United States v. Cornelius , 696 F.3d 1307 ( 2012 )


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  •                                                                                FILED
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    September 18, 2012
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee/Cross-Appellant,
    v.
    Nos. 10-3125 and 10-3142
    COREY CORNELIUS, a/k/a C.C.,
    Defendant-Appellant/Cross-
    Appellee.
    Appeal from the United States District Court
    for the District of Kansas
    (D.C. No. 06:07-CR-10142-JTM-10)
    Carl F. A. Maughan of Maughan & Maughan LC, Wichita, Kansas, for Defendant-
    Appellant/Cross-Appellee.
    James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
    Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee/Cross-Appellant.
    Before LUCERO, SEYMOUR, and EBEL, Circuit Judges.
    EBEL, Circuit Judge.
    Defendant-appellant Corey Cornelius was charged with four counts of federal
    racketeering- and drug-related offenses in 2008 in the District of Kansas along with
    nineteen codefendants in a thirty-count indictment. A jury convicted Cornelius in 2009
    of one count of conspiracy to commit a violation of the Racketeer Influenced and Corrupt
    Organizations Act (“RICO”), one count of conspiracy to distribute crack cocaine, and one
    count of conspiracy to distribute marijuana. The jury could not reach a verdict on the
    fourth count against Cornelius, charging racketeering under RICO. The district court
    sentenced Cornelius to 210 months’ imprisonment in 2010. This appeal by Cornelius and
    cross-appeal by the Government followed.
    On appeal, Cornelius argues that (1) the evidence at trial was insufficient to
    support a conviction on any of the counts under which he was convicted; (2) the district
    court erred by instructing the jury that it did not need to find that an “enterprise” actually
    existed in order to convict on the offense of conspiracy to commit a RICO violation; (3)
    the district court erred by giving the jury an Allen instruction1 after the jury advised the
    court that it was deadlocked on certain counts; (4) the district court erred by refusing to
    1
    See Allen v. United States, 
    164 U.S. 492
     (1896). An “Allen instruction” or
    “Allen charge” is “a supplemental instruction given to a divided jury to encourage it to
    agree on a verdict.” United States v. LaVallee, 
    439 F.3d 670
    , 689 (10th Cir. 2006)
    (quotation marks, citation omitted). “Generally, such an instruction urges deadlocked
    jurors to review and reconsider the evidence in the light of the views expressed by other
    jurors so as to avoid a mistrial.” Id. (internal quotation marks, citation omitted). When
    an Allen instruction “imposes such pressure on the jury such that the accuracy and
    integrity of their verdict becomes uncertain, it violates a defendant’s right to due process
    and Sixth Amendment rights to an impartial jury trial and to a unanimous verdict.” Id.
    (internal quotation marks, citation omitted).
    2
    instruct the jury on the affirmative defense of duress; (5) Cornelius was denied his right
    to trial by an impartial jury, in light of an allegedly bias-indicating letter that a juror
    handed to the prosecution after trial; and (6) Cornelius’s sentence was unconstitutional,
    contrary to the Fair Sentencing Act of 2010, and based upon an improperly considered
    prior conviction. Meanwhile, the Government cross-appeals with regard to Cornelius’s
    sentence, arguing that the district court erred by failing to impose the statutorily
    applicable twenty-year mandatory minimum term of imprisonment required for his
    crack-cocaine conviction.
    Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reject
    Cornelius’s arguments on appeal and AFFIRM his conviction. Additionally, we agree
    with the Government that the district court erred by failing to impose the statutory
    mandatory minimum sentence in this case, and therefore VACATE Cornelius’s sentence
    and REMAND for sentencing consistent with this opinion.
    I. BACKGROUND
    1. Pre-trial background
    The Crips are one of the more prominent street gangs in Wichita, Kansas. The
    Crips engage in drug distribution, violent crimes, and other illicit activity. Cornelius was
    a Crip member, and he had brothers and friends in the gang. The Wichita Crips are
    composed of several “sets,” or sub-gang units, each of which may have their own sub-
    sets. Testimony at Cornelius’s trial indicated that Cornelius was considered an “OG,” or
    “original gangster,” within one of the sets. An OG is a kind of leader with decision-
    3
    making power in the gang—“[s]omeone that is very respected, either the founder of the
    gang or someone that has earned respect within the gang and is high ranking.” R. Vol. 4
    at 961-62. Additional details about the Crips and Cornelius’s criminal activities are set
    forth below as necessary in the Discussion.
    Cornelius was arrested in May 2007 in relation to a 2006 armed robbery of a credit
    union in Wichita. Cornelius was charged in the District of Kansas with bank robbery and
    the use of a firearm during commission of a federal crime of violence, but those charges
    were dismissed in November 2007. In the meantime, in September 2007, Cornelius was
    charged in a twenty-five-count Superceding Indictment along with multiple
    codefendants.2 After a series of subsequent indictments, Cornelius was charged along
    with nineteen codefendants in the case’s thirty-count Fifth Superceding Indictment, filed
    in September 2008.
    Cornelius faced charges under four counts in the Fifth Superceding Indictment.
    Under Count 1, Cornelius was charged with racketeering, in violation of 18 U.S.C.
    § 1962(c), in relation to the following alleged acts: robbery of a man in 1997; possession
    with intent to distribute marijuana in 2005; robbery of a credit union in 2006; and
    conspiracy to distribute cocaine and marijuana in 2007. Under Count 2, Cornelius was
    charged with conspiracy to commit a RICO violation, in violation of 18 U.S.C.
    2
    The original indictment, filed in July 2007, did not include Cornelius among the
    defendants it charged.
    4
    § 1962(d), in relation to the previously identified activity. In Count 28, Cornelius was
    charged with conspiracy to distribute fifty grams or more of a mixture containing a
    detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
    Finally, in Count 29, Cornelius was charged with conspiracy to distribute a mixture
    containing a detectable amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and
    846.
    2. The trial
    Cornelius was tried by a jury in the District of Kansas along with five co-
    defendants who were also alleged Crips. The trial lasted roughly six weeks, from early
    March through mid-April 2009. On March 30, after all evidence had been presented and
    arguments had concluded, the jury began its deliberations. On April 9, the jury informed
    the judge that it was at an impasse, unable to reach a verdict on sixteen of thirty-four
    counts. In response, the court issued, over Cornelius’s attorney’s objection, an Allen
    instruction to the jury, instructing the members to reconsider their views and to deliberate
    further in attempt to reach an agreement if possible.
    Also on April 9, the jury submitted a question to the court, asking: “Does the
    enterprise in Count 1 [i.e., racketeering under RICO] have to be established before we
    can come to a verdict on Count 2 [conspiracy to commit a RICO violation]?” R. Vol. 4 at
    4438. The court responded in the negative, issuing the following responsive instruction
    to the jury:
    5
    No, your decision on Count 1 does not control your decision on Count 2. It
    is possible to find the defendant not guilty on Count 1, but guilty on Count
    2, or guilty on Count 1 but not guilty on Count 2. Of course you may also
    find the defendant not guilty or guilty on both of those counts as well.
    [T]hese matters are addressed in Instructions 23 through 28 and 32 and 33.
    You must read this answer in conjunction with all of the instructions I have
    given you.
    Id. at 4438-39, 4446. Cornelius’s attorney had objected to that instruction by way of
    adopting the position of counsel for one of Cornelius’s codefendants—counsel who had
    argued that the new instruction “lends undue emphasis to instructions that are already in
    the court’s original instructions.” Id. at 4443. Counsel had urged the court simply to
    refer the jurors back to the original jury instructions, although he conceded that he did not
    believe that the new instruction misstated the law or otherwise misled the jury. Notably,
    the original instructions likewise indicated that the jury did not need to find the existence
    of an enterprise under Count 1 in order to convict on Count 2. See R. Vol. 2 at 358-59
    (Instr. 32: “Unlike the charge in Count 1, the government need not prove [under Count 2]
    . . . that the alleged enterprise was actually established . . . .”).
    On April 15, the jury returned a verdict on twenty-eight counts, unable to reach a
    verdict on the remaining six counts. With respect to the four charges against Cornelius,
    the jury failed to reach a verdict on Count 1 (racketeering under RICO), but it found
    Cornelius guilty under Count 2 (conspiracy to violate RICO), Count 28 (conspiracy to
    distribute crack cocaine), and Count 29 (conspiracy to distribute marijuana).
    3. Post-trial events
    6
    After the trial had concluded, some of the jurors chose to meet with the attorneys
    in the jury room. There, the presiding juror handed an envelope with a typed letter to the
    prosecution. The letter thanked the prosecutors for their service; offered to discuss the
    trial, the jury’s deliberations, and the applicable law with them, if that would be legal;
    and referenced the presiding juror’s willingness to “help [the Government] rid this cancer
    in our society.” R. Vol. 2 at 403.
    On May 6, 2009, Cornelius filed a “Motion for judgment of acquittal or, in the
    alternative, a new trial,” citing insufficient evidence to support a conviction, improper
    jury instructions, and jury partiality as justifications for relief. The district court denied
    that motion on July 15, 2009. Cornelius was sentenced on May 12, 2010, to 210 months’
    imprisonment for each of the three counts of conviction, to run concurrently.
    Before trial, the Government had filed an information pursuant to 21 U.S.C. § 851,
    giving notice of a former felony drug conviction of Cornelius that would subject him to
    an enhanced sentence—namely, a twenty-year mandatory minimum prison term for
    Count 28, under 21 U.S.C. § 841(b)(1)(A). Cornelius objected to the consideration of
    that prior conviction, asserting that the conviction was the result of an unconstitutional
    search and therefore should be excluded from consideration as fruit of the poisonous tree
    under the exclusionary rule. The district court, over the Government’s objection, did not
    sentence Cornelius to the twenty-year minimum. Rather, deeming itself to have some
    flexibility in the matter, and in light of its concern about crack/powder cocaine sentencing
    7
    disparities, the court sentenced Cornelius to only 210 months—twenty-five months less
    than the low end of the advisory range yielded by the Federal Sentencing Guidelines.
    On May 21, 2010, Cornelius appealed to this Court. As outlined above, he argues
    that his conviction as well as his sentence were improper. Meanwhile, the Government
    cross-appealed, challenging only the district court’s sentencing decision.
    II. DISCUSSION
    A. Sufficiency of the evidence
    Cornelius argues that the evidence presented at trial was insufficient to support his
    convictions on Counts 2, 28, and 29. We conclude that the evidence was sufficient for
    each.
    We review the record de novo in sufficiency-of-the-evidence challenges to
    criminal jury verdicts, asking if, “viewing the evidence in the light most favorable to the
    government, a reasonable jury could have found the defendant guilty beyond a reasonable
    doubt.” United States v. Dobbs, 
    629 F.3d 1199
    , 1203 (10th Cir. 2011). We consider
    “both direct and circumstantial [evidence], together with the reasonable inferences to be
    drawn therefrom.” United States v. Jameson, 
    478 F.3d 1204
    , 1208 (10th Cir. 2007).
    “We will reverse a conviction ‘only if no rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt.’” Dobbs, 629 F.3d at 1203
    (citation omitted).
    1. Count 2: Conspiracy to commit a RICO violation
    8
    Cornelius’s sufficiency challenge to his conviction on Count 2 is peculiar insofar
    as he does not argue directly that there was insufficient factual proof to support a
    conviction. Rather, he relies upon an inference from the jury’s failure to reach a verdict
    on Count 1—racketeering under RICO—which he claims is inconsistent with his
    conviction on Count 2—conspiracy to commit a RICO violation—such that either a
    directed acquittal or a new trial is warranted vis-à-vis Count 2. Cornelius first asserts that
    the RICO conspiracy charge in Count 2 as well as the substantive RICO charge in Count
    1, requires a finding of, among other elements, the existence of an enterprise at the time
    of the offense.3 He then argues that the jury’s acquittal on Count 1 must have been based
    on a finding that no enterprise in fact existed. Cornelius concludes, therefore, that the
    evidence must have been insufficient as to Count 2, since conviction on that charge also
    required the jury to find the same element of the actual existence of a criminal enterprise
    that it found lacking under Count 1.
    3
    The RICO statute provides:
    It shall be unlawful for any person employed by or associated with any
    enterprise engaged in, or the activities of which affect, interstate or foreign
    commerce, to conduct or participate, directly or indirectly, in the conduct of
    such enterprise’s affairs through a pattern of racketeering activity or
    collection of unlawful debt.
    18 U.S.C. § 1962(c).
    Subsection (d) of § 1962, in turn, declares it “unlawful for any person to conspire
    to violate any of the provisions of subsection (a), (b), or (c) of this section.”
    9
    Cornelius’s inconsistent-verdicts argument fails without even reaching the
    question of whether the existence of an enterprise is an essential element of a RICO
    conspiracy charge under 18 U.S.C. § 1962(d). It is a longstanding principle that
    “[c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as
    if it was a separate indictment.” Dunn v. United States, 
    284 U.S. 390
    , 393 (1932); see
    also id. at 394 (“That the verdict may have been the result of compromise, or of a mistake
    on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry
    into such matters.”); United States v. Swafford, 
    766 F.2d 426
    , 429-30 (10th Cir. 1985)
    (applying the rule in Dunn to an allegedly inconsistent conspiracy verdict). See generally
    
