The Honorable Frank J. Magill was an active judge at the time this case wa s 1 submitted and assumed senior status on April 1, 1997, before the opinion was filed. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3374

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Christopher Todd Drapeau, * * Appellant. *

___________ Submitted: March 11, 1997 Filed: July 28, 1997

___________ Before MAGILL, JOHN R. GIBSON, and MURPHY, Circuit Judges. 1

___________ MAGILL, Circuit Judge. Christopher Todd Drapeau pled guilty in the U nited States District Court for the District of South Dakota to the unlawful making of a firearm, in violation of sectio n 5861(f) of the Internal Revenue Code, 26 U.S.C. § 5861(f) (1994). During sentencing, the distri ct court enhanced Drapeau's sentence under several provisions of the United States Sentencing Guidelines (U.S.S.G.), inclu ding U.S.S.G. § 3A1.2(a) (1995) (status of victim as a government official); U.S.S.G. § 3B1.1(a) (1995) (being a leader of a-2-

criminal activity involving five or more participants); and U.S.S.G. § 3C1.1 (1995 ) (o bstructing or impeding administration of justice). Drapeau now appeals an d challenges each of these enhancements. We affirm in part, reverse in part, and remand for resentencing.

I.

On December 29, 1995, Drapeau and his friends, Lloyd Ross, Jr., Keith Heth, Jr., Royce Kirkie, and a juvenile, ga thered at the Fort Thompson, South Dakota, home of Drapeau's relative, Shirley Drapeau O'Day. During the late afternoon, the grou p began co nsuming beer, vodka, and sloe gin. Sometime after the drinking began , Drap eau told the group that he wanted to "get" Joe Sazue, a local police officer. See Trial Tr. at 11 (testimony of Lloyd Ross, Jr.).

Officer Sazue, who had recently arrested one of Drapeau's relatives, had been given the nickname "P ackman" by Drapeau and his friends. Drapeau explained to his fr iends that he "was going to blow [Packman's] car." Id. After sending Kirkie out to obtain gasoline , Drapeau directed the juvenile member of the group to find dish soap. Drapeau then d emonstrated to his friends how to construct firebombs out of gasoline, liqui d dish soap, a cloth wick, and a glass bottle. Drapeau explained that the liqui d soap would "make the gas spread." Id. at 18. Drapeau and his friends then proceeded to construct at least four firebombs.
Drapeau d irected Kirkie and Heth to test the firebombs. At approximatel y 10 p.m. one of the test bombs, which was thrown on the street behind a housing unit for senior citizens 200 feet away from the O'Day residence, ignited and sustained a fire. A second test bomb, which was thrown in front of the O'Day res idence, failed to ignite. S e e Appellee's Add. at 8 (Report by Crow Creek Sioux Tribe Criminal Investigator's Office of interview with Royce Lance Kirkie).-3-

Drapea uthen told Heth and the juvenile to firebomb Officer Sazue's car. Se e Trial Tr. at 19 (testimon y of Lloyd Ross, Jr.). Officer Sazue lived with his family in a home adjacent to the O'Day residence. Heth and the juvenile smashed one bomb on the p avement of Officer Sazue's driveway and placed another bomb next to Office r Sazue's ca r, which was parked approximately eight feet from Officer Sazue's house

. Although the wicks of the bombs had been lit, neither bomb ignited.

Officer Sazue test

ified that, at approximately 1 a.m. on December 30, 1995, he heard dogs barking and a "pop." See Tr. of Keith Heth, Jr., Sentencing Hr'g at 9 (testimony of Officer Joe Sazue). At 9 a.m. that morning, Officer Sazue was notified that the re was glass in his driveway. Officer Sazue discovered glass fragments an d traces of a blue-colored waxy substance t hat smelled like gasoline. Officer Sazue also discovered an intact firebomb made from a sloe gin bottle near his car.
Drapeau, Ross, Heth, Kirkie, and the juvenile were charged with the unlawful making of

a firearm, in violation of 26 U.S.C. §§ 5845(a)(8), 5845(f), 5861(f), an d 5871 (1994), and with the unlawful possession of an unregistered firearm, in violation of 2 6 U.S.C. §§ 5841, 5861(d), and 5871 (1994). Drapeau pled not guilty to th e charges and proceeded to trial. After the first day of trial, during which Ross testified against Drapeau, Drapeau changed his mind and pled guilt y to the charge of unlawfully making a firearm.

