United States v. Dahda , 852 F.3d 1282 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
April 4, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3237
ROOSEVELT RICO DAHDA,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:12-CR-20083-KHV-2)
_________________________________
Mark L. Bennett, Jr., Bennett & Hendrix, LLP, Topeka, Kansas, for
Defendant-Appellant.
Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall,
Acting United States Attorney, with her on the brief), Office of the United
States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.
_________________________________
Before LUCERO and BACHARACH, Circuit Judges. 
_________________________________
BACHARACH, Circuit Judge.

The Honorable Neil Gorsuch participated in oral argument, but he is
not participating in the decision. The practice of this court permits the
remaining two panel judges, if in agreement, to act as a quorum in deciding
the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d
1516, 1516, at n* (10th Cir. 1997) (noting that this court allows remaining
panel judges to act as a quorum to decide an appeal). In this case, the two
remaining panel members are in agreement.
_________________________________
Mr. Roosevelt Dahda and 42 others faced criminal charges involving
the operation of a marijuana-distribution network centered in Kansas.
Roosevelt 1 was convicted on ten counts, and the district court sentenced
him to 201 months’ imprisonment and ordered forfeiture in the amount of
$16,985,250. On appeal, Roosevelt raises seven challenges to the
convictions and sentence:
1. The evidence was insufficient to prove the conspiracy charged
in count one, which involved 1,000 kilograms or more of
marijuana.
2. There was an unconstitutional variance between the single,
large conspiracy charged in count one and the trial evidence,
which showed numerous smaller conspiracies.
3. The district court erred in denying Roosevelt’s motion to
suppress wiretap evidence.
4. The sentence of 201 months’ imprisonment exceeded the
statutory maximum because the jury did not make a specific
finding on the quantity of marijuana involved in the
conspiracy.
5. The district court erred in setting Roosevelt’s base-offense
level by miscalculating the amount of marijuana attributed to
Roosevelt.
6. The district court’s upward variance of 33 months was
substantively unreasonable.
7. The district court erred in entering a forfeiture judgment.
1
One of the co-defendants was Roosevelt’s brother, Mr. Los Dahda.
To avoid confusion, we refer to Mr. Roosevelt Dahda and Mr. Los Dahda
by their first names.
2
We reject the challenges in 1-4 and 6-7. But we agree with the fifth
challenge, concluding that the district court miscalculated the amount of
marijuana attributed to Roosevelt. Based on these conclusions, we affirm
Roosevelt’s convictions but remand for resentencing.
I. Sufficiency of the Evidence
Count one charged Roosevelt with a conspiracy involving 1,000
kilograms or more of marijuana. See 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(vii), 846, 856 (2012); 18 U.S.C. § 2. 2 Roosevelt argues that the
government failed to prove that he had joined the large conspiracy charged
in count one. According to Roosevelt, the evidence established only a
number of smaller conspiracies.
To decide whether the evidence of guilt sufficed, we engage in de
novo review, considering the evidence in the light most favorable to the
government to determine whether any rational jury could have found guilt
beyond a reasonable doubt. United States v. Yehling, 456 F.3d 1236, 1240
(10th Cir. 2006). We consider the direct and circumstantial evidence but do
not balance conflicting evidence or consider the witnesses’ credibility. Id.To prove a conspiracy, the government must show that (1) two or
more persons agreed to violate the law, (2) the defendant knew the
2
Count one also charged Roosevelt with a conspiracy involving
cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), 846, 856; 18 U.S.C.
§ 2. But the cocaine component of the conspiracy was not submitted to the
jury.
3
essential objectives of the conspiracy, (3) the defendant knowingly and
voluntarily participated in the conspiracy, and (4) the alleged co-
conspirators were interdependent. United States v. Wardell, 591 F.3d 1279,
1287 (10th Cir. 2009). Determining the existence of a single conspiracy
involves a question of fact for the jury. United States v. Dickey, 736 F.2d
571, 581 (10th Cir. 1984). This question turns on the existence of a
common, illicit goal. Id. at 582.
Based on the trial evidence, we concluded in United States v. Los
Dahda that the evidence was sufficient to permit the finding of a single
conspiracy of 1,000 kilograms or more of marijuana. 3 ___ F.3d ___,
No. 15-3236, slip op., Part II(A) (10th Cir. Apr. 4, 2017). Applying the
same reasoning here, we reject Roosevelt’s argument that the evidence
established a number of smaller conspiracies rather than a single large
conspiracy.
The remaining question is whether the evidence was sufficient to
show that Roosevelt joined the large conspiracy involving 1,000 kilograms
3
Roosevelt raises one argument not raised in Los’s appeal: that Mr.
Park and Mr. Swift “may have been in direct competition with [Mr.
