In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2440

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

D AVID H. E NGLAND,
                                              Defendant-Appellant.


            Appeal from the United States District Court
       for the Northern District of Illinois, Western Division.
           No. 04 CR 50068—Philip G. Reinhard, Judge.



   A RGUED JANUARY 21, 2009—D ECIDED F EBRUARY 13, 2009




 Before P OSNER, F LAUM, and W OOD , Circuit Judges.
  F LAUM, Circuit Judge. A jury convicted defendant-
appellant David H. England of one count of illegal posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1) and
three counts of obstruction of justice under 18 U.S.C.
§§ 1512(b)(1), 1512(b)(2)(B), and 1512(a)(2). On April 27,
2006, the district court sentenced England to 262 months’
imprisonment. England appealed his conviction and
sentence to the Seventh Circuit. On November 7, 2007,
2                                               No. 08-2440

we affirmed England’s conviction, but we vacated his
sentence and remanded his case back to the district court
for resentencing. United States v. England, 

(7th
Cir. 2007). On June 2, 2008, the district court conducted
a new sentencing hearing and sentenced England to 210
months. England now appeals that sentence. For the
following reasons, we vacate England’s sentence and
remand for resentencing.


                      I. Background
  Police arrested England for allegedly breaking a car
window with the butt of a gun on September 15, 2004.
While in custody, England called his sister, Dawn Bull,
and asked her to move the car to his grandmother’s
house and “put a tarp over it.” He also called his brother-
in-law, Robert Bull, inquiring as to the whereabouts of
the car and telling Bull not to let anyone use it. On Septem-
ber 26, after moving the car, England’s sister and mother
found a blue duffle bag in the engine compartment.
Concerned about the contents of the bag, they flagged
down a police officer who removed it and found a
bloodied gun inside. Police conducted DNA analysis on
the recovered blood and matched the sample to England.
  Upon learning of the gun’s recovery, England became
concerned that his sister and mother were cooperating
with police. On September 27, England called his brother-
in-law and told him to make sure that his sister and his
mother “don’t get out o’ hand” and told him to “control
them women.” Later, on November 1, he also asked his
sister to corroborate his alibi, saying that he did not
No. 08-2440                                              3

“understand why a . . . couple of my family members
can’t . . . recognize they were up there at Barnes and
Noble that particular day, and they seen me up there.” His
sister Dawn refused.
  On November 23, a federal grand jury indicted England.
The indictment charged one count of unlawful possession
of a firearm by a felon under 18 U.S.C. § 922(g)(1).
  On December 15, England learned that his brother-in-law
had been cooperating with the police, which angered
England. He could not call his brother-in-law directly as
Bull had blocked all calls from the prison, so England
called his father, Ben England, instead. He told his
father that he would “put some bullets in somebody’s
head” and asked his father to “talk with [Bull] man to
man.” On December 27, England went further, asking
his father to “go relay a message to Robert” that if he
“shows up to court, when I walk outta prison in fifteen
years, I’m ‘onna fuckin’ murder his motherfuckin’ ass.”
  On March 1, 2005, a grand jury issued a superseding
indictment, tacking on two counts of witness tampering
and one count of threatening a witness. Count II charged
England with attempting to persuade a witness to
provide a false alibi for him under 18 U.S.C. § 1512(b)(1).
Count III charged England with attempting to cause
witnesses to conceal evidence under § 1512(b)(2)(B). Count
IV charged England with threatening physical force
against a witness, his brother-in-law, Robert Bull, in
order to influence his testimony under § 1512(a)(2).
  England represented himself at trial, which was held on
January 3-6, 2006. With respect to Count IV, at trial Eng-
4                                                    No. 08-2440

