United States v. Ellis ( 2022 )

Appellate Case: 19-3148 Document: 010110637191 FILED Page: 1
Date Filed: 01/26/2022
United States Court of Appeals
Tenth Circuit
PUBLISH January 26, 2022
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3148
MARVIN LEE ELLIS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:12-CR-20066-KHV-30)
Christopher M. Joseph, Joseph, Hollander & Craft LLC, Topeka, Kansas, on the
briefs for Defendant-Appellant.
Carrie N. Capwell, Assistant United States Attorney (Duston J. Slinkard, Acting
United States Attorney, with her on the brief), Office of the United States
Attorney, Topeka, Kansas, for Plaintiff-Appellee.
Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
A jury convicted Marvin Lee Ellis of, among other crimes, conspiring to
manufacture, distribute, or possess with the intent to distribute cocaine and
Appellate Case: 19-3148 Document: 010110637191 Date Filed: 01/26/2022 Page: 2
cocaine base, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. The district
court sentenced Mr. Ellis to a term of 303 months’ imprisonment, to be followed
by 13 years of supervised release.
The district court imposed this sentence in a resentencing proceeding. In
Mr. Ellis’s previous appeal, we had upheld his convictions in a published decision
but had vacated the court’s sentencing order with respect to his conspiracy
conviction and remanded for resentencing. See United States v. Ellis (Ellis I),
868 F.3d 1155, 1181 (10th Cir. 2017). In this appeal, Mr. Ellis presents two
challenges. First, he contends that the district court misapplied the United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) by failing to make
particularized findings regarding the scope of his jointly undertaken criminal
activity with his coconspirator Ataven Tatum. Second, and relatedly, Mr. Ellis
argues that the evidence did not support a judicial finding that he agreed to
participate in jointly undertaken criminal activity with Mr. Tatum; accordingly,
the drug quantities associated with Mr. Tatum’s purchases of cocaine should not
be attributed to him for sentencing purposes.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we
affirm the district court’s sentencing judgment.
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I
A
The factual background is detailed in Ellis I. See 868 F.3d at 1160–64. We
focus here on those factual circumstances most relevant to our resolution of Mr.
Ellis’s appellate challenges. In 2009, the Drug Enforcement Administration
(“DEA”) began investigating a Mexican narcotics-trafficking network that was
supplying cocaine to the Kansas City, Kansas area. Specifically, DEA agents
learned that powder cocaine was being distributed to Kansas City drug dealers,
including Djuane Sykes, who in turn sold large amounts of powder cocaine to
several customers—including the defendant, Mr. Ellis, and Mr. Tatum.
Mr. Tatum introduced Mr. Ellis to Mr. Sykes sometime in early fall of
2011. Shortly thereafter, Mr. Ellis and Mr. Tatum began purchasing powder
cocaine from Mr. Sykes and cooking the cocaine into cocaine base—i.e.,
crack—for sale to customers. Mr. Ellis’s nephew, Theoplis Ellis (“Theoplis”), 1
assisted both men in their drug-trafficking activities, including picking up and
delivering drugs, and was compensated on a daily basis for his services. In
various groupings, or separately, the three men traveled to visit Mr. Sykes to
purchase powder cocaine. For example, on between ten to fifteen occasions, Mr.
1
Because the defendant, Marvin Ellis, and his nephew, Theoplis Ellis,
share the same last name, we refer hereinafter to the latter only by his first name.
3
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Ellis and Mr. Tatum traveled together to buy powder cocaine from Mr. Sykes.
They also would journey separately to purchase powder cocaine from him. And,
on at least one occasion, Mr. Ellis and Theoplis picked up and paid for powder
cocaine from Mr. Sykes that Mr. Tatum had ordered.
In early 2012, primarily in the months of February and March, the DEA
conducted a series of controlled buys of crack cocaine—through the use of
confidential informants (“CIs”)—from Mr. Ellis and Mr. Tatum. Some of these
drug buys took place on various streets in Kansas City. Notably, on three
occasions, Mr. Ellis and Mr. Tatum were together when the drug transactions took
place. Two of the three involved the use of Mr. Tatum’s vehicle. In one
instance, Mr. Ellis effectively acted as the go-between—shuttling between the
CI’s vehicle and Mr. Tatum’s: Mr. Ellis entered the CI’s vehicle and obtained the
money; took the money and delivered it to Mr. Tatum, whereupon he received the
crack; and then he returned with the crack and handed it to the CI through the
vehicle’s window. In another instance, a CI entered Mr. Tatum’s vehicle to
purchase crack and reported that Mr. Ellis was present in the vehicle. And,
during the third transaction, Mr. Ellis entered the CI’s vehicle from the
street—delivering some pills of molly2 to him—and then, after Mr. Ellis exited
2
As we learn from Ellis I, molly is drug slang for “ecstasy/MDMA.”
868 F.3d at 1161 (noting the seizure of “16 mollies” during Mr. Ellis’s arrest).
4
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the vehicle, Mr. Tatum entered it and sold him crack. Moreover, in one street-
level sale that Mr. Ellis made alone to a CI, he “bragged about obtaining his crack
cocaine from ‘Tater’”—Mr. Tatum’s nickname. R., Vol. IV, ¶ 83, at 44 (Revised
Presentence Report (“RPSR”), filed June 25, 2018).
Mr. Ellis and Mr. Tatum also sold crack and other illegal drugs from a
residence that they shared at 921 Haskell Avenue (“921 Haskell”), in Kansas City,
Kansas. And the DEA made several controlled purchases using CIs at this
residence, including during the February 2012 time frame. By way of
background, in October 2011, with Mr. Tatum’s financial assistance, Mr. Ellis
had leased the 921 Haskell residence. See Ellis I, 868 F.3d at 1163 (“The lease
required [Mr.] Ellis to pay a $300 deposit and $600 for the first month’s rent. Of
this amount, [Mr.] Ellis paid $400, and [Mr.] Tatum paid $500.”). And, in
November 2011, Mr. Tatum had signed a contract for deed to buy it, agreeing to
make payments to the current owner. Mr. Ellis had assumed the responsibility for
all of the utilities at 921 Haskell, registering them in his name.
Mr. Ellis, Mr. Tatum, and Theoplis would primarily use a phone belonging
to Mr. Tatum to communicate with customers regarding drug sales, including drug
transactions carried out at 921 Haskell. Theoplis would assist in drug
transactions that took place there. On at least one occasion when Mr. Ellis sold
crack to a CI at 921 Haskell, Theoplis “functioned as a doorman.” R., Vol. IV, ¶
5
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78, at 43. On another occasion, a CI placed a call to Mr. Tatum’s telephone
number and made arrangements to purchase crack cocaine at 921 Haskell;
however, it was Mr. Ellis, not Mr. Tatum, who greeted the CI at the door and took
the CI’s money in exchange for the crack. Moreover, a CI observed both Mr.
Ellis and Mr. Tatum selling crack on the same occasion around early February
2012 at 921 Haskell. Sometime around mid-April 2012, Mr. Ellis had “a falling
out with [Mr.] Tatum,” Ellis I, 868 F.3d at 1163, apparently because Mr. Tatum
treated Mr. Ellis “poorly and always wanted to act like the ‘boss,’” R., Vol. IV, ¶
96, at 46. And, as a consequence, Mr. Ellis moved out of 921 Haskell.
B
In October 2012, a grand jury sitting in the District of Kansas issued a 112-
count Second Superceding Indictment (the “Operative Indictment”) 3 against fifty-
one defendants, including Mr. Ellis, Mr. Tatum, and Theoplis. Most relevant here
is Count 1, which charged the fifty-one defendants, including Mr. Ellis, with
violating 21 U.S.C. § 846 for
3
The Operative Indictment was not included in the record designated
for this appeal. However, it is discussed in Ellis I. See 868 F.3d at 1161. And,
to offer a more comprehensive factual picture of relevant matters, we exercise our
discretion to take judicial notice of the district court’s files containing this
document. See, e.g., United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir.
2007) (“[W]e may exercise our discretion to take judicial notice of publicly-filed
records in our court and certain other courts concerning matters that bear directly
upon the disposition of the case at hand.”).
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[k]nowingly and intentionally conspir[ing] and agree[ing]
together and with each other, . . . to manufacture, to possess with
intent to distribute and to distribute 280 grams or more of
cocaine base, “crack,” . . . and to possess with intent to distribute
and to distribute five kilograms or more of . . . cocaine . . . .
Second Superceding Indictment, Case No. 12-20066-01 through 32 and 34
through 52-KHV/JPO, ECF No. 245 (D. Kan., filed Oct. 3, 2012).
A jury returned guilty verdicts against Mr. Ellis on this conspiracy charge
(i.e., Count 1) and on his other charged offenses—including, notably, Count 100,
which charged Mr. Ellis with maintaining a residence for the purpose of
manufacturing and distributing cocaine and cocaine base in violation of 21 U.S.C.
§ 856(a)(1). In Ellis I, we affirmed all of Mr. Ellis’s convictions but, for reasons
not relevant here, “we reverse[d] [Mr.] Ellis’s conspiracy sentence and
remand[ed] for a full resentencing.” 868 F.3d at 1181. That resentencing is the
subject of this appeal.
