United States v. Ellis ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 24, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 14-3165 & 14-3181
MARVIN LEE ELLIS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. Nos. 2:12-CR-20066-KHV-JPO-30 and 2:06-CR-20180-KHV-1)
_________________________________
Rabindranath Ramana, Calvert Law Firm, Oklahoma City, Oklahoma, for Defendant-
Appellant.
Carrie N. Capwell, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with her on the brief), United States Attorney’s Office, Kansas City, Kansas,
for Plaintiff-Appellee.
_________________________________
Before HARTZ and PHILLIPS, Circuit Judges.*
_________________________________
*
The Honorable Neil Gorsuch heard oral argument but did not participate in
this opinion. The practice of this court permits the remaining two panel judges, if in
agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also
United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997) (noting this court allows
remaining panel judges to act as a quorum to resolve an appeal); Murray v. Nat’l Broad.
Co., 35 F.3d 45, 48 (2d Cir. 1994), cert. denied, 513 U.S. 1082 (1995) (remaining two
judges of original three judge panel may decide petition for rehearing without third
judge).
PHILLIPS, Circuit Judge.
_________________________________
In 2009, law-enforcement officials began investigating a Mexican cocaine-
trafficking operation extending into the Kansas City area. This led them to several
suspects, including Marvin Ellis, a low-level powder-cocaine buyer, who was
working with two others to buy powder cocaine and cook at least some of it into
cocaine base (crack cocaine) for resale. In 2012, Kansas police arrested Ellis after he
fled from a traffic stop. At arrest, Ellis had a stolen handgun, miscellaneous drugs,
and some drug-dealer paraphernalia. Later, based on this and separate evidence from
the federal investigation, a federal grand jury charged Ellis with several drug and
firearm felonies. The most serious charge against Ellis was for his conspiring with 49
other persons to manufacture, distribute, or possess with the intent to distribute at
least 5 kilograms of powder cocaine and 280 grams of crack cocaine.
After the jury convicted Ellis on all charges, the district court imposed
consecutive sentences for the cocaine-conspiracy count and a firearm count and
concurrent sentences for the remaining counts. Ellis received a sentence of life
without release on the cocaine-conspiracy count (after applying a sentencing
enhancement under 21 U.S.C. § 851 for his two earlier felony-drug-offense
convictions), a mandatory-minimum five-year term for possession of a firearm in
furtherance of a drug-trafficking crime under § 924(c), and statutory maximum
sentences on all remaining counts. Later, the district court revoked Ellis’s supervised
2
release from a 2007 federal conviction and sentenced him to an additional
consecutive 24 months’ imprisonment.
Ellis now appeals some of his convictions and sentences. In Appeal No. 14-
3165, Ellis (1) challenges his convictions under 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(A), 18 U.S.C. § 924(c), and 21 U.S.C. § 856; (2) argues that his life sentence
for the conspiracy conviction violates the Fifth and Sixth Amendments; and (3)
argues that the district court violated his Sixth Amendment right to counsel at
sentencing. In Appeal No. 14-3181, Ellis challenges the consecutive sentence for his
supervised-release violation, based on the district court’s denying him substitute
counsel.
In Appeal No. 14-3165, we affirm all of Ellis’s convictions and all of his
sentences except one. Though we affirm Ellis’s cocaine-conspiracy conviction, we
reverse its accompanying life-without-release sentence because (1) the jury never
found that Ellis was individually responsible for the charged amounts of powder or
crack cocaine, either from his own acts or the reasonably foreseeable acts of his
coconspirators; and (2) the government’s evidence does not show that omitting this
element was harmless beyond a reasonable doubt. In Appeal No. 14-3181, we affirm
Ellis’s sentence for violating his supervised release. We remand to the district court
for a full resentencing, subject to resentencing on the cocaine-conspiracy count under
21 U.S.C. § 841(b)(1)(C).
3
BACKGROUND
I. The Investigation
In 2009, Drug Enforcement Administration (DEA) agents began investigating
a Mexican cocaine-trafficking network that was supplying the Kansas City area.
Agents learned that Mexican drug sources were shipping multi-kilogram deliveries of
powder cocaine from Mexico into and near Kansas City. In addition, agents learned
that some of this powder cocaine was going to local drug dealers, including Djuane
Sykes, who was selling large amounts of cocaine to several customers from the 2200
block of Russell Avenue in Kansas City, Kansas.
Among Sykes’s many customers were Ataven Tatum and Marvin Ellis. In
August 2011, Ellis had been released from prison to supervised release after serving
time on a 2007 conviction for violating 18 U.S.C. § 924(c). By November 2007, Ellis
had begun working with Tatum and Ellis’s nephew, Theoplis Ellis (Theoplis), to buy
powder cocaine from Sykes and cook at least some of it into crack cocaine for sale to
their customers. Over the next few months, the three men worked together to sell
drugs, including crack cocaine. They sold the drugs from different locations,
including from a house at 921 Haskell Avenue. In October 2011, Ellis leased this
residence, and in November, Tatum signed a contract for deed to buy it.
II. Ellis’s Arrest
In late April 2012, a Kansas City, Kansas police officer, Patrick Locke,
stopped Ellis for a traffic violation. After first pulling over to the roadside, Ellis sped
4
away when Office Locke’s partner approached the car. Officer Locke gave chase
until Ellis crossed the Kansas state line into Missouri.
Two weeks later, just after midnight on May 11, Officer Locke again stopped
Ellis for a traffic violation. As before, Ellis pulled over but then sped away. Again,
Officer Locke chased Ellis, this time at speeds up to 80 miles per hour. The chase
ended when Ellis lost control of his car after it hit a curb. When his car came to rest,
Ellis jumped from it and ran. During the ensuing foot chase, Officer Locke saw that
Ellis was carrying a green plastic bag. When Ellis was subdued on the ground,
Officer Locke saw Ellis holding his right hand in his waistband—causing Officer
Locke to fear that Ellis had a gun. Officer Locke tasered Ellis, yet Ellis refused
commands to remove his hand from his waistband. When Officer Locke threatened to
shoot Ellis, Ellis dropped the green bag and threw a pistol about 10 to 15 feet away.
After finally subduing and arresting Ellis, Officer Locke gathered Ellis’s
thrown gun—a stolen, loaded .40 caliber pistol. Officer Locke also collected Ellis’s
discarded green bag, which contained an empty sandwich-bag box, a digital scale, 2.5
grams of powder cocaine, about 32 grams of synthetic marijuana, 25.8 grams of PCP
in a bottle, 3.1 grams of marijuana, 16 mollies (ecstasy/MDMA), and 8 Diazepam
pills.
III. The Charges
In October 2012, a grand jury sitting in the District of Kansas issued a
sweeping 112-count Second Superseding Indictment against 51 defendants, including
5
Ellis, Tatum, and Theoplis.1 In a vast cocaine-conspiracy count under 21 U.S.C. §
846, naming 50 defendants including Ellis (reaching all the way up to the Mexican
cartel), the grand jury charged that the 50 defendants
[k]nowingly and intentionally conspired and agreed together and with
each other, and with other persons known and unknown to the Grand
Jury, to commit the following offenses against the United States: to
manufacture, to possess with intent to distribute and to distribute 280
grams or more of cocaine base, “crack,” a controlled substance; and to
possess with intent to distribute and to distribute five kilograms or more
of a mixture and substance containing cocaine, a controlled substance;
all in violation of Title 21, United States Code, Sections 841(a)(1),
(b)(1)(A)(ii), (b)(1)(A)(iii) and Title 18, United States Code, Section 2.
R. vol. I (3165) at 547.
Eight months after filing the Second Superseding Indictment, the government
filed an Information under 21 U.S.C. § 851 to enhance Ellis’s sentence. Because Ellis
had two earlier convictions for felony drug offenses, the § 851 Information subjected
him to an increased mandatory sentence—life without release—if he was convicted
and sentenced for the conspiracy charge under 21 U.S.C. §§ 846 and 841(a)(1),
(b)(1)(A).2
The Second Superseding Indictment also charged Ellis with six counts of
knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §
1
The Second Superseding Indictment charged additional defendants in the
conspiracy count. The conspiracy count included Ellis each time, and the substance
of the charge remained the same.
2
The government listed two state felony drug convictions necessary to trigger
the enhancement: one for felony possession of cocaine in 1997, and another for
selling cocaine in 2003.
6
841(a)(1) and (b)(1)(C), and aiding and abetting those offenses, in violation of 18
U.S.C. § 2; one count of maintaining a drug-involved premises, in violation of 21
U.S.C. § 856(a)(1)–(2); one count of knowingly and unlawfully possessing a firearm
in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); and one
count of possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e).
IV. Trial
Ellis was tried with several coconspirators, some of whom pleaded guilty
during the trial. In the end, Ellis proceeded to a jury verdict with three others: Robert
Vasquez, Vernon Brown, and Kyle Stephen.
A. Conspiracy Evidence
The government sought to prove the cocaine-conspiracy count against Ellis by
the testimony of several witnesses, including three cooperating witnesses, four law-
enforcement officers who had arranged the controlled buys of crack cocaine from
Ellis and Tatum, and other law-enforcement officers who had participated in the
investigation.
