United States v. Ellis

Appellate Case: 19-3148 Document: 010110637191 FILED Page: 1
Date Filed: 01/26/2022
United States Court of Appeals
Tenth Circuit

PUBLISH January 26, 2022
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-3148

MARVIN LEE ELLIS,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:12-CR-20066-KHV-30)

Christopher M. Joseph, Joseph, Hollander & Craft LLC, Topeka, Kansas, on the
briefs for Defendant-Appellant.

Carrie N. Capwell, Assistant United States Attorney (Duston J. Slinkard, Acting
United States Attorney, with her on the brief), Office of the United States
Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.

HOLMES, Circuit Judge.

A jury convicted Marvin Lee Ellis of, among other crimes, conspiring to

manufacture, distribute, or possess with the intent to distribute cocaine and
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cocaine base, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. The district

court sentenced Mr. Ellis to a term of 303 months’ imprisonment, to be followed

by 13 years of supervised release.

The district court imposed this sentence in a resentencing proceeding. In

Mr. Ellis’s previous appeal, we had upheld his convictions in a published decision

but had vacated the court’s sentencing order with respect to his conspiracy

conviction and remanded for resentencing. See United States v. Ellis (Ellis I),

868 F.3d 1155, 1181 (10th Cir. 2017). In this appeal, Mr. Ellis presents two

challenges. First, he contends that the district court misapplied the United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) by failing to make

particularized findings regarding the scope of his jointly undertaken criminal

activity with his coconspirator Ataven Tatum. Second, and relatedly, Mr. Ellis

argues that the evidence did not support a judicial finding that he agreed to

participate in jointly undertaken criminal activity with Mr. Tatum; accordingly,

the drug quantities associated with Mr. Tatum’s purchases of cocaine should not

be attributed to him for sentencing purposes.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we

affirm the district court’s sentencing judgment.

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I

A

The factual background is detailed in Ellis I. See 868 F.3d at 1160–64. We

focus here on those factual circumstances most relevant to our resolution of Mr.

Ellis’s appellate challenges. In 2009, the Drug Enforcement Administration

(“DEA”) began investigating a Mexican narcotics-trafficking network that was

supplying cocaine to the Kansas City, Kansas area. Specifically, DEA agents

learned that powder cocaine was being distributed to Kansas City drug dealers,

including Djuane Sykes, who in turn sold large amounts of powder cocaine to

several customers—including the defendant, Mr. Ellis, and Mr. Tatum.

Mr. Tatum introduced Mr. Ellis to Mr. Sykes sometime in early fall of

2011. Shortly thereafter, Mr. Ellis and Mr. Tatum began purchasing powder

cocaine from Mr. Sykes and cooking the cocaine into cocaine base—i.e.,

crack—for sale to customers. Mr. Ellis’s nephew, Theoplis Ellis (“Theoplis”), 1

assisted both men in their drug-trafficking activities, including picking up and

delivering drugs, and was compensated on a daily basis for his services. In

various groupings, or separately, the three men traveled to visit Mr. Sykes to

purchase powder cocaine. For example, on between ten to fifteen occasions, Mr.

1
Because the defendant, Marvin Ellis, and his nephew, Theoplis Ellis,
share the same last name, we refer hereinafter to the latter only by his first name.

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Ellis and Mr. Tatum traveled together to buy powder cocaine from Mr. Sykes.

They also would journey separately to purchase powder cocaine from him. And,

on at least one occasion, Mr. Ellis and Theoplis picked up and paid for powder

cocaine from Mr. Sykes that Mr. Tatum had ordered.

In early 2012, primarily in the months of February and March, the DEA

conducted a series of controlled buys of crack cocaine—through the use of

confidential informants (“CIs”)—from Mr. Ellis and Mr. Tatum. Some of these

drug buys took place on various streets in Kansas City. Notably, on three

occasions, Mr. Ellis and Mr. Tatum were together when the drug transactions took

place. Two of the three involved the use of Mr. Tatum’s vehicle. In one

instance, Mr. Ellis effectively acted as the go-between—shuttling between the

CI’s vehicle and Mr. Tatum’s: Mr. Ellis entered the CI’s vehicle and obtained the

money; took the money and delivered it to Mr. Tatum, whereupon he received the

crack; and then he returned with the crack and handed it to the CI through the

vehicle’s window. In another instance, a CI entered Mr. Tatum’s vehicle to

purchase crack and reported that Mr. Ellis was present in the vehicle. And,

during the third transaction, Mr. Ellis entered the CI’s vehicle from the

street—delivering some pills of molly2 to him—and then, after Mr. Ellis exited

2
As we learn from Ellis I, molly is drug slang for “ecstasy/MDMA.”
868 F.3d at 1161 (noting the seizure of “16 mollies” during Mr. Ellis’s arrest).

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the vehicle, Mr. Tatum entered it and sold him crack. Moreover, in one street-

level sale that Mr. Ellis made alone to a CI, he “bragged about obtaining his crack

cocaine from ‘Tater’”—Mr. Tatum’s nickname. R., Vol. IV, ¶ 83, at 44 (Revised

Presentence Report (“RPSR”), filed June 25, 2018).

Mr. Ellis and Mr. Tatum also sold crack and other illegal drugs from a

residence that they shared at 921 Haskell Avenue (“921 Haskell”), in Kansas City,

Kansas. And the DEA made several controlled purchases using CIs at this

residence, including during the February 2012 time frame. By way of

background, in October 2011, with Mr. Tatum’s financial assistance, Mr. Ellis

had leased the 921 Haskell residence. See Ellis I, 868 F.3d at 1163 (“The lease

required [Mr.] Ellis to pay a $300 deposit and $600 for the first month’s rent. Of

this amount, [Mr.] Ellis paid $400, and [Mr.] Tatum paid $500.”). And, in

November 2011, Mr. Tatum had signed a contract for deed to buy it, agreeing to

make payments to the current owner. Mr. Ellis had assumed the responsibility for

all of the utilities at 921 Haskell, registering them in his name.

Mr. Ellis, Mr. Tatum, and Theoplis would primarily use a phone belonging

to Mr. Tatum to communicate with customers regarding drug sales, including drug

transactions carried out at 921 Haskell. Theoplis would assist in drug

transactions that took place there. On at least one occasion when Mr. Ellis sold

crack to a CI at 921 Haskell, Theoplis “functioned as a doorman.” R., Vol. IV, ¶

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78, at 43. On another occasion, a CI placed a call to Mr. Tatum’s telephone

number and made arrangements to purchase crack cocaine at 921 Haskell;

however, it was Mr. Ellis, not Mr. Tatum, who greeted the CI at the door and took

the CI’s money in exchange for the crack. Moreover, a CI observed both Mr.

Ellis and Mr. Tatum selling crack on the same occasion around early February

2012 at 921 Haskell. Sometime around mid-April 2012, Mr. Ellis had “a falling

out with [Mr.] Tatum,” Ellis I, 868 F.3d at 1163, apparently because Mr. Tatum

treated Mr. Ellis “poorly and always wanted to act like the ‘boss,’” R., Vol. IV, ¶

96, at 46. And, as a consequence, Mr. Ellis moved out of 921 Haskell.

B

In October 2012, a grand jury sitting in the District of Kansas issued a 112-

count Second Superceding Indictment (the “Operative Indictment”) 3 against fifty-

one defendants, including Mr. Ellis, Mr. Tatum, and Theoplis. Most relevant here

is Count 1, which charged the fifty-one defendants, including Mr. Ellis, with

violating 21 U.S.C. § 846 for

3
The Operative Indictment was not included in the record designated
for this appeal. However, it is discussed in Ellis I. See 868 F.3d at 1161. And,
to offer a more comprehensive factual picture of relevant matters, we exercise our
discretion to take judicial notice of the district court’s files containing this
document. See, e.g., United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir.
2007) (“[W]e may exercise our discretion to take judicial notice of publicly-filed
records in our court and certain other courts concerning matters that bear directly
upon the disposition of the case at hand.”).

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[k]nowingly and intentionally conspir[ing] and agree[ing]
together and with each other, . . . to manufacture, to possess with
intent to distribute and to distribute 280 grams or more of
cocaine base, “crack,” . . . and to possess with intent to distribute
and to distribute five kilograms or more of . . . cocaine . . . .

Second Superceding Indictment, Case No. 12-20066-01 through 32 and 34

through 52-KHV/JPO, ECF No. 245 (D. Kan., filed Oct. 3, 2012).

A jury returned guilty verdicts against Mr. Ellis on this conspiracy charge

(i.e., Count 1) and on his other charged offenses—including, notably, Count 100,

which charged Mr. Ellis with maintaining a residence for the purpose of

manufacturing and distributing cocaine and cocaine base in violation of 21 U.S.C.

§ 856(a)(1). In Ellis I, we affirmed all of Mr. Ellis’s convictions but, for reasons

not relevant here, “we reverse[d] [Mr.] Ellis’s conspiracy sentence and

remand[ed] for a full resentencing.” 868 F.3d at 1181. That resentencing is the

subject of this appeal.

C

In anticipation of the resentencing proceeding, with the aid of the

Guidelines, 4 the U.S. Probation Office prepared a Revised Presentence Report or

the RPSR. The RPSR reported that the total drug quantity applicable to Mr. Ellis

was 2,602.53 grams, or 2.6 kilograms, of cocaine base. It left no doubt that the

4
The Probation Office used the 2016 edition of the Guidelines. The
parties do not object to this choice on appeal. Accordingly, we also rely on this
edition in our analysis.

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cocaine base attributed to Mr. Ellis did not merely reflect his personal drug-

trafficking activities but, rather, reflected his jointly undertaken criminal

activities with Mr. Tatum and Theoplis. Regarding their collective endeavors, the

RPSR expressly found that Mr. Tatum “worked in concert with Marvin Ellis and

Theoplis Ellis, who would all work together to sell ‘crack’ cocaine to various

street level customers.” See R., Vol. IV, ¶ 75, at 42–43. Moreover, the RPSR

concluded that “[Mr.] Ellis [wa]s responsible for cocaine attributed to [Mr.]

Tatum for the approximate 6 month period in which Marvin Ellis was deemed to

be involved with [Mr.] Tatum’s drug trafficking activities.” See id., ¶ 109, at 49.

Further, the RPSR made specific findings as to the jointly undertaken

criminal activity involving Mr. Ellis and Mr. Tatum:

Marvin Ellis and Ataven Tatum were involved in jointly
undertaken criminal activity that included purchasing cocaine
from Djuane Sykes and selling crack cocaine at various locations
together in the community and from 921 Haskell Street. Their
jointly undertaken criminal activity is also demonstrated by [Mr.]
Tatum’s phone being utilized to arrange a sale that was later
consummated by Marvin Ellis, and Marvin Ellis accompanying
and assisting [Mr.] Tatum with drug deals.

Id., ¶ 107. Moreover, in this same vein, the RPSR indicated that the conduct of

Mr. Ellis and Mr. Tatum shed light on the scope of their jointly undertaken

criminal activity. This included an instance when the two men “jointly purchased

drugs from Djuane Sykes . . . and used the 921 Haskell residence, jointly, from

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which to sell crack cocaine” and, further, when “they also engaged in drug sales

together in the community.” Id., ¶ 325, at 109 (emphasis added).

The RPSR also emphasized the significance of the two men’s shared

residence at 921 Haskell in establishing their jointly undertaken criminal

activity—specifically, finding this reflected an “explicit agreement” between Mr.

Tatum and Mr. Ellis, assigning Mr. “Ellis[] responsibility for the utilities and

[Mr.] Tatum[] responsibility as the renter” of 921 Haskell. Id. And, notably,

there also was an “implicit agreement” that the “two [men would] cook crack

cocaine and sell crack cocaine from the residence.” Id. The RPSR found the

“jointly undertaken criminal activity” was demonstrated as well by “[Mr.] Ellis

and Theoplis [] picking up drugs that [Mr.] Tatum ordered, and [through the]

occasional use of a common phone associated with arranging drug transactions.”

Id.

Having determined the applicable drug quantity, the RPSR found the base

offense level applicable to the combined counts to be 32. Significantly, because

Mr. Ellis “maintained a residence (921 Haskell) for the purpose of manufacturing

or distributing a controlled substance,” the RPSR added two levels to his base

offense level. Id., ¶ 118, at 51. With additional upward adjustments not relevant

here, the RPSR ended up assigning Mr. Ellis an adjusted offense level of 36.

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Mr. Ellis objected to (among other things) the total drug quantity that the

RPSR attributed to him; he argued that it was “improperly inflated.” Id., ¶ 288, at

101. 5 More specifically, he challenged the attribution to him of all of the powder

cocaine that Mr. Tatum purchased from Mr. Sykes between August 2011 and May

2012 because, according to Mr. Ellis, the evidence failed to demonstrate that he

had entered into an agreement with Mr. Tatum pertaining to Mr. Tatum’s

purchases from Mr. Sykes. Mr. Ellis maintained that his dealings with Mr. Sykes

were “independent” from Mr. Tatum’s and, more specifically, that the evidence

established that he and Mr. Tatum “were acting as independent street level dealers

with a common source of supply [namely Mr. Sykes], rather than pooling

resources and profits together.” Id., ¶¶ 298–99, at 103 (citing U.S.S.G. 1B1.3,

cmt. 4(C)(vi)). In fact, Mr. Ellis maintained that, “at least during some of the

relevant time period,” he and Mr. Tatum were “acting as competitors.” Id., ¶ 300,

at 103. As support, Mr. Ellis averred that the evidence showed that in one of the

late March 2012 controlled buys, Mr. Ellis “told the [CI] to ‘not mess’ with [Mr.]

Tatum anymore and to only contact him for drugs.” Id.

However, the Probation Office generally rejected Mr. Ellis’s objections.

With Mr. Ellis’s “response to the drug calculation” in mind, however, the

5
The Probation Office had circulated the RPSR to the parties before it
was finalized and submitted for the court’s consideration. Mr. Ellis’s objections
were memorialized in the RPSR’s addendum.

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Probation Office did adopt the government’s view that a “somewhat shorter time

frame” should be used for attributing Mr. Tatum’s drug transactions to Mr.

Ellis—specifically, the six-month period from October 2011 to April 2012. Id., ¶

273, at 97; see id., ¶ 238, at 85 (discussing the government’s proposal that Mr.

Ellis “should be held accountable for the drugs attributed to [Mr.] Tatum . . . for a

6-month period, beginning in mid-October 2011, and ending in mid-April 2012”).

D

At the resentencing, the district court heard arguments—based on the trial

evidence—regarding “defendant’s objection to the total drug quantity attributed to

him.” R., Vol. III, at 57 (Sentencing Hr’g Tr., dated July 11, 2019). Mr. Ellis’s

counsel argued that the “open issue for the [G]uideline[s] calculation” related to

“how much crack cocaine or how much drugs to attribute to Mr. Ellis.” Id. at 59.

He explained that the issue under the relevant conduct analysis was whether or

not Mr. Tatum’s independent purchases fell within the scope of jointly-undertaken

criminal activity. Citing the Tenth Circuit’s Biglow decision—apparently, the

unpublished panel decision in United States v. Biglow, 635 F. App’x 398 (10th

Cir. 2015) (unpublished)—Mr. Ellis’s counsel explicitly noted “we’ve objected”

to the scope of Mr. Tatum’s purchases being attributed to Mr. Ellis. R., Vol. III,

at 60. He emphasized that the “burden is on the government” to present sufficient

evidence “to show that [Mr.] Tatum’s purchases . . . should be attributed to [Mr.]

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Ellis.” Id. at 60–61. He opined that the government fell short of satisfying this

burden.

The district court then heard from the government: it argued that Mr. Ellis

and Mr. Tatum jointly engaged in buying powder cocaine and distributing crack,

the proof of which was “adduced at trial through testimony and evidence and

phone calls and surveillance and pictures and videos show[ing] that this activity

was . . . within the scope of their jointly undertaken criminal activity.” Id. at

79–80. The government contended that Mr. Ellis and Mr. Tatum used Theoplis as

an “errand boy” to collect money and deliver drugs for them—similar to how the

pair “jointly used the house, . . . [and] jointly used the car to go to drug deals”

during the period of the DEA investigation. Id. at 80. Accordingly, Mr. Ellis and

Mr. Tatum were involved in a joint criminal venture, reasoned the government,

and it highlighted that the residence at 921 Haskell was the place—not only where

both Mr. Tatum and Mr. Ellis lived—but also where they distributed cocaine base.

The district court found that the government had the better argument

regarding the scope of jointly undertaken criminal activity. Consequently, it

overruled Mr. Ellis’s drug-quantity objection. Specifically, the court found:

[U]nder [U.S.S.G. §] 1B1.3 subsection (a)(1)(B)[,] . . . it seems
to me that the fact that both defendants are members of the same
criminal conspiracy to distribute drugs . . . would establish
jointly-undertaken criminal activity. Clearly both of them were
engaged in drug deals and maintaining a drug house in
furtherance of that drug criminal activity . . . .

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Id. at 102–03. The court also addressed whether Mr. Tatum’s drug sales were

reasonably foreseeable to Mr. Ellis. In its analysis, the court stressed the fact that

the two men “lived together and both did drug transactions out of the same house,

[as to which] Mr. Ellis was responsible for utilities and had actually paid the

down payment on the lease.” Id. at 103.

The court concluded it was “hard-pressed” to see how the government’s

evidence—which was materially consistent (as relevant here) with the RPSR’s

findings—failed to satisfy the requirements of the Guidelines for attributing Mr.

