PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES A. McKEIGHAN, Defendant - Appellant. No. 08-3204

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRI CT OF KANSAS (D.C. NO. 2:06-CR-20066-JWL-1)

Jessica R. Kunen, Lawrence, Ka nsas, appearing for Appellant. James A. Brown, Assistant United States A ttorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United St ates Attorney for the District of Kansas, Topeka, Kansas, for Appellee.

Before LUCERO, HOLLOWAY, and MATHESON, Circuit Judges.

MATHESON , Circuit Judge.
In 2007, James McKeighan was convicted on four federal charges relating to his possession of firearms, marijuana, and methamphe tamine. He now raises three claims of FILED United States Court of Appeals Tenth Circuit 

### July 17, 2012
Elisabeth A. Shumaker Clerk of Court-2- error. First, he argues that the Government a nd the district court forced his attorney of choice to withdraw, violating his rights under the Sixth Amendment to the U.S. Constitution. Second, he asserts that jurors fell asleep during his trial, depriving him of the right to an impartial ju ry under the Sixth Amendmen t. Finally, Mr. McKeighan argues that the district court erred when it enhanced his sentence for obstruction of justice. Exercising jurisdiction pursuant to 28 U.S. C. § 1291 and 18 U.S. C. § 3742(a), we affirm Mr. McKeighan’s c onviction and sentence.
I. BACKGROUND A. Pre-Trial 1. Arrest and Indictment In April 2006, law enforcemen t officers executed a warran t to search a storage unit rented by Mr. McKeighan in Kansas City, Ka nsas. Inside the unit, officers discovered firearms, ammunition, approximately 10 9 pounds of marijuana, 40.7 grams of methamphetamine, and drug paraphernalia. Officers also seized $41,170 in U.S. currency, as well as documents and cred it cards in Mr. McKeighan’s name. As a result, Mr. McKeighan was arrested a nd indicted on four c ounts related to the possession of drugs and firearms. 1

1 Specifically, Mr. McKeighan was charge d with the following: (1) possession with intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)( B)(viii); (2) possession with inte nt to distribute marijuana, Continued . . .-3- 2. Mr. McKeighan’s Counsel and Discovery Regarding His Fee After his initial retained counsel wit hdrew, Mr. McKeighan retained Texas attorney Baltazar Salazar (“Attorney Salazar ”). On June 19, 2 006, Kansas attorney Melanie Morgan (“Attorney Morgan”), acting as local co unsel, moved for Attorney Salazar to appear pro hac vice in the U.S. District Court for the District of Kansas. On June 30, 2006, the district court granted the pro hac vice motion. On July 26, 2006, the Government filed a motion seeking to withhold production of discovery to Mr. McKeighan until it re ceived more informa tion about Attorney Salazar’s fee. The Government explained that before Attorney Salazar was retained, Mr. McKeighan told law enforcement and pretrial se rvices that he had no income or money. Attorney Salazar’s fee was $25,000. 2 In its motion, the Government alleged th at Attorney Salazar had rejected its request that he identify the date of his rete ntion, the amount of his fee, the method of payment, the name of any th ird party who paid Mr. McKei ghan’s fee, and the financial institution and account number into which th e fee was deposited. The Government

______________________________________ Cont. in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); (3) felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a )(2); and (4) possession of a firearm not registered to him in the National Firearms Regi stration and Transfer Record, in violation of 26 U. S.C. §§ 5841, 5861(d ), and 5871, with reference to 26 U.S.C. § 5845(a) and (f).

2 Attorney Morg an received $5,000 of the $25,000 fee.-4- asserted it had “substantial ev idence that [Mr. McKeighan wa s] engaging in continuing criminal activity” and that it was concerned th at Attorney Salazar’s representation of Mr. McKeighan might pose a conflict of interest. R OA, Vol. 1, Doc. 29, at 2. According to the Government, it had “substantial evidence that would allow for the fee paid to [Attorney Salazar] to be subject to criminal seizure and forfeiture.” Id. At a hearing on August 21, 2006, the distri ct court stated it lacked information to rule on the Government’s motion. The co urt permitted the Government to provide a sealed ex parte submission to support the motion by September 1, 2006. The court scheduled a status conference for Septembe r 11, 2006, to consid er any Government submission. On August 31, 2006 , Attorney Morgan moved to withdraw as Mr. McKeighan’s local counsel, stating that “a conflict of intere st has arisen in the case.” ROA, Vol. 1, Doc. 33, at 1. The next day, the G overnment provided its sealed ex parte submission to the court concerning the fees paid to Atto rney Salazar and the potential conflicts of interest in his representation of Mr. McKeighan. 3. September 11, 2006 Hearing

a. Mr. McKeighan’s Fee At the September 11, 2006 hearing, the district court began by granting Attorney Morgan’s motion to withdraw. Consequent ly, the court explained that it could not consider any other motions—including the Go vernment’s motion to withhold discovery and its supporting ex parte s ubmission—until Attorney Salazar obtained local counsel to-5- support his pro hac vice admission. Attorney Salazar had received several fede ral grand jury sub poenas regarding his fee information. He told the court it would be difficult to secure local counsel “because if I explain . . . that the prosecutor’s going afte r the funds, that I have been given three grand jury subpoenas, no one’s going to want to touch the ca se, your Honor.” ROA, Vol. 2, Pt. 2, Doc. 341, at 7. He felt he was “being strongarmed into withdrawal.” Id. Attorney Salazar then explained that he had placed Mr. McKeighan’s fee in a trust account and feared that “if a federal grand ju ry subpoena or mone y seizure shows up in my trust account, it w ill automatically ring bells to the Texas State Bar” and “[t]he bank will not want to touch me.” Id. at 12. He stated, “I don’t have any problem placing that money, my attorneys’ fees, in the court’ s registry . . . if the court orders.” Id. He repeated multiple times his willingness to pl ace Mr. McKeighan’s fee in the court’s registry. The district court responded, “Mr. Salaza r, it would seem like it might be helpful to you as well as the [G]overnment if [the court] made the order as you have suggest[ed] that would trigger you tran sferring those fees to the registry of the court.” Id. at 14 (emphasis added). The court then ordered the tr ansfer of the attorney fee into the court’s registry. Attorney Salazar clar ified for the record that he was “putting [the fee] in the registry of funds voluntarily , not per the [grand jury] subpoena.” Id. at 46 (emphasis added). On September 13, 2006, Attorney Sa lazar transferred Mr. McKeighan’s fee into-6- the court’s registry. 3
b. Potential Conflicts of Interest At the hearing, the district court also in formed Mr. McKeighan of four conflicts of interest that could arise were he to continue with Attorney Salazar as his counsel. First, Mr. McKeighan’s longtime girlfrie nd, Leigh Bledsoe, had delivered Mr. McKeighan’s fee to Attorney Salazar, and sh e could be charged as a co-conspirator who had delivered drug proceeds to pa y Attorney Salazar’s fee. Second, if the funds came from someone in a higher position in the alleged criminal enterprise, Attorney Salazar’s loyalt y to Mr. McKeighan might be compromised. Third, the Government might determine th at Attorney Salazar engaged in illegal activity in accepting the fee, which would ma ke it “virtually impossible” for him to continue his representation. Id. at 24. Fourth, Attorney Salazar’s fee might be forfeited as proceeds of illegal activity. If that happened, Mr. McKeighan might find At torney Salazar’s free representation to be ineffective. In describing these potential conflicts, th e court made clear that it was “simply giving . . . examples of what could happen.” Id. It was “not admonishing or indicting” Attorney Salazar, id. at 30, and was “not picking sides in all this,” id. at 31. The court stated it was “not passing any judgment” on Attorney Salazar, id. at 43, and that Attorney

3 Attorney Morgan tran sferred her portion of Mr. McKeighan’s fee into the court’s registry on September 12, 2006.-7- Salazar had done nothing to give the court “a ny indication to think . . . that he’s causing any problems for anybody,” id. When asked whether he understood the points the court was making, Mr. McKeighan nodded his head yes. The court then told Mr. McKe ighan that if Attorney Sa lazar obtained local counsel and if Mr. McKeighan wanted to continue wi th Attorney Salazar’s representation, the court would conduct some more formal procee dings to assure . . . that you not only have been exposed to all these risks . . . [described] today, but that . . . if you wa nt Mr. Salazar as your lawyer, waive the ramifications of that, meaning that if you go to trial and get convicted, you cannot come back later and say, [“G]ive me a new trial, Judge. I never should have had Mr. Salazar as my lawyer.[”] . . . If you want Mr. Salazar, fine, but you’re not going to come back later if you get convicted and say, [“]Mr. Salazar shouldn ’t have been allowed to represent me because he was actually acting in somebody else’s best interests, or wasn ’t getting paid, [and] therefore, didn’t do a good job[.”] . . . [I]f you said you wanted to stick with Mr. Salazar, I would be fair ly inclined to say, as far as I’m concerned, we can move forward, I can give you the conflict-of-interest-waiver coll oquy, and if they indict Mr. Salazar . . . we will cross that bridge when we come to it. Id. at 26-28 (emphases added). On September 26, 2006, Attorney Salazar moved to withdraw as Mr. McKeighan’s counsel. He stated that the “G overnment believes a conflict of interest may develop since discovering that a third party is paying [Mr. McKeighan’s] . . . fees” and that he “has not been able to obtain assistance of local coun sel as required by local rules” to continue his appearance pro hac vice . ROA, Supp. Vol. 2, at 50. The district court-8- granted the motion on September 28, 2006 , and counsel was appointed for Mr. McKeighan. 4. Money Laundering Count On February 28, 2007, the grand jury i ssued a superseding indictment adding a fifth count against Mr. McKeighan and his girl friend, Ms. Bledsoe. Count Five charged Mr. McKeighan and Ms. Bledsoe with cons piring to commit money laundering in connection with the $25, 000 fee paid to Atto rney Salazar. The superseding indictment also alleged that the $25,000 fee—then held in the court’s registry—was subject to criminal forfeiture pursuant to 18 U.S.C. § 982. Ms. Bledsoe pled guilty to a reduced felony charge, and the Government dismissed Count Five against her. M r. McKeighan proceeded to trial.
B. Trial 1. Michael Orr’s Testimony Michael Orr, a witness for the prosecution, te stified at trial that he had stored three guns in Mr. McKeighan’s storage unit, ha d purchased marijuana from Mr. McKeighan, and had seen him with methamphetamine. Mr . Orr also testified that Ms. Bledsoe had contacted him after Mr. McKeighan’s arrest. The two met, and Ms. Bledsoe asked Mr. Orr to sign a piece of paper. Mr. Orr signe d the paper, which he assumed Ms. Bledsoe had written. However, Mr. Orr c ould not read what was on the note because he is legally blind and because the handwriting was illegible. During this meeting, Mr. McKeighan spoke with Mr. Orr by telephone from jail.-9- Mr. Orr testified that Mr. McKeighan tried to ge t him to say that the majority of the items in the storage unit belonged to Mr. Orr’s girlfr iend, which Mr. Orr testified was untrue. 2. Ms. Bledsoe’s Testimony Ms. Bledsoe’s testimony about her meeting with Mr. Orr was slightly different. She testified that she met with Mr. Orr afte r Mr. McKeighan’s arrest and that the two men spoke over the phone while she was present. But accord ing to Ms. Bledsoe, Mr. Orr drafted a note and signed it while he was talk ing on the phone with Mr. McKeighan. The note stated that the FBI came to apprehend [Mr. Orr’s girlfri end]. On that search [agents] found [her] marijuana, and [she] was on the lease [o f the storage unit]. She had one MAC-40 sports rifle stolen fro m her ex-boyfriend. [She] paid [Mr. McKeighan] to [store] stuff at his st orage [unit], contents unknown. She also had stolen [a rifle and shotgu n] . . . from [her] ex-boyfriend. ROA, Vol. 2, Pt. 2, Doc. 337, at 244. Ms. Bledsoe also testified to the following facts rega rding the delivery of Mr. McKeighan’s fee to Attorney Salazar. A fri end of Mr. McKeighan’s delivered the money to Ms. Bledsoe’s home in approximately five installments. Ms. Bledsoe, who had been dating Mr. McKeighan intermittently for about 11 years, had seen the friend a long time ago and knew him as Charlie , although she did not know his last name or whether “Charlie” was his real name. Charlie told her the money came from the sale of a car and from collecting cash from friends and family. Charlie delivered a total of between $27,000 and $28,000 in cash to Ms. Bledsoe. The money was packaged in rubber bands and consisted mostly of $ 20 and $50 bills. At-10- Ms. Bledsoe’s home, Charlie “would just step inside the door and hand [her] cash, and that was it.” Id. at 229. Ms. Bledsoe had concerns about where the money came from and thought “things were looking very suspicious.” Id. at 235-36. Ms. Bledsoe met Attorney Salazar on thr ee occasions to pay him portions of Mr. McKeighan’s fee—at an airport hotel restaura nt, at a Wendy’s restaurant, and outside the courthouse. Ms. Bledsoe brough t the money in bags, and the bills were still bundled in rubber bands. Attorney Salazar did no t give her receipts for the payments. C. Conviction and Post-Trial Motions After the prosecution presented its case, Mr. McKeighan moved for a judgment of acquittal. The court grante d his motion only as to Coun t Five, which charged Mr. McKeighan with conspiring to launder the $25,000 paid to Attorney Salazar. The court concluded that “[t]here is not sufficient ev idence from which a rational jury could find beyond a reasonable doubt that there wa s knowledge of this money coming from anything illegal.” ROA, Vol. 2, Pt. 2, Doc. 338, at 95. On December 19, 2007, th e jury found Mr. McKeig han guilty on Counts One through Four of the superseding indictment . The same day, Mr. McKeighan filed a motion for a new trial asserting the district co urt “erred in ordering [Attorney Salazar] to disgorge and pay into court all sums paid to him . . . for the purpose of representing [Mr. McKeighan], thus effectively denying [Mr. McKe ighan] his right to his choice of counsel in violation of the Sixth Amendment to the United States Constitution.” ROA, Vol. 1, Doc. 227, at 1.-11- On January 8, 2008, Mr. McKeighan filed another new-trial motion. He again argued that he had been denied the right to co unsel of his choice. He also alleged that three jurors “kept dozing off/falling asleep during the trial.” ROA, Vol. 1, Doc. 246, at 2. On June 25, 2008, Mr. McKeighan made a third post-trial filing, alleging he was denied his rights under the Fifth and Sixth Amendments. The district court denied Mr. McKeigha n’s post-trial motions in a sealed memorandum and order on July 24, 2008.
D. Sentencing Mr. McKeighan’s presentence investig ation report recommended a two-level enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. The enhancement was based on Mr. McKeighan’s attempt “to obstruc t justice by having Michael Orr, a federal witness, write a note that exonerated [Mr. Mc Keighan] from some of the charges filed against him.” Aple. Br. at 13 (quotations omitted). Mr. McKeighan objected to the enhancement. At Mr. McKeighan’s sentencing hearing, th e district court overruled his objection. The court was “persuaded from the testimony of Mr. Orr and that of Ms. Bledsoe that the . . . genesis for [the] note was Mr. McKeighan’ s attempt to get his friends to shift the blame to someone else for the items that were found in the st orage unit and which ultimately led to the charges in this case.” ROA, Vol. 2, Pt. 2, Doc. 342, at 14-15. The district court sentenced Mr. McKeigha n within the adviso ry guidelines range to 293 months on Count One and 120 months on each of Counts Tw o through Four. Mr.-12- McKeighan is serving his sentences concurrently.
E. Appeal Mr. McKeighan filed a notice of appeal on July 25, 2008. His appeal was dismissed on March 5, 2009, for failure to f ile an opening brief. On May 17, 2011, Mr. McKeighan filed a pro se “Motion to Recall th e Mandate and Reinstate Direct Appeal.” This court issued an order on September 8, 2011, granting Mr. McKeighan’s motion and reinstating his direct appeal. We appo inted appellate counsel to represent Mr. McKeighan.
II. DISCUSSION Mr. McKeighan raises th ree issues on appeal. First, he argues that the Government and the district court violated his Sixth Amendment right to counsel of choice. Second, he contends that because jurors fell asleep during his trial, he was denied his Sixth Amendment right to an impartial jury. Third, Mr. McKeighan asserts the district court erred when it applied a senten cing enhancement for obstruction of justice. We address each issue in turn. A. Sixth Amendment Right to Counsel of Choice 1. Substantive Background “The Sixth Amendmen t to the Constitution guarantee s that ‘[i]n all criminal prosecutions, the accused shall en joy the right . . . to have th e Assistance of Counsel for his defence.’” Wheat v. United States , 486 U.S. 153, 158 (1988) (quoting U.S. Const. amend. VI). This guarantee includes the “r ight to be represented by an otherwise-13- qualified attorney whom [the] de fendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United
States , 491 U.S. 617, 624-25 (1989). If a defe ndant is wrongly deni ed his counsel of choice, no showing of prejudice is nece ssary to establish constitutional error. See United States v. Gonzalez-Lopez , 548 U.S. 140, 146 (2006). Su ch a deprivation is “structural error,” id. at 150 (quotations omitted), and is “complete when the defendant is erroneously prevented from bei ng represented by the lawyer he wants, regardless of the quality of the representation he received,” id. at 148 (quotations omitted). Although there is a presumption in favor of a defendant’s counsel of choice, the right is not absolute. See Wheat , 486 U.S. at 159, 164; United States v. Collins , 920 F.2d 619, 625 (10th Cir. 1990). For instance, “a defendant’s right to choice of counsel is limited by the financial ability of the defe ndant to retain a desired attorney,” United States v. Nichols , 841 F.2d 1485, 1504 (10th Cir. 1988 ), and a defendant does not have a right to counsel who declines representation, Wheat , 486 U.S. at 159. Nor does a defendant have a “constitutional right to us e the proceeds of crime to finance an expensive defense.” Caplin & Drysdale , 491 U.S. at 630 (quotations omitted); see also Nichols , 841 F.2d at 1505. Most relevant for th is case, the right to counsel of choice must be consistent with the fa ir administration of justice. See Collins , 920 F.2d at 626. Thus, “the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by th e lawyer whom he prefers.” Wheat , 486 U.S. at 159. In a-14- criminal case, both the prosecution and the cour t can play significant roles in achieving a proper balance between a defendant’s right to choose counsel and the fair administration of justice. We next examine th ese respective roles.

a. Role of the Prosecution Defendants have a right to counsel of their choice, but they also have the right to effective assistance of counsel, see Strickland v. Washington , 466 U.S. 668, 686 (1984), and the “correlative right to representation that is free from conf licts of interest,” Wood v. Georgia , 450 U.S. 261, 271 (1981). Thus, we have “observe[d] that when the government is aware of a conflict of interest, it has a duty to bring it to the court’s attention and, if warranted, move for disqua lification” of the defendant’s counsel. United States v. Migliaccio , 34 F.3d 1517, 1528 (10th Cir. 1994) (emphasis added); see also United States v. Tatum , 943 F.2d 370, 379-80 (4th Cir. 1991). The prosecution’s duty to alert the court to defense counsel’s potential and actual conflicts of interest is rooted not only in the defendant’s right to effective and conflictfree representation, but also in the prosecutor’s role as “an administrator of justice, an advocate, and an officer of the court.” ABA Standards for Criminal Justice 3-1.2(b) (3d ed. 1993). As the Supreme Court has explaine d, “[t]he United Stat es Attorney is the representative . . . of a sovereignty whos e obligation to govern impartially is as compelling as its obligation to govern at all; and whose intere st, therefore, in a criminal prosecution is not that it shall win a ca se, but that justice shall be done.” Berger v. United States , 295 U.S. 78, 88 (1935); see also ABA Standards for Criminal Justice 3--15- 1.2(c) (“The duty of the prosecutor is to se ek justice, not mere ly to convict.”). The prosecution’s duty to disclose defense counsel’s potential or actual conflicts of interest facilitates the administration of ju stice by helping to avoi d lengthy delays or retrials that could occur when conflicts render defens e counsel’s representation ineffective. See United States v. Malpiedi , 62 F.3d 465, 470 & n.3 (2d Cir. 1995); Mannhalt v. Reed , 847 F.2d 576, 583-84 (9th Cir. 1988); United States v. Iorizzo , 786 F.2d 52, 54, 59 (2d Cir. 1986). If the prosecution were to withhold known potential or actual conflicts of interest in the defense’s re presentation, it could gain an unfair tactical advantage by restricting defense coun sel’s effectiveness at trial. See Malpiedi , 62 F.3d at 470 n.3. A few federal appe llate courts have reversed convictions based on defense counsel’s conflicts at trial and chastised th e prosecution for knowing about the potential conflicts and not moving for disqualification. See id. ; Mannhalt , 847 F.2d at 583-84; Iorizzo , 786 F.2d at 54, 59; see also United States v. Levy , 25 F.3d 146, 152 (2d Cir. 1994) (noting that the government failed to apprise a reassigned judge of conflict issues and permitted him “to walk unwitti ngly into the ‘mine field’”). Although the prosecution can serve the cause of justice by acting to prevent defense counsel conflicts, we acknowledge the potential for prosecutors to wrongly interfere with a defendant’s Sixth Amendment rights. In United States v. Nichols , we recognized that prosecutors possess tools—such as forfeiture claims and subpoenas—that could be used to deprive a defendant of the ri ght to choice of counsel. 841 F.2d at 1508. The prosecution could “exclude an especially skilled defense attorney by threatening to-16- bring a forfeiture count that it would not include if the defendant agreed to select a less qualified attorney.” Id. A forfeiture claim could “inclu de everything a defendant owns, thus making it impossible for a defendant to re tain an attorney and therefore necessary to rely on appointed counsel.” Id. Or the prosecution coul d “request[] a grand jury subpoena that would require the attorney to te stify about the attorney-client relationship.” Id. We noted that “[a]ny of these results wo uld undermine the bala nce necessary to the adversary system” and would be unacceptable as a form of prosecutorial misconduct. Id. The Supreme Court has recognized anot her concern: the possibility that prosecutors may “seek to ‘manufacture’ a co nflict in order to prevent a defendant from having a particularly able defe nse counsel at his side.” Wheat , 486 U.S. at 163. 4 The Court has left that determination primarily to trial courts, who “are undoubtedly aware of this possibility, and must take it into consid eration along with all of the other factors which inform” whether to allow defense counsel to proceed. Id. We therefore turn to the role of the court.
b. Role of the Court While the prosecution has a duty to inform courts of defense counsel’s potential and actual conflicts of interest, courts have the duty to “balance a defendant’s

4 For example, “the prosecutor might initia te a criminal investigation of defense counsel, not because she believes that th ere are genuine questio ns concerning the lawfulness of the attorney’s conduct, but out of a motivation to create a conflict between the defense attorney’s duty to his client a nd his personal interest.” Bruce A. Green, Her Brother’s Keeper: The Prosecutor’s Resp onsibility When Defense Counsel Has a Potential Conflict of Interest , 16 Am. J. Crim. L. 323, 354 (1989).-17- constitutional right to retain counsel of his choi ce against the need to maintain the highest standards of professional responsibility, the pu blic’s confidence in the integrity of the judicial process and the orderl y administration of justice.” Collins , 920 F.2d at 626 (quotations omitted). Courts may deprive a defendant of his coun sel of choice “only where such drastic action is necessary to further some overriding social or ethical interest.” Id. (quotations omitted). Thus, “as long as its action is not arbitrary, a court may restrict a defendant’s choice of counsel if allowing representation by a particular attorney would adversel y affect an important public interest.” Nichols , 841 F.2d at 1504. An important aspect of the public interest lies “in assuring the ethical conduct of the bar.” Id. at 1503. “Federal [c]ourts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat , 486 U.S. at 160. A court may, for example, refuse representation by coun sel “not admitted to practice law in the relevant jurisdiction.” Nichols , 841 F.2d at 1502-03; see also Wheat , 486 U.S. at 159 (“Regardless of his persuasive powers, an a dvocate who is not a member of the bar may not represent clients (other than himself) in court.”). More importantly, “[w]hen a district cour t finds that counsel has a conflict of interest, real or potential, it retains subs tantial latitude to disqualify counsel.” Collins , 920 F.2d at 627 (quotations omitted); see also Nichols , 841 F.2d at 1503. “If there is a conflict of interest between the attorney ch osen by the defendant and someone involved in the trial, the attorney usua lly may be excluded unless the likelihood and severity of the-18- conflict are minimal compared to the defendant’s interest in obtaining counsel of choice.” Nichols , 841 F.2d at 1503. For example, cour ts may disqualify counsel who has “been implicated in the [u nderlying] crime,” id. , or who is “scheduled to be called as a witness” in the defendant’s trial, id. 2. Mr. McKeighan’s Right to Counsel of Choice Mr. McKeighan argues that the Government and the district cour t deprived him of his right to counsel of choice under the Si xth Amendment to the U.S. Constitution. Accordingly, we address the conduct of th e Government and the district court to determine whether their actions were consiste nt with the principles discussed above. Because Mr. McKeighan first raised this issue in his post-trial motions requesting a new trial, we review the district cour t’s ruling denying his motions for abuse of discretion. See United States v. Custodio , 141 F.3d 965, 966 (10th Cir. 1998); see also Wheat , 486 U.S. at 164 (“The evaluation of the facts and circumstances [regarding a defendant’s right to counsel] must be left prim arily to the informed judgment of the trial court.”).

a. The Government’s Conduct Mr. McKeighan contends that the Governme nt violated his right to counsel of choice by forcing Attorney Salazar to w ithdraw from the case. Specifically, Mr. McKeighan points to the subpoenas of Atto rney Salazar’s fee information and the Government’s sealed ex parte filing regarding potential conflicts of interest. Because the Government provided a sealed ex parte filing to the court, Mr. McKeighan argues,-19- Attorney Salazar could not ad equately dispute the Governme nt’s position regarding any potential conflicts of interest. More over, Mr. McKeighan contends that the Government’s concern about potential conflic ts was unfounded because he was acquitted of money laundering in connection with Attorney Sa lazar’s fee. Although we recognize the pot ential for the prosecution to abuse its powers or to create conflicts of interest to deny a defe ndant the right to counsel of choice, the Government did not do so in this case. Th e Government fulfilled its duty to notify the district court of potential conflicts of interest in Attorney Salazar’s representation and to protect the case against conflicts of interest. See Migliaccio , 34 F.3d at 1528. First, Mr. McKeighan has failed to show the Government acted in bad faith or attempted to manufacture a conflict of interest. See United States v. Cruz-Alcala , 338 F.3d 1194, 1197 (10th Cir. 2 003) (“Once the prosecution es tablishes the existence of a conviction, the defendant must prove by a preponderance of the evidence that the conviction was constitutionally in firm.” (quotations omitted)); see also United States v. Alvarez , 137 F.3d 1249, 1252 (10th Cir. 1998) (p lacing the burden on the defendant to show that his counsel had a conflict of intere st and provided ineff ective assistance). Even if the Government’s conduct was a cause of Attorney Salazar’s withdrawal, it does not follow that a constitutional viola tion necessarily occurre d. As discussed above, considerations of the fair administ ration of justice may take precedence over a defendant’s right to counsel of choice. On ly improper or “erroneous” deprivations of a defendant’s counsel of choice violate the Sixth Amendment. See Gonzalez-Lopez , 548-20- U.S. at 146. Where a defendant argues th at the prosecution is responsible for a deprivation of his counsel of choice, the pros ecution’s actions must be improper to create an “erroneous” deprivation. See Nichols , 841 F.2d at 1508 (no ting that “prosecutorial misconduct” could potentially violate a defenda nt’s Sixth Amendment right to counsel of choice). Here, Mr. McKeighan has failed to show that the prosecution acted improperly when it subpoenaed Atto rney Salazar’s fee information a nd suggested potential conflicts of interest to the district court. He has not shown that the Government’s concern with Attorney Salazar’s representation was manuf actured. In fact, the record shows the Government acted in good faith, that its c oncerns were authentic, and that it took legitimate steps to reso lve those concerns. After his arrest, Mr. McKeighan indicated he had no money other than the cash seized from his storage unit. He then retain ed Attorney Salazar fo r a $25,000 fee. Mr. McKeighan’s longtime girlfriend, Ms. Bledsoe, obtained this money in cash bound in rubber bands from Mr. McKeighan’s friend. She had rarely seen this friend and knew him only as “Charlie.” Ms. Bledsoe then ga ve the cash to Attorn ey Salazar in three installments without obtaining receipts and late r testified that she th ought the payment of Mr. McKeighan’s fee was suspicious. These facts support the Government’s concerns about potential conflicts of in terest and negate Mr. McKeigha n’s allegations that it acted-21- improperly. 5 Second, Mr. McKeighan’s judgment of acquittal on the money laundering count does not show, as he argues, that he was wro ngfully deprived of hi s counsel of choice. Nor does it mean there was no pot ential conflict in Attorney Salazar’s representation or that the Government acted improperly. At the time of the Government’s ex parte submission, “[t]the likelihood and dimensions of nascent conflicts of interest [were] notoriously hard to predict, even for those thoro ughly familiar with criminal trials.” Wheat , 486 U.S. at 162-63. Mr. McKeighan ha s not shown that the Government brought the superseding indictment in bad faith, and hi ndsight does not show the lack of genuine concern about potential conflicts. Third, although Mr. McKeighan argues that the Government’s ex parte submission deprived Attorney Salazar of the opportunity to challenge th e Government’s assertion of potential conflicts, Attorney Salazar did not ob ject at the August 21, 2006 hearing when the court permitted the Government to ma ke the ex parte submission. Finally, and perhaps most important, we can not conclude from this record that the Government forced Attorney Sa lazar to withdraw, especially when we exam ine Attorney