One government witness, Djuane Sykes, testified that he knew Ellis, Ataven
Tatum, and Theoplis. Sykes said that in late 2011, Ellis and Tatum approached him to
buy powder cocaine for resale. At this meeting, Sykes sold Ellis an ounce of cocaine
for $700. Sykes also testified that Ellis—either for himself or for Tatum—continued
to buy powder cocaine from him. Sykes said that Ellis sometimes bought half or full
ounces of powder cocaine. Sykes never said how many times Ellis alone had bought
7
powder cocaine from him. But Sykes did say that Ellis, when with Tatum, had bought
powder cocaine from him “[m]aybe ten or 15 times.” R. vol. IV (3165) at 1590. Each
time, Ellis bought between a “half-ounce to a [sic] ounce of cocaine.” Id. at 1589. In
addition, Sykes said that Tatum bought a “half-ounce to three ounces” of powder
cocaine from him “once or twice a week.” R. vol. IV (3165) at 1587. Sykes also said
that Tatum sent Ellis or Theoplis to pick up cocaine “[p]robably four or five times.”
Id. at 1590.
Another government witness, Ralph Mayo, was a local drug dealer who
confirmed that Ellis, Tatum, and Theoplis had bought powder cocaine from Sykes.
Mayo testified that he had seen Ellis “a few times” buying cocaine from Sykes. R.
vol. V (3165) at 1233. In addition, Mayo testified that Mayo had sold “probably
between a [sic] ounce or two ounces” of powder cocaine to Ellis “[p]robably not
more than two times.” Id.at 1234–35.
A third government witness, Theoplis, testified about his drug activities with
Ellis and Tatum. Theoplis recalled once going with Ellis to buy powder cocaine from
Sykes. In addition, Theoplis recalled that Tatum and Ellis had sent him to Sykes “two
or three times” to pick up powder cocaine. Id. at 677. Though Theoplis did not say
how much cocaine he bought during his solo trips or during his single trip with Ellis,
he did say that he picked up “three and a half ounces, four” when Tatum and Ellis
sent him to Sykes. Id. at 6776.
Theoplis also testified that Tatum and Ellis cooked the powder cocaine into
crack cocaine. The prosecutor asked, “once the powder cocaine was purchased, was it
8
always cooked into crack cocaine?” Theoplis answered, “Yes, ma’am.” Id. at 678. He
further testified that after Tatum and Ellis bought powder cocaine from Sykes, they
would “go back and cook the crack and cook the soft to hard.” Id. at 673–74. But on
cross-examination by Ellis’s attorney, Theoplis admitted that he had seen Ellis cook
crack cocaine just once, at Theoplis’s father’s house. Theoplis also answered
affirmatively to the prosecutor’s question asking him if he, Tatum, and Ellis had sold
only crack cocaine and not powder cocaine. Theoplis never said how many times he
sold crack cocaine, but he did say he sold “pieces” for ten or twenty dollars. Id. at
683.
The government called Kansas City police officer Nathan Doleshal to testify
about the controlled buys he had arranged in which informants bought crack cocaine
from Ellis, Tatum, and Theoplis3 at 921 Haskell and elsewhere.4 During the
controlled buys, an informant typically called Tatum or Ellis to arrange the buy and
then bought the crack cocaine from either one or both of them. During the first
controlled buy, on February 7, 2012, an informant bought 0.9 grams of crack cocaine
from Ellis at 921 Haskell. The next day, the same informant bought another 0.7
grams of crack cocaine from Ellis and Tatum at 921 Haskell. On February 9, an
informant bought 2.5 grams of crack cocaine from Ellis and Tatum, this time at a
local grocery store. On February 10, informants bought 9.9 more grams of crack
3
Theoplis usually acted as a “doorman,” letting the informant-buyers into the
house and taking them to Ellis and Tatum. R. vol. II (3165) at 119.
4
The record is unclear about the participants in and locations of some
controlled buys.
9
cocaine, this time purchased at an intersection and later another 1.2 grams of crack,
this time at 921 Haskell.
Law-enforcement officers also testified about more controlled buys in March
2012. On March 20, 2012, at a local pharmacy, an informant bought 3.4 grams of
crack cocaine from Ellis. On March 23, at a local street intersection, an informant
bought 6.7 grams of crack cocaine and some ecstasy pills from Ellis. All told, the
controlled buys totaled 25.3 grams of crack cocaine.5
B. Evidence of Drug-Involved Premises
The government produced evidence that Ellis had maintained 921 Haskell as a
place for manufacturing and selling crack cocaine. Although not specifying dates,
Theoplis testified that Ellis had lived at 921 Haskell and sold crack cocaine, ecstasy,
PCP, and marijuana there. Three of the controlled buys from Ellis happened at 921
Haskell, the last occurring on February 10, 2012. The government also produced
wiretapped phone calls (some in March and April 2012) in which Ellis, Tatum, and
Theoplis arranged crack-cocaine sales, and one call in which “[t]his young lady’s
[sic] called Ataven [Tatum] to pretty much tell her [sic] that Messy or Marvin Ellis
was wanting some supplies to cook crack cocaine.” See R. vol. III (3165) at 2270-88.
In particular, Ellis supposedly was seeking a whisk to “blend the ingredients
together.” Id. at 2270.
5
The record is unclear why the officers stopped the controlled buys so close to
28 total grams of crack cocaine, which would have activated a mandatory-minimum
sentence under 21 U.S.C. §§ 851, 841(a)(1), (b)(1)(B).
10
The evidence further showed that in October 2011, Ellis signed a lease
agreement for 921 Haskell. The lease required Ellis to pay a $300 deposit and $600
for the first month’s rent. Of this amount, Ellis paid $400, and Tatum paid $500. The
next month, Tatum signed a contract for deed to buy the residence. When police
officers searched 921 Haskell on May 30, 2012, they found a utility bill for service
from April 13 to May 14, 2012, in Ellis’s name. Though police had arranged
controlled buys at 921 Haskell during this billing period, Ellis was not present for
them—he had left the house after a falling out with Tatum. In an intercepted phone
call on April 12, a caller asked Tatum “how Marvin Ellis is doing,” and Tatum
responded that he had put Ellis out of the house. R. vol. III (3165) at 2287.
C. Evidence of Firearm Possession in Furtherance of Drug Trafficking
Officer Locke testified that at the arrest, Ellis had a stolen, loaded .40 caliber
pistol, along with several kinds of illegal drugs, an empty sandwich-bag box, and a
digital scale. Officer Locke testified that drug dealers use these items for drug sales.
Theoplis testified that he had previously seen Ellis with this same pistol when selling
drugs at 921 Haskell.
D. Jury Instructions and Verdict Form
Before closing arguments, counsel met with the district judge about jury
instructions and a verdict form. During this conference, the district court remarked
that it had “e-mailed a draft copy of the verdict [form] to all of the counsel of
record.” R. vol. V (3165) at 1452. The district court further mentioned that “the main
feedback we got was that the verdict form should not include the drug amounts and I
11
think that feedback is correct. So we’ve prepared a revised verdict form which omits
any reference to the drug quantities.” Id. The district court did not identify which
counsel had provided this feedback.6
After this, the district court asked all counsel, “Is there any objection to the
revised form of the verdict?” Id. No one objected. In particular, Ellis’s counsel
responded, “None on behalf of Mr. Ellis, Your Honor.” Id. Thus, for the cocaine-
conspiracy count, the final verdict form asked the jury to determine Ellis’s guilt only
in the broad conspiracy and did not require the jury to say how much powder or crack
cocaine it attributed (1) to the entire conspiracy or (2) to Ellis from his own acts and
the reasonably foreseeable acts of his coconspirators.
The jury instruction for the cocaine-conspiracy count listed the elements that
“the government must prove beyond a reasonable doubt,” including one element
requiring proof that “[t]he overall scope of the agreement involved more than 5
kilograms of cocaine or more than 280 grams of cocaine base, ‘crack.’” R. vol. I
(3165) at 1510. Another element required that “[w]hen defendant joined, he knew the
essential objective of the agreement was to manufacture, to possess with intent to
distribute or to distribute controlled substances in violation of federal drug laws[.]”
Id. The next instruction stated that “[o]nce a person becomes a member of a
conspiracy, he . . . is legally responsible for the acts of all other members in
furtherance of the conspiracy, even if he . . . was not present or aware that the
6
The record does not reveal which of the multiple counsel submitted proposed
verdict forms to the district court, let alone whether any of those included spaces for
the jury to individually attribute cocaine amounts to each defendant.
12
specific acts were being committed.” Id. at 1513. Ellis did not object to these
instructions. No instruction addressed reasonable foreseeability.
E. Opening Statement and Closing Arguments
In its opening statement and closing argument, the government argued Ellis’s
guilt based largely on the acts of the Mexican cocaine sources, including those
sources supplying powder cocaine to Sykes.
For instance, in its opening statement, the government named Ellis as one of “a
variety of individuals who were engaged in drug trafficking in the Kansas City
metropolitan area,” and then stated that “Mexican cartels use these public roadways
to have large amounts of drugs transported from Mexico into the United States by a
variety of ways.” R. vol. III (3165) at 445. The government spoke about “trusted
couriers based from cell heads” who were distributing drugs and “polluting our
community.” Id. at 445–46. It said that “[m]illions of dollars of drugs are coming in
and millions of dollars of money are going out.” Id. at 446. It tied small-time
distributors of the cocaine—“street level dealers to mid-level dealers to large scale
dealers”—to the cartel’s supply. Id.
And in its closing argument, the government returned to this theme, emphasizing
the conspiracy-wide amounts of cocaine:
And I assert to you that it’s not important that any particular defendant
knew much at all about the overall scope of the conspiracy. It’s irrelevant
that Marvin Ellis didn’t know a single Hispanic person on that chart.
What’s important is that any reasonable person knows that drugs like
cocaine come from a source. And it’s reasonable to conclude that the source
would be a Hispanic source.
13
R. vol. V (3165) at 1475–76. For interdependence, the government asserted a relationship
between Ellis and the cartel and its suppliers:
The suppliers rely upon people like Robert Vasquez to make sure that they
can keep up getting a supply. Without people like Robert Vasquez taking
money loads back to the south, they’re [sic] aren’t going to be sending up
anymore [sic] supply. And without customers like Kyle Stephen and
Vernon Brown and Marvin Ellis, the suppliers aren’t going to have a
business.
Id. at 1476.
In his closing argument, Ellis’s counsel tried to counter this by arguing that
Ellis was a “very, very small minnow in a very large ocean and he is nowhere near at
the level of the great white sharks that [the government] paraded through that witness
stand.” Id. at 1515.
But in rebuttal, the government responded that “it doesn’t matter if you’re a
little person, if you’re a bottom feeder, you’re still guilty of the conspiracy.” Id. at
1558–59. The government stressed that it is “[p]eople like Marvin Ellis and Vernon
Brown that keep people like Hector Aguilera in business.” Id. at 1568. The
government had earlier described Hector Aguilera as the “kingpin.” Id. at 1482. It
described the “scope of the overall conspiracy” as the quantities charged in the
indictment, “[n]ot what each individual person was involved with.” Id. at 1563.
V. Ellis’s Request for New Counsel
While the probation office was completing its Presentence Investigation
Report (PSR), Jay DeHardt, Ellis’s counsel, moved to withdraw. DeHardt told the
district court that Ellis had refused to read the PSR and had demanded that DeHardt
14
no longer represent him. DeHardt told the court that Ellis had even accused him of
conspiring with the government to convict him. In short, DeHardt said that Ellis
refused to listen to him or cooperate.
At a hearing on the motion, Ellis expressed his dissatisfaction with DeHardt’s
trial performance, complaining that DeHardt had not challenged the length of time in
which Ellis was involved in the conspiracy and had not separated him from the broad
conspiracy. Ellis asked the district court to appoint new counsel. The district court
denied Ellis’s request. The court acknowledged the breakdown of communication
between Ellis and DeHardt but found Ellis responsible for “not reasonably trying to
communicate” with DeHardt or to help DeHardt prepare a defense. R. vol. V (3165)
at 1613. With that, the district court granted DeHardt’s motion to withdraw.
The district court then gave Ellis two options: he could hire a different
attorney, or he could represent himself. The court strongly advised Ellis against self-
representation and questioned Ellis’s decision to proceed pro se:
Court: Do you want to represent yourself or do you want to hire
an attorney?
Ellis: I don’t have any money right now.
Court: Okay. Then your choice is to stay with Mr. DeHardt and
work with him or represent yourself.
Ellis: He’s not working with me, Judge.
Court: That is—I heard all I need to hear about that. Do you want
to stay with him and cooperate and help him represent you
or do you want to represent yourself?
Ellis: I represent myself.
15
Court: Okay. Then, Mr.—Do you want him to be available as
stand-by counsel if you have questions?
Ellis: I hope he wish me the best.
Court: Do you want him to represent—to be available as stand-by
counsel to answer any questions you may have?
Ellis: No, ma’am.
Court: Okay. Then, again, I think this is an incredibly poor
decision on your part, but I find that you have voluntarily
and knowingly given up your right to counsel in this case
and I will let you represent yourself for the purposes of
sentencing and appeal.
Id. at 1629–30.
Before the sentencing hearing, Ellis twice renewed his motion to appoint him
new counsel. In response to the first motion, the district court reappointed DeHardt,
who moved to withdraw a month after his reappointment. DeHardt told the court that
his attorney-client relationship with Ellis was “beyond resurrection.” R. Vol. 1 at
1547. At the sentencing hearing, the district court denied Ellis’s second motion
because Ellis had failed to cooperate and because it believed that a newly appointed
attorney would take months to become sufficiently acquainted with Ellis’s case.
VI. Sentencing
Ellis represented himself at the sentencing hearing. He objected to several
paragraphs in the PSR, most of which concerned the facts underlying his conviction.
After hearing Ellis’s objections, the district court denied them. Ellis also objected to
the sentence enhancement under 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 851. The
district court rejected this argument too. Before the district court imposed a sentence,
16
Ellis reiterated his request that the court appoint him new counsel. The court declined
to revisit that issue.
On the cocaine-conspiracy count, the district court sentenced Ellis to life
imprisonment without release—the sentence mandated by 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A) and 851. In addition, the district court sentenced Ellis to the
statutory maximum on all of his other convictions: 360 months for each of the six
cocaine-possession and cocaine-distribution convictions, concurrent with each other
and the life sentence; 240 months for the drug-involved-premises conviction,
concurrent with the other sentences; and 120 months for the felon-in-possession-of-a-
firearm conviction. Finally, the district court sentenced Ellis to the mandatory-
minimum sentence of 60 months for the § 924(c) offense of possessing a firearm in
furtherance of a drug-trafficking crime. Ellis timely appealed.
VII. Revocation of Ellis’s Supervised Release
Soon after the sentencing hearing, the district court held a hearing on the
government’s motion to revoke Ellis’s supervised release imposed for his § 924(c)
conviction in 2007. At this hearing, DeHardt represented Ellis, and Ellis again
requested appointment of a different attorney. In response, the district court gave
Ellis the same option it had given him at sentencing: he could proceed with DeHardt,
or he could proceed pro se. Ellis elected to “go pro se.” R. vol. II (3181) at 17.
Before the revocation hearing began, the district court questioned Ellis about (1) his
legal experience, (2) the penalty he was facing if the court revoked supervised
release, (3) his awareness that he would have no help during the hearing, and (4) his
17
knowledge that he could have DeHardt represent him at the hearing. The district
court strongly urged Ellis “not to try to represent [himself].” Id. at 21. Despite this,
Ellis chose to represent himself, and the district court found that Ellis had “knowing
[sic] and voluntarily given up [his] right” to counsel. Id.
Ellis did not contest that he had violated the terms of his supervised release.
He asked only that the district court order any resulting prison sentence to run
concurrently with his other sentences. Instead, the district court sentenced Ellis to a
consecutive term of 24 months’ imprisonment to the sentences he received in Appeal
No. 14-3165. Ellis has appealed his conviction and sentence for violating his
supervised-release terms.
DISCUSSION
I. Conspiracy Conviction
A. District-Court Proceedings
As noted, the government charged Ellis and 49 other defendants in a broad
cocaine-distribution conspiracy stretching from a Kansas City street corner to a drug
cartel in Mexico. In its jury instructions, the district court did not tell the jury to
determine what cocaine amounts were individually attributable to Ellis, by his own acts
and the reasonably foreseeable acts of his coconspirators. And such an instruction would
not have mattered anyway, because the district court did not furnish the jury a special-
verdict form on which to enter those findings.
Though the government offered some crack-cocaine evidence, it sought Ellis’s
conviction primarily by arguing that he was necessarily responsible for the cocaine
18
kilograms trafficked into the area by the Mexican cartel. The government did so even
though acknowledging that Ellis knew no one in the chain above his street supplier,
Djuane Sykes. From its opening statement through its closing arguments, the government
pressed a Mexican-cartel theme.
With this general-verdict form, the jury found Ellis guilty by checking the space
next to “guilty.” R. vol. I (3165) at 1483. As mentioned, the verdict form provided no
spaces by which the jury could say what amount of cocaine powder or crack cocaine the
entire conspiracy involved, and no spaces to say what amounts it attributed individually
to Ellis. As seen, the jury instruction had an “in furtherance” requirement for
coconspirator acts, but it lacked a reasonable-foreseeability requirement. Id. at 1513. The
general-verdict form underlies Ellis’s challenge to his conviction and sentence on the
cocaine-conspiracy charge.
B. Ellis’s Contentions on Appeal
1. Sufficiency of the Evidence
Ellis first asks us to vacate his conspiracy conviction. He contends that the
government presented insufficient evidence “to establish that the possession, distribution,
or manufacture of either 280 grams of crack cocaine or five kilograms of powder cocaine
was reasonably foreseeable to Mr. Ellis.” Appellant’s Opening Br. at 16. Ellis argues that
the district court erred in not requiring that the jury convict him for only the amounts it
found reasonably foreseeable to him.7 And, further, Ellis argues that the jury lacked
7
A jury may include within a defendant’s individually attributable drug
amounts the defendant’s own acts as well as his coconspirators’ reasonably
19
sufficient evidence to find that he conspired to possess, distribute, or manufacture either
280 grams of crack cocaine8 or 5 kg of powder cocaine. Thus, Ellis argues, we must
reverse his conviction.
Ellis builds his sufficiency-of-the-evidence argument on a mistaken legal premise.
He assumes that the jury could not convict him for the cocaine-conspiracy count absent
its finding that the conspiracy involved at least 5 kilograms of powder cocaine or 280
grams of crack cocaine. But to sustain his conspiracy conviction, the government needed
to prove only that Ellis conspired “to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense” any amount of either substance. 21 U.S.C.