For sentencing, the district court determined that Drapeau, who had bee n arrested some 85 times and had 14 convictions, see PSI at 6, has a criminal histor y category of II. SeeJ. at 6, rep rinted inAppellant's Add. at 6. Drapeau was ultimately sentenced according to a total offense le vel of 30. Pursuant to U.S.S.G. § 2K2.1(a)(5) (1995), the base offense level for Drapeau's offense of conviction is 18. The district
cou rt enhanced Drapeau's sentence by: one point because there were four firebomb s inv olvedin Drapeau's offense, see U.S.S.G. § 2K2.1(b)(1)(A) (1995); two point s because the offense involved a destru ctive device, see U.S.S.G. § 2K2.1(b)(3) (1995);-4-

an d two points because Drapeau used a juvenile to commit the offense, see U.S.S.G. § 3B1.4 (1995), for a total offense level of 23. These enhancements are not challenged
on ap peal. The district court also reduced Drapeau's offense level by two points fo r acceptance of responsibility. See U.S.S.G. § 3E1.1(a) (1995).

The district court also enhanced D rapeau's sentence by three points because the offense was motivated by Officer Sazue's status as a police officer and because Officer Sazue was a victim. See U.S.S.G. § 3A1.2(a). The district court also applied a four point enhancement to Drapeau's sentence under U .S.S.G. § 3B1.1(a), finding "that Mr. Drapeau was the organizer or leader of criminal activity that involved five or mor e pa rticipants." Sentencing Tr. at 15. Finally, the district court enhanced Drapeau' s sentence for two points for Drapeau's obstruction of justice. See U.S.S.G. § 3C1.1.
The enhancement for obstruction of justice was based on Drapeau's conduc t after his arrest and pending trial. In a written statement, Drapeau's fri end Heth declared that:
Well I was in Hughes County Jail, Chris [Drap eau] told me that, [h]e was going to take care of [C]hico [Lloyd Ross, Jr.] meaning he was going to hurt him for test[if]ying ag ai[n]st him. I was afraid of Chris coming after me if I said anything. [H]e also said what goes around comes around.

Statement of Keith Heth, Jr. (July 22, 1996). At his own sentencing hearing, Heth testified that he was frightened of Drapeau because "[h]e's a big guy," Heth Sentencing Tr. at 50, and because Drapeau has "a lo t of family in jail. He's been in before, and he told [ Heth] he's got a lot of friends." Id. at 54. Heth also alleged that Drapeau ha d once run over Heth's ankle with a car, badly fracturing Heth's ankle. Id. at 54-55.

He thtestified that he received letters from Drapeau while Heth was in jail , asking Heth if he "was going to keep [his] mouth shut or not . . . ." Id. at 51. Heth told-5-

Drapeau that he would not testify. Id. Heth also testified regarding threats Drapeau made about Ross:
Que stion (from defense counsel): Okay. Did you hear Chris [Drapeau] make any threats against Chico [Lloyd Ross, Jr.] while you were in jai l here? Answer (from Keith Heth, Jr.): Yes. Q. How did that come about?
A. I was in Cell Block C and [Drapeau] was in D. They're righ t beside each other. And he talked through[] the fence, and he was talking throughthe vent when I was first here. And he said, don't worry about[ it. W]e're going to get Chico. If he comes to jail here, you know, we got him whatever. I was getting out on the third. I told him I was getting out, and he asked me--or he told me whatever you say, told me, you know , better get that black, you know, he called him black--excus e my language. He called him black f word. Q. Did he say the reason that he wanted to get Chico?
A. Because he told. Q. Okay. So when he was making threats against Chico because he talked, you were afraid if you talked you would get the same treatment; right?
A. Yes. Q. Were you afraid of what Chris could do?
A. Yes.