5 The district court also noted that this wa s the first time in its recollection that it had “seen this U.S. Attorney’s Office go after a lawyer’s fee . . . [s]o it’s not as if that’s their standard practice; it’s not as if they just like to hassle the lawyers as a tactic.” ROA, Vol. 2, Pt. 2, Doc. 341 at 29. Thus, the re cord does not indicate that the prosecution had a history of seeking forfeiture and informatio n about defense attorneys’ fees, which might otherwise have supported Mr. McKeighan’s claim that it abused its subpoena and forfeiture powers.-22- Morgan’s stated reasons to withdraw as lo cal counsel. We agree with the Government that the direct cause of Attorney Sala zar’s withdrawal was Attorney Morgan’s independent decision to withdraw. Withou t local counsel, the Government argues, Attorney Salazar was unable to continue his representati on of Mr. McKeighan. In response, Mr. McKeighan argues that the Government improperly pressured Attorney Morgan to leave the case, so it was that same Government pressure that ultimately precipitated Attorney Sa lazar’s withdrawal. Attorney Morgan’s motion to withdraw undercuts Mr. McKeighan’s position. She stated in her motion that she “reque st[ed] leave to withdraw because a conflict of interest has arisen in the case .” ROA, Vol. 1, Doc. 33, at 1 (emphasis added). Attorney Morgan mentioned the Government’s ex parte filing and issues “concerning the legal fees paid to [Attorney] Salazar and to [her].” Id. at 1-2. She then cited and discussed Rule 1.7(b) of the Kansas Rules of Professional Conduct, whic h at the time stated that “[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.” See In re Swisher , 179 P.3d 412, 419 (Kan. 2008) (quotations omitted). Attorney Morgan ad mitted that this rule was “directly applicable” to her representation of Mr. McKeighan and that, accordingly, she wa s “compelled to file [her] motion to withdraw.” ROA, Vol. 1, Doc. 33, at 2. Although Attorney Sal azar may have believed that he had no potential conflicts of interest in representing Mr. McKeighan, Atto rney Morgan’s motion to withdraw indicates-23- she did not feel the same about her represen tation. She acknowledged that she had a conflict of interest in representing Mr. McKe ighan and stated that Rule 1.7(b) required her withdrawal. We conclude that Atto rney Morgan’s withdr awal—based on an acknowledged conflict of interest, not im proper Government conduct—precipitated Attorney Salazar’s withdrawal. “We do not assume the government will abuse its discretion” and improperly interfere with a defendant’s choice of counsel. Nichols , 841 F.2d at 1508. Here, the record does not show that th e Government abused its powers to deprive Mr. McKeighan of his Sixth Amendment right to counsel of choice.
b. The District Court’s Conduct Mr. McKeighan also asserts that the district court violated his right to counsel of choice by forcing Attorney Salazar to withdraw. Mr. McKeighan faults the district court fo r “advising both counsel and [him] at the September 11, 2006 hearing that they most likely had a conflict of interest given the Government’s ex parte and untes ted allegations.” Aplt. Br. at 36 (emphasis added). In his view, the court erred in relying on the Government’s ex parte submission without conducting an adversarial hearing to determ ine whether Attorney Salazar had potential conflicts of interest. According to Mr. Mc Keighan, the district court also ordered Attorney Salazar to deposit his fee into th e court’s registry a nd thus “deprived [Mr. McKeighan] of money for retaining an atto rney without knowing the grounds and facts supporting the seizure of funds.” Id. at 31. For the following reasons, we conclude that-24- the record does not support Mr. McKeighan’s characterization of the district court’s conduct. First, the district court did not state that Attorney Salaza r “most likely had a conflict of interest,” id. at 36. Nor did it rely on the Government’s ex parte submission to reach any conclusion regarding A ttorney Salazar’s representation. The court stated that it was only giving examples of potential conflic ts of interest, that it was not accusing Attorney Salazar of any wrong doing, and that it was “not pi cking sides in all this” or “throwing in with the [G]overnment against [A ttorney Salazar].” ROA, Vol. 2, Pt. 2, Doc. 341, at 31. The court also told M r. McKeighan that it was “not suggesting any course of action to [him]” and was “merely attempting to make sure [he understood] the circumstances so that [he could] make a knowing and intelligent decision” about retaining Attorney Salazar. Id. at 20. Second, the district court was open to holding a hearing on the Government’s discovery motion and ex parte submission, but Attorney Morgan’s a nd Attorney Salazar’s withdrawals mooted the need for a hearing. At the August 21, 2006 hearing, the district court permitted the Government to provide a sealed ex part e submission and scheduled a hearing for September 11, 2006. The court stated that when it received the ex parte submission, it would let the parties know “whe ther we’re going to conduct some kind of a hearing to look into conflict i ssues.” ROA, Vol. 2, Pt. 2, Doc. 340, at 7. The court informed Attorney Sal azar that it did not know what th e Government’s submission would include and that the court may be “persuaded . . . to have a hearing to say whether or not-25- there’s a conflict.” Id. at 9. But the day before the Government made its ex parte submission, Attorney Morgan moved to withdraw. At the Sept ember 11, 2006 hearing, the court granted Attorney Morgan’s motion. It then inform ed Attorney Salazar th at because he lacked local counsel to support his pro hac vice admission, the court would not proceed to address the Government’s motion to withho ld discovery and its supporting ex parte submission. Unable to secure local couns el, Attorney Salazar moved about two weeks later to withdraw. The district court did not deny Mr. McKeighan and Attorney Salazar an adversarial hearing on the Gove rnment’s accusations of poten tial conflicts. The district court was open to holding a hearing, but A ttorney Salazar was una ble to secure local counsel and withdrew before a hearing coul d be held. The court’s insistence on the participation of counsel licensed to practice in Kansas did not violate Mr. McKeighan’s right to counsel of choice. See Nichols , 841 F.2d at 1502-03. Third, the record gives no indication that the court was planning to disqualify Attorney Salazar. The court explained to M r. McKeighan the conflicts of interest that could arise were he to contin ue with Attorney Salazar as his counsel. It told Mr. McKeighan that if Attorney Salazar obtai ned local counsel and if Mr. McKeighan “wanted to stick with Mr. Salazar, [the court] would be fairly inclined to say . . . we can move forward [and the court could] give [Mr. McKeighan] the conflic t-of-interest-waiver colloquy.” ROA, Vol. 2, Pt. 2, Doc. 341, at 28. If Mr. McKeighan were to waive any-26- potential conflicts of interest, the court stat ed it “would be delighted to have [Attorney Salazar] as a lawyer in this case.” Id. at 34. Thus, the record does not support Mr. McKe ighan’s assertion that the district court pressured Attorney Salazar to withdraw. Had Attorney Salaza r been able to obtain local counsel, the court would have allowed Mr. Mc Keighan to waive any possible conflicts of interest and to continue with A ttorney Salazar as his counsel. Finally, although the district court ordered Attorney Salazar to place his fee in the court’s registry, that order resulted from hi s suggestion and request . Fearing questions from his bank and the Texas bar if his trust account were subject to a grand jury subpoena, Attorney Salazar suggested that th e court order the placement of the fee into the court’s registry. Attorney Salazar stated that he was “pu tting [the fee] in the registry of funds voluntarily , not per the [grand jury] subpoena.” Id. at 46 (emphasis added). We cannot fault the district court for ac ting on Attorney Salazar’s suggestion. 6

6 Although his argument is unclear, Mr. McKeighan seems to suggest that the order to place the fee in the court’s regi stry was contrary to our decision in United States v. Jones , 160 F.3d 641 (10th Cir. 1998). In Jones , we addressed whether a pre-trial adversarial hearing must be held after th e government seizes a defendant’s assets. Id. at 645. To be entitled to such a hearing, a de fendant must (1) request one with a properly supported motion, (2) demonstrate that he ha s no other assets with which to retain an attorney and to pay living expenses, and (3) make a prima facie showing that the grand jury erred in determining that the assets should be seized. Id. at 647. “Once a defendant satisfies these initial burdens, due process requires a district court to conduct an adversarial hearing at which the government mu st establish probable cause to believe that the restrained assets are traceabl e to the underl ying offense.” Id. Jones is not on point here. Fi rst, Attorney Salazar s uggested and requested to place his fee in the court’s registry. There is no risk of an err oneous deprivation of Continued . . .-27- Because, whenever possible, defense counsel should be made aware of potential conflicts of interest and be given the chance to dispel concern, the district court’s allowance of the Government’s sealed ex parte submission about Attorney Salazar’s potential conflicts of interest gives us some pa use. But the district court was prepared to hold an adversarial hearing on th e issues raised by the ex pa rte submission, and, for the reasons discussed above, we cannot concl ude that the court improperly pressured Attorney Salazar to withdraw and thus erroneous ly deprived Mr. McKeighan of his counsel of choice. 7
* * * In sum, the record does not suppor t Mr. McKeighan’s assertion that the

______________________________________ Cont. property, and thus no due proc ess concern, when a party requests that his property be restrained. Second, Attorney Salazar never filed a motion for an adversarial hearing, and the grand jury had yet to issu e the superseding indictment and forfeiture allegation. The court’s order and the lack of an adversarial hearing therefore do not offend our analysis in Jones.

