Guidelines provides for a two-level enhancement where a “defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice d uring the course of the- 3 -

investigation, prosecution, or sentencing of the in stant offense.” U.S.S.G. § 3C1.1. Application note 4 provides an example of such conduct: “committing, suborning, or attempting to suborn perjury.” Id. § 3C1.1, comment (n.4(b)). “We have held that attempting to influence the test imony of a potential witness can form the basis for an upward departure for obstruction of justice.” United States v. Hernandez , 967 F.2d 456, 459 (10th Cir. 1992). The district court found that the language in the letter to Ms. Goad constituted an indirect attempt to obstruct or impede the administration of justice and thus applied the enhancement. We review a district court’s factual determination to enhance the sentence for obstruction of justice for clear error . United States v. Guzman , 318 F.3d 1191, 1197 (10th Cir. 2003). Mr. Horn argues that his drafting and mailing of th e letter, shortly after his arrest, but which predated his guilty plea by appro ximately six months, fell short of the “substantial step” required to constitute an attempt to suborn perjury. He argues that while Ms. Goad was aware of the existen ce of Ms. Smith, Ms. Smith did not know about Ms. Goad or Ms. Goad’s relations hip with Mr. Horn. In fact, Mr. Horn argues that he sought to prevent Ms. Smithfrom learning of his second girlfriend to avoid possibly disastrous results. T hus, he claims that the letter to Ms. Goad could not be construed as a request for Ms . Goad to ask Ms. Smith to alter her testimony. Moreover, Mr. Horn argues that he was only “daydreaming”- 4 -

about the prospect of someone testifying falsely onhis behalf. He cites the letter’s non-specific future orientation: he “will have to put it to her,” meaning that sometime in the future he will ask Ms. Smith t o testify falsely. Because Mr. Horn never made such a request of Ms. Smith, he arg ues that this falls short of the “substantial step” requirement for attempt. Fi nally, he argues that his statement regarding “damage control” cannot be cons idered an attempt to suborn perjury because, as he testified at the district co urt, this was only a request for Ms. Goad to prevent Dave and Sherri from speaking w ith Ms. Smith. The mere intention to commit a specified crime, by itself, does not amount to an attempt. United States v. Ramirez , 348 F.3d 1175, 1180 (10th Cir. 2003) (citing United States v. Monholland , 607 F.2d 1311, 1318 (10th Cir. 1979)). Rather, the defendant must have the intent to commi t a particular crime and perform some overt act which would normally result in the commission of the particular crime. Monholland , 607 F.2d at 1318; see also United States v. Sullivan , 919 F.2d 1403, 1429 (10th Cir. 1990) (requiring c riminal intent and a “substantial step” toward commission of the offense ). The district court found that Mr. Horn had the crim inal intent to obstruct justice by means of the statements in the letter, a nd we do not find such an interpretation to be clearly erroneous. As to the “substantial step” requirement, the government relies heavily upon United States v. Downing , No. 94-8075, 1995- 5 -

WL 410155, at *1 (10th Cir. July 5, 1995) (unpublis hed), in which the defendant was found to have obstructed justice by writing a l etter to a friend, asking the friend to murder the informant who testified before the grand jury and who would have testified for the government at trial. The in stant case is distinguishable. Here, Mr. Horn never specifically requested that Ms . Goad speak to Ms. Smith, and, in fact, he did not desire any communication b etween the two girlfriends. Rather, Mr. Horn stated that he would have to “put it to [Ms. Smith] and see what she says.” Thus, this portion of the letter amount ed to little more than a hopeful wish for exoneration and a statement of his future intent to convince Ms. Smith to commit perjury. Any plans to suborn perjury or oth erwise obstruct justice were only in their planning stages and clearly were not embarked upon with the language of the letter. In fact, the only specific request made by Mr. Horn in the letter is that Ms. Smith “do damage control over everyone, [and] whatc h [sic] out for Dave & Sherri or they will snitch us out.” Although this language can be construed as a request of Ms. Goad, Mr. Horn only asked that she p revent Dave and Sherri from reporting any transgressions to Ms. Smith. This re quest falls far short of a “substantial step” toward suborning perjury or obstructing the administration of justice. Accordingly, the district court’s enhance ment was clearly erroneous.- 6 -

B. Acceptance of Responsibility Mr. Horn argues that the district court erred in re fusing to award a twolevel downward adjustment for acceptance of respons ibility pursuant to § 3E1.1 of the Sentencing Guidelines. As the district court relied on its obstruction of justice finding to deny the requested downward departure for acceptance of responsibility, the district court should review th e request anew on remand. Finally, on September 13, 2004, Mr. Horn filed a Fe d. R. App. P. 28(j) supplemental authority letter seeking to raise (forthe first time) a Sixth Amendment challenge to his sentence based on the Supreme Court’s decision in Blakely v. Washington , ___ U.S. ___, 124 S. Ct. 2531 (2004). Prior to t he letter, Mr. Horn did not challenge the district court’s abi lity to determine the facts resulting in his sentence calculation. We have pre viously refused to consider an issue asserted for the first time in a Rule 28(j) l etter. See United States v. Kimler , 335 F.3d 1132, 1138 n.6 (10th Cir. 2003). In that Mr. Horn did not seek permission to file a brief properly raising the Bla kelyissue, we decline to consider the matter further. See United States v. Maldonado-Ramires , ___ F.3d ___, No. 03-1438, 2004 WL 2181755, at *3 n.1 (10th Cir. Sept. 29, 2004).- 7 -

REMANDED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge