KEARSE, Circuit Judge:
Defendant Michael Shoulberg appeals from a judgment entered in the United States District Court for the Eastern District of New York, convicting him, following his plea of guilty before Joseph M. McLaughlin, Judge, of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (1988). Shoulberg was sentenced to 84 months in prison, five years of supervised release, and a $50 special assessment. On appeal, he contends that his offense level was improperly increased under § 3C1.1 of the federal Sentencing Guidelines ("Guidelines"), on account of conduct wrongly characterized as attempted obstruction of justice. We disagree and affirm the judgment of conviction.
Most of the pertinent facts are not in dispute. In August 1988, four men, including Shoulberg, Issam Hamsho, a/k/a "Sonny," and William Rogan, a/k/a "Billy," were arrested when they attempted to sell cocaine to an undercover law enforcement agent. They were detained at the Metropolitan Correctional Center ("MCC") and were eventually indicted in a three-count superseding indictment charging them with, inter alia, possessing cocaine with intent to distribute it and conspiring to do so. Also named as a codefendant in the postarrest complaint, though not in the indictments, was one Michael Penna.
While in MCC awaiting trial, Shoulberg gave Hamsho a note that stated as follows:
MCC officials took the note from Hamsho. Apparently, Shoulberg did not make contact with Penna.
In December 1988, Shoulberg pleaded guilty to the possession count, in full satisfaction of the superseding indictment. For sentencing, the probation department calculated Shoulberg's offense level and imprisonment range under the Guidelines by including two levels for attempted obstruction of justice under Guidelines § 3C1.1, based on Shoulberg's note to Hamsho.
At his sentencing hearing, Shoulberg did not contend that he had not given the note to Hamsho, but he objected to its characterization as anything more than an inchoate thought. His attorney stated as follows:
Counsel also argued that the statement, "I got a trick for his ass," was ambiguous and that "[e]xactly what that means is left up to the individual person who is perceiving it for what it is." In response, the government pointed out that Shoulberg had previously been convicted of armed robbery, and it argued that the court could reasonably infer that Shoulberg's words portended violence.
Accordingly, the court concluded that Shoulberg had attempted to obstruct justice with respect to the present prosecution, and it sentenced Shoulberg as indicated above. This appeal followed.
On appeal, Shoulberg argues principally that the court could not properly infer a threat from his words, and that, as a matter of law, conduct such as that proven here does not constitute an attempt to obstruct justice. He also argues that the enhancement for attempted obstruction of justice violated his due process rights and his rights under the First Amendment. We reject all of his contentions.
A. Attempted Obstruction of Justice
Section 3C1.1 of the Guidelines provides for an increase of a defendant's offense level for an obstruction, or attempted obstruction, of justice with respect to the offense of which he is accused, stating as follows:
Guidelines § 3C1.1 (amended in nonmaterial respect effective Nov. 1, 1989). The commentary to § 3C1.1 states that the section is directed toward a defendant who "engages in conduct calculated ... to willfully interfere with the disposition of criminal charges, in respect to the instant offense," by, inter alia, "threatening, intimidating, or otherwise unlawfully attempting to influence a co-defendant [or] witness ... directly or indirectly." Id. Commentary & Application Note 1(d). The commentary also provides that "[i]n applying this provision, suspect testimony and statements should be evaluated in a light most favorable to the defendant," id. Application Note 2, and that § 3C1.1 "is not intended to punish a defendant for the exercise of a constitutional right," id. Application Note 3.
In reviewing a sentencing court's application of the Guidelines, an appellate court must "accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e) (1988). Thus, the sentencing court's findings as to what acts were performed, what was said, what the speaker meant by his words, and how a listener would reasonably interpret those words will be upheld unless they are clearly erroneous. See, e.g., United States v. Stroud, 893 F.2d 504, 506-07 (2d Cir.1990). A ruling that the established facts constitute attempted obstruction of justice under the Guidelines, however, which is a matter of legal interpretation, is to be reviewed de novo, id., with due deference to the sentencing court, 18 U.S.C. § 3742(e). Thus, the sentencing court's legal ruling will not be overturned unless it is wrong or an abuse of discretion.