Tatum’s drugs to Mr. Ellis. Id. The court relied on the RPSR’s findings

regarding drug quantity “as the starting point” for calculating Mr. Ellis’s offense

level with one exception: the court determined that the total amount of cocaine

base attributable to Mr. Ellis was 1.9 kilograms—rather than 2.6 kilograms, as the

RPSR had found. See id. at 112–13. This alteration did not impact the offense

level of 32, which the RPSR had calculated. The court explicitly memorialized its

findings and conclusion in its Amended Statement of Reasons, which expressly

recognized the court’s “adopt[ion] of the presentence investigation report [i.e.,

the RPSR].” Id., Vol. IV, at 256 (Amended Statement of Reasons, filed July 12,

2019).

The district court determined that Mr. Ellis’s applicable Guidelines range

for his offenses was 324 to 360 months’ imprisonment. This calculation excluded

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Mr. Ellis’s conviction under 18 U.S.C. § 924(c), for which he was subject to an

additional 60-month consecutive sentence. The court, however, granted Mr.

Ellis’s written request for a variance, which referenced his poor health condition.

Specifically, the court granted Mr. Ellis a 25% downward variance. Taking the

variance into account, the court sentenced him to a total prison term of 303

months, to be followed by 13 years of supervised release.

The district court filed its amended judgment, and Mr. Ellis filed a timely

notice of appeal.

II

A

First, we must consider the proper scope of our review. The parties

disagree concerning whether Mr. Ellis has preserved his sentencing challenges or,

alternatively, whether the standard of review for forfeited errors applies

here—i.e., plain-error review. See, e.g., United States v. Wolfname, 835 F.3d

1214, 1217 (10th Cir. 2016) (applying the plain-error standard where the

defendant “didn’t raise []his argument below”). Mr. Ellis asserts that he

“objected to [the court] counting [Mr.] Tatum’s cocaine purchases as relevant

conduct” and argued that such purchases “did not fall within the scope of relevant

criminal activity [Mr. Ellis] agreed to jointly undertake.” Aplt.’s Opening Br. at

19 (citing United States v. Patton, 927 F.3d 1087, 1093 (10th Cir. 2019)); see

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Aplt.’s Reply Br. at 4 (arguing that “the record shows that the ultimate question

before this Court and the precise error [Mr.] Ellis asks this Court to reverse was

addressed repeatedly and specifically in the district court, and, therefore,

preserved for review”). Yet, in opposition, the government contends that we

should review only for plain error because Mr. Ellis “did not raise his current

objection before the district court.” Aplee.’s Resp. Br. at 16. We conclude that

Mr. Ellis’s argument is more persuasive.

Succinctly stated, before the district court, Mr. Ellis sufficiently informed

the district court of the need to make particularized findings concerning the scope

of his jointly undertaken criminal activity with Mr. Tatum to preserve an

objection to the court’s alleged failure to make such findings. And, relatedly, Mr.

Ellis sufficiently preserved a challenge to the drug quantities that the court

attributed to him—specifically arguing (as relevant here) that those quantities

improperly included drugs that Mr. Tatum purchased for distribution.

The record fully supports our conclusion. For example, Mr. Ellis’s

objections on these matters were memorialized as an addendum to the RPSR. See,

e.g., R., Vol. IV, ¶ 288, at 101 (asserting that “[t]he total drug quantity attributed

to Marvin Ellis is improperly inflated” (bold-face font omitted)); id., ¶ 293, at 102

(asserting that the Probation Office “erroneously attributes to [Mr.] Ellis all of the

powder cocaine that [Mr.] Tatum purchased from [Mr.] Sykes between August

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2011 and May 2012”); id., ¶ 297, at 103 (“The evidence does not demonstrate an

agreement by [Mr.] Ellis to undertake any particular criminal activity with respect

to the cocaine that [Mr.] Tatum purchased from [Mr.] Sykes—certainly not with

respect to all of the powder cocaine [Mr.] Tatum purchased.”); id., ¶ 303, at 104

(“In light of the evidence establishing that [Messrs.] Tatum and Ellis functioned

as independent distributors, even competitors, none of [Mr.] Tatum’s cocaine

purchases should be attributed to Ellis.”); see also id., ¶¶ 294–97, at 102–03

(discussing the Guidelines commentary and Tenth Circuit and other caselaw

relating to the sentencing court’s obligation to make particularized findings as to

the scope of jointly undertaken criminal activity).

Furthermore, other parts of the record demonstrate that the district court

was keenly aware that Mr. Ellis objected to the quantity of drugs that the

Probation Office attributed to him for sentencing purposes and, more specifically,

that Mr. Ellis grounded his drug-quantity objection primarily (as relevant here) on

the contention that the Probation Office improperly found that he and Mr. Tatum

had agreed to jointly undertake drug-trafficking activities. See, e.g., id., Vol. III,

at 57–59 (evincing a discussion between Mr. Ellis’s counsel and the district court

regarding the “defendant’s objection to the total drug quantity attributed to him,”

with his counsel articulating a concern as to “how much crack cocaine or how

much drugs to attribute to Mr. Ellis”); id. at 60 (showing, in the context of

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discussing objections, that Mr. Ellis’s counsel emphasized that “what we’re

talking about is under relevant conduct whether or not these purchases -- and

specifically talking about Mr. Tatum’s independent purchases, whether or not they

were within the scope of independent -- or jointly-undertaken activity”).

Indeed, during the sentencing hearing, the court and defense counsel

engaged in a lengthy colloquy, in which counsel attacked the Probation Office’s

finding regarding the scope of jointly undertaken criminal activity undertaken by

Mr. Ellis and Mr. Tatum. See id. at 63–70 (showing a colloquy between Mr.

Ellis’s counsel and the court regarding Mr. Ellis’s “objecti[on] to aggregating the

drugs from [Mr.] Tatum and [Mr. Ellis]”). And, putting aside for a moment the

issue of whether the district court properly resolved Mr. Ellis’s objections, it

cannot be said that the court did not consider them. See id. at 102–05 (evincing

the court’s consideration and explicit endeavor to resolve Mr. Ellis’s objection

concerning the scope of jointly undertaken criminal activity and noting the view

of Mr. Ellis’s counsel that the court’s action on that jointly undertaken scope

issue “really kind of overwhelms . . . how much to attribute to Mr. Ellis” in terms

of drug quantity, rendering his objection on that matter effectively “moot[]”).

And, importantly, counsel explicitly invoked during this colloquy a Tenth

Circuit decision (albeit unpublished) that clearly underscored a sentencing court’s

obligation to make particularized findings regarding the scope of jointly

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undertaken criminal activity and the “key” role that such findings play in the

attribution of drug quantities to defendants. Biglow, 635 F. App’x at 401 (“The

scope requirement is key: it means that just knowing of coconspirators’ illicit

activities, without more, will not suffice to attribute such activities to a defendant

unless the activities are also within the agreement’s scope.”); see R., Vol. III, at

60 (showing the efforts of Mr. Ellis’s counsel to analogize “the Tenth Circuit’s

Biglow decision” to the instant case, in support of his challenge to any attempt to

“take Mr. Tatum’s purchases and attribute [them] to Mr. Ellis,” and stating

“we’ve objected”).

Given these circumstances, we believe that Mr. Ellis’s counsel had done

enough to preserve the sentencing challenges at issue here. See United States v.

Lopez-Avila, 665 F.3d 1216, 1217–18 (10th Cir. 2011) (rejecting the

government’s argument for plain error review; instead, concluding the defendant

adequately preserved his issue for appeal where “the issue was properly raised

prior to the sentencing hearing, the judge was familiar with the argument, and the

argument was addressed by the judge”); see also Harris v. Sharp, 941 F.3d 962,

979 (10th Cir. 2019) (“To preserve [an] issue in [the] district court, [a party]

need[s] only to alert the court to the issue and seek a ruling.”); cf. United States v.

Tena-Arana, 738 F. App’x 954, 959 (10th Cir. 2018) (unpublished)

(distinguishing the defendant’s preserved argument in Lopez-Avila from the

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argument before it by noting that, in Lopez-Avila, the defendant “explicitly raised

and fully presented—including arguments and authorities in support—the

procedural question raised on appeal”). 6

B

1

Having concluded that Mr. Ellis has preserved the two sentencing

challenges at issue, we inquire into the appropriate standard of review for each of

them. In setting the stage for our analysis, let us revisit Mr. Ellis’s challenges.

First, Mr. Ellis contends that the district court misapplied the Guidelines by

failing to make particularized findings regarding the scope of his jointly

undertaken criminal activity with Mr. Tatum. Second, and relatedly, Mr. Ellis

argues that the evidence does not support a judicial finding that he agreed to

participate in jointly undertaken criminal activity with Mr. Tatum; therefore, the

drug quantities associated with Mr. Tatum’s six-month period of cocaine

purchases at issue here should not be attributed to him for sentencing purposes.