Het h Sentencing Tr. at 51-52. Drapeau also stated, according to Heth, that if Ros s "'does any time, I would see him on down the line. We'll get him.'" Id. at 54.-6-

The threats Drapeau made against Ross were communicated from Drapeau t o Heth, from Heth

to Lucas McBride, and from McBride to Ross. In an affidavit, Ross declared that he had been told that if he "a ssisted in the investigation or participated as a witness, in the prosecution of Mr. Drapeau, that [Ross] would be beaten or otherwise assaulted." Aff. of Lloyd Emery Ross, Jr. at 1 (Aug. 14, 1996), reprinted in Appellee's A d d. at 3. Ross also declared that he knew Drapeau to be "a person who is capable of inflicting physical violence ," id. at 1-2, reprinted in Appellee's Add. at 3-4, and that Ross was afraid that he would be assaulted by Drapeau in jail. Id. at 2, reprinted i n Appellee's Add. at 4.

Based on this evidence, the district court found that Drapeau had obstructe d justice by intimidating a witness. See Drapeau Sentencing Tr. at 24-25.

Wit h these sentencing enhancements, Drapeau had a total offense level of 30

. While the sentencing range perm itted by the sentencing guidelines is 108-135 months, th e statutory maximum sentence for making an illegal firearm is ten years. See 2 6 U.S.C. § 5871. The district court sentenced Drapeau to the statutory maximu m sent ence. Drapeau now appeals the sentencing enhancements for the status of th e vic tim, Drapeau's leadership role in the offense, and Drapeau's obstruction of justice.

II.
Drapeau challeng es three of the sentencing enhancements levied against him at sentencing. "The district court's interpretation of the sentencing gu idelines is a question of law subject to de novo review, while its factu al determinations are subject to review only for clear error." United States v. Larson , 110 F.3d 620, 627 (8th Cir. 1997)

. Drapeau first argues that the district court erred in enhancing his sentencing level b y thr ee points pursuant to U.S.S.G. § 3A1.2(a) because of Officer Sazue's status as a government official. We agree.-7-

Section 3A1.2(a) provides that a defendant's sentencing level should be enh anced by three points if

the victim was a government officer or employee; a former governmen t officer or employee; or a member of the immediate family of any of the above, and the offense of conviction was motivated by such status . . . .
U.S.S.G. § 3A1.2(a). Applicati on note 1 of the commentary for § 3A1.2 explains that "[t]his gu ideline applies when specified individuals are victims of the offense. Thi s guideline does not apply when the only victim is an organization, agency, or th e government." U.S.S.G. § 3A1.2, comment. (n.1) (1995).
In applying this enhancement, the district court explained that

any attempt to cause injury or damage is basically the same crime a s actually succeeding in causing the in jury or damage. And the evidence is clear that the intent of the

bomb or bombs was that it or they actually hit, strike, and cause damage to the parked vehicle. And I believe thi s particular car was selected because the owner of the car was a polic e of ficer that this defendant was attempting to intimidate. So that it i s appropriate that [§ 3A1.2(a)'s three point] adjustment be made. Clearly Mr. Sazue was a g overnment officer and the crime was motivated by his status. In addition, there would have been the substantial risk of injury to him or others at his residence since the throwing or placement of thes e bombs was directed toward his vehicle at his personal residence. And, so, I think that [Officer Sazue] was the victim of, at least, a threat to his person and to his property, and the objection is overruled.
Sentencing Tr. at 12.

On appeal, Drapeau argues that the district court erred in enhancing Drapeau's sentence under this guideline because "Officer Sazue was not directly assaulted,-8-

attacke d, injured or otherwise damaged in any way, shape or form. It is Appellant' s position that this was a crime against property, specifically an automobile. A n
au tomobile cannot be a victim of a crime." Appellant's Br. at 4. We reject thi s argument, and hold that the district court did not clearly err in its finding of facts.