§§ 841(a)(1); 846. And he certainly did so. So, at the very least, Ellis stands properly
convicted under 21 U.S.C. § 841(a)(1), (b)(1)(C).9 See United States v. Cruse, 805 F.3d
foreseeable acts in furtherance of the conspiracy. See United States v. Morales, 108
F.3d 1213, 1226 (10th Cir. 1997) (“Where the sentencing court determines a
defendant was directly involved in the distribution of a quantity of drugs sufficient to
invoke a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), the quantity
of drugs reasonably foreseeable to the defendant is irrelevant.”).
8
The government has a much stronger case to support a sufficiency-of-the-
evidence argument for the crack cocaine. The crack-cocaine amount rests not on
Mexican-cartel liability but instead on the crack cooking and sales by Ellis, Tatum,
and Theoplis. But we need not decide whether sufficient evidence exists or not. The
government failed to obtain a jury finding that 280 grams of crack cocaine were
individually attributable to Ellis, so it must show the resulting error under Alleyne v.
United States, 133 S. Ct. 2151, 2155 (2013), was harmless beyond a reasonable
doubt.
9
This also disposes of Ellis’s alternative argument that even if sufficient
evidence supported his conviction (for conspiring to distribute and manufacture at
least 5 kilograms of powder cocaine and 280 grams of crack cocaine), the jury may
have convicted not on the sufficient evidence of those amounts individually
20
795, 817 (7th Cir. 2015) (concluding that “drug quantity is not an element of a drug
conspiracy under § 841(a)(1)”); United States v. Daniels, 723 F.3d 562, 572 (5th Cir.
2013) (concluding that the government’s failure to prove 5 kilograms of powder cocaine
affected the sentence but did not undermine the conviction); United States v. Collins, 415
F.3d 304, 314 (4th Cir. 2005) (concluding that conviction under 21 U.S.C. § 846 was
sound despite the government’s failure to prove the charged amount of crack cocaine);
United States v. Vazquez, 271 F.3d 93, 105 (3d Cir. 2001) (en banc) (concluding that for
an indictment charging 5 kilograms of powder cocaine, courts may sentence for a lesser-
included offense when the government’s proof doesn’t support that weight).10
2. Sixth Amendment: Alleyne
On appeal, Ellis contends that the district court violated his “Sixth Amendment
rights by imposing a life sentence on the conspiracy count without a required factual
finding by the jury—that it was reasonably foreseeable to Mr. Ellis that other
members of the charge [sic] conspiracy would distribute more than 280 grams of
cocaine base and five kilograms of cocaine.” Appellant’s Opening Br. at 17–18. Ellis
argues that the district court erred by sentencing him under § 841(a)(1), (b)(1)(A)
without obtaining the jury’s findings of the weight of powder and crack cocaine
reasonably foreseeable to him.
attributable to him, but instead on amounts that were not individually attributable to
him.
10
See also United States v. Cernobyl, 255 F.3d 1215, 1218 (10th Cir. 2001)
(“Federal courts have historically construed the provisions of § 841(a) as the
substantive elements of the offense . . . .”).
21
The government argues that Ellis waived this issue by inviting any error in the
verdict form. So we must examine how the verdict form was proposed and approved.
We note that the district court told counsel at the jury-instruction conference that “the
main feedback” it had received after e-mailing a verdict form with spaces for the jury
to find cocaine amounts attributable to individual defendants was that the verdict
form should not leave spaces for the jury to make those findings. R. vol. V (3165) at
1452. The district court mistakenly agreed that this feedback correctly stated the law.
So the district court advised that it had “prepared a revised verdict form which omits
any reference to the drug quantities.” Id. Based on this discussion, the government
contends that Ellis rejected the original verdict form with spaces for the jury to make
cocaine-quantity findings, thus waiving appellate review of the verdict form.
We disagree with the government’s position. We note that after the district
court asked counsel if any party objected to the verdict form, Ellis’s counsel simply
responded, “None on behalf of Mr. Ellis, Your Honor.” Id. By declining to object, a
defendant does not knowingly waive an error. Nothing shows that Ellis’s counsel
even provided “feedback” about the verdict form. Id. We see nothing showing that
Ellis’s counsel proffered a verdict form without drug quantities to the district court or
persuaded the district court to adopt one like that. See United States v. Sturm, 673
F.3d 1274, 1281 (10th Cir. 2012) (barring review under the invited-error doctrine
where the defendant proffered the very instruction he attacked on appeal). So Ellis
did not invite error as the government contends.
22
In Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), the Supreme Court
held that “any fact that increases the mandatory minimum [sentence] is an ‘element’
that must be submitted to a jury.”11 Put another way, the Court held that a district
court violates the Sixth Amendment if it imposes a sentence based on a judge-found
(and not a jury-found) fact that increases a minimum sentence. See id. at 2163–64.
Thus, in Alleyne, the Supreme Court reversed a mandatory-minimum sentence
increased from five to seven years under 18 U.S.C. § 924(c)(1)(A)(ii) for the
defendant’s having brandished a firearm. Id. It did so because the district court, and
not the jury, had found this fact that increased the mandatory-minimum sentence. Id.
at 2163.12
In Alleyne, the defendant’s “brandishing” of the firearm was plainly an
element of the crime. See id. at 2156; 18 U.S.C. § 924(c)(1)(A)(ii). But Ellis’s
increased mandatory-minimum sentence depended on conspiracy-cocaine amounts,
not the manner of using a firearm. So to succeed on his Alleyne argument, Ellis must
11
Alleyne overruled Harris v. United States, 536 U.S. 545 (2002), where the
Court “held that judicial factfinding that increases the mandatory minimum sentence
for a crime is permissible under the Sixth Amendment.” 133 S. Ct. at 2155.
12
The government charged the brandishing element, and a special-verdict form
gave the jury the opportunity to find that Alleyne had indeed brandished the firearm.
The jury found that Alleyne had used the firearm but left blank the space indicating
that Alleyne had brandished it. Alleyne, 133 S. Ct. at 2156; see Indictment, United
States v. Alleyne, 3:10-cr-00134-REP-1 (E.D. Va. May 5, 2010), Verdict Form,
United States v. Alleyne, 2:10-cr-00134-REP-1 (E.D. Va. Sept. 7, 2010). So it is not
enough for the government to argue that a guilty verdict on a conspiracy count
charging 5 kilograms of powder and cocaine and 280 grams of crack cocaine satisfies
the government’s obligation to prove that element. As in Alleyne, merely charging
the fact that increases the mandatory-minimum sentence is not enough—the jury
must make that fact finding.
23
still show that individually attributable cocaine amounts are an element of the
cocaine-conspiracy charge. On this point, the government asserts that “this Court has
not issued a published decision [after Alleyne] expressly stating what determination
the jury must make when a defendant is charged with an offense that carries a
statutory mandatory-minimum penalty.” Appellee’s Br. at 29–30. But the government
is mistaken.
In United States v. Dewberry, 790 F.3d 1022 (10th Cir. 2015), decided two
years after Alleyne, we said that, because 280 grams of crack cocaine would increase
the statutory mandatory-minimum sentence, that drug amount “was an element of the
offense and had to be proved at trial.” Id. at 1029 (citing Alleyne, 133 S. Ct. at 2158).
In Dewberry, the district court properly had the jury make a special finding beyond a
reasonable doubt about the amount of crack cocaine individually attributable to the
defendant. Id. at 1029. The jury found that he had conspired to distribute at least 280
grams of crack cocaine. Id. In evaluating the defendant’s sufficiency-of-evidence
challenge, we said that “[a] defendant can be held ‘accountable for that drug quantity
which was within the scope of the agreement and reasonably foreseeable’ to him.” Id.
at 1030 (quoting United States v. Arias-Santos, 39 F.3d 1070, 1078 (10th Cir.
1994)).13 We concluded that the government had presented sufficient evidence to
13
Though Dewberry was decided after Ellis’s trial, he gets any benefit from its
ruling because it was decided while his case is on direct appeal. Griffith v. Kentucky,
479 U.S. 314, 328 (1987). And Ellis could even rely on United States v. Stiger, 413
F.3d 1185 (10th Cir. 2005), which directed that in setting a drug sentence, the district
judge “may determine the ‘floor’ by finding the precise drug quantity attributable to
each coconspirator.” Id. at 1193. Though Alleyne reassigned this role to the jury, the
24
prove that the defendant “could have foreseen that [his coconspirator] would convert
powder cocaine into 280 grams or more of crack cocaine.” Id. at 1030.
In view of the interplay between Alleyne and Dewberry, we hold that the
district court committed Alleyne error by convicting and sentencing Ellis on 21
U.S.C. § 841(b)(1)(A) without the jury’s having found his individually attributable
amount of cocaine as at least 5 kilograms of powder cocaine or 280 grams of crack
cocaine.14 So we turn now to whether this Alleyne error requires a reversal. In doing
so, we must first determine what standard of review applies. And that depends on
whether Ellis preserved an objection in the district court to the Alleyne error.
In determining whether Ellis preserved an Alleyne objection, we must
determine when an Alleyne error arises. Here, the Alleyne error arose when the
district court sentenced Ellis to a life sentence under 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 851. We see no reason to require that Ellis have objected during trial to
the jury instructions or the general-verdict form to preserve an Alleyne objection. If
measure stays the same—drug quantities for minimum sentences must be attributed
individually.
14
The drug weights under 21 U.S.C. § 841(a)(1), (b)(1)(A), (B), and (C)
establish different crimes, United States v. Jones, 235 F.3d 1231, 1236 (10th Cir.