1. The Factual Findings
In the present case, the factual issues as to what acts were performed and what words were written by Shoulberg were never in dispute, for he did not contest either the content of the note as introduced by the government or the fact that he sent the note to Hamsho. Further, Shoulberg did not dispute that Penna was a
Rather, the only factual issue disputed by Shoulberg was the import of his words. This issue was properly resolved adversely to him. The questions of what Shoulberg meant by his note, and what Hamsho or Penna might reasonably have thought he meant, were questions for the sentencing court as trier of fact. Though Shoulberg argues that the statement "I got a trick for his ass" was ambiguous, he concedes, as he must, that one possible interpretation of the words was that Shoulberg intended to "deter Penna's cooperation with the Government." (Shoulberg brief on appeal at 23.) And though Shoulberg relies on the Guidelines commentary statement that "suspect testimony and statements should be evaluated in a light most favorable to the defendant," the commentary does not preclude a finding of a threat any time the defendant can conjure up some conceivable alternative explanation for his words. The sentencing court remains the finder of fact and may draw all reasonable inferences from the words used and from the pertinent circumstances. The inference that Shoulberg meant that physical violence would be used as a preventive measure against Penna if Penna were otherwise inclined to cooperate, and the inference that Hamsho and Penna would so interpret it, were plainly permissible and may not be disturbed on appeal.
We turn, therefore, to the more difficult question of whether Shoulberg's note to Hamsho, as interpreted by the district court, was sufficient as a matter of law to constitute an attempt to obstruct justice.
2. Whether the Established Facts Amounted to an Attempt
In fathoming the meaning of "attempt to impede or obstruct the administration of justice" as used in § 3C1.1, we draw on general criminal law principles regarding attempts to commit crimes. We have held that a person is guilty of an attempt to commit a crime if he had the intent to commit the crime and engaged in conduct amounting to a substantial step towards its commission. United States v. Martinez, 775 F.2d 31, 35 (2d Cir.1985); United States v. Mowad, 641 F.2d 1067, 1073 (2d Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 86 (1981); United States v. Manley, 632 F.2d 978, 988-89 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); United States v. Jackson, 560 F.2d 112, 117-20 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977). By a "substantial" step, we mean "something more than mere preparation, yet [perhaps] less than the last act necessary before the actual commission of the substantive crime....". United States v. Manley, 632 F.2d at 987; see United States v. Jackson, 560 F.2d at 118-19; United States v. Coplon, 185 F.2d 629, 632-33 (2d Cir.1950) (L. Hand, Ch. J.), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952). In all cases, we bear in mind that
United States v. Manley, 632 F.2d at 988 (quoting United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir.1979)).
In the present case, if one or another of the facts proven had existed in isolation, one might reasonably conclude that Shoulberg's acts did not amount to an attempt. For example, if Shoulberg had merely asked for Penna's address without indicating that he wanted it in order to forestall Penna's cooperation with the government, or if he had merely expressed to Hamsho the hope that Penna was not cooperating
B. Shoulberg's Other Contentions
Shoulberg makes a variety of other arguments, including the contentions that the application of § 3C1.1 to him violated his rights under the First Amendment and that, in determining whether Shoulberg had attempted to obstruct justice, the court was required to apply the beyond-a-reasonable-doubt standard. These contentions need not detain us long.
In contending that his First Amendment rights have been violated, Shoulberg argues that he was "punished for exercising his constitutional right of freedom of speech as provided by the First Amendment in that the alleged letter was merely an expression of a thought implying no more than a hyperbole." (Shoulberg brief on appeal at 19.) We reject this contention. Unlike the conduct in the cases relied on by Shoulberg, e.g., Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam), which involved a hyperbolic political statement of view, Shoulberg's statement was neither abstract nor hyperbolic. He implied that he would use violence to prevent Penna's cooperation, stated that he might be released soon, asked for Penna's address, and told Hamsho to write him back that day. His note carried overtones of imminent threat. The First Amendment does not guarantee a right to make intimidating threats against government witnesses. See, e.g., Watts v. United States, 394 U.S. at 707, 89 S.Ct. at 1401 (statute prohibiting threats against President "is constitutional on its face"); United States v. Kelner, 534 F.2d 1020, 1025-27 (2d Cir.) (threat to injure another is not protected by First Amendment), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed.2d 623 (1976); United States v. Velasquez, 772 F.2d 1348, 1357-58 (7th Cir.1985) (threat to retaliate against informant is not protected by First Amendment), cert. denied, 475 U.S. 1021, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986).
Finally, in contending that the court was required to determine whether an attempt was established beyond a reasonable doubt, Shoulberg ignores precedent and perhaps misapprehends the nature of the principal question presented here. With respect to questions of fact, we have held that the sentencing court may make its findings based on a preponderance of the evidence. See United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989); see also United States v. Rivalta, 892 F.2d 223, 230 (2d Cir.1989). Thus, the court was entitled to use the preponderance standard, rather than the reasonable-doubt standard, in determining what was said and what was meant. Accord United States v. McDowell, 888 F.2d 285, 290-92 (3d Cir.1989)
We have considered all of Shoulberg's arguments on this appeal and have found them to be without merit. The judgment of conviction is affirmed.