land’s father testified that he never relayed the threats to
Bull. Bull testified that England never directly threatened
him, and he did not learn of England’s statements until
the government alerted him later in the investigation.
On January 6, the jury convicted England on all four
counts.
  At sentencing, the district court requested briefing on
the appropriate guidelines section to apply to Count IV,
which charged threatening physical force against a
witness. The presentence investigation report (PSR) stated
that U.S.S.G. § 2A2.1(a)(1) was appropriate. That
section covers “Assault with Intent to Commit Murder;
Attempted Murder” and has a base offense level of 33. The
court, however, directed both parties to brief whether
U.S.S.G. § 2J1.2 might be more appropriate. That section
covers “Obstruction of Justice” and would result in an
offense level of 22.1 The court stated, “I think 2J1.2(a)
probably is [applicable] because this is only a threat. It’s
not an attempt that could have been charged or that is
the alternate in that section.”
  However, the court ultimately found that § 2A2.1 was
appropriate. In so doing, the court first looked to the
statutory index in Appendix A and located 18 U.S.C.
§ 1512(a). The Appendix indicated that § 1512(a) applied



1
  The base offense level set out in § 2J1.2(a) is 14, with 8 levels
added by § 2J1.2(b)(1)(A) “[i]f the offense involved causing
or threatening to cause physical injury to a person, or
property damage, in order to obstruct the administration of
justice.”
No. 08-2440                                              5

to four separate guidelines sections. The court indicated
that § 2J1.2 was not one of the four guidelines sections
listed in the index. Pursuant to our holding in United
States v. Lansas, 

(7th Cir. 2003), the court
reasoned that “Assault with Intent to Commit Murder;
Attempted Murder” was the most germane of the listed
sections, and it stated that it had to “apply the offense
guidelines referenced in the statutory index to the statute
of conviction unless the case falls within the limited
stipulation exception,” which was inapplicable. Although
the court found it “somewhat difficult in this case,” it
applied § 2A2.1 and set the base offense level at 33. The
advisory guideline range using § 2A2.1 was 210 months
to 262 months. At the sentencing hearing, England pre-
sented evidence in an effort to persuade the district court
that a shorter sentence was warranted. Ben England
testified that he did not take his son’s threats against
Robert Bull seriously because his son was merely angry.
He also testified that no one in his family fears his son.
Robert Bull, the purported target of the threat, testified
that England was merely “blowing off steam,” and that he
did not feel threatened by England. Nevertheless, the
court sentenced England to 262 months, the upper limit
of the advisory guideline range for attempted murder.
  England appealed his conviction and his sentence. We
affirmed England’s conviction, but we vacated his sen-
tence and remanded the case to the district court for
resentencing.
  In evaluating England’s sentence, we examined the
legislative history for 18 U.S.C. § 1512, and we found that
6                                               No. 08-2440

the absence of guideline § 2J1.2 from the statutory index
was likely the result of a “fairly pernicious scrivener’s
error” that occurred when § 1512(a) was substantially
amended in 2002 but the guidelines were not updated
to reflect those statutory changes. 

While
England claimed his sentence was unreasonable, we did
not find it necessary to reach the reasonableness of Eng-
land’s sentence. We stated that the record on appeal
lacked any indication that the district court considered “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct,” as required by § 3553(a)(6), and
therefore the record was inadequate to evaluate the
district court’s use of its discretion. 

We
continued that a potential disparity might arise where
a threat was sentenced at the same level as an attempted
murder, and that this disparity could provide a basis for
a variance. 

that the district court
should explain its view on the potential disparity as part
of its § 3553(a) analysis, and we vacated and remanded
for resentencing to give it a chance to do so. 

decision, the United States Sentencing
Commission proposed amendments to the guidelines to
include, among other things, a “technical amendment”
adding § 2J1.2 to the statutory index for convictions
under § 1512(a). See Sentencing Guidelines for United
States Courts, 73 Fed. Reg. 4931, 4936 (Jan. 28, 2008). On
May 1, 2008, the Sentencing Commission sent the amend-
ments to Congress to become effective on November 1,
2008. See Sentencing Guidelines for United States Courts,
73 Fed. Reg. 26924, 26936 (May 9, 2008). The Sentencing
No. 08-2440                                                7

Commission commented: “The amendment also adds a
reference to § 2J1.2 (Obstruction of Justice) for a viola-
tion of 18 U.S.C. § 1512(a) to reflect the broad range of
obstructive conduct, including the use of physical force
against a witness, covered by the subsection.” 