2000), but the statute does not say whether the drug weights are those of the
conspiracy as a whole, or those of each defendant’s individually attributable
amounts. We note that, at least for now, one circuit applies the conspiracy-wide
amount for both maximums and mandatory-minimum sentences under this section.
See United States v. Gibson, 2016 WL 6839156, at *2 (6th Cir. Nov. 21, 2016)
(recognizing that conspiracy-wide liability for limited-amount coconspirators “may
appear unjust” and does not “serve the drug statute’s underlying purpose of more
severely punishing larger-amount drug dealers,” the court declared itself bound by its
precedent) (citing United States v. Robinson, 547 F.3d 632, 638 (6th Cir. 2008),
rehearing en banc granted, 854 F.3d 367 (2017)).
25
the government wanted a heightened sentence under that subsection, it was obliged to
ensure the jury received proper jury instructions and a special-verdict form with
spaces enabling the jury to find Ellis’s individually attributable powder and crack-
cocaine amounts. See United States v. Haines, 803 F.3d 713, 740 (5th Cir. 2015)
(concluding that defendants’ challenge at their sentencing hearing to their mandatory
minimum sentences based on conspiracy-wide heroin amounts, though not raised
with an ideal level of specificity, were timely and sufficient to preserve their
objections); United States v. Pizarro, 772 F.3d 284, 296 (1st Cir. 2014) (concluding
that defendant preserved an Alleyne objection even though he did not object until
sentencing, reasoning that a party is not obliged to object to something “inimical to
his cause,” ensuring his eligibility for a longer sentence) (quoting United States v.
Pérez–Ruiz, 353 F.3d 1, 14 (1st Cir. 2003)). The district court did not commit an
Alleyne error until it subjected Ellis to an increased mandatory-minimum sentence
without the jury’s attributing at least 280 grams of crack cocaine to Ellis
individually.15
15
Had the district court sentenced Ellis to the mandatory-minimum term for
conspiracy-wide cocaine amounts—10 years—that sentence would have fallen within
the § 841(a)(1), (b)(1)(C) range of 0 to 30 years. In that circumstance, the Alleyne
error might have been harmless. See United States v. Long, 748 F.3d 322, 330 (7th
Cir. 2014). But here the Alleyne error led to a life-without-release sentence under §
851 that never could have happened otherwise. The problem is not with the fact of
the prior felony convictions, see Almendarez-Torres v. United States, 523 U.S. 224,
243 (1998) (prior convictions are not facts increasing a sentence that require jury
findings), but with the sentencing increase made available by the Alleyne error.
26
Next, we must determine whether Ellis raised an Alleyne objection before the
district court sentenced him. He could do so by invoking the applicable decision
(here, Alleyne) “or by claiming that ‘the issue of drug quantity should go to the
jury, . . . that an element of the offense was not proved, that the judge cannot
determine quantity, or that quantity must be proved beyond a reasonable doubt (and
not by a preponderance of the evidence).’” United States v. Lott, 310 F.3d 1231, 1240
(10th Cir. 2002) (omission in original) (quoting United States v. Candelario, 240
F.3d 1300, 1304 (11th Cir. 2001)).
Appearing pro se at the sentencing hearing, Ellis raised a sufficient Alleyne
objection to the district court’s sentencing him on 280 grams or more of crack-cocaine
without a jury finding that he was individually responsible for this amount:
I don’t understand why I’m here today. And for the jury to find me guilty, I
didn’t understand because there was no amount – I didn’t even – the jury
transcripts, it was no amount to say if I was guilty of 280 grams. I mean,
even the videos that I was in does not show me specifically with crack
cocaine in possession selling to no one. You know.
***
And I was never shown to be convicted by the jury by a certain drug
amount because 280 grams, there’s never no evidence, to my knowledge,
that’s being brought up.
R. Vol. V (3165) at 1644, 1686.
In addition, we conclude that Ellis sufficiently raised an Alleyne objection to the
district court’s sentencing him on five kilograms or more of powder cocaine without a
jury finding. In a motion hearing five months before his sentencing hearing, Ellis argued
that he should not be held accountable for cocaine distributions by the Mexican cartel and
27
its distributors—“I didn’t know none of these dudes.” Id. at 1591. He complained that his
attorney didn’t present to the jury that “this is a conspiracy here and it’s another case
here, so, I mean, you ought to separate Mr. Ellis from this conspiracy[.]” Id. at 1593.
And at his sentencing hearing, Ellis complained that for his “guilty verdict [to]
show that Perez and I combined to sell drugs is false because I don’t know him and he
stated on the stand that he doesn’t know me.” Id. at 1641. In arguing that appointing him
new counsel would not delay the sentencing, Ellis argued that “[i]t would probably take
them a week, two week’s time to look at what I was involved in to separate me from the
rest of the conspiracy.” Id. at 1652. Objecting to being held accountable for other
defendants’ drugs, Ellis said, “So the amount of drugs that’s been placed on me, I
wouldn’t want to call it so much as ghost dope because I didn’t have it. But it was
presented in the courtroom. But I don’t know whose it was, but I never was in possession
of it or seen doing anything with a certain amount.” Id. at 1664. Ellis continued to object
to being held accountable for cocaine in an overbroad conspiracy charge in these words:
“And it was kind of like a lot easier for, I guess, the prosecutor to get the whole
community wrapped up in one, tie them all in one to get it over with fast. And I don’t feel
like everyone was connected.” Id.
Because the district court committed a constitutional error by not obtaining the
jury’s finding on an element of the crime, we turn for guidance to Neder v. United States,
527 U.S. 1 (1999). In that case, the district court mistakenly determined that materiality
was not an element of certain federal fraud statutes. Id. at 4. That meant that the jury
never found that element beyond a reasonable doubt. For this error, the Court applied a
28
constitutional harmless-error standard, one requiring the government to prove
harmlessness beyond a reasonable doubt (as opposed to a structural-error standard
requiring reversal per se). Id. at 12–13, 15. The Court found this standard met because the
defendant “did not contest the element of materiality at trial,” and did not “suggest that he
would introduce any evidence bearing upon the issue of materiality if so allowed.” Id. at
15. The Court required that the evidence be “uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent the
error.” Id. at 17. And the Court set the test for affirmance as “whether it appears ‘beyond
a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’” Id. at 15 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
i. Powder-Cocaine Conviction
We first turn to Ellis’s conviction for conspiracy to distribute more than 5
kilograms of powder cocaine. Despite the government’s cartel-heavy presentation at trial,
it has abandoned that approach on appeal. And when those cartel amounts—hundreds of
kilograms16—are stripped away, the government cannot show that the Alleyne error was
harmless beyond a reasonable doubt. Ellis contested his liability for at least five
kilograms of powder cocaine, and the government didn’t introduce overwhelming
16
On direct examination, Officer Eric Jones of the Kansas City Police
Department estimated that Hector Aguilera was responsible for hundreds of
kilograms of cocaine. R. Vol. IV at 2278.
29
evidence to prove that this amount was individually attributable to him. Even the
presentence report, applying a preponderance standard, fell short of this mark.17
ii. Crack-Cocaine Conviction
We next ask whether the government can show harmless error beyond a
reasonable doubt with the necessary overwhelming evidence that Ellis conspired to
manufacture or possess with intent to distribute and to distribute 280 grams of crack
cocaine.18 Here, unlike with its Mexican-cartel powder-cocaine evidence, the
government can rely on evidence more particular to Ellis—the crack cocaine cooked
and sold by Tatum, Ellis, and Theoplis. The government points to the controlled buys
from Tatum and Ellis totaling 25.3 grams. But that still leaves the government
needing to show overwhelming evidence of another 254.7 grams needed to sustain
the district court’s sentence. And here, Ellis contested this element at sentencing, and
the record shows that the government’s proof of this remaining crack-cocaine amount
is far from “uncontested and supported by overwhelming evidence.” Neder, 527 U.S.
at 17.
To show that 280 grams of crack cocaine are individually attributable to Ellis,
the government relies primarily on the testimony of Ellis’s nephew, Theoplis.
17
The PSR attributed to Ellis a total of 4,167 grams of cocaine from his and
Tatum’s months of cocaine purchases from Sykes. Because of this calculation, we do
not review the evidence of these cocaine-powder buys in detail.
18
Because of the government’s cartel-heavy presentation to the jury, and its
failure during closing argument or rebuttal closing even to mention 280 grams of
crack cocaine, we have doubts whether the jury convicted him of a crack-cocaine
conspiracy of the aggravated crime under 21 U.S.C. § 841(b)(1)(A).
30
Theoplis responded affirmatively to the government’s question whether the powder
cocaine Ellis purchased was “always cooked into crack cocaine.”19 R. vol. V (3165)
at 678. But Theoplis admitted that he had just once seen Ellis cook powder cocaine
into crack. Theoplis also testified that he had once seen Tatum cook crack at Tatum’s
girlfriend’s house, after complying with Tatum’s request that Theoplis bring baking
soda. Theoplis also testified that neither he, Tatum, nor Ellis bought crack cocaine.
Finally, Theoplis testified that he sold “pieces” of crack cocaine for $10 or $20, and
that Tatum and Ellis sold “weight”—meaning sixteenth- or eighth-ounce amounts. Id.
at 683–84.