Bauman] at some points.” Appellant’s Opening Br. at 34. In support,
Roosevelt points to Mr. Park’s testimony that an individual working with
Mr. Bauman might have stolen marijuana from Mr. Park’s store. R. vol. 3,
at 1453. This testimony is not dispositive, and Mr. Bauman and Mr. Swift
testified that they had never competed with one another. R. vol. 3, at 1182,
2351. Thus, we reject Roosevelt’s argument.
4
or more of marijuana. We conclude that the evidence was sufficient based
on six categories of evidence:
1. Roosevelt drove a truck with a hidden compartment, which was
used by the group to transport drugs and cash. R. vol. 1, at 406-
08; R. supp. vol. 4, Exhibit 704-05. When Roosevelt drove the
truck, the hidden compartment apparently contained cash. Once
Roosevelt arrived in California, he was to open the
compartment to remove the cash. Id.
2. Roosevelt relayed a request from Mr. Park for Los to travel to
Northern California to inspect some marijuana grow operations.
R. vol. 2, at 575; R. supp. vol. 4, Exhibit 823. In relaying this
request, Roosevelt commented that he had seen some of the
marijuana and that it “look[ed] very lovely.” R. supp. vol. 4,
Exhibit 823.
3. Roosevelt sent boxes through the group’s shipping operation to
Mr. Justin Pickel, who grew marijuana in California. R. vol. 1,
at 474; R. supp. vol. 4, Exhibit 753. Roosevelt also agreed to
send money to Mr. Pickel. R. vol. 2, at 547-48; R. supp. vol. 4,
Exhibit 794.
4. Roosevelt went to the group’s Kansas warehouse to pick up
marijuana. R. vol. 3, at 1457-58.
5. In Kansas, Roosevelt sold pounds of marijuana that had been
sent from California, R. vol. 3 at 1231-50, 1260-62, 1293-95,
1606-07, 1612; R. supp. vol. 4, Exhibits 738, 767, 772-74, 853-
54.
6. The day after the police seized approximately 37 pounds of
marijuana from Mr. Pickel, Roosevelt and Los discussed the
fact that they had lost “half of what [they] [had] worked for”
and that they had to be cautious when “bring[ing] the rest of
this back.” R. supp. vol. 4, Exhibit 860.
Crediting this evidence and viewing it favorably to the government,
we conclude that a rational fact-finder could conclude beyond a reasonable
doubt that Roosevelt knowingly and voluntarily participated in the large
5
conspiracy. This conclusion would have remained valid even if Roosevelt
had occupied a relatively minor role in the conspiracy. See United States v.
Caro, 965 F.2d 1548, 1556 (10th Cir. 1992) (“[A] defendant’s participation
in the conspiracy may be slight and may be inferred from the defendant’s
actions so long as the evidence establishes a connection to the conspiracy
beyond a reasonable doubt.”). In United States v. Anaya, for instance, the
defendant participated in a drug conspiracy only by installing hidden
compartments in vehicles. 727 F.3d 1043, 1051 (10th Cir. 2013). We held
that the evidence was sufficient for conviction on a conspiracy charge
because the compartments had been insulated to mask smells, the defendant
had seen $800,000 in cash in one of the compartments, the compartments’
sizes had been measured in kilos, the defendant and his customers had
communicated in code, and the defendant had been warned not to discuss
the compartments. Id.Similarly, Roosevelt might not have performed a major role in the
conspiracy. But the trial evidence was sufficient to show that he (1) had
agreed to violate the law, (2) had known that the essential objective of the
conspiracy was transportation of marijuana from California to Kansas for
resale in Kansas, (3) had knowingly and voluntarily participated in the
conspiracy, and (4) had facilitated the conspiracy’s objective.
Roosevelt counters that the government did not prove
interdependence because he was unknown to several co-conspirators and
6
the conspiracy could have operated without him. These arguments overstate
what the government had to prove. The government did not need to prove
 that Roosevelt knew or had connections with all other members
of the conspiracy or
 that Roosevelt was indispensable to the conspiracy.
See United States v. Foy, 641 F.3d 455, 465 (10th Cir. 2011). “[R]ather, it
is sufficient that [Roosevelt] was an operational link within [the
conspiracy].” United States v Cornelius, 696 F.3d 1307, 1318 (10th Cir.
2012). In light of the evidence, we conclude that the evidence sufficed for
a finding that Roosevelt had at least been “an operational link” within the
conspiracy. Id.* * *
Viewed in the light most favorable to the government, the evidence
was sufficient to establish (1) the existence of the single conspiracy
charged in count one and (2) Roosevelt’s participation in that conspiracy.
We therefore reject Roosevelt’s challenge to the sufficiency of the
evidence on count one.
II. Variance
Roosevelt also urges a prejudicial variance between the conduct
charged in count one and the trial evidence. According to Roosevelt, the
7
evidence established only smaller conspiracies rather than a single, large
conspiracy. 4
“In the context of a conspiracy conviction, we treat a variance claim
as a challenge to the sufficiency of the evidence establishing that each
defendant was a member of the same conspiracy.” United States v.