Generally speaking, “[w]e review Mr. [Ellis’s] sentence for reasonableness,

applying a deferential ‘abuse-of-discretion standard of review.’” United States v.

6
We deem the reasoning of the unpublished decisions cited herein to
be persuasive and instructive. We do not accord them controlling weight and
recognize that they are not binding on us. See, e.g., United States v. Willis, 826
F.3d 1265, 1274 n.2 (10th Cir. 2016); United States v. Kurtz, 819 F.3d 1230, 1236
n.2 (10th Cir. 2016).

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Morrison, 771 F.3d 687, 691 (10th Cir. 2014) (quoting Gall v. United States, 552

U.S. 38, 46 (2007)); see Lopez-Avila, 665 F.3d at 1218 (“Our overall standard of

review is abuse of discretion.”). Because both of Mr. Ellis’s challenges relate to

the propriety of the district court’s calculation of his Guidelines sentence, our

focus is on the procedural reasonableness of his sentence. See United States v.

Wittig, 528 F.3d 1280, 1284 (10th Cir. 2008) (noting that the “procedural

component” of reasonableness review “encompass[es] the method by which the

sentence is calculated”); accord United States v. Henson, 9 F.4th 1258, 1284–85

(10th Cir. 2021); see also United States v. Huckins, 529 F.3d 1312, 1317 (10th

Cir. 2008) (noting that “[p]rocedural reasonableness addresses [inter alia]

whether the district court incorrectly calculated or failed to calculate the

Guidelines sentence”).

In assessing procedural reasonableness, we are mindful of the generally

applicable precept that “[w]e review factual findings for clear error and legal

determinations de novo.” Lopez-Avila, 665 F.3d at 1218–19 (italics omitted); see

United States v. Finnesy, 953 F.3d 675, 688 (10th Cir. 2020) (“Typically ‘“we

review legal questions regarding the application of the Sentencing Guidelines de

novo,” and “a district court’s factual findings are reviewed only for clear error,

giving due deference to the district court’s application of the Guidelines to the

facts.”’” (quoting United States v. Iley, 914 F.3d 1274, 1278–79 (10th Cir.

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2019))); United States v. Craine, 995 F.3d 1139, 1153 (10th Cir. 2021) (“This

court reviews ‘legal questions regarding the application of the Sentencing

Guidelines de novo, and a district court’s factual findings . . . for clear error.’”

(quoting Finnesy, 953 F.3d at 688)). “An error of law is per se an abuse of

discretion.” Lopez-Avila, 665 F.3d at 1219 (citing Koon v. United States, 518

U.S. 81, 100 (1996)); accord United States v. Dominguez, 998 F.3d 1094, 1104

(10th Cir. 2021). Likewise, “[t]he district court abuses its discretion when a

ruling is based on a clearly erroneous finding of fact.” United States v. Munoz,

812 F.3d 809, 817 (10th Cir. 2016); accord United States v. Hull, 893 F.3d 1221,

1223 (10th Cir. 2018).

2

Turning to Mr. Ellis’s challenges, we agree with him that his first

one—alleging that the district court erred by not making particularized

findings—presents a question of law that we review de novo. In effect, this

challenge posits that the district court legally erred by misapplying the

Guidelines. See United States v. Melton, 131 F.3d 1400, 1403–04 (10th Cir.

1997) (noting that “[w]e review the sentencing court’s application of the

guidelines de novo,” and specifically determining that, by failing to make

particularized findings, the sentencing court “misapplied the sentencing

guidelines by improperly assuming that the scope of the criminal activity Mr.

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Melton agreed to jointly undertake was the same as the scope of the entire

conspiracy”); see also United States v. Figueroa-Labrada, 720 F.3d 1258, 1264

(10th Cir. 2013) (“A sentencing court must make particularized findings to

support the attribution of a coconspirator’s actions to the defendant as relevant

conduct, whether or not the defendant asks it to do so or disputes the attribution. .

. . The absence of particularized findings is error subject to meaningful review.”

(emphasis added) (citations omitted)).

Mr. Ellis also contends that his second challenge—entailing an inquiry into

whether there was sufficient evidence to support a judicial finding that he agreed

to participate in jointly undertaken criminal activity with Mr. Tatum—also is

subject to de novo review. However, here we must disagree.

In arguing for de novo review, Mr. Ellis effectively urges us to follow the

decisional path that we charted in our Melton decision. In that case, we

concluded, first, that the sentencing court “failed to make such ‘particularized

findings’ and misapplied the sentencing guidelines,” and, then, instead of

ordering a “remand for further proceedings” on the scope of jointly undertaken

criminal activity, we conducted our own independent, de novo inquiry regarding

whether the evidence was sufficient to support the alleged scope of such jointly

undertaken activity and concluded that it was not. See Melton, 131 F.3d at 1404.

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We suggested that we were permitted to conduct such a de novo inquiry “because

the facts underlying the determination are undisputed.” Id.

With an explicit citation to Melton, see Aplt.’s Opening Br. at 24, Mr. Ellis

effectively says, so too here. He reasons that, “remand for further proceedings on

the scope of [Mr. Ellis’s] agreement is not needed,” because “the parties do not

dispute the facts themselves, but only their import for assessing the scope of [Mr.

Ellis’s] agreement.” Id. He says that we independently “should make the

ultimate determination as to whether the facts in the record prove that [Mr. Ellis]

agreed to undertake any particular activity with respect to the cocaine that [Mr.]

Tatum purchased from [Mr.] Sykes,” and, based on this assessment, we should

conclude that the government did not carry its burden to establish such jointly

undertaken criminal activity. Id.; see also Aplt.’s Reply Br. at 10 (asserting that

the district court erred in not making particularized findings and noting that

“[s]uch error requires reversal,” then urging us “to make an independent

determination that the government has failed to prove that [Mr. Ellis] agreed to

jointly distribute the cocaine [Mr.] Tatum purchased from [Mr.] Sykes”).

However, Mr. Ellis’s standard-of-review argument is fundamentally flawed.

It is premised on Mr. Ellis’s unstated belief that, as an antecedent matter, we will

agree with him that the district court legally erred in not making particularized

findings regarding the scope of jointly undertaken criminal activity—as the panel

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did in Melton. And, once we have reached that conclusion, Mr. Ellis tacitly

reasons that we will be free—like the Melton panel—to independently assess (i.e.,

de novo) the sufficiency of the government’s evidence concerning the scope of

jointly undertaken criminal activity. But, for reasons we explicate infra, Mr.

Ellis’s premise is wrong: we do not conclude that the district court failed in its

duty to make particularized findings concerning the scope of jointly undertaken

criminal activity. In reaching such a holding, we effectively undercut the

apparent foundation for Mr. Ellis’s argument—based on the example of Melton.

Furthermore, it does not appear, in light of our consideration of Mr. Ellis’s

briefing, that he has a backup argument—not tethered to Melton’s example—for

the application of de novo review to the question of the sufficiency of the

evidence to support the court’s finding concerning the scope of jointly undertaken

criminal activity. That is to say, it does not appear that Mr. Ellis has a backup

argument for de novo review that does not depend on us concluding, as an

antecedent matter, that the court legally erred by not making particularized

findings—a conclusion that we ultimately do not make. In particular, Mr. Ellis

offers no argument that at least assumes for the sake of argument that we would

conclude—as we do—that the district court did not err in making particularized

findings. Thus, the Melton-based argument that Mr. Ellis tacitly makes is

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bootless because we do not conclude that the district court erred as to

particularized findings, and he has no backup.

To be sure, citing our Patton decision, Mr. Ellis contends that “the ultimate

determination of relevant conduct is subject to de novo review.” Aplt.’s Opening

Br. at 19 (citing Patton, 927 F.3d at 1093); accord Aplt.’s Reply Br. at 10. And

the government agrees. See Aplee.’s Resp. Br. at 24 (citing Patton, 927 F.3d at

1093, and United States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012), for the

same proposition). Yet, even assuming that is so, it does not ineluctably follow

that the evidentiary sufficiency of the court’s findings as to subsidiary issues that

make up the ultimate relevant conduct determination—such as the scope of jointly

undertaken criminal activity, see U.S.S.G. § 1B1.3(a)(1)(B)(i)—are also reviewed

de novo. See United States v. Garcia, 946 F.3d 1191, 1202 (10th Cir. 2020)

(“[I]rrespective of the character of this ultimate relevant-conduct determination,

[the defendant’s] challenge here turns on whether the record provides a proper

foundation for certain subsidiary ‘factual findings in support of a determination of

relevant conduct.’” (quoting United States v. Griffith, 584 F.3d 1004, 1012 (10th

Cir. 2009))). 7

7
We recognized in Garcia that there is internal tension in our caselaw
concerning whether the overarching determination of relevant conduct is a
question of law reviewed de novo or, instead, one of fact that we review for clear
error. See Garcia, 946 F.3d at 1202; see also United States v. Craig, 808 F.3d
(continued...)

