Phillips

David Phillips appeals his criminal conviction for violating the Clean Water Act 1 (“CWA”) and conspiring to violate the CWA. We disposed of many of Phillips’ claims in a separate memorandum disposition. In this opinion, we reject Phillips’ remaining claim: that the district court erred in refusing to dismiss the indictment for lack of jurisdiction on the ground that Fred Burr Creek (the “creek”) was not a navigable water under the CWA and in so instructing the jury. Thus, we affirm Phillips’ conviction.

We also address the Government’s contentions that the district court erred during sentencing. We hold that a district court must consider all reliable evidence of cleanup costs in its determination of whether a defendant’s actions caused a substantial expenditure for cleanup pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2Q1.3(b)(3) (2001). Additionally, we hold that the Government need only show an attempt to influence a witness to trigger U.S.S.G. § 3Cl.l’s obstruction of justice enhancement. As for the district court’s U.S.S.G. § 5K2.0 heartland determination, we hold that the district court improperly considered the defendant’s prior prosecution for the same…