C
In anticipation of the resentencing proceeding, with the aid of the
Guidelines, 4 the U.S. Probation Office prepared a Revised Presentence Report or
the RPSR. The RPSR reported that the total drug quantity applicable to Mr. Ellis
was 2,602.53 grams, or 2.6 kilograms, of cocaine base. It left no doubt that the
4
The Probation Office used the 2016 edition of the Guidelines. The
parties do not object to this choice on appeal. Accordingly, we also rely on this
edition in our analysis.
7
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cocaine base attributed to Mr. Ellis did not merely reflect his personal drug-
trafficking activities but, rather, reflected his jointly undertaken criminal
activities with Mr. Tatum and Theoplis. Regarding their collective endeavors, the
RPSR expressly found that Mr. Tatum “worked in concert with Marvin Ellis and
Theoplis Ellis, who would all work together to sell ‘crack’ cocaine to various
street level customers.” See R., Vol. IV, ¶ 75, at 42–43. Moreover, the RPSR
concluded that “[Mr.] Ellis [wa]s responsible for cocaine attributed to [Mr.]
Tatum for the approximate 6 month period in which Marvin Ellis was deemed to
be involved with [Mr.] Tatum’s drug trafficking activities.” See id., ¶ 109, at 49.
Further, the RPSR made specific findings as to the jointly undertaken
criminal activity involving Mr. Ellis and Mr. Tatum:
Marvin Ellis and Ataven Tatum were involved in jointly
undertaken criminal activity that included purchasing cocaine
from Djuane Sykes and selling crack cocaine at various locations
together in the community and from 921 Haskell Street. Their
jointly undertaken criminal activity is also demonstrated by [Mr.]
Tatum’s phone being utilized to arrange a sale that was later
consummated by Marvin Ellis, and Marvin Ellis accompanying
and assisting [Mr.] Tatum with drug deals.
Id., ¶ 107. Moreover, in this same vein, the RPSR indicated that the conduct of
Mr. Ellis and Mr. Tatum shed light on the scope of their jointly undertaken
criminal activity. This included an instance when the two men “jointly purchased
drugs from Djuane Sykes . . . and used the 921 Haskell residence, jointly, from
8
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which to sell crack cocaine” and, further, when “they also engaged in drug sales
together in the community.” Id., ¶ 325, at 109 (emphasis added).
The RPSR also emphasized the significance of the two men’s shared
residence at 921 Haskell in establishing their jointly undertaken criminal
activity—specifically, finding this reflected an “explicit agreement” between Mr.
Tatum and Mr. Ellis, assigning Mr. “Ellis[] responsibility for the utilities and
[Mr.] Tatum[] responsibility as the renter” of 921 Haskell. Id. And, notably,
there also was an “implicit agreement” that the “two [men would] cook crack
cocaine and sell crack cocaine from the residence.” Id. The RPSR found the
“jointly undertaken criminal activity” was demonstrated as well by “[Mr.] Ellis
and Theoplis [] picking up drugs that [Mr.] Tatum ordered, and [through the]
occasional use of a common phone associated with arranging drug transactions.”
Id.
Having determined the applicable drug quantity, the RPSR found the base
offense level applicable to the combined counts to be 32. Significantly, because
Mr. Ellis “maintained a residence (921 Haskell) for the purpose of manufacturing
or distributing a controlled substance,” the RPSR added two levels to his base
offense level. Id., ¶ 118, at 51. With additional upward adjustments not relevant
here, the RPSR ended up assigning Mr. Ellis an adjusted offense level of 36.
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Mr. Ellis objected to (among other things) the total drug quantity that the
RPSR attributed to him; he argued that it was “improperly inflated.” Id., ¶ 288, at
101. 5 More specifically, he challenged the attribution to him of all of the powder
cocaine that Mr. Tatum purchased from Mr. Sykes between August 2011 and May
2012 because, according to Mr. Ellis, the evidence failed to demonstrate that he
had entered into an agreement with Mr. Tatum pertaining to Mr. Tatum’s
purchases from Mr. Sykes. Mr. Ellis maintained that his dealings with Mr. Sykes
were “independent” from Mr. Tatum’s and, more specifically, that the evidence
established that he and Mr. Tatum “were acting as independent street level dealers
with a common source of supply [namely Mr. Sykes], rather than pooling
resources and profits together.” Id., ¶¶ 298–99, at 103 (citing U.S.S.G. 1B1.3,
cmt. 4(C)(vi)). In fact, Mr. Ellis maintained that, “at least during some of the
relevant time period,” he and Mr. Tatum were “acting as competitors.” Id., ¶ 300,
at 103. As support, Mr. Ellis averred that the evidence showed that in one of the
late March 2012 controlled buys, Mr. Ellis “told the [CI] to ‘not mess’ with [Mr.]
Tatum anymore and to only contact him for drugs.” Id.
However, the Probation Office generally rejected Mr. Ellis’s objections.
With Mr. Ellis’s “response to the drug calculation” in mind, however, the
5
The Probation Office had circulated the RPSR to the parties before it
was finalized and submitted for the court’s consideration. Mr. Ellis’s objections
were memorialized in the RPSR’s addendum.
10
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Probation Office did adopt the government’s view that a “somewhat shorter time
frame” should be used for attributing Mr. Tatum’s drug transactions to Mr.
Ellis—specifically, the six-month period from October 2011 to April 2012. Id., ¶
273, at 97; see id., ¶ 238, at 85 (discussing the government’s proposal that Mr.
Ellis “should be held accountable for the drugs attributed to [Mr.] Tatum . . . for a
6-month period, beginning in mid-October 2011, and ending in mid-April 2012”).
D
At the resentencing, the district court heard arguments—based on the trial
evidence—regarding “defendant’s objection to the total drug quantity attributed to
him.” R., Vol. III, at 57 (Sentencing Hr’g Tr., dated July 11, 2019). Mr. Ellis’s
counsel argued that the “open issue for the [G]uideline[s] calculation” related to
“how much crack cocaine or how much drugs to attribute to Mr. Ellis.” Id. at 59.
He explained that the issue under the relevant conduct analysis was whether or
not Mr. Tatum’s independent purchases fell within the scope of jointly-undertaken
criminal activity. Citing the Tenth Circuit’s Biglow decision—apparently, the
unpublished panel decision in United States v. Biglow, 635 F. App’x 398 (10th
Cir. 2015) (unpublished)—Mr. Ellis’s counsel explicitly noted “we’ve objected”
to the scope of Mr. Tatum’s purchases being attributed to Mr. Ellis. R., Vol. III,
at 60. He emphasized that the “burden is on the government” to present sufficient
evidence “to show that [Mr.] Tatum’s purchases . . . should be attributed to [Mr.]
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Ellis.” Id. at 60–61. He opined that the government fell short of satisfying this
burden.
The district court then heard from the government: it argued that Mr. Ellis
and Mr. Tatum jointly engaged in buying powder cocaine and distributing crack,
the proof of which was “adduced at trial through testimony and evidence and
phone calls and surveillance and pictures and videos show[ing] that this activity
was . . . within the scope of their jointly undertaken criminal activity.” Id. at
79–80. The government contended that Mr. Ellis and Mr. Tatum used Theoplis as
an “errand boy” to collect money and deliver drugs for them—similar to how the
pair “jointly used the house, . . . [and] jointly used the car to go to drug deals”
during the period of the DEA investigation. Id. at 80. Accordingly, Mr. Ellis and
Mr. Tatum were involved in a joint criminal venture, reasoned the government,
and it highlighted that the residence at 921 Haskell was the place—not only where
both Mr. Tatum and Mr. Ellis lived—but also where they distributed cocaine base.
The district court found that the government had the better argument
regarding the scope of jointly undertaken criminal activity. Consequently, it
overruled Mr. Ellis’s drug-quantity objection. Specifically, the court found:
[U]nder [U.S.S.G. §] 1B1.3 subsection (a)(1)(B)[,] . . . it seems
to me that the fact that both defendants are members of the same
criminal conspiracy to distribute drugs . . . would establish
jointly-undertaken criminal activity. Clearly both of them were
engaged in drug deals and maintaining a drug house in
furtherance of that drug criminal activity . . . .
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Id. at 102–03. The court also addressed whether Mr. Tatum’s drug sales were
reasonably foreseeable to Mr. Ellis. In its analysis, the court stressed the fact that
the two men “lived together and both did drug transactions out of the same house,
[as to which] Mr. Ellis was responsible for utilities and had actually paid the
down payment on the lease.” Id. at 103.
The court concluded it was “hard-pressed” to see how the government’s
evidence—which was materially consistent (as relevant here) with the RPSR’s
findings—failed to satisfy the requirements of the Guidelines for attributing Mr.
Tatum’s drugs to Mr. Ellis. Id. The court relied on the RPSR’s findings
regarding drug quantity “as the starting point” for calculating Mr. Ellis’s offense
level with one exception: the court determined that the total amount of cocaine
base attributable to Mr. Ellis was 1.9 kilograms—rather than 2.6 kilograms, as the
RPSR had found. See id. at 112–13. This alteration did not impact the offense
level of 32, which the RPSR had calculated. The court explicitly memorialized its
findings and conclusion in its Amended Statement of Reasons, which expressly
recognized the court’s “adopt[ion] of the presentence investigation report [i.e.,
the RPSR].” Id., Vol. IV, at 256 (Amended Statement of Reasons, filed July 12,
2019).