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And, as to the scope question, our caselaw is clear— de novo review does

not apply to the subsidiary finding concerning the scope of jointly undertaken

criminal activity. We review the evidentiary sufficiency of a district court’s

finding as to the scope of jointly undertaken criminal activity only for clear error.

See United States v. Sells (Sells II), 541 F.3d 1227, 1235 (10th Cir. 2008) (“A

district court’s determination of the quantity of drugs attributable to a defendant,

including the subsidiary questions of whether drugs were reasonably foreseeable

to a defendant and within the scope of the jointly undertaken criminal activity, is

a determination of fact reviewed only for clear error.” (emphasis added)); see also

United States v. Lauder, 409 F.3d 1254, 1267 (10th Cir. 2005) (considering “the

sufficiency of the evidence” regarding a district court’s determination of drug

quantities attributable to the defendant and concluding that it “did not clearly err”

in defining the scope of the defendant’s jointly undertaken criminal activity); cf.

United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002) (“A district court’s

finding that the criminal acts of others in a jointly undertaken criminal activity are

7
(...continued)
1249, 1255 (10th Cir. 2015) (“We have been inconsistent in our decisions about
whether a relevant conduct determination is a factual finding we must review for
clear error or a legal conclusion we must review de novo.”). However, as in
Garcia, “[w]e need not delve into this matter further,” 946 F.3d at 1202,
because—as we discuss infra—it is clear that subsidiary issues like the scope of
jointly undertaken criminal activity are factual in nature, and a court’s
determination of such issues is thus reviewed only for clear error.

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reasonably foreseeable and in furtherance of the jointly undertaken criminal

activity is reviewable for clear error.”).

In sum, contrary to Mr. Ellis’s arguments, we review his second challenge

under the clear-error standard. This is a “deferential” standard. United States v.

Nkome, 987 F.3d 1262, 1276 (10th Cir. 2021). Under this standard, “[i]f the

‘court’s account of the evidence is plausible in light of the record viewed in its

entirety,’ we may not reverse it even if we might have weighed the evidence

differently.” United States v. Piper, 839 F.3d 1261, 1271 (10th Cir. 2016)

(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)); see

United States v. Torres, 53 F.3d 1129, 1144 (10th Cir. 1995) (“To constitute clear

error, we must be convinced that the sentencing court’s finding is simply not

plausible or permissible in light of the entire record on appeal, remembering that

we are not free to substitute our judgment for that of the district judge.”). “Where

there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.

III

We turn now to consider Mr. Ellis’s two sentencing challenges. We begin

with a brief overview of the relevant substantive law. And then we consider the

merits of the challenges and determine that they do not warrant relief.

A

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“District courts calculate sentences by first determining the Guidelines

section applicable to the statute under which the defendant was convicted.”

Figueroa-Labrada, 720 F.3d at 1265. As relevant here, the jury convicted Mr.

Ellis under 21 U.S.C. § 846 for conspiracy to possess with the intent to distribute

cocaine and cocaine base. Section 2D1.1 of the Guidelines applies to “Unlawful

Manufacturing, Importing, Exporting, Trafficking, or Possession”—including

conspiracy to possess with intent to distribute a controlled substance. U.S.S.G.

§ 2D1.1. The Guidelines base offense level is determined by the amount of the

controlled substance—here, cocaine or cocaine base—that is properly attributable

to the defendant. See id. § 2D1.1(a)(5).

At sentencing, a district court considers the offense of conviction’s relevant

conduct. Relevant conduct includes “all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant”; and, “in the case of a jointly undertaken criminal activity, . . . all acts

and omissions of others that were: (i) within the scope of the jointly undertaken

criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably

foreseeable in connection with that criminal activity.” Id. § 1B1.3(a)(1)(A), (B)

(emphasis added) (indenting omitted).

More specifically, in addition to a defendant’s own criminal activities, the

Guidelines commentary clarifies:

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With respect to offenses involving contraband (including
controlled substances), the defendant is accountable . . . in the
case of a jointly undertaken criminal activity under subsection
(a)(1)(B), [for] all quantities of contraband that were involved in
transactions carried out by other participants, if those
transactions were within the scope of, and in furtherance of, the
jointly undertaken criminal activity and were reasonably
foreseeable in connection with that criminal activity.

Id. cmt. 3(D).

Mr. Ellis’s arguments only implicate the scope of agreement criterion. In

this regard, it is important to highlight that this is an “independent and necessary

element[] of relevant conduct under §1B1.3(a)(1)(B).” United States v. Green,

175 F.3d 822, 837 (10th Cir. 1999) (quoting United States v. Carreon, 11 F.3d

1225, 1235 (5th Cir. 1994)); accord United States v. Willis, 476 F.3d 1121, 1129

(10th Cir. 2007); see also Patton, 476 F.3d at 1094 (discussing § 1B1.3(a)(1)(B)’s

definition of relevant conduct, and noting “[u]nder that definition, scope of the

agreement, furtherance, and reasonable foreseeability are ‘independent and

necessary elements of relevant conduct’” (quoting Willis, 476 F.3d at 1129)).

“Each member of a conspiracy may have had a different scope of jointly

undertaken criminal activity and therefore different relevant conduct.” Figueroa-

Labrada, 720 F.3d at 1265. As the Guidelines commentary helpfully explains:

Because a count may be worded broadly and include the conduct
of many participants over a period of time, the scope of the
“jointly undertaken criminal activity” is not necessarily the same
as the scope of the entire conspiracy, and hence relevant conduct
is not necessarily the same for every participant. . . . [T]he court

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must first determine the scope of the criminal activity the
particular defendant agreed to jointly undertake (i.e., the scope
of the specific conduct and objectives embraced by the
defendant’s agreement).

U.S.S.G. § 1B1.3 cmt. 3(B). Determining the scope of the agreement that a

particular defendant joined in relation to the conspiracy as a whole requires the

district court, at sentencing, “to analyze, and make ‘particularized findings’

about[] the scope of the specific agreement.” Melton, 131 F.3d at 1404 (quoting

United States v. Thomas, 114 F.3d 228, 255 (D.C. Cir. 1997)).

“The government bears the burden of proving by a preponderance of the

evidence that the conduct of co-conspirators is to be attributed to the defendant

for sentencing purposes.” Id. at 1403. After hearing from the parties, in certain

instances, the district court is permitted to adopt the presentence report’s

findings. 8 And, when that happens, “we review the information in [the report] as

8
As we discuss infra, Mr. Ellis disputes the government’s position
that the district court here adopted the findings of the operative presentence
report—that is, the RPSR. See, e.g., Aplt.’s Reply Br. at 9 (noting that “the
district court in this case never expressly adopted the report’s factual findings”).
Yet, notably, Mr. Ellis does not contend that the district court was legally
precluded from adopting the RPSR’s findings because his arguments triggered the
court’s “Rule 32 fact-finding obligation”—that is, because his arguments
identified a specific “factual inaccuracy” or inaccuracies in the RPSR. United
States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006); cf. id. at 1253
(noting that where the defendant only attacks a district court’s application of the
Guidelines to the historical facts, the fact-finding obligation is not triggered);
accord United States v. Cereceres-Zavala, 499 F.3d 1211, 1214 (10th Cir. 2007).
Indeed, on appeal, Mr. Ellis insists that the historical facts are not in dispute; at
(continued...)

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if it were the findings of the district court.” Figueroa-Labrada, 720 F.3d at 1266;

see also United States v. Sells (Sells I), 477 F.3d 1226, 1242 (10th Cir. 2007)

(considering the presentence report’s findings “adopted” by the sentencing court,

in determining whether the court’s findings were legally sufficient).

B

Mr. Ellis first challenges the sentencing court’s failure to make

particularized findings regarding the alleged scope of his jointly undertaken

criminal activity with Mr. Tatum. See Aplt.’s Opening Br. at 20–24. He focuses

on the court’s statement that “the fact that both [Mr. Tatum and Mr. Ellis] are

members of the same criminal conspiracy to distribute drugs . . . would establish

jointly-undertaken criminal activity[,] . . . so really the question is whether the

sales by Mr. Tatum are reasonably foreseeable to Mr. Ellis.” Aplt.’s Opening Br.

at 22–23 (bold-face font omitted) (quoting R., Vol. III, 102–03). Mr. Ellis

contends that “[a]ssuming [that] the scope of the criminal activity a co-

8
(...continued)
issue here, he says, is “only their import for assessing the scope of [Mr. Ellis’s]
agreement to jointly undertake criminal activity.” Aplt.’s Reply Br. at 16; see
Aplt.’s Opening Br. at 24 (noting, as to the scope determination, “the parties do
not dispute the facts themselves, but only their import for assessing the scope of
[Mr. Ellis’s] agreement”). In any event, given Mr. Ellis’s silence on the matter in
his briefing, any Rule 32 argument of this sort would be waived. See, e.g., United
States v. Bowline, 917 F.3d 1227, 1231 (10th Cir. 2019) (noting that “when a
party omits an argument from its opening brief, an appellate court has no
obligation to consider that argument”).