    18 A.L.R. 3d 259
     § 30[a] (“As a general rule, the fact that contrary verdicts are returned
    as between a conspiracy count and a count charging a substantive offense presents no
    such inconsistency as requires reversal.”). Hence, even if the jury were required to find
    the existence of an enterprise under both Counts 1 and 2, mere inconsistency between the
    guilty verdict on Count 2 and the non-verdict on Count 1 would not warrant reversal of
    the conviction.
    Cornelius has not made any additional arguments on appeal with respect to his
    conviction on Count 2. Cornelius’s enterprise argument fundamentally also fails, in
    addition to the reason discussed above, because the Government was not required to
    prove the actual existence of an enterprise under 18 U.S.C. § 1962(d)—a legal point we
    clarify today in United States v. Harris, No. 10-3173, -- F.3d -- (10th Cir. 2012).
    Reviewing the record de novo and making all reasonable inferences in favor of the
    10
    Government, see Jameson, 478 F.3d at 1208, we determine that the Government
    produced sufficient evidence from which a rational trier of fact could have found all the
    elements of the RICO conspiracy charged in Count 2 beyond a reasonable doubt, see
    Dobbs, 629 F.3d at 1203.
    2. Count 28: Conspiracy to distribute crack cocaine
    Cornelius argues that the jury could not reasonably have convicted him on Count
    28 because the Government failed adequately to prove the interdependence element of
    conspiracy. “To obtain a conspiracy conviction, the government must prove: ‘(1) an
    agreement by two or more persons to violate the law; (2) knowledge of the objectives of
    the conspiracy; (3) knowing and voluntary involvement in the conspiracy; and (4)
    interdependence among co-conspirators.’” United States v. Foy, 
    641 F.3d 455
    , 465 (10th
    Cir. 2011). The interdependence prong is “a focal point” of this conspiracy analysis.
    United States v. Caldwell, 
    589 F.3d 1323
    , 1329 (10th Cir. 2009) (quotation marks,
    citation omitted). To that end, we ask whether the “coconspirators intend[ed] to act
    together for their shared mutual benefit within the scope of the conspiracy charged.” Id.
    (internal quotation marks, citation omitted). The Government need not “prove ‘the
    conspirators know the identities or details of each scheme or have connections with all
    other members of the conspiracy.’” Foy, 641 F.3d at 465 (citation omitted).
    “Circumstantial evidence alone is often sufficient” to demonstrate interdependence, and
    “a single act” can constitute sufficient proof. Caldwell, 589 F.3d at 1329.
    11
    Cornelius contends that his conviction on Count 28 rests upon “an impermissible
    stacking of inference upon inference” and improper “guilt by association” reasoning.
    Aplt. Br. at 26. He claims that even if he did buy cocaine from, or sell cocaine to, other
    Crips, there is no evidence that any two of those occasions were connected, or that any
    common drug-supplying goal existed between them. He also asserts that “other
    defendants could have continued with any effort to distribute cocaine even if [he] had not
    been involved.” Id. at 29.
    However, the Government did put forth evidence from which a reasonable jury
    could infer interdependence. It is true that the “existence of a buyer-seller relationship,
    without more, is inadequate to tie the buyer to a larger conspiracy.” United States v.
    McIntyre, 
    836 F.2d 467
    , 471 (10th Cir. 1987). However, the buyer-seller principle only
    shields mere end-user consumers like the defendant in McIntyre, who only shared three
    cocaine purchases with friends and did not resell the drugs. See, e.g., id. In contrast, as
    opposed to mere consumers, those who “intend to redistribute drugs for profit, thereby
    furthering the objective of the conspiracy,” such as “street-level, mid-level, and other
    distributors,” are not protected by the end-user defense. United States v. Ivy, 
    83 F.3d 1266
    , 1286 (10th Cir. 1996).
    In this case, there was evidence that Cornelius bought and sold drugs in an
    interdependent distribution scheme. The evidence that Cornelius repeatedly sold cocaine
    to other drug distributors who in turn sold it to others is sufficient to support a reasonable
    inference that conspiratorial interdependence existed between Cornelius and other
    12
    distributors in a conspiracy.4 See United States v. Wright, 
    506 F.3d 1293
    , 1299 (10th
    Cir. 2007) (determining that a “buyer-seller relationship [was] patently an interdependent
    one” where there was evidence that defendant sold drugs on a recurrent basis to another
    man, who in turn sold the drugs for profit); United States v. Small, 
    423 F.3d 1164
    , 1183
    (10th Cir. 2005).
    Further supporting that conclusion is evidence that Cornelius was an “OG”—a
    leader within the gang—as that status would tend to establish Cornelius as a “mid-level”
    dealer, which bolsters a finding of a conspiratorial relationship. See Ivy, 83 F.3d at 1285-
    86; Wright, 506 F.3d at 1299. Cornelius’s status as an OG could also suggest that he
    “was privy to information regarding the [nature and objectives] of the criminal
    conspiracy,” which supports an inference of interdependence. Small, 423 F.3d at 1183.
    Also to that end, testimony regarding Cornelius’s attendance at gang meetings supports
    such an inference, see id. at 1183.
    4
    See, e.g., R. Vol. 4 at 995, 1018-22 (testimony of Donta Davis, a fellow Crip,
    indicating that Davis knew Cornelius for a long time and had several marijuana and
    cocaine dealings with Cornelius; that Cornelius knew how to obtain drugs and would
    acquire them for Davis; that Davis would meet Cornelius at a “crack house,” where other
    Crips hung around, to conduct the transactions; that the amounts of drugs Davis would
    buy from Cornelius at a time—multiple ounces of powder cocaine, to be cooked into
    crack, and multiple pounds of marijuana—were substantial; and that Davis would in turn
    sell the drugs to other people); id. at 1801, 1815-16 (testimony of Prentice Byrd, a Crip,
    indicating that he sold crack cocaine to Cornelius probably twice, never merely gifting
    drugs to, or sharing drugs with, Cornelius); id. at 2029, 2096-97 (testimony of James
    Jones, another Crip, indicating that Jones sold crack cocaine to Cornelius from February
    to September 2006, and that Cornelius had a spot from which Cornelius regularly sold
    drugs himself).
    13
    The jury did not need to find that the conspiracy could not have functioned
    without Cornelius; rather, it is sufficient that Cornelius was an operational link within it.
    See United States v. Evans, 
    970 F.2d 663
    , 670 (10th Cir. 1992). In this case, there was
    adequate evidence, including the testimony identified above, from which a rational jury
    could conclude that Cornelius was at least an operational link in the cocaine distribution
    conspiracy.5
    In sum, viewing the evidence in the light most favorable to the Government, there
    was sufficient evidence to find Cornelius guilty under Count 28.
    3. Count 29: Conspiracy to distribute marijuana
    With respect to Count 29, Cornelius argues that there was insufficient evidence of
    the necessary respective conspiracy elements of agreement and interdependency. See
    Caldwell, 589 F.3d at 1329. He asserts that his conviction rested upon an improper guilt-
    by-association rationale, arguing that there was no proof of conspiracy but rather only
    5
    Our holding in United States v. McIntyre is not to the contrary, as Cornelius
    suggests. In McIntyre, we reversed a conspiracy-to-distribute conviction on sufficiency-
    of-the-evidence grounds where the prosecution “failed to show any common goal or
    larger scheme beyond each single [drug] transaction” and, further, did not “contend that
    defendant knew of a broad conspiracy or that the relatively small amounts of cocaine he
    purchased should have alerted him to a conspiracy.” 836 F.2d at 472. Also, the
    prosecution there had not put forth sufficient evidence to show “that if defendant had
    failed to possess and distribute drugs on any one of the named occasions, the failure
    would have had any effect on the success of the other transactions.” Id. The present case
    is distinguishable because the Government did put forth evidence from which the jury
    could have concluded that Cornelius—an OG, who re-sold drugs in addition to buying
    them, unlike the mere end-use consumer in McIntyre—knew of a larger drug-distribution
    scheme and knew of a broad conspiracy, and that his drug transactions had an effect on
    the success of other transactions.
    14
    evidence of his status as a Crip and his intent to distribute marijuana, apart from any
    agreement with others.
    Once again, however, the Government did produce evidence that supports a
    reasonable inference of a conspiracy. Fellow Crip Donta Davis testified, “I was buying
    and [Cornelius] knew the person to get [marijuana and cocaine] from, [Cornelius] would
    go get [it] for me.” R. Vol. 4 at 1019; see also id. at 1020 (testimony that Davis would
    buy two to three pounds of marijuana at a time, at a price of $500-600 per pound, from
    Cornelius).6 This kind of middleman buyer-seller relationship between two drug dealers,
    along with Cornelius’s status as an OG (giving him an insider presence and heightened
    decisionmaking power in the gang), is sufficient to support an inference of both the
    agreement and interdependency elements of a conspiracy. See Wright, 506 F.3d at 1298-
    99.
    We cannot say that no reasonable jury could have found Cornelius guilty under
    Count 29.
    B. Jury instruction on Count 2
    Cornelius objects to the district court’s charge to the jury—via both jury
    Instruction 32 and the court’s response to the jury’s subsequent related question,
    discussed above in the Background—that it need not find that an enterprise existed under
    Count 1 in order to convict under Count 2. Cornelius argues that this was a clearly
    6
    See also supra n.4.
    15
    erroneous statement of Tenth Circuit law. We conclude that Cornelius’s argument fails
    both under the invited error rule, because Cornelius waived his right to challenge the jury
    instruction on appeal by expressly endorsing it at trial; or alternatively, considering the
    question under our forfeiture standard of review, the instruction was not clearly
    erroneous.
    Under the invited error doctrine, this Court will not engage in appellate review
    when a defendant has waived his right to challenge a jury instruction by affirmatively
    approving it at trial. “[A] party that has forfeited a right by failing to make a proper
    objection may obtain relief for plain error; but a party that has waived a right is not
    entitled to appellate relief.” United States v. Cruz-Rodriguez, 
    570 F.3d 1179
    , 1183 (10th
    Cir. 2009) (internal quotation marks, citation omitted). “A waived claim or defense is
    one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a
    party has merely failed to preserve.” Wood v. Milyard, 
    132 S. Ct. 1826
    , 1832 n.4 (2012);
    see also United States v. Olano, 
    507 U.S. 725
    , 733 (1993); United States v. McGehee,
    
    672 F.3d 860
    , 873 (10th Cir. 2012) (“Waiver is accomplished by intent, but forfeiture
    comes about through neglect.” (quotation marks, citation, alterations omitted)).
    “Nonwaivable rights are rare,” such that waiver is only disallowed when there exists a
    “need to protect a public interest beyond that of the defendant or because of concern that
    undue, and unprovable, pressure may have been brought to bear on the defendant.”
    United States v. Teague, 
    443 F.3d 1310
    , 1316 (10th Cir. 2006).
    16
    We have found waiver, for instance, when a defendant proposed and agreed to
    certain conditions of supervised release, and later sought to challenge them. See id. at
    1315-16. Similarly, the Seventh Circuit has held that an attorney’s express approval of a
    jury instruction before its submission to the jury precluded appellate review of his client’s
    subsequent claim that the instruction was faulty. See United States v. Griffin, 
    84 F.3d 912
    , 923 (7th Cir. 1996). In contrast, mere forfeiture occurs where, for example, a
    defendant simply indicates that he has no objection to a proposed jury instruction at the
    jury instruction conference. See Harris, No. 10-3173, -- F.3d at -- n.4.
    In this case, as discussed above in the Background, Cornelius’s attorney expressed
    concern about the answer the district court gave to the jury in response to its question
    about the relationship between Counts 1 and 2, by way of expressly adopting the position
    stated by counsel for one of Cornelius’s codefendants. Cornelius’s attorney effectively
    stated that the district court’s instruction-clarifying charge to the jury—namely, that the
    jury’s respective findings in Counts 1 and 2 were mutually independent—was confusing
    and misleading. He preferred that the judge respond to the jury’s question simply by
    instructing the jury to reread the instructions they had already received, wherein the
    proper legal guidance was already present. However, when the judge explicitly asked
    defense counsel whether the response the judge was giving the jury contained a
    misstatement of the law or would in fact mislead the jury, defense counsel replied in the
    negative. Further, defense counsel expressly endorsed Instruction 32, which contained
    17
    the statement of law with which Cornelius now asserts error. Instruction 32 had advised
    that, for Count 2,
    [u]nlike the charge in Count 1, the government need not prove . . . that the
    alleged enterprise was actually established . . . . An offense is established if
    the government proves that, if the conspiracy were completed . . . and the
    enterprise established, that: 1) the defendant would be employed by or
    associated with the enterprise; and 2) that the enterprise affected interstate
    or foreign commerce.
    R. Vol. 2 at 358-59 (emphases added). Thus, not only did Cornelius originally agree to
    this instruction, but later he implored the trial judge to instruct jurors to return to this
    now-challenged instruction if the jurors had any doubts about whether the existence of an
    enterprise needed to be established for conviction on conspiracy.
    The invited error doctrine would preclude Cornelius from challenging the
    “proposition that [he] had urged the district court to adopt.” United States v. Deberry,
    