On appeal based on Theoplis’s testimony, the government argues that Ellis and
Tatum cooked all their purchased powder cocaine into crack. If so, the government
would have a strong basis to argue that Ellis and Tatum conspired to manufacture and
distribute at least 280 grams of crack cocaine.
But we are reviewing for constitutional harmless error, not for sufficiency of
the evidence. And Theoplis’s testimony does not provide the “uncontested and
overwhelming evidence” necessary for us to find the Alleyne error harmless beyond a
reasonable doubt. In arguing otherwise, the government points us to two cases. But as
discussed below, in both cases the government presented much stronger evidence of
an omitted offense element than the government did here.
19
As mentioned, at arrest Ellis had a variety of drugs and paraphernalia, which
included a small amount of powder cocaine but no crack.
31
First, in Pizarro, 772 F.3d at 298, the government presented overwhelming
evidence that far exceeded the drug amount necessary to trigger the mandatory-
minimum sentence. Law-enforcement officials had seized 81 kilograms of cocaine
from luggage at the airport. Id. at 299. Further, multiple other witnesses testified that
Pizarro had personally handled more than 5 kilograms of powder cocaine. Id.
Because overwhelming evidence supported Pizarro’s responsibility for more than 5
kilograms of powder cocaine, the Alleyne error was harmless beyond a reasonable
doubt. Id.
Second, in United States v. Mann, 786 F.3d 1244 (10th Cir. 2015), we affirmed
a defendant’s increased mandatory-minimum sentence under 18 U.S.C.
924(c)(1)(A)(iii) because the evidence was “overwhelming” that Mann had
discharged a firearm—an element omitted from the jury instructions. Id. at 1251–52.
In a recorded interview with FBI agents played to the jury, Mann admitted several
times that he had discharged his firearm. Id. at 1251. And on appeal, Mann conceded
that the jury would have “found the mere fact of discharge of a firearm” had the
verdict form asked the jury to answer that question.20 Id. at 1251–52. See also United
20
In a Fed. R. App. P. 28(j) letter, the government also cites United States v.
Morris, 784 F.3d 870, 875 (1st Cir. 2015), as “persuasive support” for its
overwhelming-evidence argument. In Morris, the defendant’s counsel conceded
during closing argument that the jury should attribute 4 transactions to him, each with
62 grams of powder cocaine, and that the jury could attribute crack cocaine from
those 248 grams of crack on a 1:1 ratio. 784 F.3d at 875. The First Circuit had no
trouble finding overwhelming evidence of at least another 32 grams of crack cocaine,
noting that Morris himself testified that he was involved “in about eight other drug
transactions of at least 28 grams each.” Id. at 876. On the other hand, Ellis’s counsel
disputed the cocaine amounts during trial, and Ellis himself did so at sentencing.
32
States v. McIvery, 806 F.3d 645, 651 (10th Cir. 2015) (quoting Morris, 784 F.3d at
874) (stating the government must show “a corpus of evidence such that no
reasonable jury could find, based on the record, that the [drug] quantity was less than
that required for the mandatory minimum to apply”).
Here, Ellis contested conspiring to manufacture and distribute at least 280
grams of crack cocaine. Our review of the record does not persuade us that the
government offered overwhelming evidence to satisfy this omitted element “such that
the jury verdict would have been the same absent the error.” Neder, 527 U.S. at 17.
Put another way, the government has not presented “a corpus of evidence such that
no reasonable jury could find, based on the record, that the [drug] quantity was less
than that required for the mandatory minimum to apply.” McIvery, 806 F.3d at 651
(quoting Morris, 784 F.3d at 874).
C. The Government’s United States v. Stiger Argument
1. How Stiger Fits into the Analysis
Taking a wide turn around these Alleyne problems, the government asserts that
this circuit “has adopted the conspiracy-wide approach for statutory maximums.”
Appellee Br. at 29; 57. The government treats the general verdict as a jury finding
that the conspiracy as a whole involved at least five kilograms of powder cocaine and
Certainly, Ellis never admitted that he was involved with either 5 kilograms of
powder cocaine or 280 grams of crack cocaine.
33
280 grams crack cocaine.21 From this, the government implicitly argues that the
conspiracy conviction sets a 10-to-life sentencing range under § 841(b)(1)(A), which
authorizes Ellis’s life sentence. Because the government relies on United States v.
Stiger, 413 F.3d 1185 (10th Cir. 2005) to render the Alleyne-Dewberry problem
moot, we examine Stiger in detail.
In Stiger, the court reviewed a conviction in a much smaller conspiracy than
charged in Ellis’s case. 413 F.3d at 1189. Stiger was intimately involved in the
conspiracy’s workings. For example, he helped prepare drugs for shipping and
assisted in transporting the drugs as well as transferring large sums of money. Id. As
Ellis did here, Stiger received a mandatory life sentence because of the conspiracy’s
drug weight and two prior felony convictions. Id. at 1191.
On appeal, Stiger argued that the district court had violated his Sixth
Amendment rights “by not requiring the jury to make a specific finding as to the
amount of drugs for which he was personally responsible.” Id. In that case, unlike
here, the jury had at least found that the conspiracy as a whole had trafficked more
than 5 kilograms of powder cocaine. Id. The court declared that Stiger had raised an
issue of first impression in our court—“whether a jury, after Apprendi and Booker,
21
But the government cannot excuse a lack of a jury finding of an element
(here drug weight) by relying on a guilty verdict for an indictment count charging
that element. For instance, in a prosecution under 18 U.S.C. § 924(c)(1)(a)(ii), as in
Alleyne, the government is not excused from obtaining a jury finding on
“brandishing” by charging that element in the indictment. See, e.g., United States v.
Kiel, 658 F. App’x 701, 705, 710 (5th Cir. 2016); United States v. McKinley, 732
F.3d 1291, 1293, 1297 (11th Cir. 2013); United States v. Mack, 729 F.3d 594, 607-08
(6th Cir. 2013). Here, the jury did not make a finding of the cocaine quantities
charged, let alone that those quantities were reasonably foreseeable to Ellis.
34
must determine the amount and type of drug attributable to individual coconspirators
rather than simply attributable to the entire conspiracy.” Id. at 1192. We joined five
other circuits22 in announcing a rule that “in the conspiracy context, a finding of drug
amounts for the conspiracy as a whole sets the maximum sentence that each
coconspirator could be given.” Id. (citing Derman v. United States, 298 F.3d 34, 42
(1st Cir. 2002)). We then left it to the district judge to “determine the ‘floor’ by
finding the precise drug quantity attributable to each coconspirator.” Id. at 1193.
We don’t read Stiger as giving an unqualified rule that, in wide global
conspiracies as charged here, the lowest street-level dealers are automatically subject
to the same maximum penalties as drug kingpins. Indeed, in United States v. Evans,
970 F.2d 663, 670 (10th Cir. 1992), decided 13 years before Stiger, we noted that
defendants must “have a general awareness of both the scope and the objective of the
22
Notably, of these five circuits, those that have revisited the issue post-
Alleyne have not reached Stiger’s result. See Cruse, 805 F.3d at 817 (concluding that
the district court erred in telling the jury that the two defendants were responsible for
the cocaine involved in the conspiracy and all acts of the coconspirators in
furtherance of the conspiracy and not telling the jury that the acts must be reasonably
foreseeable to the two defendants); Haines, 803 F.3d at 740–42 (though stating that
“for determining statutory minimum and maximum sentences, our cases always have
limited the defendant’s liability to the quantity of drugs with which he was directly
involved or that was reasonably foreseeable to him,” the court went on to say that
whether conspiracy-wide amounts apply to determine statutory maximums is “a
bridge we need not cross today”); Pizarro, 772 F.3d at 293 (explaining that
“[h]enceforth, under Alleyne and Apprendi, the jury must find the mandatory-
minimum and statutory-maximum triggering elements,” in drug cases based on drug
quantity). And another of the cited circuits reached a different result even earlier.
Collins, 415 F.3d at 314 (reversing drug sentence because “the district court’s
sentence effectively attributed to Collins, an individual member of the conspiracy,
the quantity of cocaine base distributed by the entire conspiracy”).
35
enterprise to be regarded as a coconspirator.” And we followed those words with a
general limitation on a conspiracy’s reach:
This is not to say, however, that a defendant may be convicted of a
conspiracy that defies common sense simply because he or she
possesses a general awareness of the breadth of its illegal activities. For
example, at oral argument, the government suggested that a drug dealer
who knows that his supply can be traced to the Medillin cartel has
joined a vast conspiracy with the members of the cartel to distribute
crack illegally for profit. Under such an approach, a small-time drug
dealer could be held responsible for all of the drugs originated by the
cartel for sentencing purposes, resulting in a guaranteed life sentence.
Such an approach would pervert the concept of conspiracy. Mere
knowledge of illegal activity, even in conjunction with participation in a
small part of the conspiracy, does not by itself establish that a person
has joined in the grand conspiracy.
Id.
Under the government’s reading of Stiger, any prosecution built upon a
sufficiently wide conspiracy involving a defendant with two prior felony-drug-
offense convictions would require a mandatory life-without-release sentence—
regardless of how little of the conspiracy-wide drugs are individually attributable to
that defendant. For a variety of reasons, we reject that interpretation of Stiger.