The district court determined that Mr. Ellis’s applicable Guidelines range
for his offenses was 324 to 360 months’ imprisonment. This calculation excluded
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Mr. Ellis’s conviction under 18 U.S.C. § 924(c), for which he was subject to an
additional 60-month consecutive sentence. The court, however, granted Mr.
Ellis’s written request for a variance, which referenced his poor health condition.
Specifically, the court granted Mr. Ellis a 25% downward variance. Taking the
variance into account, the court sentenced him to a total prison term of 303
months, to be followed by 13 years of supervised release.
The district court filed its amended judgment, and Mr. Ellis filed a timely
notice of appeal.
II
A
First, we must consider the proper scope of our review. The parties
disagree concerning whether Mr. Ellis has preserved his sentencing challenges or,
alternatively, whether the standard of review for forfeited errors applies
here—i.e., plain-error review. See, e.g., United States v. Wolfname, 835 F.3d
1214, 1217 (10th Cir. 2016) (applying the plain-error standard where the
defendant “didn’t raise []his argument below”). Mr. Ellis asserts that he
“objected to [the court] counting [Mr.] Tatum’s cocaine purchases as relevant
conduct” and argued that such purchases “did not fall within the scope of relevant
criminal activity [Mr. Ellis] agreed to jointly undertake.” Aplt.’s Opening Br. at
19 (citing United States v. Patton, 927 F.3d 1087, 1093 (10th Cir. 2019)); see
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Aplt.’s Reply Br. at 4 (arguing that “the record shows that the ultimate question
before this Court and the precise error [Mr.] Ellis asks this Court to reverse was
addressed repeatedly and specifically in the district court, and, therefore,
preserved for review”). Yet, in opposition, the government contends that we
should review only for plain error because Mr. Ellis “did not raise his current
objection before the district court.” Aplee.’s Resp. Br. at 16. We conclude that
Mr. Ellis’s argument is more persuasive.
Succinctly stated, before the district court, Mr. Ellis sufficiently informed
the district court of the need to make particularized findings concerning the scope
of his jointly undertaken criminal activity with Mr. Tatum to preserve an
objection to the court’s alleged failure to make such findings. And, relatedly, Mr.
Ellis sufficiently preserved a challenge to the drug quantities that the court
attributed to him—specifically arguing (as relevant here) that those quantities
improperly included drugs that Mr. Tatum purchased for distribution.
The record fully supports our conclusion. For example, Mr. Ellis’s
objections on these matters were memorialized as an addendum to the RPSR. See,
e.g., R., Vol. IV, ¶ 288, at 101 (asserting that “[t]he total drug quantity attributed
to Marvin Ellis is improperly inflated” (bold-face font omitted)); id., ¶ 293, at 102
(asserting that the Probation Office “erroneously attributes to [Mr.] Ellis all of the
powder cocaine that [Mr.] Tatum purchased from [Mr.] Sykes between August
15
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2011 and May 2012”); id., ¶ 297, at 103 (“The evidence does not demonstrate an
agreement by [Mr.] Ellis to undertake any particular criminal activity with respect
to the cocaine that [Mr.] Tatum purchased from [Mr.] Sykes—certainly not with
respect to all of the powder cocaine [Mr.] Tatum purchased.”); id., ¶ 303, at 104
(“In light of the evidence establishing that [Messrs.] Tatum and Ellis functioned
as independent distributors, even competitors, none of [Mr.] Tatum’s cocaine
purchases should be attributed to Ellis.”); see also id., ¶¶ 294–97, at 102–03
(discussing the Guidelines commentary and Tenth Circuit and other caselaw
relating to the sentencing court’s obligation to make particularized findings as to
the scope of jointly undertaken criminal activity).
Furthermore, other parts of the record demonstrate that the district court
was keenly aware that Mr. Ellis objected to the quantity of drugs that the
Probation Office attributed to him for sentencing purposes and, more specifically,
that Mr. Ellis grounded his drug-quantity objection primarily (as relevant here) on
the contention that the Probation Office improperly found that he and Mr. Tatum
had agreed to jointly undertake drug-trafficking activities. See, e.g., id., Vol. III,
at 57–59 (evincing a discussion between Mr. Ellis’s counsel and the district court
regarding the “defendant’s objection to the total drug quantity attributed to him,”
with his counsel articulating a concern as to “how much crack cocaine or how
much drugs to attribute to Mr. Ellis”); id. at 60 (showing, in the context of
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discussing objections, that Mr. Ellis’s counsel emphasized that “what we’re
talking about is under relevant conduct whether or not these purchases -- and
specifically talking about Mr. Tatum’s independent purchases, whether or not they
were within the scope of independent -- or jointly-undertaken activity”).
Indeed, during the sentencing hearing, the court and defense counsel
engaged in a lengthy colloquy, in which counsel attacked the Probation Office’s
finding regarding the scope of jointly undertaken criminal activity undertaken by
Mr. Ellis and Mr. Tatum. See id. at 63–70 (showing a colloquy between Mr.
Ellis’s counsel and the court regarding Mr. Ellis’s “objecti[on] to aggregating the
drugs from [Mr.] Tatum and [Mr. Ellis]”). And, putting aside for a moment the
issue of whether the district court properly resolved Mr. Ellis’s objections, it
cannot be said that the court did not consider them. See id. at 102–05 (evincing
the court’s consideration and explicit endeavor to resolve Mr. Ellis’s objection
concerning the scope of jointly undertaken criminal activity and noting the view
of Mr. Ellis’s counsel that the court’s action on that jointly undertaken scope
issue “really kind of overwhelms . . . how much to attribute to Mr. Ellis” in terms
of drug quantity, rendering his objection on that matter effectively “moot[]”).
And, importantly, counsel explicitly invoked during this colloquy a Tenth
Circuit decision (albeit unpublished) that clearly underscored a sentencing court’s
obligation to make particularized findings regarding the scope of jointly
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undertaken criminal activity and the “key” role that such findings play in the
attribution of drug quantities to defendants. Biglow, 635 F. App’x at 401 (“The
scope requirement is key: it means that just knowing of coconspirators’ illicit
activities, without more, will not suffice to attribute such activities to a defendant
unless the activities are also within the agreement’s scope.”); see R., Vol. III, at
60 (showing the efforts of Mr. Ellis’s counsel to analogize “the Tenth Circuit’s
Biglow decision” to the instant case, in support of his challenge to any attempt to
“take Mr. Tatum’s purchases and attribute [them] to Mr. Ellis,” and stating
“we’ve objected”).
Given these circumstances, we believe that Mr. Ellis’s counsel had done
enough to preserve the sentencing challenges at issue here. See United States v.
Lopez-Avila, 665 F.3d 1216, 1217–18 (10th Cir. 2011) (rejecting the
government’s argument for plain error review; instead, concluding the defendant
adequately preserved his issue for appeal where “the issue was properly raised
prior to the sentencing hearing, the judge was familiar with the argument, and the
argument was addressed by the judge”); see also Harris v. Sharp, 941 F.3d 962,
979 (10th Cir. 2019) (“To preserve [an] issue in [the] district court, [a party]
need[s] only to alert the court to the issue and seek a ruling.”); cf. United States v.
Tena-Arana, 738 F. App’x 954, 959 (10th Cir. 2018) (unpublished)
(distinguishing the defendant’s preserved argument in Lopez-Avila from the
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argument before it by noting that, in Lopez-Avila, the defendant “explicitly raised
and fully presented—including arguments and authorities in support—the
procedural question raised on appeal”). 6
B
1
Having concluded that Mr. Ellis has preserved the two sentencing
challenges at issue, we inquire into the appropriate standard of review for each of
them. In setting the stage for our analysis, let us revisit Mr. Ellis’s challenges.
First, Mr. Ellis contends that the district court misapplied the Guidelines by
failing to make particularized findings regarding the scope of his jointly
undertaken criminal activity with Mr. Tatum. Second, and relatedly, Mr. Ellis
argues that the evidence does not support a judicial finding that he agreed to
participate in jointly undertaken criminal activity with Mr. Tatum; therefore, the
drug quantities associated with Mr. Tatum’s six-month period of cocaine
purchases at issue here should not be attributed to him for sentencing purposes.
Generally speaking, “[w]e review Mr. [Ellis’s] sentence for reasonableness,
applying a deferential ‘abuse-of-discretion standard of review.’” United States v.
6
We deem the reasoning of the unpublished decisions cited herein to
be persuasive and instructive. We do not accord them controlling weight and
recognize that they are not binding on us. See, e.g., United States v. Willis, 826
F.3d 1265, 1274 n.2 (10th Cir. 2016); United States v. Kurtz, 819 F.3d 1230, 1236
n.2 (10th Cir. 2016).
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Morrison, 771 F.3d 687, 691 (10th Cir. 2014) (quoting Gall v. United States, 552
U.S. 38, 46 (2007)); see Lopez-Avila, 665 F.3d at 1218 (“Our overall standard of
review is abuse of discretion.”). Because both of Mr. Ellis’s challenges relate to
the propriety of the district court’s calculation of his Guidelines sentence, our
focus is on the procedural reasonableness of his sentence. See United States v.
Wittig, 528 F.3d 1280, 1284 (10th Cir. 2008) (noting that the “procedural
component” of reasonableness review “encompass[es] the method by which the
sentence is calculated”); accord United States v. Henson, 9 F.4th 1258, 1284–85
(10th Cir. 2021); see also United States v. Huckins, 529 F.3d 1312, 1317 (10th
Cir. 2008) (noting that “[p]rocedural reasonableness addresses [inter alia]
whether the district court incorrectly calculated or failed to calculate the
Guidelines sentence”).