    430 F.3d 1294
    , 1302 (10th Cir. 2005); see Griffin, 84 F.3d at 923. If we determined that
    Cornelius’s express endorsement of the original jury instruction amounted to waiver, we
    would not review the merits of this issue on appeal. However, in an unpublished opinion
    concerning one of Cornelius’s co-defendants—namely, the codefendant whose position
    on this jury instruction it was that Cornelius’s attorney adopted—we said that while
    defense counsel’s actions “teeter on the edge, they ultimately fall on the side of neglect,
    rather than intent,” and therefore amount to “a forfeiture, rather than an invited error.”
    United States v. Smith, 454 F. App’x 686, 692 (10th Cir. 2012) (unpublished). Smith, of
    course, does not constitute binding precedent because it is an unpublished disposition.
    18
    But even if we were to agree with and adopt the analysis in Smith and considered the
    statements of Cornelius’s counsel to constitute forfeiture rather than waiver, we would
    review for plain error.7 See id. Under the plain-error standard, we would conclude that
    no error, let alone plain error, occurred here, because as we explain in Harris, the actual
    existence of enterprise is not a required element of 18 U.S.C. § 1962(d). See Harris, No.
    10-3173, -- F.3d. at --.
    Hence, whether we consider Cornelius’s jury-instruction objection waived and
    refuse to consider its merits under the invited error doctrine, or whether we treat the
    objection as forfeited and review for plain error, Cornelius’s argument on appeal fails.
    C. Allen instruction
    Ten days after the jury began deliberating, it informed the district court that it was
    at an impasse on eighteen of the thirty-four counts. In response, the judge issued an
    Allen instruction (Jury Instruction 48), urging jurors to reconsider their views and to try
    to come to a consensus on the undecided counts. Six days after the Allen instruction, the
    jury returned a verdict on all but six counts. Cornelius claims that the Allen instruction to
    the jury was improperly coercive on the jury. He argues that the timing of the Allen
    instruction, coupled with the apparent effect of the instruction, violated his right to a fair,
    7
    “To establish plain error, [the appellant] must demonstrate the district court (1)
    committed error, (2) the error was plain, and (3) the plain error affected his substantial
    rights. If these factors are met, we may exercise discretion to correct the error if (4) it
    seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
    United States v. Cordery, 
    656 F.3d 1103
    , 1105 (10th Cir. 2011) (citation omitted).
    19
    impartial jury. Reviewing the Allen charge for an abuse of discretion by the district
    court, see United States v. Ailsworth, 
    138 F.3d 843
    , 851 (10th Cir. 1998), we conclude
    that the instruction was proper.
    A district court may issue an Allen instruction “urg[ing] deadlocked jurors to
    review and reconsider the evidence in the light of the views expressed by other jurors so
    as to avoid a mistrial,” provided that the instruction does not “impose[] such pressure on
    the jury such that the accuracy and integrity of [the] verdict becomes uncertain.”
    LaVallee, 439 F.3d at 689 (internal quotation marks, citations omitted). In considering
    whether an Allen instruction was improperly coercive, we consider “(1) the language of
    the instruction, (2) whether the instruction is presented with other instructions, (3) the
    timing of the instruction, and (4) the length of the jury's subsequent deliberations.” Id.
    (quotation marks, citation omitted). The “ultimate question” is whether the instruction
    was “impermissibly coercive in a way that undermined the integrity of the deliberation
    process.” United States v. McElhiney, 
    275 F.3d 928
    , 940 (10th Cir. 2001) (emphasis
    added).
    In this case, the district court’s Allen instruction included the following language:
    Members of the jury, I am going to ask that you return to the jury
    room and deliberate further. . . . Sometimes, after further discussion, jurors
    are able to work out their differences and agree.
    ...
    You are reminded that each defendant is presumed innocent, and that
    the government, and no defendant, has the burden of proof and it must
    prove each defendant guilty beyond a reasonable doubt. Those of you who
    believe that the government has proved a defendant guilty beyond a
    reasonable doubt should stop and ask yourselves if the evidence is really
    20
    convincing enough, given that other members of the jury are not convinced.
    And those of you who believe that the government has not proved a
    defendant guilty beyond a reasonable doubt should stop and ask yourselves
    if the doubt . . . is a reasonable one . . . . In short, every individual juror
    should reconsider his or her views.
    As I told you before, it is your duty, as jurors, to consult with one
    another and deliberate with a view toward reaching an agreement, if you
    can do so without violence to individual judgment. Each of you must
    decide the case for yourself, but do so only after an impartial consideration
    of the evidence with your fellow jurors. In the course of your deliberations
    do not hesitate to reexamine your own views and change your opinion if
    you are convinced it is erroneous. But do not surrender your honest
    conviction as to the weight or effect of evidence solely because of the
    opinion of your fellow jurors, or for the mere purpose of returning a
    verdict.
    What I have just said is not meant to rush or pressure you into
    agreeing on a verdict. Take as much time as you need to discuss things.
    There is no hurry.
    I will ask now that you retire once again and continue your
    deliberations with these additional comments in mind to be applied, of
    course, in conjunction with all of the instructions I have previously given
    you.
    R. Vol. 2 at 377-78 (emphases added).
    First, with regard to the language of the instruction in this case, see LaVallee, 439
    F.3d at 689, the language emphasized above makes clear that the district court urged all
    jurors, not just those in favor of acquittal, to reconsider their views according to the
    proper standard of the law. Moreover, the instruction did not undermine the deliberative
    process but rather stressed the importance of integrity in being an impartial, deliberate
    fact-finder. Such language does not approach impermissible coercion. See, e.g.,
    McElhiney, 275 F.3d at 934 (impermissible coercion where a judge said to a foreperson:
    “Well, frankly, I’d like to have you [continue to deliberate]. I’d be very happy to have a
    21
    verdict one way or the other. [T]he time and attention and the danger of this case has
    been, you know, a problem. . . . [I]f you find that you’re absolutely hopelessly
    deadlocked, why then I would have nothing else I can do except dismiss you with the
    thanks of the Court. . . .”).
    Second, with regard to other, prior jury instructions, the district court told the jury
    to apply the Allen instruction in conjunction with all of the instructions the court had
    previously given. That was certainly proper.
    Third, with regard to the timing of the instruction, “although it is a preferred rule
    of procedure that an Allen instruction be given the jury at the same time as other
    instructions, it is not a per se rule.” United States v. McKinney, 
    822 F.2d 946
    , 951 (10th
    Cir. 1987); see also United States v. Reed, 
    61 F.3d 803
    , 805 (10th Cir. 1995). Indeed,
    “where the trial court administered a supplemental Allen instruction only after the jury
    informed the court that it was unable to reach a verdict”—as in this case, as opposed to
    issuing the instruction sua sponte in order to hasten the return of a verdict—this weighs
    against a determination of improper coercion. See United States v. Butler, 
    904 F.2d 1482
    , 1488 (10th Cir. 1990).
    Finally, with regard to the length of post-instruction deliberations, the jury did not
    return with further verdicts until after several days of continued deliberation. Under the
    circumstances, this relatively long period of further deliberation tends to negate an
    inference of improper coercion. See LaVallee, 439 F.3d at 690-91 (no improper coercion
    when the jury, in a trial with multiple defendants, returned several new verdicts within a
    22
    day of the Allen instruction); Reed 61 F.3d at 805 (no improper coercion where a
    previously deadlocked jury returned a verdict the same morning it was given an Allen
    instruction, albeit in a relatively simple trial).
    In conclusion, the district court did not abuse its discretion in issuing the Allen
    instruction in the form and at the time that it did.
    D. Refusal to instruct on duress
    Cornelius argues that he was entitled to a jury instruction on the affirmative
    defense of duress, reasoning that after he had become a Crip, he was forced by the gang,
    by the threat of violence, to commit illegal acts as the gang dictated. Cornelius included
    a duress instruction in his proposed jury instructions, but the district court declined to
    include it. We review the district court’s decision not to instruct the jury on an
    affirmative defense for an abuse of discretion. United States v. Turner, 
    553 F.3d 1337
    ,
    1347 (10th Cir. 2009). To have been entitled to such an instruction, Cornelius must have
    produced or at least proffered evidence that, viewed in the light most favorable to
    Cornelius, demonstrated under a preponderance standard each element of the requested
    affirmative defense. See United States v. Portillo-Vega, 
    478 F.3d 1194
    , 1197-98 (10th
    Cir. 2007). We conclude that Cornelius failed to meet this burden.
    To receive an instruction on duress, Cornelius needed to demonstrate the
    following elements: “(1) an immediate threat of death or serious bodily injury, (2) a well-
    grounded fear that the threat will be carried out, and (3) no reasonable opportunity to
    23
    escape the threatened harm.” Id.8 In this case, Cornelius never identified sufficient
    evidence of the third required element. On appeal, Cornelius points to the fact that he
    had taken “specific action to distance himself from the Crips group by moving out of the
    neighborhood in which the Crips thrived,” Aplt. Br. at 42 (citing R. Vol. 4 at 968), but
    that only detracts from his claim for a duress instruction: the fact that Cornelius had
    moved away from the more threatening territory and was taking steps to withdraw from
    the gang belies his claim that he could not escape the threatened harm. Thus, as
    Cornelius failed to establish each of the required elements of duress, we determine that
    the district court did not abuse its discretion in declining to instruct the jury on duress.9
    Thus, the district court did not abuse its discretion by failing to give a duress
    instruction.
    8
    At common law, necessity and duress were distinct but addressed the same basic
    affirmative defense that one was forced to do something: necessity was invoked when the