7 Mr. McKeighan argues that the district court’s failure to hold an adversarial hearing and its reliance on the Government’s ex parte submission violated his right to due process under the Fifth Amendment. Acco rding to Mr. McKeighan, the alleged due process violation resulted in the violation of his Sixth Amendment right to counsel. We reject Mr. McKeighan’s due process ar gument for the same reasons we reject his claim under the Sixth Amen dment. Attorney Salazar and Mr. McKeighan were not denied the opportunity to be heard “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo , 380 U.S. 545, 552 (1965). The record indicates the court was open to holding a hearing on Attorney Salazar’s pot ential conflicts of interest, but Attorney Salazar was unable to obtain local co unsel and withdrew.-28- Government and the district court acted improperly to force Attorney Salazar to withdraw. The district court did not abuse its discretion when it denied Mr. McKeighan’s post-trial motions asserting a violation of his Sixth Amendment right to counsel of choice.
B. Allegations of Sleeping Jurors Mr. McKeighan contends that the district court failed to investigate whether jurors were sleeping during his trial. In his view, this failure viol ated his right to an impartial jury under the Sixth Amendment. 1. Standard of Review The parties disagree on the appropriate sta ndard of review for this issue. Mr. McKeighan argues that our review is for abus e of discretion. He identified the sleepingjuror issue in a motion for a new trial, and we ordinarily review the denial of such motions for abuse of discretion. See United States v. Foy , 641 F.3d 455, 468 (10th Cir. 2011), cert. denied , 132 S. Ct. 467 (2011). The Govern ment argues that the plain-error standard applies because Mr. McKeighan did no t contemporaneously object to the district court’s alleged failure to investigat e whether jurors were sleeping. We need not decide which standard of review is appropriate because Mr. McKeighan’s claim cannot succ eed under either standard. 2. Right to an Impartial Jury Criminal defendants have a constitutional righ t to a fair trial and an impartial jury, see Irvin v. Dowd , 366 U.S. 717, 721 (1961), that is competent and unimpaired, see-29- Tanner v. United States , 483 U.S. 107, 126-27 (1987). A de fendant could be deprived of the Fifth Amendment right to due process or the Sixth Amendment right to an impartial jury if jurors fall asleep and are unable to fairly consider the defendant’s case. See United States v. Freitag , 230 F.3d 1019, 1023 (7th Cir. 2000); United States v. Springfield , 829 F.2d 860, 86 4 (9th Cir. 1987). “However, a court is not invariably re quired to remove sleeping jurors, and a court has considerable discretion in deci ding how to handle a sleeping juror.” Freitag , 230 F.3d at 1023 (citations omitted). As a general rule, juror misconduct, such as inattentiveness or sleeping, does not warrant a new trial absent a showing of prejudice— i.e., that the defendant did not receive a fair trial. See United States v. Lawrence , 405 F.3d 888, 903 (10th Cir. 2005); see also United States v. Fernández-Hernández , 652 F.3d 56, 75 (1st Cir. 2011) (“A sleepi ng juror does not violate a defendant’s due process rights unless the defendant can show he was prejudice d to the extent that he did not receive a fair trial.”), cert. denied , 132 S. Ct. 353 (2011); Springfield , 829 F.2d at 864 (referring to sleeping as “juror misconduct” and requiri ng a demonstration that the defendant was “deprived . . . of his right to an impartial ju ry and, more generally, to a fair trial”). To determine prejudice, courts may cons ider whether “the sleeping juror missed large portions of the trial or [whether] the por tions missed were particularly critical.” Freitag , 230 F.3d at 1023; see also United States v. Barrett , 703 F.2d 1076, 1083 n.13 (9th Cir. 1983). Courts also may review th e record to determine whether the district court was made aware of sleeping jurors, whet her the court took action, and whether the-30- record establishes that jurors were actually sleeping. See United States v. Carter , 433 F.2d 874, 876 (10th Cir. 1970) (explaining th at there was “no basis for setting aside the finding of the trial judge,” who stated, “I watc hed her (the juror in que stion) very closely, . . . and I am convinced she was not asleep”); see also Freitag , 230 F.3d at 1024 (“We find no abuse of discretion by the district j udge, especially since sh e had not noticed an extensive sleeping problem and she admonished coun sel on both sides to alert her to any further sleeping episodes.”); United States v. McFerren , 142 F.3d 437, at *6 (6th Cir. 1998) (unpublished) (“At the trial level it doe s appear that a couple of the jurors had trouble staying awake at certa in times. However, it seems fro m the trial transcript that both the attorneys and the judge kept a watchful eye on the jury.”). A defendant’s general assertions that juro rs dozed off during parts of a trial “are too vague to establish prejudice.” United States v. Tierney , 947 F.2d 854, 869 (8th Cir. 1991); see also United States v. Sherrill , 388 F.3d 535, 537 (6th Cir. 2004) (“Sherrill has provided no evidence—indeed, he makes only a vague assertion—that the juror was in fact sleeping, and that such behavior ha d a prejudicial effect on his defense.”); United States v. Swapp , 934 F.2d 326, at *7 (10th Cir. 1990 ) (unpublished) (“Something more than unverified conjecture is necessary to jus tify the grant of a new trial on the basis of juror misconduct where only pote ntially suspicious circumstan ces are shown . . . .”).-31- 3. No Error At Mr. McKeighan’s trial, the defense and prosecution notified the district court a number of times that jurors were nodding off or shutting their eyes. 8 But the trial transcript does not establish that jurors we re actually asleep. After Mr. McKeighan’s counsel notified the court that a juror was “no dding in and out,” the district court kept “an eye on her” and determined that “part of the time she was quite alert because she was taking notes,” although “she may have . . . diverted from that a little bit.” ROA, Vol. 2, Doc. 336, at 304. After other allegations of ju ror inattentiveness, the district court stated it had “looked over [at a juror] frequently and [had] never seen her in the mode of sleeping,” ROA, Vol. 2, Pt. 2, Doc. 337, at 71, and that “[e]very time a juror closes their eyes, we can’t presume they are sleeping.” id. at 142. In addition, when the district cour t asked whether Mr. McKeighan claimed prejudice due to a juror’s alleged inattentivene ss, his counsel stated, “[N]ot at this time, your Honor.” ROA, Vol. 2, Doc. 336, at 305. Mr. McKeighan’s counsel did not assert prejudice during the remainder of trial; nor did Mr. McKeighan ask the court to