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conspirator agreed to jointly undertake is the same []as the scope of the entire

conspiracy is a misapplication of the Sentencing Guidelines.” Id. at 21 (citing

Melton, 131 F.3d at 1404). And, relying on our unpublished decision in Biglow,

Mr. Ellis highlights that a panel of our court has “specifically rejected” this

“shortcut[]” in the relevant conduct analysis. See id. at 22 (citing Biglow, 635 F.

App’x at 401).

Mr. Ellis’s argument is not without legal foundation: a sentencing court

“must make particularized findings about the scope of a defendant’s jointly

undertaken criminal activity to determine the correct amount of drugs attributable

to him.” Figueroa-Labrada, 720 F.3d at 1266 (citing Green, 175 F.3d at 837);

see also Melton, 131 F.3d at 1404 (“Proper attribution at sentencing requires the

district court to analyze, and make ‘particularized findings’ about, the scope of

the specific agreement the individual defendant joined in relation to the

conspiracy as a whole.” (quoting Thomas, 114 F.3d at 255)). And this judicial

obligation stems naturally from the established proposition that “the scope of the

‘jointly undertaken criminal activity’ is not necessarily the same as the scope of

the entire conspiracy.” U.S.S.G. § 1B1.3 cmt. 3(B).

Consequently, insofar as the district court’s statement that Mr. Ellis

identifies could be construed as demonstrating that the court categorically equated

the scope of Mr. Ellis’s jointly undertaken criminal activity with Mr. Tatum, to

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the scope of the overall conspiracy in which he and Mr. Tatum were participants,

we would be constrained to conclude that the court committed legal error. That

is, we would be obliged to conclude that the court committed legal error by not

making particularized findings concerning the scope of the jointly undertaken

criminal activity that Mr. Ellis agreed to participate in with Mr. Tatum—i.e., it

erred by doing no more than simply finding that they were involved in the same

conspiracy. See, e.g., Willis, 476 F.3d at 1130 (determining that there was

reversible error where “the District Court failed to make particularized findings

about the scope of the criminal activity to which [the defendant] agreed”; instead,

the court referred summarily and enigmatically to the evidence that it heard at

trial and made comments that were not consistent with holding the defendant

responsible for a “portion of the crime”); Green, 175 F.3d at 837 (concluding that

the court committed reversible legal error by failing to “make particularized

findings which are supported in the record about the scope of [the defendant’s]

agreement” to participate in the charged conspiracy, and it was “not sufficient”

for the court to find that the defendant was involved in a drug-trafficking

conspiracy with his coconspirator to hold him responsible for the illegal drugs

personally attributable to that coconspirator); Melton, 131 F.3d at 1404 (“The

district court failed to make such ‘particularized findings’ and misapplied the

sentencing guidelines by improperly assuming that the scope of the criminal

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activity [the defendant] agreed to jointly undertake was the same as the scope of

the entire conspiracy, including the reverse sting.”).

Here, the district court’s findings were not entirely devoid of particularity.

For example, the court did refer to the “drug deals” that the two men engaged in

and their “maintaining a drug house in furtherance of that drug criminal activity.”

R., Vol. III, at 103. However, we acknowledge that, if read in isolation, the

district court’s statement that Mr. Ellis identifies plausibly could be read as

indicating that the court impermissibly equated the scope of the overall

conspiracy that Mr. Ellis and Mr. Tatum were criminally charged with

participating in with the scope of the jointly undertaken criminal activity that Mr.

Ellis agreed to participate in with Mr. Tatum. However, as we typically do in

considering possible sentencing error, we do not read particular statements of the

district court in isolation; rather, we must interpret their import in the context of

the whole record. Cf. United States v. Lente, 759 F.3d 1149, 1174 (10th Cir.

2014) (considering “the entire record” in discerning whether the district court

committed sentencing error); United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1221 (10th Cir. 2008) (same). In so doing, we reject Mr. Ellis’s first

challenge.

Specifically, in viewing the entire record, we conclude that the district

court adopted the RPSR’s findings concerning the scope of Mr. Ellis’s jointly

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undertaken criminal activity with Mr. Tatum, and those findings—as to

particularity—convincingly pass legal muster. See Figueroa-Labrada, 720 F.3d

at 1267 (“[T]he district court must make particularized findings (or adopt

particularized findings made in the [presentence report]) on both jointly

undertaken criminal activity and reasonable foreseeability before attributing the

actions of coconspirators to a defendant as relevant conduct.”); cf. United States

v. Godinez-Perez, 864 F.3d 1060, 1063–64 (10th Cir. 2016) (elaborating on how

the court’s adoption of the presentence report’s factual findings could not cure its

error in failing to make findings concerning the scope of jointly undertaken

criminal activity because the presentence report itself also did not include

findings as to such scope); Sells I, 477 F.3d at 1242 (like Godinez-Perez,

concluding that the district court erred because, “[a]lthough the district court

adopted the findings contained in the [presentence report], the [report] did not

make particularized determinations with respect to [the scope of the criminal

activity]”).

We start by explaining the basis for our conclusion as to the court’s

adoption of the RPSR’s findings. Recall that, at the resentencing hearing, the

district court properly heard the parties’ arguments, which directed the court to

key portions of the trial evidence bearing on the drug quantity computations and,

more specifically, the related question of the scope of jointly undertaken criminal

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activity. Then, the court effectively determined that the government’s marshaling

of evidence provided adequate proof of the RPSR’s findings regarding the

applicable drug quantity, and (with an exception not relevant here) the court

expressly used the RPSR’s recommended drug quantity as the “starting point for”

its sentencing analysis. R., Vol. III, at 113.

The RPSR’s recommended drug quantity of course was, in significant part,

directly predicated on its findings concerning the scope of Mr. Ellis’s jointly

undertaken criminal activity with Mr. Tatum. Id., Vol. IV, ¶ 109, at 49 (Mr.

“Ellis is responsible for cocaine attributed to [Mr.] Tatum for the approximate 6

month period in which [Mr.] Ellis was deemed to be involved with [Mr.] Tatum’s

drug trafficking activities (ending in mid-April 2012).”); see id., ¶¶ 107–08

(discussing “the jointly undertaken criminal activity that included purchasing

cocaine from Djuane Sykes and selling crack cocaine at various locations together

in the community and from 921 Haskell Street” and noting that Mr. “Ellis is

assessed cocaine base” based on those purchases). Consequently, based just on

our consideration of the sentencing transcript, alone, we might reasonably

conclude that—when the court explicitly relied on the RPSR’s drug quantity

recommendation (i.e., adopting it)—it likewise effectively adopted the RPSR’s

findings concerning the scope of Mr. Ellis’s jointly undertaken criminal activity

with Mr. Tatum. That is so because the RPSR’s scope findings served as an

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essential predicate for its drug quantity recommendation, which the court

endorsed.

However, we need not rely on the sentencing transcript alone. This is true

because the court subsequently made its intentions explicit and crystal clear

concerning its adoption of the RPSR’s findings—including its findings regarding

the scope of jointly undertaken criminal activity. Specifically, with the exception

of the previously mentioned slight adjustment in drug quantity which is not at

issue here, the court expressly stated, in its Amended Statement of Reasons, that

it “adopts the presentence investigation report [i.e., the RPSR].” R., Vol. IV, at

256. Surveying the entire record, including this statement, we therefore have no

difficulty concluding that the district court adopted the RPSR’s findings

concerning the scope of Mr. Ellis’s jointly undertaken criminal activity with Mr.

Tatum.

Unlike Mr. Ellis, we do not believe that this conclusion is forestalled by the

fact that the district court did not orally state in explicit terms at the resentencing

hearing that it adopted the RPSR’s findings—as the court most notably did in

Figueroa-Labrada, 720 F.3d at 1263 (describing and quoting the district court’s

explicit adoption). See Aplt.’s Reply Br. at 9 (citing Figueroa-Labrada, and

stating: “The government claims this error is remedied because the district court

adopted the findings of fact in the [R]PSR. Unlike the judges in the cases cited

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by the government, however, the district court in this case never expressly

adopted the report’s factual findings.” (emphasis added)). Mr. Ellis does not cite

any controlling authority that would have required the district court to make such

an explicit oral statement of adoption in order to accomplish that result.