    coercive force was environmental, whereas duress was invoked when the force was
    human. See United States v. Bailey, 
    444 U.S. 394
    , 409-10 (1980). However, “[m]odern
    cases have tended to blur the distinction between duress and necessity,” choosing instead
    to discard such labels “and to examine the policies underlying the traditional defenses.”
    Id. at 410. While we have applied the rule stated above in the context of necessity, see,
    e.g., Vigil, 743 F.2d at 755, necessity and duress are “two sides of the same coin,” being
    animated by similar policies and principles, United States v. Al-Rekabi, 
    454 F.3d 1113
    ,
    1123 n.8 (10th Cir. 2006); see also United States v. Butler, 
    485 F.3d 569
    , 572 n.1 (10th
    Cir. 2007) (“Courts have used the terms duress, necessity, and justification
    interchangeably.”). Accordingly, for instance, we have previously cited precedent from
    the necessity context in stating the standard of appellate review for declining to give a
    duress defense. See Portillo-Vega, 478 F.3d at 1197 and n.4 (expressly minimizing the
    distinction between the two affirmative defenses, citing Bailey, 444 U.S. at 409-10).
    9
    We note, additionally, that it is questionable whether Cornelius satisfied the first,
    immediacy prong of duress. Cornelius produced testimony that he had been moving
    away from the Crips’ influence for some time with no examples of serious retaliation.
    24
    E. Juror partiality
    Cornelius argues that either reversal of his conviction or a new trial is warranted
    due to jury partiality. He claims that a letter given by the presiding juror to the
    prosecution in the jury room after the trial had concluded demonstrated that the juror had
    “discarded his role as an impartial juror.” Aplt. Br. at 34. In the letter, the juror told
    prosecutors that he would be “willing to sit down and discuss . . . anything else that may
    help you in an effort to rid this cancer in our society.” R. Vol. 2 at 403. Cornelius
    deduces (probably accurately) that the letter must have been composed by the juror while
    deliberations were still ongoing, as it does not appear that the juror had the opportunity to
    type the letter after the jury’s submission of its verdict. Cornelius argues that the
    “cancer” statement evinces an anti-gang bias of the juror, the existence of which deprived
    Cornelius of his “constitutional right to be presumed innocent and to be tried by an
    impartial jury.” Aplt. Br. at 34. We determine, however, that the letter is not evidence
    that was discoverable under the applicable evidentiary rule or legally cognizable as a
    basis of unconstitutional juror partiality.
    We review the denial of a motion for new trial pursuant to Fed. R. Crim. P. 33 for
    an abuse of discretion. United States v. Easter, 
    981 F.2d 1549
    , 1552 (10th Cir. 1992).
    Where juror partiality or juror misconduct has been alleged, a district court should
    consider whether or not to hold an evidentiary hearing to investigate the matter and
    determine whether a new trial is warranted. See Smith v. Phillips, 
    455 U.S. 209
    , 215
    (1982). Taking the district court’s refusal to set aside Cornelius’s conviction as implicitly
    25
    declining to conduct such an evidentiary hearing, we review that denial for an abuse of
    discretion, too. See Easter, 981 F.2d at 1552.
    Generally speaking, “district courts should be reluctant ‘to haul jurors in after they
    have reached a verdict in order to probe for potential instances of bias, misconduct or
    extraneous influences.’” United States v. Vitale, 
    459 F.3d 190
    , 197 (2d Cir. 2006)
    (citation omitted); see also Easter, 981 F.2d at 1552 (holding that evidentiary hearings are
    not warranted “when only ‘thin allegations of jury misconduct’ are present” (citation
    omitted)). An evidentiary hearing “is not mandated every time there is an allegation of
    jury misconduct or bias. Rather, in determining whether a hearing must be held, the court
    must consider the content of the allegations, the seriousness of the alleged misconduct or
    bias, and the credibility of the source.” United States v. Smith, 
    424 F.3d 992
    , 1012 (9th
    Cir. 2005) (quotation marks, citation omitted). For instance, a hearing is not necessary
    “where the court knows the exact scope and nature of the bias allegation.” Id. (internal
    quotation marks, citation omitted). Among other things, the district court should consider
    what information it might gain from an evidentiary hearing in light of Fed. R. of Evid.
    606(b). See Tanner v. United States, 
    483 U.S. 107
    , 127-28 (1987) (holding that refusal to
    hold an evidentiary hearing, given the restrictions of Rule 606(b), does not violate a
    defendant’s Sixth Amendment right to trial by an impartial jury). The version of Rule
    606(b) in existence when the district court ruled in this case stated, in relevant part:
    a juror may not testify as to any matter or statement occurring during the
    course of the jury’s deliberations or to the effect of anything upon that or
    any other juror’s mind or emotions as influencing the juror to assent to or
    26
    dissent from the verdict or indictment or concerning the juror’s mental
    processes in connection therewith. But a juror may testify about (1)
    whether extraneous prejudicial information was improperly brought to the
    jury’s attention, (2) whether any outside influence was improperly brought
    to bear upon any juror, or (3) whether there was a mistake in entering the
    verdict onto the verdict form. . . .
    Fed. R. 606(b) (2009).10 With those parameters in mind, if it appears to the district court
    that an evidentiary hearing would “likely not have produced any valuable information,” it
    is proper to forego such a hearing.11 Smith, 424 F.3d at 1012. The general rule, then, is
    that courts may properly inquire only into external influences on the jury, such as if a
    juror improperly read a newspaper in the jury room or was involved in bribery. See
    Tanner, 483 U.S. at 118-25 (citing the common law practice, policy considerations, and
    legislative history of Fed. R. Evid. 606(b)). In contrast, a hearing is inappropriate when
    the alleged influence has to do with a juror’s internal state of mind. See id.; see also
    Smith, 424 F.3d at 1013 (a juror’s “infatuation” with a witness was an internal influence).
    10
    The current version of Fed. R. Evid. 606(b) is substantially the same in terms of
    substance. The main difference has to do merely with formatting: the current Rule
    606(b) is divided into two subsections, (1) and (2), that correspond, respectively, to the
    prohibitive part of the Rule and the subsequently identified exceptions to the prohibition.
    11
    To illustrate, in Smith, the Ninth Circuit reviewed a district court’s refusal to
    conduct an evidentiary hearing when a juror had sent a flirtatious post-trial letter to the
    prosecution’s summary witness, a law enforcement agent. See 424 F.3d at 1011-13. The
    appellate court held that, “even if the juror’s thought process was biased with his alleged
    ‘infatuation’ with [the prosecution’s summary witness], the court was not free to hear
    evidence in this regard” in light of Fed. R. Evid. 606(b). Id. at 1013. The Ninth Circuit
    further concluded that the letter did not indicate that the juror had received “extraneous
    prejudicial information” from the witness during trial, nor that any “outside influence . . .
    was improperly brought to bear,” referencing the exceptions within Rule 606(b). Id.
    (quotation marks, citation, alteration omitted).
    27
    In this case, there is no allegation of any improper contact between the foreperson
    and the prosecution (or anyone else) before the jury’s verdict was rendered. Assuming
    that the foreperson composed the letter in question before the jury delivered its verdict,
    the letter shows at most that the juror had reached a conclusion that gang-related activity
    is a “cancer” to our society. However, such a conclusion is within the realm of a “juror’s
    mental processes,” Fed. R. Evid. 606(b); and as discussed above, that is something
    internal into which the court may not inquire at an evidentiary hearing regarding juror
    misconduct. It may be that the juror reached this conclusion as a result of considering the
    evidence in this case. In any event, contrary to Cornelius’s assertion, an internal bias
    within a juror does not transform into an external influence merely because that juror
    deliberates with his fellow jurors.12 See Fed. R. Evid 606(b); cf. Tanner, 483 U.S. at 120-
    21. This kind of internal juror partiality is inevitable to some extent among any group of
    individuals, and minimizing it is the province of pretrial voir dire; it is not grounds to
    require an investigatory hearing or a new trial.
    12
    Cornelius’s citation to United States v. Vasquez-Ruiz, 
    502 F.3d 700
     (7th Cir.
    2007), for the proposition that “the introduction of external influences into the jury
    deliberations is presumptively prejudicial and . . . shifts [the burden] to the prosecution to
    rebut the presumption,” Aplt. Br. at 37, is inapposite. Vasquez-Ruiz held that “[I]f [a
    mysterious and problematic] note [on a juror’s notepad] was written by an outsider [i.e., a
    non-juror], then . . . such influence is presumptively prejudicial.” 502 F.3d at 705
    (emphases added). The present case is distinguishable because the alleged influence in
    question is the mindset and deliberations of a juror himself, not the influence of some
    non-juror.
    28
    In conclusion, the district court knew the scope and nature of the alleged
    misconduct, and stood to gain no further, useful information from an evidentiary hearing.
    See Smith, 424 F.3d at 1012. The court thus did not abuse its discretion in declining to
    hold such a hearing. Similarly, the district court did not abuse its discretion in denying
    Cornelius’s motion for a new trial, as there was no improper juror bias or misconduct
    demonstrated in this case.
    F. Sentencing
    As a general matter, this Court generally reviews sentencing decisions under an
    abuse of discretion standard, asking if the sentence imposed was both procedurally and
    substantively reasonable. See Gall v. United States, 
    552 U.S. 38
    , 46 (2007); United
    States v. Friedman, 
    554 F.3d 1301
    , 1307 (10th Cir. 2009). However, a district court has
    no discretion to depart from a statutorily mandated minimum sentence under 21 U.S.C. §
    841, since statutory minima were not rendered merely advisory by United States v.
    Booker, 
    543 U.S. 220
     (2005). See United States v. Payton, 
    405 F.3d 1168
    , 1173 (10th
    Cir. 2005).13
    13
    The only exceptions under which a district court may sentence a defendant
    below an otherwise applicable statutory mandatory minimum under 21 U.S.C. § 841 are
    the so-called “safety valve” provision of 18 U.S.C. § 3553(f), and the “substantial
    assistance” provision of 18 U.S.C. § 3553(f). See United States v. Altamirano-Quintero,
    