In assessing procedural reasonableness, we are mindful of the generally
applicable precept that “[w]e review factual findings for clear error and legal
determinations de novo.” Lopez-Avila, 665 F.3d at 1218–19 (italics omitted); see
United States v. Finnesy, 953 F.3d 675, 688 (10th Cir. 2020) (“Typically ‘“we
review legal questions regarding the application of the Sentencing Guidelines de
novo,” and “a district court’s factual findings are reviewed only for clear error,
giving due deference to the district court’s application of the Guidelines to the
facts.”’” (quoting United States v. Iley, 914 F.3d 1274, 1278–79 (10th Cir.
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2019))); United States v. Craine, 995 F.3d 1139, 1153 (10th Cir. 2021) (“This
court reviews ‘legal questions regarding the application of the Sentencing
Guidelines de novo, and a district court’s factual findings . . . for clear error.’”
(quoting Finnesy, 953 F.3d at 688)). “An error of law is per se an abuse of
discretion.” Lopez-Avila, 665 F.3d at 1219 (citing Koon v. United States, 518
U.S. 81, 100 (1996)); accord United States v. Dominguez, 998 F.3d 1094, 1104
(10th Cir. 2021). Likewise, “[t]he district court abuses its discretion when a
ruling is based on a clearly erroneous finding of fact.” United States v. Munoz,
812 F.3d 809, 817 (10th Cir. 2016); accord United States v. Hull, 893 F.3d 1221,
1223 (10th Cir. 2018).
2
Turning to Mr. Ellis’s challenges, we agree with him that his first
one—alleging that the district court erred by not making particularized
findings—presents a question of law that we review de novo. In effect, this
challenge posits that the district court legally erred by misapplying the
Guidelines. See United States v. Melton, 131 F.3d 1400, 1403–04 (10th Cir.
1997) (noting that “[w]e review the sentencing court’s application of the
guidelines de novo,” and specifically determining that, by failing to make
particularized findings, the sentencing court “misapplied the sentencing
guidelines by improperly assuming that the scope of the criminal activity Mr.
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Melton agreed to jointly undertake was the same as the scope of the entire
conspiracy”); see also United States v. Figueroa-Labrada, 720 F.3d 1258, 1264
(10th Cir. 2013) (“A sentencing court must make particularized findings to
support the attribution of a coconspirator’s actions to the defendant as relevant
conduct, whether or not the defendant asks it to do so or disputes the attribution. .
. . The absence of particularized findings is error subject to meaningful review.”
(emphasis added) (citations omitted)).
Mr. Ellis also contends that his second challenge—entailing an inquiry into
whether there was sufficient evidence to support a judicial finding that he agreed
to participate in jointly undertaken criminal activity with Mr. Tatum—also is
subject to de novo review. However, here we must disagree.
In arguing for de novo review, Mr. Ellis effectively urges us to follow the
decisional path that we charted in our Melton decision. In that case, we
concluded, first, that the sentencing court “failed to make such ‘particularized
findings’ and misapplied the sentencing guidelines,” and, then, instead of
ordering a “remand for further proceedings” on the scope of jointly undertaken
criminal activity, we conducted our own independent, de novo inquiry regarding
whether the evidence was sufficient to support the alleged scope of such jointly
undertaken activity and concluded that it was not. See Melton, 131 F.3d at 1404.
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We suggested that we were permitted to conduct such a de novo inquiry “because
the facts underlying the determination are undisputed.” Id.With an explicit citation to Melton, see Aplt.’s Opening Br. at 24, Mr. Ellis
effectively says, so too here. He reasons that, “remand for further proceedings on
the scope of [Mr. Ellis’s] agreement is not needed,” because “the parties do not
dispute the facts themselves, but only their import for assessing the scope of [Mr.
Ellis’s] agreement.” Id. He says that we independently “should make the
ultimate determination as to whether the facts in the record prove that [Mr. Ellis]
agreed to undertake any particular activity with respect to the cocaine that [Mr.]
Tatum purchased from [Mr.] Sykes,” and, based on this assessment, we should
conclude that the government did not carry its burden to establish such jointly
undertaken criminal activity. Id.; see also Aplt.’s Reply Br. at 10 (asserting that
the district court erred in not making particularized findings and noting that
“[s]uch error requires reversal,” then urging us “to make an independent
determination that the government has failed to prove that [Mr. Ellis] agreed to
jointly distribute the cocaine [Mr.] Tatum purchased from [Mr.] Sykes”).
However, Mr. Ellis’s standard-of-review argument is fundamentally flawed.
It is premised on Mr. Ellis’s unstated belief that, as an antecedent matter, we will
agree with him that the district court legally erred in not making particularized
findings regarding the scope of jointly undertaken criminal activity—as the panel
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did in Melton. And, once we have reached that conclusion, Mr. Ellis tacitly
reasons that we will be free—like the Melton panel—to independently assess (i.e.,
de novo) the sufficiency of the government’s evidence concerning the scope of
jointly undertaken criminal activity. But, for reasons we explicate infra, Mr.
Ellis’s premise is wrong: we do not conclude that the district court failed in its
duty to make particularized findings concerning the scope of jointly undertaken
criminal activity. In reaching such a holding, we effectively undercut the
apparent foundation for Mr. Ellis’s argument—based on the example of Melton.
Furthermore, it does not appear, in light of our consideration of Mr. Ellis’s
briefing, that he has a backup argument—not tethered to Melton’s example—for
the application of de novo review to the question of the sufficiency of the
evidence to support the court’s finding concerning the scope of jointly undertaken
criminal activity. That is to say, it does not appear that Mr. Ellis has a backup
argument for de novo review that does not depend on us concluding, as an
antecedent matter, that the court legally erred by not making particularized
findings—a conclusion that we ultimately do not make. In particular, Mr. Ellis
offers no argument that at least assumes for the sake of argument that we would
conclude—as we do—that the district court did not err in making particularized
findings. Thus, the Melton-based argument that Mr. Ellis tacitly makes is
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bootless because we do not conclude that the district court erred as to
particularized findings, and he has no backup.
To be sure, citing our Patton decision, Mr. Ellis contends that “the ultimate
determination of relevant conduct is subject to de novo review.” Aplt.’s Opening
Br. at 19 (citing Patton, 927 F.3d at 1093); accord Aplt.’s Reply Br. at 10. And
the government agrees. See Aplee.’s Resp. Br. at 24 (citing Patton, 927 F.3d at
1093, and United States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012), for the
same proposition). Yet, even assuming that is so, it does not ineluctably follow
that the evidentiary sufficiency of the court’s findings as to subsidiary issues that
make up the ultimate relevant conduct determination—such as the scope of jointly
undertaken criminal activity, see U.S.S.G. § 1B1.3(a)(1)(B)(i)—are also reviewed
de novo. See United States v. Garcia, 946 F.3d 1191, 1202 (10th Cir. 2020)
(“[I]rrespective of the character of this ultimate relevant-conduct determination,
[the defendant’s] challenge here turns on whether the record provides a proper
foundation for certain subsidiary ‘factual findings in support of a determination of
relevant conduct.’” (quoting United States v. Griffith, 584 F.3d 1004, 1012 (10th
Cir. 2009))). 7
7
We recognized in Garcia that there is internal tension in our caselaw
concerning whether the overarching determination of relevant conduct is a
question of law reviewed de novo or, instead, one of fact that we review for clear
error. See Garcia, 946 F.3d at 1202; see also United States v. Craig, 808 F.3d
(continued...)
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And, as to the scope question, our caselaw is clear— de novo review does
not apply to the subsidiary finding concerning the scope of jointly undertaken
criminal activity. We review the evidentiary sufficiency of a district court’s
finding as to the scope of jointly undertaken criminal activity only for clear error.
See United States v. Sells (Sells II), 541 F.3d 1227, 1235 (10th Cir. 2008) (“A
district court’s determination of the quantity of drugs attributable to a defendant,
including the subsidiary questions of whether drugs were reasonably foreseeable
to a defendant and within the scope of the jointly undertaken criminal activity, is
a determination of fact reviewed only for clear error.” (emphasis added)); see also
United States v. Lauder, 409 F.3d 1254, 1267 (10th Cir. 2005) (considering “the
sufficiency of the evidence” regarding a district court’s determination of drug
quantities attributable to the defendant and concluding that it “did not clearly err”
in defining the scope of the defendant’s jointly undertaken criminal activity); cf.
United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002) (“A district court’s
finding that the criminal acts of others in a jointly undertaken criminal activity are
7
(...continued)
1249, 1255 (10th Cir. 2015) (“We have been inconsistent in our decisions about
whether a relevant conduct determination is a factual finding we must review for
clear error or a legal conclusion we must review de novo.”). However, as in
Garcia, “[w]e need not delve into this matter further,” 946 F.3d at 1202,
because—as we discuss infra—it is clear that subsidiary issues like the scope of
jointly undertaken criminal activity are factual in nature, and a court’s
determination of such issues is thus reviewed only for clear error.
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reasonably foreseeable and in furtherance of the jointly undertaken criminal
activity is reviewable for clear error.”).
