23 F.4th 1228
10th Cir.2022Background
- Marvin Lee Ellis was convicted of conspiracy to manufacture/distribute cocaine and cocaine base and other offenses; resentenced after this court vacated his prior conspiracy sentence (Ellis I).
- DEA evidence showed Ellis, coconspirator Ataven Tatum, and Ellis’s nephew Theoplis bought powder cocaine from a common supplier (Sykes), converted powder to crack, and sold crack; they shared a residence at 921 Haskell used for drug activity.
- The Revised Presentence Report (RPSR) attributed ~2.6 kg of cocaine base to Ellis based on jointly undertaken activity with Tatum (later reduced by the district court to 1.9 kg for sentencing calculations).
- At resentencing Ellis objected, arguing the court failed to make particularized findings about the scope of his agreement with Tatum and that evidence showed they were independent/competing street dealers, so Tatum’s purchases should not be attributed to him.
- The district court adopted the RPSR’s findings (with slight quantity adjustment), overruled Ellis’s objections, applied the Guidelines, granted a 25% downward variance for health, and imposed a 303-month sentence; Ellis appealed.
Issues
| Issue | Ellis's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the district court failed to make particularized findings about the scope of Ellis’s jointly undertaken criminal activity with Tatum (U.S.S.G. §1B1.3) | Court legally erred by equating scope of Ellis’s agreement with the entire conspiracy and not making particularized findings (relying on Melton/Biglow) | Court adopted the RPSR; the RPSR contained particularized scope findings and the court’s Amended Statement of Reasons confirmed adoption | Court rejected Ellis’s claim: adoption of RPSR (in transcript and written Statement of Reasons) supplied sufficiently particularized findings; no legal error |
| Whether the record supports attribution of Tatum’s drug purchases to Ellis (i.e., sufficient evidence of a joint agreement) | Evidence showed independent, competing dealers sharing a common supplier; thus purchases were not within the scope of any agreement and should not be attributable | Trial and investigative evidence (shared house, pooled resources, joint trips to supplier, shared phone/use of Theoplis, controlled buys where both participated) support a plausible finding of an implicit/explicit joint undertaking for the six-month period | Reviewed for clear error; court’s finding that Ellis and Tatum jointly undertook drug activity during the six-month window was plausible given the record, so attribution stands |
Key Cases Cited
- United States v. Ellis, 868 F.3d 1155 (10th Cir. 2017) (prior panel decision affirming convictions and remanding on sentencing)
- United States v. Melton, 131 F.3d 1400 (10th Cir. 1997) (explaining need for particularized findings re: scope of jointly undertaken activity)
- United States v. Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013) (district court may adopt presentence report; adoption requires particularized findings on scope and foreseeability)
- United States v. Sells, 541 F.3d 1227 (10th Cir. 2008) (quantity attribution and scope/foreseeability are factual determinations reviewed for clear error)
- United States v. Green, 175 F.3d 822 (10th Cir. 1999) (scope of agreement is independent element of relevant conduct)
- United States v. Patton, 927 F.3d 1087 (10th Cir. 2019) (discussing relevant-conduct review principles)
- United States v. Lopez-Avila, 665 F.3d 1216 (10th Cir. 2011) (preservation of sentencing issues when raised and addressed by district court)
- Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion standard for sentence reasonableness)