Gallegos, 784 F.3d 1356, 1362 (10th Cir. 2015). Viewing the challenge in
this manner, we engage in de novo review. United States v. Caldwell, 589
F.3d 1323, 1328 (10th Cir. 2009).
Applying de novo review, we rejected the same challenge by
Roosevelt’s co-defendant in United States v. Los Dahda, ___ F.3d ___, No.
15-3236, slip op., Part III (10th Cir. Apr. 4, 2017). Based on that opinion,
we reject Roosevelt’s assertion of a variance between count one and the
trial evidence.
III. The Wiretap Authorization Orders
Much of the evidence introduced against Roosevelt was obtained
through wiretaps of cell phones used by Roosevelt and four others. The
wiretaps took place during the six months preceding Roosevelt’s arrest and
4
Roosevelt made a different variance argument in district court.
There, Roosevelt argued that a variance had occurred because (1) the
charge involved both cocaine and marijuana and (2) the trial evidence
proved only a marijuana conspiracy. The government argues that we should
apply plain-error review to the new variance argument raised on appeal.
Because we would affirm even under de novo review, we do not consider
whether the plain-error standard applies. See United States v. Vasquez-
Alcarez, 647 F.3d 973, 977 (10th Cir. 2011) (permitting us to assume, for
the sake of argument, that an argument was not forfeited).
8
had been authorized by the U.S. District Court for the District of Kansas.
Prior to trial, Roosevelt moved to suppress the intercepted
communications, arguing that the wiretap orders were facially insufficient
because they had exceeded the district court’s territorial jurisdiction.
We concluded in United States v. Los Dahda that suppression was not
warranted even though the orders had been facially deficient. ___ F.3d ___,
No. 15-3236, slip op., Part IV (10th Cir. Apr. 4, 2017). Based on our
opinion in Los Dahda, we reject Roosevelt’s challenge to the denial of his
motion to suppress.
IV. Sentencing Issues
Roosevelt was sentenced to prison for a total of 201 months. In
calculating the sentence, the district court determined that Roosevelt was
responsible for 1,600 pounds (725.7 kilograms) of marijuana, resulting in a
base-offense level of 28. See U.S.S.G. § 2D1.1 (2014). With adjustments
and criminal history, the guideline range was 135 to 168 months. The
district court then varied upward by 33 months on the ground that
Roosevelt had manipulated a co-defendant into not cooperating with the
government.
Roosevelt urges a remand for resentencing based on three arguments:
1. The sentence exceeded the statutory maximum because the jury
did not specifically find the quantity of marijuana involved in
the conspiracy.
9
2. The district court clearly erred in finding that Roosevelt was
responsible for 1,600 pounds of marijuana.
3. The upward variance was substantively unreasonable because
Roosevelt did not manipulate the co-defendant.
We reject the first and third arguments but agree with the second. Because
the district court erred in attributing 1,600 pounds to Roosevelt, we remand
for resentencing.
A. Jury Finding on Marijuana Quantity
As noted, Roosevelt was found guilty on count one, participation in a
conspiracy involving 1,000 kilograms or more of marijuana. Roosevelt
argues that the prison sentence of 201 months on count one exceeds the
statutory maximum because the jury did not specifically find the quantity
of marijuana involved in the conspiracy.
The penalties for violating 21 U.S.C. § 841(a) are set forth in
subsection (b). The severity of the penalty turns on the quantity of drugs
involved in the crime. Subsection (b)(1)(D) provides a ceiling of five
years’ imprisonment for less than 50 kilograms of marijuana. 21 U.S.C.
§ 841 (b)(1)(D). Subsection (b)(1)(C) provides a maximum sentence of 20
years’ imprisonment when no specific quantity is charged. And subsections
(b)(1)(A) and (B) provide even higher maximum sentences and mandatory
minimums, depending on the type and quantity of the substance. In cases
involving at least 1,000 kilograms or more of marijuana, subsection
10
(b)(1)(A) imposes a mandatory minimum sentence of ten years and a
maximum sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(vii).
Roosevelt was sentenced under subsection (b)(1)(C), 5 but he argues
that he should have been sentenced under (b)(1)(D) because the verdict
form had not included a specific finding on the marijuana quantity. But
Roosevelt waived this argument in district court.
When the district court asked Roosevelt’s attorney which subsection
applied, the attorney responded:
Your Honor, I would agree that (b)(1)(C) is the
appropriate provision under Section 841 as regards to the
defendant’s sentencing range and that’s because the jury did
not find the quantity of drugs necessary to trigger any
mandatory minimum that’s based on quantity, and (b)(1)(A)
and (b)(1)(B) are based on quantities. (b)(1)(C) states that for
any substance under Schedule 1 or Schedule 2. It doesn’t have
a quantity.