In sum, contrary to Mr. Ellis’s arguments, we review his second challenge
under the clear-error standard. This is a “deferential” standard. United States v.
Nkome, 987 F.3d 1262, 1276 (10th Cir. 2021). Under this standard, “[i]f the
‘court’s account of the evidence is plausible in light of the record viewed in its
entirety,’ we may not reverse it even if we might have weighed the evidence
differently.” United States v. Piper, 839 F.3d 1261, 1271 (10th Cir. 2016)
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)); see
United States v. Torres, 53 F.3d 1129, 1144 (10th Cir. 1995) (“To constitute clear
error, we must be convinced that the sentencing court’s finding is simply not
plausible or permissible in light of the entire record on appeal, remembering that
we are not free to substitute our judgment for that of the district judge.”). “Where
there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.
III
We turn now to consider Mr. Ellis’s two sentencing challenges. We begin
with a brief overview of the relevant substantive law. And then we consider the
merits of the challenges and determine that they do not warrant relief.
A
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“District courts calculate sentences by first determining the Guidelines
section applicable to the statute under which the defendant was convicted.”
Figueroa-Labrada, 720 F.3d at 1265. As relevant here, the jury convicted Mr.
Ellis under 21 U.S.C. § 846 for conspiracy to possess with the intent to distribute
cocaine and cocaine base. Section 2D1.1 of the Guidelines applies to “Unlawful
Manufacturing, Importing, Exporting, Trafficking, or Possession”—including
conspiracy to possess with intent to distribute a controlled substance. U.S.S.G.
§ 2D1.1. The Guidelines base offense level is determined by the amount of the
controlled substance—here, cocaine or cocaine base—that is properly attributable
to the defendant. See id. § 2D1.1(a)(5).
At sentencing, a district court considers the offense of conviction’s relevant
conduct. Relevant conduct includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant”; and, “in the case of a jointly undertaken criminal activity, . . . all acts
and omissions of others that were: (i) within the scope of the jointly undertaken
criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably
foreseeable in connection with that criminal activity.” Id. § 1B1.3(a)(1)(A), (B)
(emphasis added) (indenting omitted).
More specifically, in addition to a defendant’s own criminal activities, the
Guidelines commentary clarifies:
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With respect to offenses involving contraband (including
controlled substances), the defendant is accountable . . . in the
case of a jointly undertaken criminal activity under subsection
(a)(1)(B), [for] all quantities of contraband that were involved in
transactions carried out by other participants, if those
transactions were within the scope of, and in furtherance of, the
jointly undertaken criminal activity and were reasonably
foreseeable in connection with that criminal activity.
Id. cmt. 3(D).
Mr. Ellis’s arguments only implicate the scope of agreement criterion. In
this regard, it is important to highlight that this is an “independent and necessary
element[] of relevant conduct under §1B1.3(a)(1)(B).” United States v. Green,
175 F.3d 822, 837 (10th Cir. 1999) (quoting United States v. Carreon, 11 F.3d
1225, 1235 (5th Cir. 1994)); accord United States v. Willis, 476 F.3d 1121, 1129
(10th Cir. 2007); see also Patton, 476 F.3d at 1094 (discussing § 1B1.3(a)(1)(B)’s
definition of relevant conduct, and noting “[u]nder that definition, scope of the
agreement, furtherance, and reasonable foreseeability are ‘independent and
necessary elements of relevant conduct’” (quoting Willis, 476 F.3d at 1129)).
“Each member of a conspiracy may have had a different scope of jointly
undertaken criminal activity and therefore different relevant conduct.” Figueroa-
Labrada, 720 F.3d at 1265. As the Guidelines commentary helpfully explains:
Because a count may be worded broadly and include the conduct
of many participants over a period of time, the scope of the
“jointly undertaken criminal activity” is not necessarily the same
as the scope of the entire conspiracy, and hence relevant conduct
is not necessarily the same for every participant. . . . [T]he court
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must first determine the scope of the criminal activity the
particular defendant agreed to jointly undertake (i.e., the scope
of the specific conduct and objectives embraced by the
defendant’s agreement).
U.S.S.G. § 1B1.3 cmt. 3(B). Determining the scope of the agreement that a
particular defendant joined in relation to the conspiracy as a whole requires the
district court, at sentencing, “to analyze, and make ‘particularized findings’
about[] the scope of the specific agreement.” Melton, 131 F.3d at 1404 (quoting
United States v. Thomas, 114 F.3d 228, 255 (D.C. Cir. 1997)).
“The government bears the burden of proving by a preponderance of the
evidence that the conduct of co-conspirators is to be attributed to the defendant
for sentencing purposes.” Id. at 1403. After hearing from the parties, in certain
instances, the district court is permitted to adopt the presentence report’s
findings. 8 And, when that happens, “we review the information in [the report] as
8
As we discuss infra, Mr. Ellis disputes the government’s position
that the district court here adopted the findings of the operative presentence
report—that is, the RPSR. See, e.g., Aplt.’s Reply Br. at 9 (noting that “the
district court in this case never expressly adopted the report’s factual findings”).
Yet, notably, Mr. Ellis does not contend that the district court was legally
precluded from adopting the RPSR’s findings because his arguments triggered the
court’s “Rule 32 fact-finding obligation”—that is, because his arguments
identified a specific “factual inaccuracy” or inaccuracies in the RPSR. United
States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006); cf. id. at 1253(noting that where the defendant only attacks a district court’s application of the
Guidelines to the historical facts, the fact-finding obligation is not triggered);
accord United States v. Cereceres-Zavala, 499 F.3d 1211, 1214 (10th Cir. 2007).
Indeed, on appeal, Mr. Ellis insists that the historical facts are not in dispute; at
(continued...)
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if it were the findings of the district court.” Figueroa-Labrada, 720 F.3d at 1266;
see also United States v. Sells (Sells I), 477 F.3d 1226, 1242 (10th Cir. 2007)
(considering the presentence report’s findings “adopted” by the sentencing court,
in determining whether the court’s findings were legally sufficient).
B
Mr. Ellis first challenges the sentencing court’s failure to make
particularized findings regarding the alleged scope of his jointly undertaken
criminal activity with Mr. Tatum. See Aplt.’s Opening Br. at 20–24. He focuses
on the court’s statement that “the fact that both [Mr. Tatum and Mr. Ellis] are
members of the same criminal conspiracy to distribute drugs . . . would establish
jointly-undertaken criminal activity[,] . . . so really the question is whether the
sales by Mr. Tatum are reasonably foreseeable to Mr. Ellis.” Aplt.’s Opening Br.
at 22–23 (bold-face font omitted) (quoting R., Vol. III, 102–03). Mr. Ellis
contends that “[a]ssuming [that] the scope of the criminal activity a co-
8
(...continued)
issue here, he says, is “only their import for assessing the scope of [Mr. Ellis’s]
agreement to jointly undertake criminal activity.” Aplt.’s Reply Br. at 16; see
Aplt.’s Opening Br. at 24 (noting, as to the scope determination, “the parties do
not dispute the facts themselves, but only their import for assessing the scope of
[Mr. Ellis’s] agreement”). In any event, given Mr. Ellis’s silence on the matter in
his briefing, any Rule 32 argument of this sort would be waived. See, e.g., United
States v. Bowline, 917 F.3d 1227, 1231 (10th Cir. 2019) (noting that “when a
party omits an argument from its opening brief, an appellate court has no
obligation to consider that argument”).
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conspirator agreed to jointly undertake is the same []as the scope of the entire
conspiracy is a misapplication of the Sentencing Guidelines.” Id. at 21 (citing
Melton, 131 F.3d at 1404). And, relying on our unpublished decision in Biglow,
Mr. Ellis highlights that a panel of our court has “specifically rejected” this
“shortcut[]” in the relevant conduct analysis. See id. at 22 (citing Biglow, 635 F.
App’x at 401).
Mr. Ellis’s argument is not without legal foundation: a sentencing court
“must make particularized findings about the scope of a defendant’s jointly
undertaken criminal activity to determine the correct amount of drugs attributable
to him.” Figueroa-Labrada, 720 F.3d at 1266 (citing Green, 175 F.3d at 837);
see also Melton, 131 F.3d at 1404 (“Proper attribution at sentencing requires the
district court to analyze, and make ‘particularized findings’ about, the scope of
the specific agreement the individual defendant joined in relation to the
conspiracy as a whole.” (quoting Thomas, 114 F.3d at 255)). And this judicial
obligation stems naturally from the established proposition that “the scope of the
‘jointly undertaken criminal activity’ is not necessarily the same as the scope of
the entire conspiracy.” U.S.S.G. § 1B1.3 cmt. 3(B).