As we analyze the situation, the best that the court’s lack of an explicit

oral statement at the sentencing hearing that adopted the RPSR’s findings

possibly could do for Mr. Ellis is render the court’s intentions on this matter

ambiguous. Though we do not opine that this is so, even if it were, the court’s

subsequent explicit written statement in its Amended Statement of Reasons

certainly would negate any such ambiguity, making clear the court’s intention to

adopt the RPSR’s findings—including its findings concerning the scope of jointly

undertaken criminal activity. See United States v. Pankow, 884 F.3d 785, 791

(7th Cir. 2018) (“In addition to the court’s remarks at sentencing, we also look to

the written statement of reasons to evaluate the sufficiency of the sentencing

rationale.”); cf. United States v. Ford, 675 F. App’x 832, 835 (10th Cir. 2017)

(unpublished) (“Because the oral explanation for the sentence is ambiguous, we

look to the record, including the written statement of reasons, to discern the

court’s intent in imposing the sentence. The statement of reasons resolves any

ambiguity here: it makes clear that the court adopted the [presentence report] . . .

.” (citation omitted)); cf. also United States v. Schock, 862 F.3d 563, 570 (6th

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Cir. 2017) (“When the oral sentence is ambiguous, however, we look to the

district court’s written judgment, commitment order, and statement of reasons.”);

United States v. Brown, 808 F.3d 865, 871 (D.C. Cir. 2015) (ruling that, “[w]hile

these statements [at the sentencing hearing] suggest some confusion on the part of

the trial judge, the Statement of Reasons form clarifies his understanding”).

Therefore, based on our consideration of the entire record, we conclude that

the district court adopted, as its own, the RPSR’s findings concerning Mr. Ellis’s

scope of jointly undertaken criminal activity with Mr. Tatum. See, e.g.,

Figueroa-Labrada, 720 F.3d at 1266 (noting that, when the court adopts the

presentence report, “we review the information in [that report] as if it were the

findings of the district court”). And the RPSR made particularized findings

concerning this matter, stating:

Marvin Ellis and Ataven Tatum were involved in jointly
undertaken criminal activity that included purchasing cocaine
from Djuane Sykes and selling crack cocaine at various locations
together in the community and from 921 Haskell Street. Their
jointly undertaken criminal activity is also demonstrated by [Mr.]
Tatum’s phone being utilized to arrange a sale that was later
consummated by Marvin Ellis, and Marvin Ellis accompanying
and assisting [Mr.] Tatum with drug deals.

R., Vol. IV, ¶ 107, at 49.

More specifically, the RPSR found that there was evidence of both an

explicit and implicit agreement between Mr. Ellis and Mr. Tatum regarding their

use of the 921 Haskell residence for drug trafficking. The explicit agreement

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assigned “[Mr.] Ellis[] responsibility for the utilities[,] and [Mr.] Tatum[]

responsibility as the renter” of 921 Haskell. Id., ¶ 325, at 109. Their implicit

agreement was for them both to “cook crack cocaine” at the residence and to “sell

crack cocaine from the residence.” Id. The RPSR underscored that “[t]he jointly

undertaken criminal activity is also demonstrated by [Mr. Ellis] and Theoplis Ellis

picking up drugs that [Mr.] Tatum had ordered, and [the] occasional use of a

common phone associated with arranging drug transactions.” Id.

We conclude that it is beyond peradventure that the RPSR’s findings are

sufficiently particularized regarding the scope of Mr. Ellis’s jointly undertaken

criminal activity involving Mr. Tatum. Unlike in Godinez-Perez, for example, the

RPSR’s findings have the effect of “specifically linking” Mr. Ellis’s drug

trafficking activities with similar activities that the investigation traced to Mr.

Tatum. 864 F.3d at 1063. And those findings of the RPSR—and, consequently,

of the district court itself—do not make the mistake that we identified in Melton

of “improperly assuming that the scope of the criminal activity [Mr. Ellis] agreed

to jointly undertake was the same as the scope of the entire conspiracy.” 131 F.3d

at 1404. Nor do the RPSR’s findings provide only “bare-bones information”

linking the drug distribution activities of Mr. Ellis and Mr. Tatum. United States

v. Flores-Alvarado, 779 F.3d 250, 257 (4th Cir. 2015).

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Consequently, where the presentence report has made legally sufficient

particularized findings regarding jointly undertaken criminal activity, as here, and

the district court has adopted those findings as its own, it cannot be said that the

court erred by failing to make particularized findings regarding the scope of the

defendant’s jointly undertaken criminal activity. See, e.g., Figueroa-Labrada,

720 F.3d at 1267. Accordingly, Mr. Ellis’s first challenge fails.

C

Regarding his second challenge, Mr. Ellis contends that the record does not

support the district court’s finding regarding the scope of his jointly undertaken

criminal activity with Mr. Tatum. According to Mr. Ellis, the “evidence does not

prove that [Mr.] Tatum and [Mr. Ellis] agreed to work toward a mutual goal with

respect to the cocaine [Mr.] Tatum purchased from [Mr.] Sykes.” Aplt.’s Opening

Br. at 25. Instead, Mr. Ellis argues that he and Mr. Tatum were “engaged in

separate, rival business operations,” and they were actually “competitors.” Id. In

this same vein, citing the illustration found in Guidelines § 1B1.3 cmt.

(4)(C)(vi), Mr. Ellis contends that the record reveals “critical evidence that the

men functioned as independent dealers with a common source of

supply”—namely, Mr. Sykes—and that such evidence does not legally support a

finding of jointly undertaken criminal activity. Id. at 28.

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However, Mr. Ellis’s arguments are unpersuasive. There was ample record

evidence to support the district court’s finding concerning the scope of jointly

undertaken criminal activity between Mr. Ellis and Mr. Tatum. Even if that were

not so, we certainly could not conclude that the district court’s finding on this

point is not plausible in light of the record evidence. Accordingly, in all events,

the court’s finding survives scrutiny and is not reversible, given our deferential

clear-error standard. See, e.g., Piper, 839 F.3d at 1271 (noting that “[i]f the

‘court’s account of the evidence is plausible in light of the record viewed in its

entirety,’ we may not reverse it even if we might have weighed the evidence

differently” (quoting Anderson, 470 U.S. at 574)); Torres, 53 F.3d at 1144

(stating that, “[t]o constitute clear error, we must be convinced that the sentencing

court’s finding is simply not plausible or permissible in light of the entire record

on appeal”).

We begin with a brief overview of the legal backdrop against which the

district court made its finding. In particular, the Guidelines commentators

provide helpful benchmarks to courts in applying the “jointly undertaken criminal

activity” requirement, including the following:

[T]he court may consider any explicit agreement or implicit
agreement fairly inferred from the conduct of the defendant and
others. Accordingly, the accountability of the defendant for the
acts of others is limited by the scope of his or her agreement to
jointly undertake the particular criminal activity. Acts of others
that were not within the scope of the defendant’s agreement, even

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if those acts were known or reasonably foreseeable to the
defendant, are not relevant conduct under subsection (a)(1)(B).

U.S.S.G. § 1B1.3 cmt. 3(B) (emphases added).

In particular, the Guidelines commentators offer illustrations to clarify the

factual circumstances under which the requirement is satisfied, including the

illustration found in comment (4)(C)(vi)—which Mr. Ellis looks to for support:

Defendant P is a street-level drug dealer who knows of other
street-level drug dealers in the same geographic area who sell the
same type of drug as he sells. Defendant P and the other dealers
share a common source of supply, but otherwise operate
independently. Defendant P is not accountable for the quantities
of drugs sold by the other street-level drug dealers because he is
not engaged in a jointly undertaken criminal activity with them.
In contrast, Defendant Q, another street-level drug dealer, pools
his resources and profits with four other street-level drug dealers.
Defendant Q is engaged in a jointly undertaken criminal activity
and, therefore, he is accountable under subsection (a)(1)(B) for
the quantities of drugs sold by the four other dealers during the
course of his joint undertaking with them because those sales
were within the scope of the jointly undertaken criminal activity,
in furtherance of that criminal activity, and reasonably
foreseeable in connection with that criminal activity.

Id. cmt. 4(C)(vi) (emphasis added).

With this legal backdrop in mind, the record provided ample evidence for

the district court’s finding that Mr. Ellis and Mr. Tatum were jointly engaged in

criminal activity—encompassing the purchase of cocaine and the sale of

crack—during the critical six-month period that Mr. Tatum was buying cocaine

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from Mr. Sykes. Perhaps the most obvious indicator during this period of such

jointly undertaken criminal activity relates to the 921 Haskell residence.

The two men shared the 921 Haskell residence and used it to distribute

cocaine base and other illegal narcotics. Mr. Ellis and Mr. Tatum not only were

aware of each other’s drug-trafficking activities at this residence, but they also

pooled their resources in a number of respects that had the obvious effect of

facilitating their trafficking activities. With Mr. Tatum’s financial assistance, Mr.

Ellis had leased the 921 Haskell residence. Subsequently, Mr. Tatum later signed

a contract for deed to buy it, agreeing to make payments to the current owner.

And, because all of the utilities—including the electricity—were in Mr. Ellis’s

name, he literally was responsible for keeping the lights on for the men’s drug-

trafficking operation. Mr. Ellis and Mr. Tatum also would share the phone

belonging to Mr. Tatum to communicate with customers regarding drug sales.