And I think there’s case law in the Tenth Circuit that says
that that provision applies in the absence of any quantity found
by the jury. And so we would argue that (b)(1)(C) applies as
the defendant’s statutory range which has no mandatory
minimum and has the maximum of 20 years.
R. vol. 3 at 2648-49.
The threshold issue is whether defense counsel’s statement
constitutes a waiver, which would arise if the statement had “invited” the
alleged error. United States v. Carrasco-Salazar, 494 F.3d 1270, 1272
5
Although Roosevelt was found guilty of participating in a conspiracy
involving 1,000 kilograms or more of marijuana, the government agreed to
waive the ten-year mandatory minimum under § 841(b)(1)(A).
11
(10th Cir. 2007); see also United States v. Olano, 507 U.S. 725, 733 (1992)
(“[W]aiver is the intentional relinquishment or abandonment of a known
right.” (citations & internal quotation marks omitted)). We conclude that
defense counsel waived the present argument.
When asked which statutory provision should apply, defense counsel
stated that Roosevelt should be sentenced under § 841(b)(1)(C); and the
district court relied on this representation. These circumstances constitute
invited error. See United States v. Teague, 443 F.3d 1310, 1316 (10th Cir.
2006) (rejecting the defendant’s challenge to the conditions of his
supervised release because he “proposed the very limitation . . . to which
[he] now objects”).
Roosevelt disagrees, contending that the discussion at sentencing
focused on whether a statutory mandatory minimum could be imposed
given the lack of a specific finding on the marijuana quantity. The issue on
appeal, he explains, is whether the sentence exceeded the statutory
maximum given the lack of a jury finding on quantity. We disagree, for
Roosevelt expressly agreed that the statutory maximum was provided in
(b)(1)(C).
But even if Roosevelt had not invited error in district court, we
would reject the argument under the plain-error standard. We find plain
error when (1) the ruling constitutes error, (2) the error is plain, (3) the
error affects substantial rights, and (4) the error seriously affects the
12
fairness, integrity, or public reputation of judicial proceedings. United
States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007).
In United States v. Los Dahda, we addressed whether the lack of an
express jury finding on quantity required resentencing of Los under 21
U.S.C. § 841(b)(1)(D), rather than § 841(b)(1)(C). ___ F.3d ___, No. 15-
3236, slip op., Part V (10th Cir. Apr. 4, 2017). Under de novo review, we
concluded that the answer was “no” because the quantity of 1,000
kilograms constituted an element of the charged conspiracy. Id.
The same reasoning applies here. Using the same instructions and
verdict form described in Los Dahda, the jury found Roosevelt guilty on
count one, which required the jury to find that the conspiracy involved
1,000 kilograms or more of marijuana. Therefore, Roosevelt’s sentence
under 21 U.S.C. § 841(b)(1)(C) did not constitute error, much less plain
error. See id.In sum, Roosevelt waived his challenge to the statutory maximum.
But even if this issue had not been waived, application of § 841(b)(1)(C)
would not have constituted plain error.
B. Quantity of Marijuana Attributable to Roosevelt
Roosevelt contends that in calculating his base-offense level, the
district court erroneously calculated the quantity of drugs attributable to
him. The district court adopted the presentence report’s recommendation,
which attributed 1,600 pounds (725.7 kilograms) of marijuana to
13
Roosevelt. This quantity involved an estimate of the weight of marijuana
shipped from California to Kansas between December 2010 and May 2012. 6
During this time-period, the presentence report estimated that 20 pallets,
each containing 80 pounds of marijuana, had been shipped from California
to Kansas—for a total of 1,600 pounds. R. vol. 4, at 49-50. The district
court determined that this estimate had been “reasonable and reliable and
conservative,” resulting in a base-offense level of 28. R. vol. 3, at 2668.
Roosevelt argues that (1) he was pinned with marijuana shipments
that he could not have reasonably foreseen and (2) even if the shipments
had been reasonably foreseeable, the district court clearly erred in
estimating that each pallet contained 80 pounds of marijuana. 7 We reject
6
These dates were selected because Roosevelt had been in prison
through November 2010 and was arrested on the present charges in May
2012.
7
At oral argument, Roosevelt argued for the first time that the jury
should have determined the quantity of marijuana used to calculate the
base-offense level. But “[i]ssues raised for the first time at oral argument
are considered waived.” Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800,
805 (10th Cir. 1998).
Even if we were to consider the argument, it would fail on the merits.
The jury’s findings on count one resulted in a statutory maximum of 20
years’ imprisonment. See Part IV(A), above. If the drug quantity found by
the sentencing judge “did not cause [the defendant’s] sentence to exceed
the statutory maximum, Apprendi [v. New Jersey, 530 U.S. 466 (2000)]
[would] not require that the jury make findings on quantity.” United States
v. Wilson, 244 F.3d 1208, 1215 (10th Cir. 2001). Here, the 1,600 pounds of
marijuana attributed to Roosevelt did not cause his sentence to exceed the
statutory maximum that would otherwise have existed. Accordingly, there
was no Apprendi violation.