    511 F.3d 1087
    , 1089-90 (10th Cir. 2007). Neither of those exceptions, however, applies
    to this case (nor has Cornelius argued that they do).
    29
    1. The district court’s lack of discretion to disregard the applicable statutory
    twenty-year mandatory minimum sentence
    The Government argues that the district court erred by failing to impose the
    minimum sentence of twenty years’ imprisonment mandated for Cornelius’s conviction
    on Count 28, in light of his prior drug felony conviction. We agree.
    The version of 21 U.S.C. § 841(b)(1)(A) under which Cornelius was sentenced
    mandated that any person who violates any subsection enumerated thereunder—including
    subsection (iii), involving 50 grams or more of a mixture containing cocaine base (e.g.,
    crack)—“after a prior conviction for a felony drug offense has become final . . . shall be
    sentenced to a term of imprisonment which may not be less than 20 years . . . .”14 Pub. L.
    No. 110-425, 122 Stat. 4828 (2008). Cornelius had been previously convicted of a felony
    drug offense. Also, to trigger that prior-conviction sentencing enhancement, the
    Government had filed, prior to trial, an information giving notice of its intent to rely upon
    the prior conviction, as required by 21 U.S.C. § 851(a). Cornelius admitted that he had
    indeed been convicted of such a prior offense.
    At Cornelius’s sentencing, however, despite the Government’s invocation of the
    twenty-year mandatory minimum, the district court sentenced Cornelius to only 210
    months, over the Government’s objection. The court said that it was “satisfied that [it]
    could give the enhancement,” and that it “th[ought] the Government, if they wanted to
    14
    On August 3, 2010, the corresponding quantity under 21 U.S.C. §
    841(b)(1)(A)(iii) increased to 280 grams. Pub. L. No. 111-220, 124 Stat. 2372. As
    discussed below, that change does not retroactively affect Cornelius’s sentence.
    30
    really press the issue, is entitled to it.” Doc. 1633 at 31-32. However, the court
    explained that it was “not going to do the 20 year minimum in [Cornelius’s ] case,”
    reflecting that it “ha[d] some flexibility” and that a twenty-year sentence would “fly in
    the face of some of the other purposes of sentencing and the principle . . . that a sentence
    should be as long as necessary but no longer than necessary to serve the purposes [of
    incarceration].” Id. at 32. To that end, the court identified its concerns about the
    injustice of crack/powder sentencing disparities and about the uncertainty regarding the
    drug quantity with respect to the conspiracy charge.
    District courts lack discretion to depart below applicable statutory mandatory
    minimum sentences under 21 U.S.C. § 841, see Payton, 405 F.3d at 1173, except in
    particular circumstances not presented by this case, see Altamirano-Quintero, 511 F.3d at
    1089-90. Accordingly, and given that the Government properly filed a § 851 information
    and sought the applicable sentence enhancement, the district court erred in imposing a
    sentence of less than twenty years’ imprisonment for Count 28. We therefore vacate
    Cornelius’s sentence and remand with instructions to the district court to resentence
    Cornelius in a manner consistent with this opinion.
    31
    2. Constitutional and statutory arguments against the minimum sentence15
    Cornelius argues that, in relation to his crack-cocaine conviction on Count 28, the
    twenty-year statutory mandatory minimum sentence is both unconstitutional under the
    Fifth and Eighth Amendments, and barred by the Fair Sentencing Act of 2010, which
    Cornelius argues should apply retroactively to his sentence. We disagree.
    Cornelius first argues that the Due Process Clause—which in the federal context
    guarantees equal protection under the law—should invalidate the disparate crack/powder
    sentencing regime as racially discriminatory against African Americans. As Cornelius
    observes, the crack/powder sentencing disparities have been criticized by courts,
    legislators, and commentators on policy grounds. However, the differential treatment of
    crack offenses and powder offenses under 21 U.S.C. § 841(b)—and hence the differential
    treatment of their respective offenders—appears unassailable on constitutional equal
    protection grounds. See United States v. Robertson, 
    45 F.3d 1423
    , 1445-46 (10th Cir.
    15
    The Government urges us to consider these challenges moot, reasoning that
    Cornelius’s statutory mandatory minimum sentence renders irrelevant any other
    sentencing claims, and citing United States v. Apperson, 
    441 F.3d 1162
    , 1213 (10th Cir.
    2006) (holding moot a defendant’s challenges to the calculation of his offense level and
    sentencing range under the Federal Sentencing Guidelines, since regardless of whether
    the district court erred in those calculations, the defendant was still subject to a statutory
    mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A)). However, Cornelius
    does not appeal from the district court’s factual findings under, or legal application of, the
    Sentencing Guidelines. Rather, Cornelius challenges the constitutional and statutory
    validity of the statutory provision under which he was sentenced. If the Court were to
    determine that the statute’s differential treatment of crack cocaine offenses for sentencing
    purposes is unlawful, then relief might be warranted for Cornelius, as the foundation for
    his mandatory minimum sentence might evaporate in turn. As such, while Cornelius’s
    arguments are ultimately meritless, they are not moot.
    32
    1995); see also United States v. McClellon, 
    578 F.3d 846
    , 861-62 (8th Cir. 2009). The
    passage of the Fair Sentencing Act did not render unconstitutional the previous
    sentencing regime, under which Cornelius was sentenced. See United States v. Acoff,
    