First, Stiger itself found it important that the district court had “determined
Mr. Stiger was integral to the conspiracy and could be sentenced as though he were
responsible for the full drug types and quantities.” 413 F.3d at 1192 (emphasis
added). And in rejecting Stiger’s appeal, we noted that substantial evidence showed
that he had taken “essential and integral steps to help the organization profit from the
sale of illegal drugs.” Id. at 1194 (emphasis added). We carefully reviewed the
evidence against Stiger—extensive testimony about his packaging and coordinating
36
drug shipments, about his sending large amounts of money to the head man in the
conspiracy, and about his gruesome torture of a woman concerning a dispute about
drug-sale proceeds. Id. at 1191. In comparison, we cannot say that Ellis was integral
to the vast conspiracy charged in this case. After all, Ellis was a relatively small-time
drug dealer, and the Mexican cartel was importing hundreds of kilograms of cocaine
into the Kansas City area.23 We read Stiger to say that conspirators who are “integral”
to an entire conspiracy can be sentenced at the conspiracy-wide drug amount.
In our view, conspirators are “integral” when their individually attributable
drug amounts correspond to the conspiracy-wide drug amounts. This approach reads
Stiger in closer harmony to our circuit’s precedents than does the government’s
approach. Obviously, Stiger did not overrule Evans and its prohibition against cartel-
wide liability for small participants. Evans denounced the sort of conspiracy liability
that the government argued to the jury.24 970 F.2d at 670. As mentioned, it required
that conspiracy convictions obey common sense, requiring more than “a general
awareness of the breadth of its illegal activities.”25 Id. It described cartel liability for
23
Left unexplained in Stiger is how a district court’s finding that Stiger was
“integral” to the conspiracy is not, under Apprendi, a fact that increases the
maximum sentence, and so requires a jury finding.
24
At Ellis’s sentencing, the prosecutor explained the government’s approach to
the case as follows: “As the evidence unfolded, Mr. Ellis wants to say, well, I didn’t
know Perez-Alcala, and I agree he didn’t, but the drugs that Perez-Alcala and Hector
Aguilera [the “kingpin”] were getting were ending up in the hands of Marvin Ellis.
That’s why he’s connected.” R. Vol. V (3165) at 1668.
25
On this general-awareness point, the government’s examination of
cooperating-witness Theoplis is revealing:
37
small-time drug dealers an approach that “would pervert the concept of conspiracy.”
Id.
And we decided Stiger after we decided other cases imposing a personal-
responsibility limitation on conspiracy liability. See, e.g., Arias-Santos, 39 F.3d at
1078 (concluding that the defendant “may be sentenced on the basis of cocaine
possessed by another conspirator, so long as the amount is within the scope of the
conspiracy and foreseeable by [her]”); United States v. Russell, 963 F.2d 1320, 1322
(10th Cir. 1992) (quoting Pinkerton v. United States, 328 U.S. 640, 646–47 (1946)
for the principle that conspirators are responsible only for coconspirators’ acts in
furtherance of the conspiracy and crimes committed “within the scope of the
unlawful project”26 and thus “reasonably foreseen as a necessary or natural
Q: Would it be reasonable for you to conclude that the cocaine you
were buying on Duce Duce [22nd Street] was coming from some
source?
A: What do you mean by that?
Q: Well, it was coming from somewhere, would you agree with that?
A: Correct.
Q: Would it be reasonable to conclude that it came from a Mexican
source?
A: Not that I know of.
Q: You don’t know?
A: I don’t know.
Q: But you know it came from somewhere?
A: Correct.
R. Vol. V (3165) at 727.
26
In its closing argument, the government told the jury that “it’s not important
that any particular defendant knew much at all about the overall scope of the
conspiracy.” R. vol. V. (3165) at 1475.
38
consequence of the unlawful agreement”).27 And our post-Stiger cases cite and rely
on these earlier cases too. See Dewberry, 790 F.3d at 1030 (determining that
evidence was sufficient to support a crack-cocaine sentence, citing Arias-Santos
favorably to conclude that a reasonable jury could find that Dewberry “could have
foreseen that Mr. Webb would convert powder cocaine into 280 grams or more of
crack cocaine”).
2. How Alleyene Affects Stiger28
Alleyne directly overruled Stiger on one point. Stiger directed that the district
court, and not the jury, find the sentencing “floor” based on individually attributable
drug amounts. Stiger, 413 F.3d at 1193. But the Alleyne-Dewberry tandem requires
that the jury make this fact finding if it increases a mandatory-minimum sentence. So
what did Stiger mean by the sentencing “floor”? Id. Did this reference allow a district
court to ignore the mandatory-minimum sentence associated with the statutory
sentencing range given by the conspiracy-wide drug amount? In other words, if the
jury found that the conspiracy-wide amount was at least 280 grams of crack cocaine,
would Stiger open the door to § 841(a)(1), (b)(1)(A) for the maximum life sentence,
27
In United States v. Allen, 9 F. App’x 936, 938 (10th Cir. 2001)
(unpublished), we said that “because the jury did not determine the amount of drugs
attributable to defendant,” we could not uphold under Apprendi “a conviction for the
quantities identified in § 841(b)(1)(A) or (B)[.]”
28
Judge Hartz joins the opinion in full except for Discussion Section I.C.2,
which he does not join.
39
but somehow ignore the corresponding 10-year mandatory-minimum sentence?29
Obviously, courts have no authority to disregard a statutory sentencing range. So I
interpret Stiger’s sentencing “floor” to be the mandatory-minimum sentence plus
whatever increase a defendant’s relevant conduct under the sentencing guidelines
gives. I cannot construct a 0-to-life sentencing range by merging § 841(b)(1)(A), (B),
or (C).
Until Alleyne-Dewberry, Stiger’s one-size-fits-all approach, whatever its
wisdom, was at least legally permissible (if the “floor” could not go beneath the
mandatory minimum). But Alleyne-Dewberry changes that. Now, the mandatory-
minimum sentence is unhitched from the conspiracy-wide maximum sentence. In a
reversal of fortune, Stiger’s conspiracy-wide maximum sentence is now limited by
the mandatory-minimum sentence’s statutory range. For example, if a defendant’s
individually attributable amount of crack cocaine is 100 grams, that compels a
statutory sentencing range of 5 to 40 years, under § 841(b)(1)(B). And even if the
conspiracy-wide crack-cocaine amount far exceeds 280 grams, the maximum cannot
rise past 40 years without creating a new sentencing range of 5 years to life. Nothing
29
In Morales, 108 F.3d at 1225, we stated that “[in] general, ‘district courts
have broad discretion in sentencing a defendant within the range prescribed by
Congress.’” (quoting United States v. Robertson, 45 F.3d 1423, 1448 (10th Cir.
1995)).
40
in § 841(b) suggests that Congress intended us to merge its precise statutory
sentencing ranges in this fashion.30
And there lies a problem for the government. To sustain Ellis’s life-without-
release sentence, it must show that Ellis’s offense is one “involving” at least 280
grams of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), before it can reach a
sentencing range of 10-years-to-life imprisonment. But after Alleyne-Dewberry, we
must ask whether the offense involves that much individually attributable cocaine
before imposing the associated sentencing range that includes the 10-year mandatory-
minimum sentence. A conspiracy-wide crack-cocaine finding of 280 grams or more
cannot establish the mandatory-minimum term of 10 years—only jury-found,
individually attributable amounts can authorize that sentence for a defendant. And
absent getting to § 841(a)(1), (b)(1)(A), the government cannot rely on § 851
convictions to increase Ellis’s sentence to mandatory life without release.
30
The 5-year term is called a mandatory-minimum sentence for a reason. And
the sentencing guidelines apparently agree, because in cases where a statutory
minimum exceeds an advisory guideline range, the mandatory-minimum term
becomes the guideline sentence. See U.S. Sentencing Guidelines Manual § 5G1.1(b).
Even so, we recognize that the government has sometimes taken a contrary view
without explanation. See Dewberry, 790 F.3d at 1033 (noting that the government
agreed that a 10-year mandatory minimum sentence from the jury’s special-verdict
finding that he conspired to distribute 5 kilograms or more of powder cocaine should
be reduced to a five-year mandatory minimum sentence under § 841(b)(1)(B) because
the PSR found him responsible for less than 5 kilograms); United States v. Biglow
(Biglow II), 635 F. App’x 398, 399 (10th Cir. 2015) (unpublished) (explaining that
the government conceded the district court’s error in imposing a five-year
mandatory-minimum sentence based on a jury verdict finding that the conspiracy as a
whole had involved at least 500 grams of powder cocaine, when the district court at
sentencing attributed 192 grams to the defendant individually).
41
3. Summary
As stated, we read Stiger differently than the government does, and we vacate
Ellis’s sentence under §§ 841(a)(1), (b)(1)(A) and 851 and remand that count for
resentencing under §§ 841(b)(1)(C) and 851.31 In remanding cases for violations of
Apprendi, we have ordered that the district court resentence under § 841(a)(1),
(b)(1)(C) when the conviction stands but the sentence does not. See Jones, 235 F.3d
at 1236–37 (“A district court may not impose a sentence in excess of the maximum
set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity of cocaine base
for an enhanced penalty is alleged in the indictment in addition to being submitted to
the jury and proven beyond a reasonable doubt.”); see also Vazquez, 271 F.3d at 98
(explaining that, because “drug quantity was neither submitted to the jury nor
reflected in its verdict,” “§ 841(b)(1)(C) define[d] Vazquez’s prescribed statutory
maximum sentence”).