14
Roosevelt’s first argument but agree that the court clearly erred in
estimating that each pallet contained 80 pounds of marijuana. Accordingly,
we remand for resentencing.
1. Reasonable Foreseeability
A defendant is accountable for all reasonably foreseeable drug
quantities that were within the scope of the jointly undertaken criminal
activity. U.S.S.G. § 1B1.3 cmt. 2 (2014).
“We review the district court’s factual finding concerning the
quantity of drugs for which a defendant may be held accountable under a
clearly erroneous standard.” United States v. Ortiz, 993 F.2d 204, 209
(10th Cir. 1993). The finding is clearly erroneous only if it is implausible
or impermissible based on the entire record. United States v. Torres, 53
F.3d 1129, 1144 (10th Cir. 1995). In examining the record, we must
determine whether the district court could reasonably have found that the
government had satisfied its burden on foreseeability by a preponderance
of the evidence. United States v. Roberts, 14 F.3d 502, 521 (10th Cir.
1993).
Roosevelt contends that he cannot be held responsible for the first
five shipments listed in the presentence report—representing 1,040 pounds
of marijuana—because (1) these shipments were received by Mr. Bauman
and (2) Roosevelt did not work with Mr. Bauman. As previously noted,
Roosevelt’s lack of a direct connection with Mr. Bauman would not
15
preclude responsibility for the five shipments. See Part I, above. And the
evidence showed that beginning in early 2011, Roosevelt was selling
marijuana in Kansas that had been acquired in California. R. vol. 3, at
1231-50, 1260-62.
Roosevelt also argues that he was not personally linked to any of the
shipments. But Roosevelt could be responsible for shipments even if he
was not personally linked to them. “Section 1B1.3(a)(1)(B) makes clear
that in calculating a defendant’s offense level under the Guidelines, a
defendant must be held accountable for the conduct of his co-conspirators,
including conduct in which the defendant did not personally participate, as
long as the conduct was within the scope of the jointly undertaken criminal
activity and was reasonably foreseeable to the defendant.” United States v.
Sells, 541 F.3d 1227, 1235 (10th Cir. 2008).
In United States v. Williams, we upheld a defendant’s base-offense
level predicated on the entire quantity of drugs involved in the conspiracy.
897 F.2d 1034, 1041 (10th Cir. 1990). We agreed with the sentencing court
that “at a minimum” the defendant “had knowledge of the criminal
enterprise” and participated significantly (though only episodically). Id.Thus, the defendant “knew or should have known” of the total quantity of
drugs involved in the conspiracy. Id.Our explanation in Williams is also applicable here. Roosevelt was
aware of the drug distribution network and participated in that network.
16
This participation included driving cash to California for someone in the
group to buy marijuana, examining a field of marijuana, picking up
marijuana shipments at the group’s Kansas warehouse, and selling
marijuana in Kansas. See Part I, above. Nonetheless, the district court did
not pin Roosevelt with all of the drugs involved in the conspiracy; instead,
the court excluded marijuana that had been dealt while Roosevelt was in
prison. Thus, the district court did not clearly err in finding that the
marijuana shipments had been reasonably foreseeable and within the scope
of the criminal activity undertaken by Roosevelt.
2. Estimate of Marijuana Quantity
Roosevelt also argues that the district court clearly erred in
estimating that each of the 20 shipped pallets contained 80 pounds of
marijuana. We agree with Roosevelt.
The government bears the burden to prove drug quantity through a
preponderance of the evidence. United States v. Ortiz, 993 F.2d 204, 209
(10th Cir. 1993). The base-offense level may consist of an estimate if it
contains some record support and is based on information bearing
“minimum indicia of reliability.” United States v. Garcia, 994 F.2d 1499,
1508 (10th Cir.1993); United States v. Coleman, 7 F.3d 1500, 1504 (10th
Cir. 1993).
No such indicia of reliability are present here. The quantities in the
pallets varied. For example, Mr. Bauman testified that each pallet had
17
contained between “five or ten pounds to eighty pounds” of marijuana. R.
vol 3, at 2251. Mr. Bauman and Mr. Swift remarked that toward the end of
the conspiracy, each pallet usually contained 80 pounds, with Mr. Bauman
adding that there “could have been” times when the pallets contained more
than 80 pounds. R. vol. 3, at 1067, 2252. But this testimony does not
support a finding that the pallets contained an average of 80 pounds. In
fact, the presentence report states that one of the shipments attributed to
Roosevelt had contained only 33 pounds of marijuana. R. vol. 4 at 49.