Wh en Drapeau ordered his cohorts to firebomb Officer Sazue's persona l
au tomobile, he did so not to obtain revenge against the vehicle, but to attack Office r Sazue be cause of Officer Sazue's official status. In committing vandalism an d attempted arson against the property of Offi cer Sazue, Drapeau sought to gain revenge against Officer Sazue because Officer Sazue had arrested a relative of Drapeau. It was only through sheer luck and the fortuitous incompetence of Drapeau's coconspirators that Drapeau's attempt to destroy Officer Sazue's vehicle failed. Had either of th e firebombs deployed against Officer Sazue performed as effectively as the test bomb used behind the seniors' residence, Officer Sazue's car would have been destroyed , vict imizing Officer Sazue through the loss of his vehicle. See Heth Sentencing Tr. at 26-27 (testimony of BATF Special Agent Doug Moore) ("You wouldn't have to get [the firebomb] into the interior o f the vehicle. If you take a device like this, it was in close proximity to the

underside of the vehicle, it's not a type of object as good as shielding whatever a s on the outside. It certainly could balloon into the interior up into th e engine [com]partment and then s heer--vehicle fires, they're very dense. Vehicles burn very quick

ly."). In addition, if the firebombs had detonated, there would have been a significant likelihood

that the fire would have spread to Officer Sazue's home, located only eight feet away from the car, where Officer Sazue and his family had retired for th e night. See id. at 24-25 (testifying that the particular type of firebomb used wa s desig ned"[t]o burst and cause resulting fire, to spread fire to other combustibl e materials that may

be in the area"). Even though this tragedy was avoided, Drapeau's targetin g of Officer Sazue left the officer "pretty upset and afraid for" himself and his family. SeeHeth Sentencing Tr. at 17 (testimony of Of ficer Sazue). We agree with the district court that Officer Sazue was very much a victim of Drapeau's conduct.Other sections of the sentencing guidelines that provide for the enhancement of a 2 defendant's sentence based on the status of the victim have been interpreted to allow the sentencing court to consider relevant conduct that is not, itself, an element of the crime of conviction. See , e.g. , U.S.S.G. § 3A1.1(b) (1995) (providing for a two point sentence enhancement if a "defendant knew or should have known" that a victim was "particularly susceptible to the criminal conduct" on the basis of age , physical or mental condition, or some other v ulnerable characteristic); United States v. Haggard , 41 F.3d 1320, 1 326 (9th Cir. 1994) (noting that a majority of courts considering § 3A1.1(b ) -9- We nevert heless conclude that the district court erred as a matter of law i n enhancing Drapeau's sentence under this guideline. Upon review of the sentencin g transcript, it is apparent that the district court enhanced Drapeau's sentence unde r U.S.S.G. § 3A1.2(a) because of Drapeau's conduct after he constr ucted the firebombs-- specifically, Drapeau's attempt to commit arson against Officer Sazue's property. See Drapeau Sen tencing Tr. at 12 (noting that "there would have been the substantial risk of injury to [Off

icer Sazue] or others at his residence since the throwing or placement of the se bombs was directed toward his vehicle at his personal residence"). Drapeau was not, however, convicted of attempting to commit arson . Rather, Drapeau's offense of conviction was illegally making a firearm, in violation of the Internal Revenue Code. See 26 U.S.C. § 5861(f).

In senten cing a defendant, a district court is usually empowered to conside r relevant conduct by a defendant, including "all acts and omissions committed" an d assisted by the defendant, and "all reasona bly foreseeable acts and omissions of others in furtherance of [a] jointly undertaken criminal ac tivity," unless a guideline "otherwise specifie [s]" that such relevant conduct should not be considered. See U.S.S.G

. § 1B1.3(a) (1)(A) & (B) (1995). Section 3A1.2(a) explicitly provides that it s enhancement for the status of the victim as a government official is proper only where the "offense of conviction" is motivated by the victim's status. See U.S.S.G

. § 3A1.2 (a). Application note 1 to § 3A1.2 clarifies that the government official must be the " victim[] of the offense ." U.S.S.G. § 3A1. 2, comment. (n.1) (emphasis added). 2have concluded "that courts properly may look beyond the four corners of the charge

to the defendant's underlying co nduct in determining whether someone is a 'vulnerable victim' under section 3A1.1" (citing cases and noting circuit split)). This appears to be, almost, a question of first impression. In United States v