II. Drug-Premises Conviction
Ellis next argues that the evidence was insufficient to support his conviction
for maintaining drug-involved premises. Although the indictment charges that this
crime occurred “[o]n or about April 27, 2012,” Ellis ignores the “on or about”
qualifier, concentrating instead on the particular date of April 27, 2012. R. vol. I
(3165) at 585. According to Ellis, the government did not prove beyond a reasonable
31
In view of this holding, we have no need to address Ellis’s Fifth Amendment
argument, one based on his asserted due-process right to avoid an “aggravated
conspiracy charge” (longer imprisonment for more drug involvement) “based upon
the conduct of others that is not reasonably foreseeable to him.” Appellant’s Opening
Br. at 4.
42
doubt that he maintained 921 Haskell as a drug-trafficking house on April 27, 2012.
The government contends that it proved that Ellis maintained the residence at 921
Haskell for drug-trafficking purposes sometime within a few weeks of April 27,
2012—a time period sufficiently close to April 27 to compel an affirmance.
On appeal, Ellis argues that insufficient evidence supports this count of
conviction. Further, he acknowledges that he did not object in the district court on
sufficiency-of-evidence grounds. Id. In this circumstance, we review Ellis’s
challenge under the plain-error standard. United States v. Goode, 483 F.3d 676, 681
(10th Cir. 2007). To meet his burden under this standard, Ellis must show that the
district court committed “(1) an error, (2) that is plain, which means clear or obvious
under current law, and (3) that affects substantial rights.” If Ellis does so, “this Court
may exercise discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quoting United States v.
Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003)).
We conclude that Ellis has not even shown error. First, as noted, the
indictment was not limited to a specific date—instead, it charged Ellis with violating
§ 856 “on or about April 27, 2012.” R. vol. I (3165) at 585. Indeed, the government
produced evidence of Ellis’s maintaining 921 Haskell as a drug premises during the
month before the date charged in the indictment. When an indictment lists a specific
date, the government must produce “some evidence which tends to show that the
defendant committed the charged offense on ‘a date reasonably near to the specified
date’ alleged in the indictment.” United States v. Charley, 189 F.3d 1251, 1273 (10th
43
Cir. 1999) (reversing because the evidence showed the defendant’s actions from two
years before the date listed on the indictment) (quoting United States v. Castillo, 140
F.3d 874, 885 (10th Cir. 1998)). Evidence that a defendant committed the crime
within a few weeks of the specified date suffices. Id. at 1272; see also Kokotan v.
United States, 408 F.2d 1134, 1138 (10th Cir. 1969) (“[I]f the prosecution proves that
the offense was committed within a few weeks of the date, the proof will be deemed
sufficient to hold defendant responsible for the charge.”).
The government proved that Ellis maintained 921 Haskell as a drug premises
within a few weeks of April 27. The jury heard a phone call between Ellis and an
unidentified male on April 4, 2012 on a phone line that Ellis, Tatum, and others used
for drug sales—some of which took place at 921 Haskell. Whenever, if ever, the spat
between Tatum and Ellis ended, Ellis’s use of this phone suggests that it had not
begun by April 4, 2012. Ellis points to a recorded phone call between Tatum and an
unknown male on April 12, 2012, where Tatum says that he and Ellis had a “falling
out.” R. vol. III (3165) at 2287–88. But the government produced a utility bill for 921
Haskell for service from April 13 to May 14, 2012, still in Ellis’s name. Contrary to
Ellis’s contention that he did not have a “requisite connection” to 921 Haskell,
Appellant’s Opening Br. at 31, the utility bill—one reasonably near the date listed on
the indictment—was evidence upon which the jury could rely in convicting Ellis of
this count. Cf. United States v. Renteria-Saldana, 755 F.3d 856, 859–60 (8th Cir.
2014) (concluding that the two-level drug-house sentencing enhancement was proper
based on, in part, the defendant’s having and paying the utility bills for the house).
44
III. Conviction for Firearm Possession in Furtherance of Drug Trafficking
Next, Ellis argues that the evidence was insufficient to sustain his conviction
under 18 U.S.C. § 924(c) for possessing a firearm in furtherance of a drug-trafficking
crime. Ellis contends that the drugs and other items he was carrying—namely, the 2.5
grams of powder cocaine—were for personal use, not distribution.
Ellis acknowledges that he did not move for acquittal, so we again review for
plain error. Goode, 483 F.3d at 681.
To establish a § 924(c) violation, the government must prove that Ellis (1)
committed a drug-trafficking offense (2) and knowingly possessed a firearm (3) “in
furtherance of” that crime. United States v. Nava-Sotelo, 354 F.3d 1202, 1205 (10th
Cir. 2003). To support this conviction, the government must establish “some nexus”
between the firearm and the drug-trafficking crime. United States v. Luke-Sanchez,
483 F.3d 703, 706 (10th Cir. 2007). The government can use circumstantial evidence
to show both an intent to possess the weapon, United States v. McGehee, 672 F.3d
860, 871 (10th Cir. 2012), and an intent to distribute drugs, United States v. Burkley,
513 F.3d 1183, 1189 (10th Cir. 2008).
We disagree with Ellis that he can show an error that was plain, let alone one
that affected his substantial rights. Ellis claims that he had the 2.5 grams of powder
cocaine for personal use, not distribution. But based on the evidence, the jury could
rationally conclude that, when police arrested him on May 11, 2012, Ellis possessed
45
the cocaine with the intent to distribute it. After all, the jury knew from the evidence
that Ellis was a drug dealer. And in evaluating what Ellis intended to do with the
cocaine, the jury could consider that officers recovered from Ellis’s bag more
evidence of drug dealing than the powder cocaine itself: an empty sandwich-bag box,
a digital scale, about 32 grams of synthetic marijuana, 25.8 grams of PCP in a bottle,
3.1 grams of marijuana, 16 mollies (ecstasy/MDMA), and 8 Diazepam pills. See
United States v. Khondaker, 263 F. App’x 693, 701 (10th Cir. 2008) (unpublished)
(holding that jury could conclude that the defendant possessed drugs for retail
distribution based on the amount of drugs and the variety of drugs found—including
crack and powder cocaine, methamphetamine, and ecstasy); see also United States v.
Triana, 477 F.3d 1189, 1195 (10th Cir. 2007) (describing scales and plastic baggies
as “tools of the drug trade”). We affirm Ellis’s § 924(c) conviction.
IV. Right to Counsel at Sentencing
Ellis next argues that the district court violated his Sixth Amendment right to
counsel when it refused to appoint substitute counsel at sentencing and when it found
that Ellis had knowingly waived his right to counsel. He asks us to vacate the
sentences on all convictions and remand for resentencing after appointment of
substitute counsel. Because we remand for a full resentencing, and now order that
Ellis receive different counsel to assist him at the resentencing, we conclude that
these claims are moot and address them no further.
46
V. Supervised-Release Violation
Ellis also filed an appeal in Appeal No. 14-3181 after the district court
sentenced him to 24 months for the supervised-release violation. But in his appellate
brief, Ellis makes one fleeting mention of this violation in his argument. He asserts
that “Ellis is also entitled to substitute counsel in the related case involving the
revocation of his supervised release. As noted above, the complete breakdown in
communication between Mr. Ellis and Mr. DeHardt continued in the proceedings in
that case.” Appellant’s Opening Br. at 40 n.7.
Ellis’s bare assertion is insufficient to preserve this claim for our
consideration. See United States v. Fishman, 645 F.3d 1175, 1194 (10th Cir. 2011)
(concluding that “[w]e will not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim” that the appellant “fail[ed] to develop [the]
argument or provide any citations to authorities or the record”); United States v.
Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc) (“Arguments raised in a
perfunctory manner, such as in a footnote, are waived.”). Ellis’s single footnote is
insufficient to trigger our review.32 We decline to address this argument and affirm
Ellis’s supervised-release-violation conviction and sentence.
32
Even if Ellis had preserved this argument, we would conclude that Ellis
knowingly and voluntarily waived counsel at the revocation-violation sentencing.
Before proceeding, the district court asked Ellis whether he wanted to represent
himself (to which Ellis responded affirmatively), whether Ellis understood the charge
and the maximum sentence, and whether Ellis understood that it was a bad idea to
represent himself, especially given his lack of any legal education. Based on these
questions, we would conclude that the district court adequately covered topics such
as the nature of the charges, the range of punishment, possible defenses, and a
47
CONCLUSION
In Appeal No. 14-3165, we affirm all of Ellis’s convictions and all but one of
his sentences—the mandatory-life sentence for the cocaine conspiracy. On that
sentence, we conclude that the district court committed plain error under Alleyne by
failing to obtain the jury’s findings on the conspiracy’s cocaine amounts reasonably
foreseeable to Ellis. We further conclude that the district court’s errors were not
harmless, because the government’s evidence was not overwhelming that Ellis could
reasonably foresee at least 5 kilograms of powder cocaine in the conspiracy, and that
Ellis (and his coconspirators Tatum and Theoplis) manufactured or sold at least 280
grams of crack cocaine. Thus, we reverse Ellis’s conspiracy sentence and remand for
a full resentencing, subject to the cocaine-conspiracy conviction being resentenced
under 21 U.S.C. § 841(b)(1)(C). We affirm all of Ellis’s other convictions and
sentences. In Appeal No. 14-3181, we affirm Ellis’s supervised-release-violation
conviction and sentence.
disclosure of risks involved in representing oneself pro se before permitting Ellis to
proceed pro se at sentencing. See Turner, 287 F.3d at 983.
48