Consequently, insofar as the district court’s statement that Mr. Ellis
identifies could be construed as demonstrating that the court categorically equated
the scope of Mr. Ellis’s jointly undertaken criminal activity with Mr. Tatum, to
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the scope of the overall conspiracy in which he and Mr. Tatum were participants,
we would be constrained to conclude that the court committed legal error. That
is, we would be obliged to conclude that the court committed legal error by not
making particularized findings concerning the scope of the jointly undertaken
criminal activity that Mr. Ellis agreed to participate in with Mr. Tatum—i.e., it
erred by doing no more than simply finding that they were involved in the same
conspiracy. See, e.g., Willis, 476 F.3d at 1130 (determining that there was
reversible error where “the District Court failed to make particularized findings
about the scope of the criminal activity to which [the defendant] agreed”; instead,
the court referred summarily and enigmatically to the evidence that it heard at
trial and made comments that were not consistent with holding the defendant
responsible for a “portion of the crime”); Green, 175 F.3d at 837 (concluding that
the court committed reversible legal error by failing to “make particularized
findings which are supported in the record about the scope of [the defendant’s]
agreement” to participate in the charged conspiracy, and it was “not sufficient”
for the court to find that the defendant was involved in a drug-trafficking
conspiracy with his coconspirator to hold him responsible for the illegal drugs
personally attributable to that coconspirator); Melton, 131 F.3d at 1404 (“The
district court failed to make such ‘particularized findings’ and misapplied the
sentencing guidelines by improperly assuming that the scope of the criminal
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activity [the defendant] agreed to jointly undertake was the same as the scope of
the entire conspiracy, including the reverse sting.”).
Here, the district court’s findings were not entirely devoid of particularity.
For example, the court did refer to the “drug deals” that the two men engaged in
and their “maintaining a drug house in furtherance of that drug criminal activity.”
R., Vol. III, at 103. However, we acknowledge that, if read in isolation, the
district court’s statement that Mr. Ellis identifies plausibly could be read as
indicating that the court impermissibly equated the scope of the overall
conspiracy that Mr. Ellis and Mr. Tatum were criminally charged with
participating in with the scope of the jointly undertaken criminal activity that Mr.
Ellis agreed to participate in with Mr. Tatum. However, as we typically do in
considering possible sentencing error, we do not read particular statements of the
district court in isolation; rather, we must interpret their import in the context of
the whole record. Cf. United States v. Lente, 759 F.3d 1149, 1174 (10th Cir.
2014) (considering “the entire record” in discerning whether the district court
committed sentencing error); United States v. Alapizco-Valenzuela, 546 F.3d
1208, 1221 (10th Cir. 2008) (same). In so doing, we reject Mr. Ellis’s first
challenge.
Specifically, in viewing the entire record, we conclude that the district
court adopted the RPSR’s findings concerning the scope of Mr. Ellis’s jointly
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undertaken criminal activity with Mr. Tatum, and those findings—as to
particularity—convincingly pass legal muster. See Figueroa-Labrada, 720 F.3d
at 1267 (“[T]he district court must make particularized findings (or adopt
particularized findings made in the [presentence report]) on both jointly
undertaken criminal activity and reasonable foreseeability before attributing the
actions of coconspirators to a defendant as relevant conduct.”); cf. United States
v. Godinez-Perez, 864 F.3d 1060, 1063–64 (10th Cir. 2016) (elaborating on how
the court’s adoption of the presentence report’s factual findings could not cure its
error in failing to make findings concerning the scope of jointly undertaken
criminal activity because the presentence report itself also did not include
findings as to such scope); Sells I, 477 F.3d at 1242 (like Godinez-Perez,
concluding that the district court erred because, “[a]lthough the district court
adopted the findings contained in the [presentence report], the [report] did not
make particularized determinations with respect to [the scope of the criminal
activity]”).
We start by explaining the basis for our conclusion as to the court’s
adoption of the RPSR’s findings. Recall that, at the resentencing hearing, the
district court properly heard the parties’ arguments, which directed the court to
key portions of the trial evidence bearing on the drug quantity computations and,
more specifically, the related question of the scope of jointly undertaken criminal
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activity. Then, the court effectively determined that the government’s marshaling
of evidence provided adequate proof of the RPSR’s findings regarding the
applicable drug quantity, and (with an exception not relevant here) the court
expressly used the RPSR’s recommended drug quantity as the “starting point for”
its sentencing analysis. R., Vol. III, at 113.
The RPSR’s recommended drug quantity of course was, in significant part,
directly predicated on its findings concerning the scope of Mr. Ellis’s jointly
undertaken criminal activity with Mr. Tatum. Id., Vol. IV, ¶ 109, at 49 (Mr.
“Ellis is responsible for cocaine attributed to [Mr.] Tatum for the approximate 6
month period in which [Mr.] Ellis was deemed to be involved with [Mr.] Tatum’s
drug trafficking activities (ending in mid-April 2012).”); see id., ¶¶ 107–08
(discussing “the jointly undertaken criminal activity that included purchasing
cocaine from Djuane Sykes and selling crack cocaine at various locations together
in the community and from 921 Haskell Street” and noting that Mr. “Ellis is
assessed cocaine base” based on those purchases). Consequently, based just on
our consideration of the sentencing transcript, alone, we might reasonably
conclude that—when the court explicitly relied on the RPSR’s drug quantity
recommendation (i.e., adopting it)—it likewise effectively adopted the RPSR’s
findings concerning the scope of Mr. Ellis’s jointly undertaken criminal activity
with Mr. Tatum. That is so because the RPSR’s scope findings served as an
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essential predicate for its drug quantity recommendation, which the court
endorsed.
However, we need not rely on the sentencing transcript alone. This is true
because the court subsequently made its intentions explicit and crystal clear
concerning its adoption of the RPSR’s findings—including its findings regarding
the scope of jointly undertaken criminal activity. Specifically, with the exception
of the previously mentioned slight adjustment in drug quantity which is not at
issue here, the court expressly stated, in its Amended Statement of Reasons, that
it “adopts the presentence investigation report [i.e., the RPSR].” R., Vol. IV, at
256. Surveying the entire record, including this statement, we therefore have no
difficulty concluding that the district court adopted the RPSR’s findings
concerning the scope of Mr. Ellis’s jointly undertaken criminal activity with Mr.
Tatum.
Unlike Mr. Ellis, we do not believe that this conclusion is forestalled by the
fact that the district court did not orally state in explicit terms at the resentencing
hearing that it adopted the RPSR’s findings—as the court most notably did in
Figueroa-Labrada, 720 F.3d at 1263 (describing and quoting the district court’s
explicit adoption). See Aplt.’s Reply Br. at 9 (citing Figueroa-Labrada, and
stating: “The government claims this error is remedied because the district court
adopted the findings of fact in the [R]PSR. Unlike the judges in the cases cited
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by the government, however, the district court in this case never expressly
adopted the report’s factual findings.” (emphasis added)). Mr. Ellis does not cite
any controlling authority that would have required the district court to make such
an explicit oral statement of adoption in order to accomplish that result.
As we analyze the situation, the best that the court’s lack of an explicit
oral statement at the sentencing hearing that adopted the RPSR’s findings
possibly could do for Mr. Ellis is render the court’s intentions on this matter
ambiguous. Though we do not opine that this is so, even if it were, the court’s
subsequent explicit written statement in its Amended Statement of Reasons
certainly would negate any such ambiguity, making clear the court’s intention to
adopt the RPSR’s findings—including its findings concerning the scope of jointly
undertaken criminal activity. See United States v. Pankow, 884 F.3d 785, 791
(7th Cir. 2018) (“In addition to the court’s remarks at sentencing, we also look to
the written statement of reasons to evaluate the sufficiency of the sentencing
rationale.”); cf. United States v. Ford, 675 F. App’x 832, 835 (10th Cir. 2017)
(unpublished) (“Because the oral explanation for the sentence is ambiguous, we
look to the record, including the written statement of reasons, to discern the
court’s intent in imposing the sentence. The statement of reasons resolves any
ambiguity here: it makes clear that the court adopted the [presentence report] . . .
.” (citation omitted)); cf. also United States v. Schock, 862 F.3d 563, 570 (6th
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Cir. 2017) (“When the oral sentence is ambiguous, however, we look to the
district court’s written judgment, commitment order, and statement of reasons.”);
United States v. Brown, 808 F.3d 865, 871 (D.C. Cir. 2015) (ruling that, “[w]hile
these statements [at the sentencing hearing] suggest some confusion on the part of
the trial judge, the Statement of Reasons form clarifies his understanding”).
Therefore, based on our consideration of the entire record, we conclude that
the district court adopted, as its own, the RPSR’s findings concerning Mr. Ellis’s
scope of jointly undertaken criminal activity with Mr. Tatum. See, e.g.,
Figueroa-Labrada, 720 F.3d at 1266 (noting that, when the court adopts the
presentence report, “we review the information in [that report] as if it were the
findings of the district court”). And the RPSR made particularized findings
concerning this matter, stating:
Marvin Ellis and Ataven Tatum were involved in jointly
undertaken criminal activity that included purchasing cocaine
from Djuane Sykes and selling crack cocaine at various locations
together in the community and from 921 Haskell Street. Their
jointly undertaken criminal activity is also demonstrated by [Mr.]
Tatum’s phone being utilized to arrange a sale that was later
consummated by Marvin Ellis, and Marvin Ellis accompanying
and assisting [Mr.] Tatum with drug deals.
R., Vol. IV, ¶ 107, at 49.
More specifically, the RPSR found that there was evidence of both an
explicit and implicit agreement between Mr. Ellis and Mr. Tatum regarding their
use of the 921 Haskell residence for drug trafficking. The explicit agreement
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assigned “[Mr.] Ellis[] responsibility for the utilities[,] and [Mr.] Tatum[]
responsibility as the renter” of 921 Haskell. Id., ¶ 325, at 109. Their implicit
agreement was for them both to “cook crack cocaine” at the residence and to “sell
crack cocaine from the residence.” Id. The RPSR underscored that “[t]he jointly
undertaken criminal activity is also demonstrated by [Mr. Ellis] and Theoplis Ellis
picking up drugs that [Mr.] Tatum had ordered, and [the] occasional use of a
common phone associated with arranging drug transactions.” Id.