The government cites no evidence showing that the district court
fairly attributed 80 pounds, rather than 5-10 pounds, to the shipments used
to calculate Roosevelt’s base-offense level. Nor is there any way to
determine what time period Mr. Bauman and Mr. Swift were referencing
when they testified that toward the end of the conspiracy, the pallets
usually contained 80 pounds.
In United States v. Roberts, we held that an estimate entailed clear
error because the district court had attempted to extrapolate drug quantities
from one time period to another. 14 F.3d 502, 521 (10th Cir. 1993). There
one defendant admitted that he had bought and redistributed 150-200
pounds of methamphetamine between 1987 and February 1991. Id. at 520.
The district court used this figure to estimate that the defendant was
responsible for distributing 60 pounds of methamphetamine between
January 1, 1989, and February 26, 1991. Id. at 519-20. We rejected this
18
estimate, concluding that the district court had “ground[ed] its conclusion
in midair” because no reasonable basis existed to extrapolate the finding
from the 150-200 pounds that the defendant had admitted. Id. at 521.
United States v. Richards is also instructive. 27 F.3d 465 (10th Cir.
1994). There a witness testified that she had bought drugs from the
defendant in amounts varying from week to week, “sometimes one or two
grams and sometimes four or five.” Id. at 469. Law enforcement then used
the maximum weekly quantity of five grams to estimate that the witness
had purchased “80 grams, on the assumption that she [had] purchased five
grams per week for sixteen weeks.” Id. We concluded that this calculation
was based on “insufficient minimally reliable evidence” because the
testimony had been vague, conflicting, and unsupported by other evidence.
Id.Though Mr. Bauman and Mr. Swift are arguably more reliable than
the witness in Richards, their testimony was also vague. Without a way to
tie their testimony concerning the pallets of 80 pounds to the shipments
attributed to Roosevelt, the testimony of Mr. Bauman and Mr. Swift was
insufficient to attribute 1,600 pounds to Roosevelt.
The government argues that any error would be harmless because
there was other evidence of marijuana attributable to Roosevelt. The
burden falls on the government to demonstrate, by a preponderance of the
19
evidence, that the error did not affect Roosevelt’s substantial rights.
United States v. Harrison, 743 F.3d 760, 764 (10th Cir. 2014).
The government did not satisfy this burden. The government’s
argument on harmlessness consists of a single sentence, referring to 37
pounds and 200 marijuana plants seized from a co-conspirator. Under the
guidelines, each marijuana plant counted as 100 grams. U.S.S.G. § 2D1.1
applic. note (E). Thus, the additional evidence would account for just over
81 pounds, which was only about 5% of the marijuana weight that the
district court attributed to Roosevelt. Thus, the government’s reliance on
additional evidence would not take the district court’s finding outside the
realm of speculation. In these circumstances, we remand for the district
court to reassess the quantity of marijuana attributable to Roosevelt.
C. Upward Variance
Though we remand to the district court for resentencing, we address
Roosevelt’s argument that the upward variance of 33 months was
substantively unreasonable. 8
8
The district court stated that it was departing upward from the
guideline range, but Roosevelt characterizes the sentence as a variance.
The government refers to the sentence as both a departure and a variance
and seems to use the terms interchangeably. We conclude that the court
actually applied a variance rather than a departure. The district court
imposed the sentence based on the 18 U.S.C. § 3553(a) factors. When a
court applies the § 3553(a) factors to impose a sentence outside the
guideline range, the district court is applying a variance rather than a
departure. See United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1221-
22 (10th Cir. 2008).
20
District courts enjoy broad discretion in sentencing, but sentences
must be substantively reasonable. United States v. Hanrahan, 508 F.3d
962, 969 (10th Cir. 2007). Substantive reasonableness focuses on the
length of the sentence and requires that sentences be neither too long nor
too short. Id.We review substantive reasonableness under the abuse-of-discretion
standard, which requires us to give substantial deference to the district
court. United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009).
The district court abuses that discretion when rendering a decision that is
arbitrary, capricious, whimsical, or manifestly unreasonable. Id.Roosevelt was sentenced to 201 months’ imprisonment, 33 months
above the upper end of his guideline range. The district court justified the
variance on the ground that Roosevelt had pressured a co-defendant, Ms.
Sadie Brown, into not cooperating with the government. Because Ms.
Brown did not cooperate with the government, she did not receive a
“safety-valve” adjustment. See 18 U.S.C. § 3553(f)(5); U.S.S.G.
§ 5C1.2(a)(5). Without this adjustment, Ms. Brown obtained a sentence 12-
33 months higher than she might otherwise have received.
Roosevelt argues that the district court lacked evidence to find
manipulation of Ms. Brown. We reject this argument. The district court
could reasonably rely on the evidence presented at Roosevelt’s sentencing,
combined with what the court had already known from Ms. Brown’s
21
sentencing. See United States v. Spears, 197 F.3d 465, 471 (10th Cir.