    634 F.3d 200
    , 203 (2d Cir. 2011) (“Nothing in the text or legislative history of the [FSA]
    undermines the validity of . . . prior decisions [rejecting the equal protection argument
    made by Cornelius]. . . . ‘[A] congressional decision that a statute is unfair, outdated, and
    in need of improvement does not mean that the statute when enacted was . . .
    unconstitutional.’” (citation omitted)).
    Next, Cornelius argues that his mandatory minimum sentence constitutes cruel and
    unusual punishment in violation of the Eighth Amendment argument. However, as this
    argument appears for the first time in Cornelius’s reply brief (in contrast to Cornelius’s
    Fifth Amendment claim, which he made in his opening brief), we decline to entertain it
    on appeal. See Bronson v. Swensen, 
    500 F.3d 1099
    , 1104 (10th Cir. 2007). In the
    alternative, considering the merits of the argument, we reject that claim. Cornelius
    merely recites the general constitutional test for such cruel and unusual punishment
    claims, and then asserts in conclusory fashion that disparate sentencing fails to serve a
    legitimate penological function and is therefore unconstitutional. However, insofar as
    Cornelius complains of the disparity between his sentence and those of individuals
    convicted of powder-cocaine offenses, such a challenge is properly cognized under an
    equal-protection theory (rejected above). To the extent Cornelius argues that his sentence
    is unconstitutionally disproportionate to his offense, that claim is meritless. See, e.g.,
    33
    United States v. Huskey, 
    502 F.3d 1196
    , 1200 (10th Cir. 2007) (holding that a mandatory
    life sentence in light of prior-conviction sentence enhancement under 21 U.S.C.
    § 841(b)(1)(A) was not cruel and unusual punishment).
    Moving on to Cornelius’s statutory argument, Cornelius contends that the Fair
    Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) (“FSA”), which
    took effect on August 3, 2010, after Cornelius was convicted, should be applied
    retroactively in his case. He asks this Court to remand in light of the FSA’s reduction of
    certain crack/powder cocaine sentencing disparities under the contemporary sentencing
    regime, which included increasing certain requisite drug quantity amounts triggering
    mandatory minimum sentences for crack offenses. See FSA § 2(a). We decline to do so.
    We have squarely held that the FSA does not apply retroactively, see United States
    v. Lewis, 
    625 F.3d 1224
    , 1228 (10th Cir. 2010), and we see no reason to deviate from
    that precedent in Cornelius’s case. Our ruling is consistent with Dorsey v. United States,
    in which the Supreme Court more recently held that the more lenient penalty provisions
    of the FSA should apply “to offenders who committed a crack cocaine crime before
    August 3, 2010 [i.e., the date the FSA took effect], but were not sentenced until after
    August 3”). 
    132 S. Ct. 2321
    , 2326 (2012); see also id. at 2335 (“For these reasons
    considered as a whole, we conclude that Congress intended the [FSA’s] new, lower
    mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is
    the [FSA’s] ‘plain import’ or ‘fair implication.’”). Cornelius was sentenced on May 12,
    2010, before the FSA took effect. Thus, Cornelius’s argument for retroactive application
    34
    of the FSA to his sentence is contrary to controlling case law—a conclusion that
    Cornelius recognizes in his briefs.
    In conclusion, there is no constitutional or statutory infirmity in the mandatory
    minimum sentence for Cornelius’s conviction under Count 28.
    3. Consideration of Cornelius’s prior drug felony
    Aside from Cornelius’s arguments that the statutory scheme under which he was
    convicted is fundamentally unlawful, Cornelius does not directly dispute that the district
    court was without discretion to sentence Cornelius to less than twenty years, if his prior
    felony drug conviction was properly considered. However, Cornelius argues that the
    district court should not have considered his prior felony drug conviction, reasoning that
    the court should have extended the exclusionary rule—a constitutional rule of evidence—
    to bar consideration of the prior conviction at sentencing. We reject this argument and
    conclude that Cornelius’s prior conviction was properly considered for the purpose of his
    sentence enhancement.
    Prior to trial, Cornelius moved to suppress the introduction of evidence stemming
    from an allegedly illegal search that was related to a 1995 state-court drug felony case in
    which Cornelius was convicted. Cornelius asserts that he pleaded guilty in that case
    because of the evidence obtained through the allegedly illegal search. In that case—Case
    No. 95 CR 383 in Sedgwick County District Court in Wichita, Kansas—Cornelius, then
    sixteen years old, was tried as an adult and convicted of possession of cocaine and
    criminal possession of a firearm. In the present case, the district court “granted as
    35
    uncontested” Cornelius’s motion to suppress because the government proffered that it
    was unable to locate the search warrant from the prior case.16 R. Vol. 2. at 131. At
    sentencing, however, the court rejected Cornelius’s contention that the prior conviction
    should not be considered in the sentencing context. That is, when the court had earlier
    granted Cornelius’s evidentiary motion to suppress, the court had simply prohibited
    introduction of evidence stemming from the allegedly illegal search; it had not also
    deemed the prior conviction invalid such that the conviction could not be considered for
    sentence enhancement.
    Cornelius’s proposed application of the exclusionary rule is unwarranted. The
    exclusionary rule is a constitutional rule of evidence that generally prevents fact-finders
    from considering evidence that would not have been available but for the use of
    unconstitutional means, such as an illegal search. See United States v. Leon, 
    468 U.S. 897
    , 905-13 (1984). The rule does not, however, serve to bar consideration of a valid
    prior conviction for the purposes of a sentence enhancement under 21 U.S.C. §§ 841 and
    16
    Both Cornelius’s motion to suppress and the district court’s order refer to the
    prior case as 95 C 16303, rather than 95 CR 383, which was the case number referenced
    in the Government’s § 851 information as well as Cornelius’s Presentence Investigation
    Report (“PSR”) in this case. Cornelius also refers to 95 CR 383 in his briefs when
    making the present argument, yet he includes record cites to the documents that reference
    95 C 16303. It is not entirely clear, then, that these two prior cases are the same; but it
    appears that they are, judging additionally from the description of 95 C 16303 in the
    motion to suppress, in conjunction with the related description and discussion in the PSR
    and at the sentencing hearing.
    36
    851.17 All that was necessary for the purpose of sentence enhancement, in this context,
    was that Cornelius’s prior conviction was a valid one. See 21 U.S.C. § 851(d). To that
    end, Cornelius does not dispute that the prior conviction in question was valid in the
    sense that it was lawfully entered and has not been overturned. Moreover, in any event,
    Cornelius was statutorily precluded from challenging the validity of the prior conviction,
    as it occurred more than five years before the Government filed its information. See id.
    § 851(e). Given the validity of the prior conviction, the district court was required to
    apply the sentence enhancement. See id. § 851(d)(1).
    In sum, the district court properly considered Cornelius’s prior felony drug
    conviction for the purpose of sentence enhancement vis-à-vis Count 28. Thus, the district
    court had no discretion to depart below the statutory mandatory minimum twenty-year
    sentence pursuant to the applicable version of 21 U.S.C. § 841(b)(1)(A).
    17
    It is true that the exclusionary rule is meant chiefly to deter unconstitutional
    police conduct, see Leon, 468 U.S. at 906-910; United States v. Graves, 
    785 F.2d 870
    ,
    876 (10th Cir. 1986)—a purpose arguably served by categorically preventing later courts
    from considering earlier convictions that allegedly resulted from illegal searches.
    However, it is also true that, despite the Supreme Court’s “emphasis on the exclusionary
    rule’s deterrent value,” it is not the case that “anything which deters illegal searches is
    thereby commanded” by the rule. Leon, 468 U.S. at 910 (quotation marks, citation
    omitted). Cornelius’s particular proposed application is without support. Cf. Graves, 785
    F.2d at 873, 876 (holding that in the ordinary case, the exclusionary rule should not be
    extended to sentencing proceedings). This uncertainty is not determinative of our rulings
    today.
    37
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM Cornelius’s conviction. Further, we
    VACATE Cornelius’s sentence and REMAND for sentencing consistent with this
    opinion.
    38
    