We conclude that it is beyond peradventure that the RPSR’s findings are
sufficiently particularized regarding the scope of Mr. Ellis’s jointly undertaken
criminal activity involving Mr. Tatum. Unlike in Godinez-Perez, for example, the
RPSR’s findings have the effect of “specifically linking” Mr. Ellis’s drug
trafficking activities with similar activities that the investigation traced to Mr.
Tatum. 864 F.3d at 1063. And those findings of the RPSR—and, consequently,
of the district court itself—do not make the mistake that we identified in Melton
of “improperly assuming that the scope of the criminal activity [Mr. Ellis] agreed
to jointly undertake was the same as the scope of the entire conspiracy.” 131 F.3d
at 1404. Nor do the RPSR’s findings provide only “bare-bones information”
linking the drug distribution activities of Mr. Ellis and Mr. Tatum. United States
v. Flores-Alvarado, 779 F.3d 250, 257 (4th Cir. 2015).
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Consequently, where the presentence report has made legally sufficient
particularized findings regarding jointly undertaken criminal activity, as here, and
the district court has adopted those findings as its own, it cannot be said that the
court erred by failing to make particularized findings regarding the scope of the
defendant’s jointly undertaken criminal activity. See, e.g., Figueroa-Labrada,
720 F.3d at 1267. Accordingly, Mr. Ellis’s first challenge fails.
C
Regarding his second challenge, Mr. Ellis contends that the record does not
support the district court’s finding regarding the scope of his jointly undertaken
criminal activity with Mr. Tatum. According to Mr. Ellis, the “evidence does not
prove that [Mr.] Tatum and [Mr. Ellis] agreed to work toward a mutual goal with
respect to the cocaine [Mr.] Tatum purchased from [Mr.] Sykes.” Aplt.’s Opening
Br. at 25. Instead, Mr. Ellis argues that he and Mr. Tatum were “engaged in
separate, rival business operations,” and they were actually “competitors.” Id. In
this same vein, citing the illustration found in Guidelines § 1B1.3 cmt.
(4)(C)(vi), Mr. Ellis contends that the record reveals “critical evidence that the
men functioned as independent dealers with a common source of
supply”—namely, Mr. Sykes—and that such evidence does not legally support a
finding of jointly undertaken criminal activity. Id. at 28.
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However, Mr. Ellis’s arguments are unpersuasive. There was ample record
evidence to support the district court’s finding concerning the scope of jointly
undertaken criminal activity between Mr. Ellis and Mr. Tatum. Even if that were
not so, we certainly could not conclude that the district court’s finding on this
point is not plausible in light of the record evidence. Accordingly, in all events,
the court’s finding survives scrutiny and is not reversible, given our deferential
clear-error standard. See, e.g., Piper, 839 F.3d at 1271 (noting that “[i]f the
‘court’s account of the evidence is plausible in light of the record viewed in its
entirety,’ we may not reverse it even if we might have weighed the evidence
differently” (quoting Anderson, 470 U.S. at 574)); Torres, 53 F.3d at 1144(stating that, “[t]o constitute clear error, we must be convinced that the sentencing
court’s finding is simply not plausible or permissible in light of the entire record
on appeal”).
We begin with a brief overview of the legal backdrop against which the
district court made its finding. In particular, the Guidelines commentators
provide helpful benchmarks to courts in applying the “jointly undertaken criminal
activity” requirement, including the following:
[T]he court may consider any explicit agreement or implicit
agreement fairly inferred from the conduct of the defendant and
others. Accordingly, the accountability of the defendant for the
acts of others is limited by the scope of his or her agreement to
jointly undertake the particular criminal activity. Acts of others
that were not within the scope of the defendant’s agreement, even
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if those acts were known or reasonably foreseeable to the
defendant, are not relevant conduct under subsection (a)(1)(B).
U.S.S.G. § 1B1.3 cmt. 3(B) (emphases added).
In particular, the Guidelines commentators offer illustrations to clarify the
factual circumstances under which the requirement is satisfied, including the
illustration found in comment (4)(C)(vi)—which Mr. Ellis looks to for support:
Defendant P is a street-level drug dealer who knows of other
street-level drug dealers in the same geographic area who sell the
same type of drug as he sells. Defendant P and the other dealers
share a common source of supply, but otherwise operate
independently. Defendant P is not accountable for the quantities
of drugs sold by the other street-level drug dealers because he is
not engaged in a jointly undertaken criminal activity with them.
In contrast, Defendant Q, another street-level drug dealer, pools
his resources and profits with four other street-level drug dealers.
Defendant Q is engaged in a jointly undertaken criminal activity
and, therefore, he is accountable under subsection (a)(1)(B) for
the quantities of drugs sold by the four other dealers during the
course of his joint undertaking with them because those sales
were within the scope of the jointly undertaken criminal activity,
in furtherance of that criminal activity, and reasonably
foreseeable in connection with that criminal activity.
Id. cmt. 4(C)(vi) (emphasis added).
With this legal backdrop in mind, the record provided ample evidence for
the district court’s finding that Mr. Ellis and Mr. Tatum were jointly engaged in
criminal activity—encompassing the purchase of cocaine and the sale of
crack—during the critical six-month period that Mr. Tatum was buying cocaine
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from Mr. Sykes. Perhaps the most obvious indicator during this period of such
jointly undertaken criminal activity relates to the 921 Haskell residence.
The two men shared the 921 Haskell residence and used it to distribute
cocaine base and other illegal narcotics. Mr. Ellis and Mr. Tatum not only were
aware of each other’s drug-trafficking activities at this residence, but they also
pooled their resources in a number of respects that had the obvious effect of
facilitating their trafficking activities. With Mr. Tatum’s financial assistance, Mr.
Ellis had leased the 921 Haskell residence. Subsequently, Mr. Tatum later signed
a contract for deed to buy it, agreeing to make payments to the current owner.
And, because all of the utilities—including the electricity—were in Mr. Ellis’s
name, he literally was responsible for keeping the lights on for the men’s drug-
trafficking operation. Mr. Ellis and Mr. Tatum also would share the phone
belonging to Mr. Tatum to communicate with customers regarding drug sales.
Furthermore, both men used the services of Theoplis in carrying out their
drug-trafficking activities at 921 Haskell; among other services, Theoplis
“functioned as a doorman.” R., Vol. IV, ¶ 78, at 43. Theoplis was compensated
for his services daily, and the district court could have reasonably inferred
that—since he worked for both Mr. Ellis and Mr. Tatum—they shared the costs of
his services in some manner.
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In light of the foregoing evidence, the district court easily could
find—within the mold of the Guidelines commentary—that Mr. Ellis and Mr.
Tatum had an “implicit agreement” during the relevant six-month period,
reflecting the scope of their jointly undertaken criminal activity, to “cook crack
cocaine” at 921 Haskell and to “sell crack cocaine from the residence.” Id., ¶
325, at 109; see also U.S.S.G. § 1B1.3 cmt. 3(B).
Furthermore, far from helping him, the illustration that Mr. Ellis highlights
in the Guidelines commentary—specifically, in comment 4(C)(vi)—lends
powerful support to the district court’s scope finding. In that illustration, Mr.
Ellis is much more akin to Defendant Q—whom the Guidelines commentators
would hold “accountable . . . for the quantities of drugs sold by . . . other dealers
during the course of his joint undertaking,” than he is to Defendant P, who would
escape this sort of attribution. U.S.S.G. § 1B1.3 cmt. 4(C)(vi).
More specifically, Mr. Ellis’s connection to Mr. Tatum was not limited to
simply knowing that they “share[d] a common source of supply” and sold “the
same type of drug,” like Defendant P. Id. Rather, Mr. Ellis “pool[ed]” his
resources with Mr. Tatum—which (among other things) allowed the two men to
have a roof over their heads at 921 Haskell to sell drugs and the wherewithal to
keep Theoplis working for their mutual benefit—making Mr. Ellis’s position
much more akin to Defendant Q. Id.
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Accordingly, it would be quite plausible—indeed, eminently
reasonable—for the district court to determine that these facts supported a finding
that Mr. Ellis was engaged in a jointly undertaken criminal activity with Mr.
Tatum during the critical six-month period to purchase cocaine and distribute
crack at 921 Haskell. The upshot being that Mr. Ellis should be held
“accountable” for the cocaine powder that Mr. Tatum purchased from Mr. Sykes
during this period.
In retort, Mr. Ellis asserts that “nothing about the Haskell house
specifically pertains to the cocaine [Mr.] Tatum purchased from [Mr.] Sykes over
the six-month period between October 2011 and April 2012.” Aplt.’s Opening Br.
at 25. However, the district court could plausibly, as well as reasonably, find to
the contrary. Mr. Tatum undisputedly distributed crack (i.e., cocaine base) from
the 921 Haskell residence during this six-month period. And it is elementary that
crack is made from cocaine powder—the substance Mr. Tatum purchased from
Mr. Sykes during the same six-month period. Therefore, the district court could
plausibly infer—with no contrary evidence apparent in the record—that at least
some of the crack that Mr. Tatum trafficked at 921 Haskell was made with the
cocaine that he purchased from Mr. Sykes. Furthermore, and perhaps more
importantly, the district court’s finding regarding Mr. Ellis’s jointly undertaken
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criminal activity with Mr. Tatum during this six-month period did not depend
solely on two men’s activities at 921 Haskell.