1999). 9
At Roosevelt’s sentencing, the government produced two letters that
Ms. Brown had received from Roosevelt. The first letter opens with “How
is my favorite student?” and instructs Ms. Brown how to handle her
criminal case. R. vol. 5, at 1. She was to try to withdraw her guilty plea,
file a direct appeal based on ineffective legal assistance, and send a copy
of correspondence about her case “home to [Roosevelt’s mother].” Id. at 1.
The letter adds that trying for the safety-valve adjustment now would not
hurt anyone. Id. at 2. The second letter similarly tells Ms. Brown how to
handle her sentencing and again says that her counsel provided ineffective
assistance. Notably, Roosevelt sent these letters only after the end of his
own criminal trial.
Upon receipt of these letters, Ms. Brown tried to qualify for the
safety-valve adjustment. At her sentencing, the government contended that
Ms. Brown was ineligible because she had not been truthful. Tr. of
Sentencing Volume II at 30-32, United States v. Brown, No. 12-20083-03-
9
Our understanding of Ms. Brown’s sentencing comes from our review
of Ms. Brown’s sentencing transcripts. See Tr. of Sentencing Volume II,
United States v. Brown, No. 12-20083-03-KHV-3 (D. Kan. Mar. 9, 2015),
ECF No. 1813; Tr. of Sentencing Volume III, United States v. Brown, No.
12-20083-03-KHV-3 (D. Kan. Mar. 12, 2015), ECF No. 1815. The same
district judge presided over the criminal cases of both Roosevelt and Ms.
Brown and relied partly on evidence from Ms. Brown’s sentencing.
Roosevelt does not question the district court’s ability to rely on Ms.
Brown’s sentencing proceedings.
22
KHV-3 (D. Kan. Mar. 9, 2015), ECF No. 1813. Ms. Brown testified that
she had provided information to the best of her ability and that she had
decided to pursue the safety-valve adjustment only after obtaining
permission from Roosevelt.
The government then called the case agent who had conducted the
safety-valve interview. The case agent testified that Ms. Brown had not
been forthcoming during her interview, adding that “during the course of
the proffer examination, there [had been] statements made relative to the
Dahdas[’] manipulation of [Ms. Brown]” and that it had appeared that the
Dahdas were continuing to communicate with Ms. Brown. Id. at 36-37. The
case agent opined that during the safety-valve interview, there was
discussion that the Dahdas had treated Ms. Brown “like a slave . . . .” Id. at
37.
After hearing this testimony, the district court continued the
sentencing to give Ms. Brown a second opportunity to qualify for a safety-
valve adjustment. At the continued hearing, the case agent testified that
Ms. Brown had still not been completely truthful and had minimized the
criminal activity of individuals related to Roosevelt. For instance, the case
agent expressed the belief that Ms. Brown had minimized the involvement
of co-defendant Nathan Wallace—Roosevelt’s half-brother—who had yet
to be sentenced. Tr. of Sentencing Volume III at 73, United States v.
Brown, No. 12-20083-03-KHV-3 (D. Kan. Mar. 12, 2015), ECF No. 1815.
23
Ms. Brown explained that she had not pursued the safety-valve adjustment
earlier because she had not wanted to testify against Los and Roosevelt. Id.
at 87. Ultimately, the district court determined that Ms. Brown had failed
to satisfy the requirements for a safety-valve adjustment. Id. at 84.
At Roosevelt’s sentencing, the district court found that Roosevelt
was “legally and morally responsible for [the] extra time that [Ms. Brown]
[was] doing” and that a sentence within the guideline range would not
“adequately take into account all of the relevant conduct here.” R. vol. 3,
at 2685-86. These findings were not clearly erroneous. Thus, we conclude
that the district court (1) acted within its discretion in varying upward and
(2) imposed a substantively reasonable sentence.
V. Forfeiture
Roosevelt’s final argument is that the district court erred in ordering
forfeiture in the amount of $16,985,250. According to Roosevelt, the
forfeiture order should be vacated for three reasons:
1. The district court violated the federal rules by failing to enter a
preliminary order of forfeiture.
2. The district court lacked sufficient evidence for the amount of
the forfeiture.
3. The district court failed to specify the amount of the forfeiture.
We reject these arguments.
First, Roosevelt urges vacatur of the forfeiture order because the
district court failed to enter a preliminary order of forfeiture as required by
24
Fed. R. Crim. P. 32.2(b). Roosevelt did not raise this argument in district
court, and our review is limited to the plain-error standard. United States
v. Wright, ___ F.3d ___, No. 15-5090, 2017 WL 677485, at *4 (10th Cir.
Feb. 21, 2017). We find plain error when (1) the ruling is erroneous,
(2) the error is plain, (3) the error affects substantial rights, and (4) the
error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Romero, 491 F.3d 1173, 1178 (10th
Cir. 2007); see Part IV(A) above.