. 3 Klump , 21 F.3d 1117, 1994 WL 143943 (9th Cir. 1994) (unpublished) (per curiam) , a former government informant, who had previous ly been convicted of a felony, armed himself with a firearm and made a threatening phone call to a government official , whom the informant believed had leaked information of the informant's cooperatio n with the government to the informant's criminal associates. The informant wa s convictedof being a felon in possession of a firearm, and the district court enhanced the informant's sentence under § 3A1.2. The Klump court reversed, concluding that the informant's offense had not b een motivated by the status of the government employee. See id. at *2. Judge Reinhardt, concurring specially, disagreed with this conclusion. Judge Reinhardt argued that, although the offen se of conviction had been motivated by the status of the government official, a sentence enhancement was improper because "the a djustment described in § 3A1.2(a) applies only where there is a 'victim' of th e offense of conviction , and there can never be a 'victim' of the felon-in-possessio n offense set forth in 18 U.S.C. § 922(g)." Id. at *3 (emphasis added). -10- In applying § 3A1.2(a), we are bound by application note 1's interpre tation of the guideli ne. See United States v. Triplett , 104 F.3d 1074, 1081-82 (8th Cir. ) ("Commentary to the Guidelines is binding on the courts when it interprets or explains
a g uideline, unless it violates the Constitution or a federal statute, or is inconsisten t with, or a plainly erroneous reading of, that guideline." (quotations and citation s omitted)), cert. denied , 117 S. Ct. 1837 (1997). We believe that the textual clarity of § 3A 1.2(a) and application note 1 is plain: § 3A1.2(a)'s enhancement is proper onl y where a go vernment official is the victim of a defendant's offense of conviction

. Because § 3A1.2(a) specifies that only the offense of conviction is to be considered, the district court erred in considering other relevant conduct. SeeU.S.S.G . § 1B1.3(a). 3
In the circumstances of this case, therefore, Drapeau's sentence may b e enhanced under § 3A1.2(a) only if Officer Sazue was the victim of Drapeau's offense of-11-

conviction: the unlawful making of a firearm in violation of § 5861(f). Whether Officer Sazue was a v ictim of Drapeau's violation of § 5861(f) is a question of fact for th e district court to answer in the first instance. See United Sta tes v. Stover , 93 F.3d 1379, 1386 (8th Cir. 1996). Accordingly, we remand this matter back to the district court for
a determination of whether Officer Sazue was a victim of Drapeau's offense o f conviction.

III.
Drapeau next challenges the district court's enhancement of Drapeau's sentence for Drapeau's role as an organizer or leader of a criminal enterprise involving five or more persons. We conclude that the district court did not err i n applying this four point sentence enhancement.
Section § 3B1.1(a) provides that "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was oth erwise extensive, increase [the offense level] by 4 levels." U.S.S.G. § 3B1.1(a). This "adjustment for being an organizer or leader is intended to reflect relative responsibility compared to other participants in the crime." United States v. Rodriguez , 112 F.3d 374, 377 (8th Cir. 1997). Application note 4 of this guideline directs sentencing courts to consider
the exercise of decision making authority, the nature of partic ipation in the comm ission of the offense, the recruitment of accomplices, the claime d right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

U.S.S .G. § 3B1.1, comment. (n.4). See also Rodriguez , 112 F.3d at 377 (applyin g factors); United States v. Blumberg , 961 F.2d 787, 790-91 (8th Cir. 1992) (same). In-12-

applying t hese factors, this Court has "recognized a broad definition of the ter m 'organizer or leader.'" Id. at 791.
The group that constructed the firebombs and attempted to use them to destroy Officer Sazue's automobile consisted of five members: Drapeau, Ross, Heth, Kirkie , and a juvenile. Contrary to Drapeau's argument that the g roup had no real leader, there is no doubt that Drapeau was the leader and organizer of the group. It was Drapeau who first proposed "getting" Officer Sazue, based on Drapeau's personal motives, and itwas Dra peau who formulated the plan to construct firebombs to destroy Office r Sazue's vehicle.