8 See ROA, Vol. 2, Doc. 336, at 295 (Def ense counsel: “We have a juror who is nodding in and out.”); id. at 305 (Defense counsel: “I be lieve it was noticed by everyone at the defense table that from time to time [t he juror] would drift out, become startled because she had drifted asleep, a nd wake back up.”); ROA, Vol. 2, Pt. 2, Doc. 337, at 52 (Prosecution: “Detective Johnso n just mentioned that the same juror appears to be sleeping again. . . . I looked over, and her eyes were shut.” Court: “We will ask them to stand up here or something.”); id. at 71 (Prosecution: “The times I’ve looked at her she has had her eyes closed.” ); id. at 142-43 (Defense counsel: “We have a new sleeper. . . . The only thing that causes me concern . . . is they open and close, but if you watch them constantly, there’s a head bop.”).-32- investigate whether jurors were sleeping or request the subs titution of alternate jurors. See United States v. Holder , 652 F.2d 449, 451 (5th Cir. Unit B Aug. 1981) (“Furthermore, Holder’s counsel did not request replacement of th at juror by an alternate. Holder has not shown that he was prejudiced by the court’s action.”). In sum, Mr. McKeighan did not assert prejudice during trial and at one point disclaimed prejudice. He ha s not identified the portions of trial during which jurors allegedly slept or established that these por tions were critical. Nor does the record establish that jurors actually slept during Mr. McKeighan’s tria l. His allegations are too vague to establish prejudice, and we cannot conclude he was denied his right to an impartial jury. The district court did not abuse its discretion or commit plain error. C. Obstruction of Justice Mr. McKeighan contends that the distri ct court improperly applied a two-level sentencing enhancement for obstruction of justice under Section 3C1.1 of the U.S. Sentencing Guidelines (the “Guidelines”). “In reviewing the district court’s applica tion of the sentencing guidelines, this court reviews legal questions de novo and re views factual findings for clear error, giving due deference to the district court’s app lication of the guidelines to the facts.” United
States v. Maestas , 642 F.3d 1315, 1319 (10th Cir. 2011) (quotations omitted). A district court’s determination that a defendant obstru cted justice is a factual finding that we review for clear error. See United States v. Gillespie , 452 F.3d 1183, 1189 (10th Cir. 2006). A district court commits clear error if its finding is “without factual support in the-33- record or if the appellate court, after reviewin g all of the evidence, is left with a definite and firm conviction that a mistake has been made.” Maestas , 642 F.3d at 1319 (quotations omitted). The Guidelines’ two-level enhancement fo r obstruction of justice applies when a “defendant willfully obs tructed or impeded, or attempted to obstruct or impede , the administration of justice with re spect to the investigation, pr osecution, or sentencing of the instant offense of conviction.” U.S. S.G. § 3C1.1(1) (emphasis added). The defendant’s obstructive conduct must relate to either “the defe ndant’s offense of conviction and any relevant conduct” or “a closely related offense.” Id. § 3C1.1(2)(A), (B). The commentary to Section 3C1.1 includ es examples of obstructive conduct, including “threatening, in timidating, or otherwise unlawfully influencing a . . . witness , . . . directly or indirectly, or attempting to do so .” Id. cmt. n.4(A) (emphases added). Thus, under Section 3C1.1, “a defendant need not actually threaten [a ] witness; he need only attempt to influence the witness.” United States v. Fleming , 667 F.3d 1098, 1109 (10th Cir. 2011) (quotations omitted). Attempte d obstruction of justice occurs when the defendant “(1) intended to ob struct justice, and (2) comm itted an act that constitutes a substantial step toward the obstruction of justice.” Id. at 1107. At trial, Ms. Bledsoe and Mr. Orr testif ied about a meeting after Mr. McKeighan’s arrest. During the meeting, Mr. Orr spoke wi th Mr. McKeighan over the phone. Mr. Orr testified that Mr. McKeighan wanted Mr. Orr to say that the majority of the items in the-34- storage unit belonged to his girlfriend, whic h Mr. Orr testified was untrue. Ms. Bledsoe and Mr. Orr testified that Mr. Orr signed a note stating that his girlfriend stored marijuana and firearms at the storage unit. Howeve r, Ms. Bledsoe and Mr. Orr differed regarding who drafted the note. At sentencing, the district court stated it was “persuaded from the testimony of Mr. Orr and that of Ms. Bledsoe that the . . . genesis for this note was Mr. McKeighan’s attempt to get his friends to shift the blame to someone else for the items that were found in the storage unit and which ultim ately led to the charges in this case.” ROA, Vol. 2, Pt. 2, Doc. 342, at 14-15. The court ther efore applied Section 3C1.1’s two-level enhancement. On appeal, Mr. McKeighan offers three re asons why the district court erred in applying the obstruction of justice enhancem ent. First, he argues that because Ms. Bledsoe’s and Mr. Orr’s testimony conflicted over who drafted the no te, “it should not be relied upon to enhance [his] sentence.” Aplt. Br. at 43. Second, Mr. McKeighan contends that because he did not use the note at trial, he did not hinder or impede the investigation of his case. Finally, Mr. McKe ighan argues he was not charged with or convicted of obstruction of justice and did not commit pe rjury. We reject Mr. McKeighan’s arguments. First, although their testimony conflicted over who drafted the note, Mr. Orr and Ms. Bledsoe both testified that Mr. Orr signed th e note. The record supports the district court’s conclusion that Mr. Mc Keighan instigated preparati on of the note and intended to-35- use it to shift blame to Mr. Orr’s girlfrie nd. Mr. Orr testified that Mr. McKeighan attempted to get Mr. Orr to say the majority of the items in the storage unit belonged to Mr. Orr’s girlfriend, which was untrue. 9 Thus, there was evidence that Mr. McKeighan intended to influence Mr. Orr to lie about the involvement of Mr. Orr’s girlfriend in the crime and that he asked Mr. Orr to sign a note to that effect. This evidence demonstrates that Mr. McKeighan intended to obstruct justice and that he committed a substantial step toward doing so. Cf. United States v. Washington , 653 F.3d 1251, 1264 (10th Cir. 2011), cert. denied , 132 S. Ct. 1039 (2012). Second, it is not relevant to Section 3C 1.1 that Mr. McKeighan did not introduce the note at trial. The enhancement requires only an “attempt[] to obstruct,” which may occur during “investigation, pr osecution, or sentencing.” U.S.S.G. § 3C1.1(1). Further, as discussed above, the attempt requires only intent and a substantial step—Mr. McKeighan’s effort to influence Mr. Orr to falsely claim and sign a note stating that the majority of the storage unit items belonged to his girlfriend. Finally, Section 3C1.1 does not require th at Mr. McKeighan be charged with or convicted of obstruction of justice or pe rjury. The enhancement applies when a defendant obstructs or attempts to obstruct “the administrati on of justice with respect to the investigation, pros ecution, or sentencing of the instant offense of conviction ,” id.

9 Mr. McKeighan acknowledges that he “d id speak to Mr. Orr on the phone about the note” but argues “there is no showing th at [Mr.] Orr was coer ced into writing or signing the note.” Aplt. Br. at 43. Secti on 3C1.1 does not require coercion, however. Attempting to unlawfully influenc e a witness is sufficient. See U.S.S.G. § 3C1.1.-36- (emphasis added), and that the obst ructive conduct relate to the “ offense of conviction and any relevant conduct,” id. § 3C1.1(2)(A) (emphasis added). The enhancement requires only that the obstructive conduct relate to the defendant’s underlying offense, not that the obstructive conduct form the basis of the i ndictment and the offense of conviction. Accordingly, the district court did not clearly err in finding that Mr. McKeighan obstructed justice and in applying Sec tion 3C1.1’s two-level enhancement.
III. CONCLUSION For the foregoing reasons, we affirm Mr. McKeighan’s conviction and sentence.