Rule 32.2 provides that upon a finding that property is subject to
forfeiture, the court must enter a preliminary forfeiture order “sufficiently
in advance of sentencing to allow the parties to suggest revisions or
modifications before the order becomes final . . . .” Fed. R. Crim. P.
32.2(b)(2)(A)-(B), 32.2(b)(4)(A). The court did not comply with this
requirement.
The government concedes that this omission constituted an error that
was plain. The resulting issue is whether the error affected Roosevelt’s
substantial rights and “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,
732 (1993). The error affected Roosevelt’s substantial rights only if the
outcome was likely affected. Romero, 491 F.3d at 1178.
The outcome here was unaffected because Roosevelt had notice of a
potential forfeiture in the amount of $16,985,250. Indeed, Roosevelt does
25
not question the existence of notice. Nor could he do so, for he objected
before the hearing to any forfeiture. R. vol. 3, at 2678-80; R. vol. 4, at 77-
78. 10
Though he was on notice of a potential forfeiture, Roosevelt argues
that he was deprived of “procedures to contest the deprivation of property
rights.” Appellant’s Reply Br. at 22 (internal quotation marks & emphasis
omitted). He argues that his circumstances are analogous to those in United
States v. Shakur, where the defendant had “timely contested six of the
government’s Forfeiture Allegations, but his objections were entirely
ignored.” 691 F.3d 979, 988 (8th Cir. 2012).
Roosevelt does not explain how the lack of a preliminary forfeiture
order deprived him of an opportunity to be heard. Nor does he argue that
he would have made additional objections if a preliminary order of
forfeiture had been entered. These circumstances differ from those in
Shakur, where the defendant’s pre-sentencing objections were completely
ignored.
In contrast, Roosevelt’s only objection was addressed to his
satisfaction at the sentencing. Nor is it true here, as it was in Shakur, that
“[t]he only mention of forfeiture came at the very end of the lengthy
10
In objecting before the hearing, Roosevelt argued that it was unclear
how much of the $16,985,250 had been generated by sales of marijuana
rather than cocaine. R. vol. 4, at 77. That objection was addressed to
Roosevelt’s satisfaction at the sentencing, and the issue became moot. R.
vol. 3, at 2680.
26
hearing when the district court stated, after pronouncing Shakur’s
sentence, ‘I am going to enter a forfeiture in this case.’” Id. at 986. Thus,
we conclude that the lack of a preliminary order of forfeiture did not affect
Roosevelt’s substantial rights.
In addition, Roosevelt “challenges the forfeiture judgment for the
same reasons that he challenges his conspiracy conviction, namely that
there was insufficient evidence of the single conspiracy, and a variance.”
Appellant’s Opening Br. at 59. We reject this argument for the same
reasons discussed above. See Parts I-II, above.
Roosevelt also urges vacatur on the ground that the final judgment
did not state the forfeiture amount. It is true that the final judgment
omitted the amount of the forfeiture. Instead, the judgment purported to
make the preliminary order of forfeiture final as to Roosevelt. But as just
discussed, the court never filed a preliminary order of forfeiture. As a
result, the final judgment failed to incorporate the amount of the forfeiture.
It was clear from the sentencing proceeding, however, that forfeiture
was ordered in the amount alleged in the superseding indictment and
reported in the presentence report, $16,985,250. R. vol. 3, at 2679-80
(addressing Roosevelt’s objection to the forfeiture amount listed in the
presentence report). Federal Rule of Criminal Procedure 32.2(b)(4)(B)
provides that the court must (1) “include the forfeiture when orally
announcing the sentence or must otherwise ensure that the defendant knows
27
of the forfeiture at sentencing” and (2) “include the forfeiture order,
directly or by reference, in the judgment, but the court’s failure to do so
may be corrected at any time under Rule 36.” In turn, Rule 36 provides that
“the court may at any time correct a clerical error in a judgment . . . .”
Fed. R. Crim. P. 36.
Roosevelt does not dispute oral pronouncement of a forfeiture order
in the amount of $16,985,250. Thus, the failure to specify the forfeiture
amount in the final judgment is an error that may be corrected “at any
time” under Rule 36. See United States v. Sasser, 974 F.2d 1544, 1561
(10th Cir. 1992) (holding that a written judgment could be corrected to
provide that the defendant’s sentences would be served consecutively
because the sentencing transcript revealed that the district court had
intended the sentences to run consecutively); see also United States v.
Villano, 816 F.2d 1448, 1451 (10th Cir. 1987) (en banc) (“The sentence
orally pronounced from the bench is the sentence.”).
In sum, the failure to state the forfeiture amount in the judgment
does not warrant vacatur of the forfeiture. But we call the oversight to the
attention of the district court so that it may correct the judgment.
We affirm the order of forfeiture in the amount of $16,985,250.
28
VI. Disposition
We affirm the convictions and forfeiture order, but remand for
resentencing based on the error in calculating the amount of marijuana
attributable to Roosevelt.
29