2, 2008, the district court held the remanded
sentencing hearing. Following argument by the parties, the
court permitted England to allocute at length. England
admitted his crimes of carrying a gun and obstruction
of justice, and he acknowledged they were wrong. He
also stated that he would not harm anyone once he
was released from prison, nor would he carry a gun.
  The district court then issued its sentencing decision. The
court noted that the advisory guidelines range that it
had applied previously was correct, although there
might have been a scrivener’s error in the guidelines, and
that it was bound to apply the same advisory sentencing
guidelines range used at the original hearing.
  The court then considered the § 3553(a) factors to deter-
mine whether England should be sentenced within,
above, or below the advisory guidelines range. The court
stated it was considering all of the evidence and the
arguments from the original sentencing hearing, including
the PSR. In addition, the court noted that it would
consider the Sentencing Commission’s proposed amend-
ment, which added § 2J1.2 to 18 U.S.C. § 1512(a) offenses
in Appendix A of the statutory index.
  As to the § 3553(a) factors, the court first considered
the nature and circumstances of the offenses. The court
found that they were aggravated, in that England not
8                                             No. 08-2440

only possessed the weapon in Count I, but he also threat-
ened to use it against someone in anger. The circum-
stances of the offense were further aggravated, according
to the district court, by England’s obstructive conduct,
which took place over a series of telephone calls from
prison.
   Turning to England’s history and characteristics, the
court described England as abusive, belligerent, and
antisocial. The court accepted the findings of a forensic
psychologist who concluded that England has an anti-
social personality disorder that is chronic and pervasive.
Based on this evidence, the court determined that England
would remain confrontational. The court concluded
England was “a person who can be dangerous, especially
if he’s angry,” and a person willing to go “beyond mere
threats.” Additionally, the court noted that England
committed the offenses of conviction while on probation,
and it stated that he needed to be deterred from letting
his anger get the best of him, for the protection of the
public.
  The court next addressed the need to avoid unwar-
ranted sentence disparities among defendants with
similar records who have been found guilty of similar
conduct, pursuant to § 3553(a)(6). It acknowledged that
while the advisory range was 210 to 262 months under
§ 2A2.1, it would be 92 to 115 months if § 2J1.2 had
applied. The court stated that it was necessary to start
with the correct guidelines and then make appropriate
adjustments. It added that the parties had not submitted
evidence of records of convicted defendants similarly
No. 08-2440                                                9

situated to England, complicating any § (a)(6) analysis.
The court continued that the § (a)(6) considerations had to
be balanced with all of the other § 3553(a) factors.
  After completing its § 3553(a) analysis, the district court
made several additional findings in resentencing Eng-
land. The court found that England was “more in line with
a person who might attempt to murder someone.” The
court continued:
    Now, I say that, that if the defendant had been out
    on bond right after the state charge, a felon in posses-
    sion, and he was angry with either his family’s testi-
    mony or he was angry with those four witnesses,
    I think he would have gone and done something at
    least to those four witnesses in order to try to
    persuade them not to testify against him, and I have
    no doubt that he would have taken a weapon, and that
    would have been a substantial step that’s necessary
    for an attempt offense of murder. I think he would
    have gone to what degree of force that was necessary
    to get them to drop the charges against him. Threats,
    shooting, whatever. And, therefore, in this respect
    he is more like the attempted murderer than someone
    who’s just one who’s obstructing justice.
The sentencing court further found that England’s state-
ments that “he takes actions on his own” made him “one
who more closely fits the type of person who would
commit a murder,” even though the court acknowledged
that England always qualified these statements by
saying he takes actions with words and not “by force.” The
court concluded “[t]herefore, the court in looking at
10                                              No. 08-2440

these [§ 3553(a)] factors, I’ve considered (a)(6) and find
that he is closer to the attempted murder[er] than he is to
the obstructive type of person . . . .” The court determined
that a sentence within the advisory guidelines range of
210 to 262 months was reasonable and just. The court also
found that even if the lower guidelines range under § 2J1.2
were applicable, the court would be inclined to vary
England’s sentence upward. Accordingly, the court
sentenced England to a total sentence of imprisonment
of 210 months, the low end of the advisory guidelines
range under § 2A2.1.