Recall that the evidence showed that, during this period, on between ten to
fifteen occasions, Mr. Ellis and Mr. Tatum traveled together to pick up powder
cocaine from Mr. Sykes. And, as with their activities at 921 Haskell, both men
plausibly could be found to have pooled their resources by employing Theoplis
for their mutual benefit. Specifically, Theoplis assisted both men by, among other
things, picking up and delivering drugs in settings other than 921 Haskell.
Moreover, on at least one occasion, Mr. Ellis and Theoplis picked up cocaine on
behalf of Mr. Tatum from Mr. Sykes. These activities evidenced a good deal of
cooperation and coordination, which significantly fortified the foundation of the
district court’s (adopted) finding that Mr. Tatum “worked in concert with Marvin
Ellis and Theoplis Ellis, who would all work together to sell ‘crack’ cocaine to
various street level customers.” See R., Vol. IV, ¶ 75, at 42–43.
And, if these acts were not enough, the evidence showed that in early 2012,
primarily in the months of February and March, the DEA conducted a series of
controlled buys of crack cocaine, through the use of CIs, from Mr. Ellis and Mr.
Tatum in locations outside of 921 Haskell. Notably, on three occasions, Mr. Ellis
and Mr. Tatum were together when the drug transactions took place, and they
shared the resource of Mr. Tatum’s vehicle in conducting two of these
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transactions. Indeed, in one of the drug deals, Mr. Ellis effectively acted as the
go-between—shuttling between the CI’s vehicle and Mr. Tatum’s: Mr. Ellis
entered the CI’s vehicle and obtained the money; took the money and delivered it
to Mr. Tatum, whereupon he received the crack; and then he returned with the
crack and handed it to the CI through the vehicle’s window. Significantly, even
in a street sale that Mr. Ellis conducted on his own, he highlighted his joint
venture with Mr. Tatum, when he “bragged about obtaining his crack cocaine
from ‘Tater’”—Mr. Tatum’s nickname. Id., ¶ 83, at 44.
Consequently, there was ample evidence relating to the two men’s drug-
trafficking activities—both at and away from 921 Haskell—upon which the
district court could have plausibly found that Mr. Ellis was engaged in jointly
undertaken criminal activity with Mr. Tatum during the relevant six-month period
to purchase powder cocaine and distribute crack. 9
9
During the sentencing hearing and on appeal, Mr. Ellis’s counsel
argued that it does not naturally follow from Mr. Ellis and Mr. Tatum’s shared
residence and drug-trafficking activities at 921 Haskell that the two men were
engaged in a joint venture—reasoning that they just as well could have been
acting independently of each other. In this regard, Mr. Ellis’s counsel has
analogized the relationship between the two men to two lawyers that have an
office-sharing arrangement, but nevertheless maintain separate and independent
practices. In counsel’s hypothetical, the two lawyers “may have a common
reception, they may split the bills,”—but at the end of the day, if one of the
lawyers commits fraud, or does something that is not the other lawyer’s “stuff,”
then the other lawyer should not be held accountable for that conduct. R., Vol.
III, at 63–64. However, in making its finding of jointly undertaken criminal
(continued...)
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To be sure, Mr. Ellis seeks to advance a contrary view of the
evidence—under which Mr. Ellis and Mr. Tatum operated independently in their
drug-trafficking activities and actually “were competitors.” Aplt.’s Opening Br.
at 25. For example, Mr. Ellis attempts to undercut the notion that his ten to
fifteen trips with Mr. Tatum to purchase cocaine from Mr. Sykes bespeak jointly
undertaken criminal activity by arguing that the two men made separate cocaine
purchases from Mr. Sykes on these trips. See id. at 5 (“[A]lthough [Mr.] Tatum
and [Mr. Ellis] continued to arrive . . . together, they would make separate
9
(...continued)
activity, the district court effectively rejected this analogy. And, on this record,
we think that the court had a more than plausible basis for doing so. There is no
suggestion in Mr. Ellis’s hypothetical that the two lawyers repeatedly assisted and
coordinated with each other in their practices by, for example, repeatedly
litigating cases together. Yet, the hallmark of the relationship of Mr. Ellis and
Mr. Tatum was coordination and cooperation. In particular, Mr. Ellis repeatedly
assisted Mr. Tatum with crack sales in the community. And, as we discuss infra,
the two men plausibly could be found to have repeatedly provided mutual aid and
protection to each other in traveling on ten to fifteen occasions together to
purchase powder cocaine from Mr. Sykes. Furthermore, the reported reason that
Mr. Ellis had a falling out with Mr. Tatum is that the latter was attempting to boss
him around—a circumstance that one typically would not expect to find between
two lawyers operating independent legal practices, but one that you might find, if
the two lawyers were partners. All that said, even if Mr. Ellis’s lawyer
hypothetical could be viewed as reflecting a plausible reading of the record—viz.,
one indicating that Mr. Ellis and Mr. Tatum were “sometimes friendly” drug
dealers sharing a residence at 921 Haskell, but nevertheless “engaged in separate,
rival business operations,” Aplt.’s Opening Br. at 25—the district court’s contrary
reading of the record constituted, at the very least, a plausible alternative. Under
the deferential clear-error standard, that is enough to render this hypothetical
unavailing. See, e.g., Torres, 53 F.3d at 1144.
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purchases from [Mr.] Sykes. . . .”); id. at 28 (noting the fact that Mr. Ellis and
Mr. Tatum “made separate purchases of powder cocaine from [Mr.] Sykes at the
same time is a critical fact the government has never dealt with”). However, even
if that were true, it would not render implausible—or even unreasonable—the
district court’s finding that Mr. Ellis and Mr. Tatum—along with
Theoplis—“would all work together to sell ‘crack’ cocaine to various street level
customers,” R., Vol. IV, ¶ 75, at 43, and, more specifically, that the two men
“were involved in jointly undertaken criminal activity that included purchasing
cocaine from Djuane Sykes and selling crack cocaine at various locations together
in the community and from 921 Haskell Street,” id., ¶ 107, at 49.
Indeed, congruent with Guidelines commentary—the district court would
not have been unreasonable in finding support for its jointly undertaken criminal
activity finding in the fact itself that the two men elected to “coordinate their . . .
efforts” and, specifically, chose to travel together to make the cocaine purchases.
See U.S.S.G. § 1B1.3 cmt. 4(C)(viii). From their coordination of their travel to
Mr. Sykes, Mr. Ellis and Mr. Tatum plausibly could be deemed to have gained
“mutual assistance and protection”—even if they ultimately made separate
purchases from him. See id. (noting that individuals hired separately to smuggle
marijuana “across the border from Mexico into the United States” could be
deemed to have engaged in jointly undertaken criminal activity, where they
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“receive[d] their individual shipments from the supplier at the same time and
coordinate[d] their importation efforts by walking across the border together for
mutual assistance and protection”). As such, their coordinated conduct would
support a plausible finding that they each should be held “accountable for the
aggregate quantity” of cocaine that they purchased to further their crack
distribution activities. Id.
And lastly, in support of his contrary view of the evidence, Mr. Ellis points
to the one transaction during the latter part of the six-month period in which Mr.
Ellis arguably behaved more like a competitor than a collaborator with Mr.
Tatum. Recall that in that incident, Mr. Ellis reportedly “told the [CI] to ‘not
mess’ with [Mr.] Tatum anymore and to only contact him for drugs.” R., Vol. IV,
¶ 300, at 103. However, the existence of this single incident—which took place
about one month before Mr. Ellis parted company with Mr. Tatum—is hardly
inconsistent with the district court’s overall finding that Mr. Ellis and Mr. Tatum,
during the six months at issue, banded “together to sell ‘crack’ cocaine to various
street level customers.” Id., ¶ 75, at 43. Indeed, the incident does not even show
that Mr. Ellis engaged in a side deal that was inconsistent with his jointly
undertaken criminal activity with Mr. Tatum—only that he contemplated doing so
in the future. Cf. United States v. Childress, 58 F.3d 693, 711 n.3 (D.C. Cir.
1995) (“[T]he fact that certain conspirators engage in independent drug
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transactions does not on its own negate the existence of a single conspiracy.
Though genuine side deals would not be attributable to the conspiracy charged in
this case, neither would their existence prevent the jury from concluding that a
core, single conspiracy was also in operation simultaneously.” (citation omitted)).
At bottom, this one incident does not render implausible—or even
unreasonable—the court’s ultimate finding that Mr. Ellis was engaged in jointly
undertaken criminal activity with Mr. Tatum during the relevant six-month period.
Therefore, for the foregoing reasons, we also reject Mr. Ellis’s second
challenge. There was ample record evidence to support the district court’s
finding that, during the six-month period from mid-October 2011 to mid-April
2012, Mr. Ellis and Mr. Tatum were engaged in a jointly undertaken criminal
activity to purchase powder cocaine and distribute crack (i.e., cocaine base).
And, even if that were not so, under the deferential clear-error standard of review,
we certainly could not conclude on this record that the court’s finding in this
respect was implausible, and therefore the finding should be upheld.
IV
For these reasons, we AFFIRM the district court’s sentencing judgment.
52