Document Info

Docket Number: 10-3125, 10-3142

Citation Numbers: 696 F.3d 1307, 89 Fed. R. Serv. 592, 2012 U.S. App. LEXIS 19610, 2012 WL 4075877

Judges: Lucero, Seymour, Ebel

Filed Date: 9/18/2012

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (48)

United States v. McElhiney , 275 F.3d 928 ( 2001 )

United States v. Jameson , 478 F.3d 1204 ( 2007 )

Allen v. United States , 17 S. Ct. 154 ( 1896 )

united-states-v-steven-robertson-aka-steven-davis-aka-whitey-aka , 45 F.3d 1423 ( 1995 )

United States v. Dwight Reed , 61 F.3d 803 ( 1995 )

United States v. Ralph F. Vitale , 459 F.3d 190 ( 2006 )

Gall v. United States , 128 S. Ct. 586 ( 2007 )

United States v. Ernest Leland Swafford , 766 F.2d 426 ( 1985 )

United States v. Steven C. Griffin, Marvin M. Rux, and ... , 84 F.3d 912 ( 1996 )

United States v. Verbickas , 439 F.3d 670 ( 2006 )

United States v. Bailey , 100 S. Ct. 624 ( 1980 )

United States v. Wesley R. McKinney , 822 F.2d 946 ( 1987 )

Dunn v. United States , 52 S. Ct. 189 ( 1932 )

Smith v. Phillips , 102 S. Ct. 940 ( 1982 )

United States v. Arria Chyvonne Graves A/K/A Karen Lynn ... , 785 F.2d 870 ( 1986 )

United States v. Huskey , 502 F.3d 1196 ( 2007 )

United States v. Deberry , 430 F.3d 1294 ( 2005 )

United States v. Leon , 104 S. Ct. 3405 ( 1984 )

United States v. Cruz-Rodriguez , 570 F.3d 1179 ( 2009 )

United States v. Cordery , 656 F.3d 1103 ( 2011 )

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