                       II. Analysis
   England now appeals the 210-month sentence that the
district court imposed on him at the June 2, 2008
resentencing hearing. He argues that the district court
abused its discretion when it did not find an unwarranted
disparity, based on § 3553(a)(6), resulting from imposing
a sentence within the guideline range for attempted
murder. He also claims that the district court’s reasoning
supporting the sentence—especially its finding that
England “is closer to the attempted murder[er] than he
is to the obstructive type of person”—was “grounded on
pure conjecture” and was improper.
  On remand, after hearing arguments from the
parties and permitting the defendant to allocute, the
district court considered the § 3553(a) factors, including
§ (a)(6), in detail. The district court’s thorough analysis
of the § 3553(a) factors was more than adequate. We agree
with the court’s statement that it could not conduct a
No. 08-2440                                               11

full § (a)(6) analysis because the parties had not sub-
mitted evidence of defendants with similar records who
had been found guilty of similar conduct. The court
detailed unique aspects of England’s character and crimi-
nal history to support a relatively harsh sentence. Despite
England’s contentions, the district court’s § 3553(a) analy-
sis was proper and did not constitute an abuse of dis-
cretion.
  After the district court carefully considered the § 3553(a)
factors, however, it stated that it would make its “find-
ings.” In doing so, the court engaged in an additional
analysis concerning whether England—although con-
victed only for felon in possession and obstruction of
justice crimes—should be sentenced “like the attempted
murderer.” The court envisioned what would have hap-
pened if England was not in prison for the felon in posses-
sion charge but rather was out on bond. The court under-
standably presumed that, at the time he was released,
England would have felt angry with his family members
or other witnesses because of their testimony. Then the
court stated that, in such a scenario, it “think[s] he
would have gone and done something.” The court opined
that this “something” would have consisted of England
taking a weapon and seeking out his family members or
other witnesses, which would have been a “substantial
step that’s necessary for an attempt offense of murder.”
The court repeatedly expressed its belief that England is
“like the attempted murderer” and should be sentenced
as such.
  We grant sentencing courts discretion to draw conclu-
sions about the testimony given and evidence intro-
12                                                No. 08-2440

duced at sentencing. United States v. Hankton, 

,
786 n.14 (7th Cir. 2005) (citing United States v. Sutton, 

, 474 (7th Cir. 2005)). Yet, this discretion is
neither boundless nor is the information upon which a
sentencing court may rely beyond due process limitations.
To the contrary, we recognize that due process requires
that sentencing determinations be based on reliable
evidence, not speculation or unfounded allegations.
United States v. Santiago, 

, 824 (7th Cir. 2007);
United States v. Noble, 

, 951 (7th Cir. 2001); see
also United States v. Berry, Nos. 07-1251, 07-1276, ___
F.3d ___, 

, at *8 (3d Cir. Jan. 6, 2009) (“A
defendant cannot be deprived of liberty based upon mere
speculation.”). Indeed, the Supreme Court has long
recognized that “[n]o individual or body of men has a
discretionary or arbitrary power to commit any person
to prison.” Hurtado v. California, 

, 537 (1884). If
the district court relied on unreliable or inaccurate infor-
mation in making its sentencing decision, we return the
case to the district court for a new sentencing hearing.
See United States v. Jones, 