Alth ough§ 3B1.1's enhancement "does not apply to a defendant who merel y suggests committing the offense," U.S.S.G. § 3B1.1, comment. (n.4), Drapeau did far more than mere ly proffer suggestions to his friends. It was Drapeau who directed his frien ds to obtain the ingredients for the firebombs, and Drapeau's friends obeyed hi s commands. Drapeau instructed his friends in the craft of constructing firebombs , including the critical step of adding soap to gasoline, whereby napalm is created. See United States v. Hedgcorth , 873 F.2d 1307, 1310 (9th Cir. 1989) ("Th e firebombs were constructe d out of plastic water jugs filled with gasoline, motor oil, and soap. Th e liq uids combined to produce a gelatinous mixture chemically equivalent to napalm

. When i gnited, napalm produces a more intense, more confined, and longer-lastin g incend iary effect than gasoline alone."). Drapeau directed his friends to test th e firebom bs, and he ordered his friends to use the firebombs against Officer Sazue' s pr operty. "Where, as here, one individual in a multidefendant enterprise makes th e critica lstrategic and operational decisions on behalf of the group (unilaterall y answering question s such as 'what? when? where? how? . . .'), that individual exhibits pre cisely the sort of characteristics that are emblematic of an organizer or leader. " UnitedStates v. Talladino , 38 F.3d 1255, 1261 (1st Cir. 1994). Based on the record in this case, we cannot say that the district court clearly erred in finding that Drapeau was an organizer or a leader.-13- IV.

Final ly, Drapeau argues that the district court erred in enhancing Drapeau' s sentence under U.S.S.G. § 3C1.1 by two poi nts for Drapeau's obstruction of justice by intimidating witnesses. Specifically, Drapeau argues that the evidence relied on by the district court--hearsay by Heth and Ross--was untrustworthy. We disagree.
Applicat ionnote 3(a) to U.S.S.G. § 3C1.1 provides that a defendant' s "threatening, intimidating, or ot herwise unlawfully influencing a codefendant, witness,
or juror, directly or indirectly" warrants a two point sentence enhancement fo r obst ruction of justice. U.S.S.G. § 3C1.1, comment. (n.3(a)). In this case, Het h testified during his own sentencing hearing that Drapeau had sent Heth suggestiv e letters regarding Heth's po ssible decision to testify, and that Drapeau spoke with Heth andthreatened to assault Ross because Ross cooperated with the government. Heth further testified that, because of D rapeau's size, family connections, and Heth's history with D rapeau, these threats against Ross intimidated Heth. Ross asserted in a n affidavit that Drapeau's threats against Ross eventually reached Ross, and tha t Drape au's threats intimidated Ross. If credited, these allegations clearly satisfy th e stan dards of § 3C1.1. See United States v. Capps , 952 F.2d 1026, 1028-29 (8th Cir. 1991) (obstruction of justice enhancement proper where, although threat was no t
commu nicateddirectly to witness by defendant, defendant "communicated a violen t threat against a key government informant at a critical point in the investigation and in
a manner that frightened the bartender [who heard the threat] into reporting it to th e authorities").

A di strict court may consider hearsay during sentencing "without regard to it s admissibility at trial, provided that it has 'sufficient indicia of reliability to support its prob able accuracy.'" United States v. Campos , 87 F.3d 261, 264 (8th Cir.) (quotin g U.S. S.G. § 6A1.3(a) (1995)), cert. denied , 117 S. Ct. 536 (1996). "Whether hearsay-14-

is suff iciently reliable for sentencing purposes depends upon the particular circumstances of each case." Id. (quotations and citations omitted).

In the circum stances of this case, we do not believe that the district court erred in crediting the Heth and Ross hearsay. The district court presi ded at Heth's sentencing and was "in the best position to observe the demeanor of the witness[] and to asses s [the] credibility" of Heth's testimony. United States v. Risken , 869 F.2d 1098, 1100 (8th Cir. 1989). Further, Ross's affidavit is consistent with Heth's testimony, and such "internal consistency lends substantial indici a of reliability to the testimony." Campos , 87 F.3d at 264. Accordingly, we do not believe that the district court erred i n enhancing Drapeau's sentence by two points for his attempted obstruction of justice.

IV.

We affirm the dist

rict court's enhancement of Drapeau's sentence for Drapeau's leadership role in the offense and for Drapeau's obstruction of justice. We reverse the district court's enhancement of Drapeau's sentence because of Officer Sazue's status as
a government official and remand this matter to the district court for a determinatio n of whether Officer Sazue was the victim of Drapeau's offense of conviction.
JOHN R. GIBSON, Circuit Judge, concurring specially.

I concur in the result and the judgment, and in all of the court's opinion except for the full paragraph on page 8 of the opinion. I think this paragraph is unnecessary to the decision the court reaches in Part II.-15-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.