, 652 (7th Cir.
2006); United States ex rel. Welch v. Lane, 

,
865 (7th Cir. 1984).
  In this case, there is no doubt that the district court
relied on its findings that England is akin to an
attempted murderer in imposing its 210-month sen-
tence. The court explicitly stated that “a just sentence is
within the guideline range of 210 to 262 months” because
of “the reasons that I’ve just stated,” namely the compari-
sons of England to an attempted murderer.
No. 08-2440                                                   13

   The key inquiry posed by this appeal is if these findings
by the district court were sufficiently “based on reliable
evidence” to satisfy due process, or if they amount to
speculation, albeit informed, that falls short of satisfying
due process requirements. See 

;

. Evidence will satisfy the relia-
bility requirement if it “bear[s] sufficient indicia of reliabil-
ity to support [its] probable accuracy.” United States v.
Cross, 

, 410 (7th Cir. 2005) (quoting United
States v. Lanterman, 

, 161 (7th Cir. 1996)). As
a general matter, to satisfy this requirement, facts con-
sidered at sentencing must be proved by a prepon-
derance of the evidence. United States v. Watts, 

, 156 (1997) (“facts relevant to sentencing [should] be
proved by a preponderance of the evidence [ ] and . . .
application of the preponderance standard at sen-
tencing generally satisfies due process.”); United States
v. Schuster, 

, 315 (7th Cir. 1991) (stating that
due process does not require that the facts on which a
sentence is based be correct beyond a reasonable doubt
but only by a preponderance of the evidence). The prepon-
derance of the evidence standard satisfies due process in
a case, such as this one, where the district court sen-
tences a defendant based on the guideline for a crime
the court believes the defendant would have committed
if out of prison on bond. Simply put, the question here
is whether a preponderance of the evidence supports
the court’s belief that the defendant would have com-
mitted the crime. Adhering to such a standard operates
to preclude a sentencing court from sentencing defendants
for crimes not sufficiently supported by reliable evidence.
14                                              No. 08-2440

  Turning to this case, we are unable to conclude that a
preponderance of the evidence buttresses the court’s belief
that England would have attempted murder. We find an
insufficient quantum of evidence to support the court’s
assumption that England, if out on bond, would have
(a) possessed the criminal intent to kill, and (b) performed
an act constituting a substantial step toward the com-
mission of murder, as required to prove the crime of
attempted murder in Illinois. See People v. Brown, 

, 80 (Ill. App. 2003). While recognizing that the
district court cited England’s criminal history and
personal characteristics as evidence that he would act on
his threats, it appears as likely that a factfinder could
conclude that England, if out on bond, would not so act.
England’s family members, including his brother-in-law
Robert Bull, testified that they did not feel threatened by
England’s statements. Bull and other family members
believed that England was merely “blowing off steam” in
issuing threats. Hence, because the evidence appears at
least in equipoise, the preponderance standard is not met.
  The court’s statement that, even if the lower guidelines
range under § 2J1.2 were applicable, the court would be
inclined to vary England’s sentence upward does not
alleviate the need to meet the preponderance standard.
The court was still referring to its finding that England
should be sentenced like an attempted murderer. In any
event, the court did not specify how far upward it would
depart. Therefore, we respectfully—and with a degree
of reluctance considering the district court’s diligence in
attempting to arrive at the correct disposition in this
matter—vacate England’s sentence and remand to the
district court for resentencing.
No. 08-2440                                           15

  In arriving at our decision, we want to underscore
that we do not pass judgment on the reasonableness of the
210-month sentence imposed by the district court. As
noted above, the able and experienced district court
judge conducted a thorough and meaningful § 3553(a)
analysis and the sentence that he imposed very well
may be reasonable. The district court need not repeat
this analysis at resentencing; it can adopt the § 3553(a)
findings arrived at during the June 2, 2008 hearing. We
only require that the district court make its sentencing
determination without reliance on a finding that England
would have attempted murder if out on bond unless
further evidence is adduced which would justify such a
conclusion.


                    III. Conclusion
  We V ACATE England’s sentence and R EMAND for
resentencing.




                         2-13-09