Furthermore, both men used the services of Theoplis in carrying out their

drug-trafficking activities at 921 Haskell; among other services, Theoplis

“functioned as a doorman.” R., Vol. IV, ¶ 78, at 43. Theoplis was compensated

for his services daily, and the district court could have reasonably inferred

that—since he worked for both Mr. Ellis and Mr. Tatum—they shared the costs of

his services in some manner.

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In light of the foregoing evidence, the district court easily could

find—within the mold of the Guidelines commentary—that Mr. Ellis and Mr.

Tatum had an “implicit agreement” during the relevant six-month period,

reflecting the scope of their jointly undertaken criminal activity, to “cook crack

cocaine” at 921 Haskell and to “sell crack cocaine from the residence.” Id., ¶

325, at 109; see also U.S.S.G. § 1B1.3 cmt. 3(B).

Furthermore, far from helping him, the illustration that Mr. Ellis highlights

in the Guidelines commentary—specifically, in comment 4(C)(vi)—lends

powerful support to the district court’s scope finding. In that illustration, Mr.

Ellis is much more akin to Defendant Q—whom the Guidelines commentators

would hold “accountable . . . for the quantities of drugs sold by . . . other dealers

during the course of his joint undertaking,” than he is to Defendant P, who would

escape this sort of attribution. U.S.S.G. § 1B1.3 cmt. 4(C)(vi).

More specifically, Mr. Ellis’s connection to Mr. Tatum was not limited to

simply knowing that they “share[d] a common source of supply” and sold “the

same type of drug,” like Defendant P. Id. Rather, Mr. Ellis “pool[ed]” his

resources with Mr. Tatum—which (among other things) allowed the two men to

have a roof over their heads at 921 Haskell to sell drugs and the wherewithal to

keep Theoplis working for their mutual benefit—making Mr. Ellis’s position

much more akin to Defendant Q. Id.

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Accordingly, it would be quite plausible—indeed, eminently

reasonable—for the district court to determine that these facts supported a finding

that Mr. Ellis was engaged in a jointly undertaken criminal activity with Mr.

Tatum during the critical six-month period to purchase cocaine and distribute

crack at 921 Haskell. The upshot being that Mr. Ellis should be held

“accountable” for the cocaine powder that Mr. Tatum purchased from Mr. Sykes

during this period.

In retort, Mr. Ellis asserts that “nothing about the Haskell house

specifically pertains to the cocaine [Mr.] Tatum purchased from [Mr.] Sykes over

the six-month period between October 2011 and April 2012.” Aplt.’s Opening Br.

at 25. However, the district court could plausibly, as well as reasonably, find to

the contrary. Mr. Tatum undisputedly distributed crack (i.e., cocaine base) from

the 921 Haskell residence during this six-month period. And it is elementary that

crack is made from cocaine powder—the substance Mr. Tatum purchased from

Mr. Sykes during the same six-month period. Therefore, the district court could

plausibly infer—with no contrary evidence apparent in the record—that at least

some of the crack that Mr. Tatum trafficked at 921 Haskell was made with the

cocaine that he purchased from Mr. Sykes. Furthermore, and perhaps more

importantly, the district court’s finding regarding Mr. Ellis’s jointly undertaken

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criminal activity with Mr. Tatum during this six-month period did not depend

solely on two men’s activities at 921 Haskell.

Recall that the evidence showed that, during this period, on between ten to

fifteen occasions, Mr. Ellis and Mr. Tatum traveled together to pick up powder

cocaine from Mr. Sykes. And, as with their activities at 921 Haskell, both men

plausibly could be found to have pooled their resources by employing Theoplis

for their mutual benefit. Specifically, Theoplis assisted both men by, among other

things, picking up and delivering drugs in settings other than 921 Haskell.

Moreover, on at least one occasion, Mr. Ellis and Theoplis picked up cocaine on

behalf of Mr. Tatum from Mr. Sykes. These activities evidenced a good deal of

cooperation and coordination, which significantly fortified the foundation of the

district court’s (adopted) finding that Mr. Tatum “worked in concert with Marvin

Ellis and Theoplis Ellis, who would all work together to sell ‘crack’ cocaine to

various street level customers.” See R., Vol. IV, ¶ 75, at 42–43.

And, if these acts were not enough, the evidence showed that in early 2012,

primarily in the months of February and March, the DEA conducted a series of

controlled buys of crack cocaine, through the use of CIs, from Mr. Ellis and Mr.

Tatum in locations outside of 921 Haskell. Notably, on three occasions, Mr. Ellis

and Mr. Tatum were together when the drug transactions took place, and they

shared the resource of Mr. Tatum’s vehicle in conducting two of these

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transactions. Indeed, in one of the drug deals, Mr. Ellis effectively acted as the

go-between—shuttling between the CI’s vehicle and Mr. Tatum’s: Mr. Ellis

entered the CI’s vehicle and obtained the money; took the money and delivered it

to Mr. Tatum, whereupon he received the crack; and then he returned with the

crack and handed it to the CI through the vehicle’s window. Significantly, even

in a street sale that Mr. Ellis conducted on his own, he highlighted his joint

venture with Mr. Tatum, when he “bragged about obtaining his crack cocaine

from ‘Tater’”—Mr. Tatum’s nickname. Id., ¶ 83, at 44.

Consequently, there was ample evidence relating to the two men’s drug-

trafficking activities—both at and away from 921 Haskell—upon which the

district court could have plausibly found that Mr. Ellis was engaged in jointly

undertaken criminal activity with Mr. Tatum during the relevant six-month period

to purchase powder cocaine and distribute crack. 9

9
During the sentencing hearing and on appeal, Mr. Ellis’s counsel
argued that it does not naturally follow from Mr. Ellis and Mr. Tatum’s shared
residence and drug-trafficking activities at 921 Haskell that the two men were
engaged in a joint venture—reasoning that they just as well could have been
acting independently of each other. In this regard, Mr. Ellis’s counsel has
analogized the relationship between the two men to two lawyers that have an
office-sharing arrangement, but nevertheless maintain separate and independent
practices. In counsel’s hypothetical, the two lawyers “may have a common
reception, they may split the bills,”—but at the end of the day, if one of the
lawyers commits fraud, or does something that is not the other lawyer’s “stuff,”
then the other lawyer should not be held accountable for that conduct. R., Vol.
III, at 63–64. However, in making its finding of jointly undertaken criminal
(continued...)

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To be sure, Mr. Ellis seeks to advance a contrary view of the

evidence—under which Mr. Ellis and Mr. Tatum operated independently in their

drug-trafficking activities and actually “were competitors.” Aplt.’s Opening Br.

at 25. For example, Mr. Ellis attempts to undercut the notion that his ten to

fifteen trips with Mr. Tatum to purchase cocaine from Mr. Sykes bespeak jointly

undertaken criminal activity by arguing that the two men made separate cocaine

purchases from Mr. Sykes on these trips. See id. at 5 (“[A]lthough [Mr.] Tatum

and [Mr. Ellis] continued to arrive . . . together, they would make separate

9
(...continued)
activity, the district court effectively rejected this analogy. And, on this record,
we think that the court had a more than plausible basis for doing so. There is no
suggestion in Mr. Ellis’s hypothetical that the two lawyers repeatedly assisted and
coordinated with each other in their practices by, for example, repeatedly
litigating cases together. Yet, the hallmark of the relationship of Mr. Ellis and
Mr. Tatum was coordination and cooperation. In particular, Mr. Ellis repeatedly
assisted Mr. Tatum with crack sales in the community. And, as we discuss infra,
the two men plausibly could be found to have repeatedly provided mutual aid and
protection to each other in traveling on ten to fifteen occasions together to
purchase powder cocaine from Mr. Sykes. Furthermore, the reported reason that
Mr. Ellis had a falling out with Mr. Tatum is that the latter was attempting to boss
him around—a circumstance that one typically would not expect to find between
two lawyers operating independent legal practices, but one that you might find, if
the two lawyers were partners. All that said, even if Mr. Ellis’s lawyer
hypothetical could be viewed as reflecting a plausible reading of the record—viz.,
one indicating that Mr. Ellis and Mr. Tatum were “sometimes friendly” drug
dealers sharing a residence at 921 Haskell, but nevertheless “engaged in separate,
rival business operations,” Aplt.’s Opening Br. at 25—the district court’s contrary
reading of the record constituted, at the very least, a plausible alternative. Under
the deferential clear-error standard, that is enough to render this hypothetical
unavailing. See, e.g., Torres, 53 F.3d at 1144.

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purchases from [Mr.] Sykes. . . .”); id. at 28 (noting the fact that Mr. Ellis and

Mr. Tatum “made separate purchases of powder cocaine from [Mr.] Sykes at the

same time is a critical fact the government has never dealt with”). However, even

if that were true, it would not render implausible—or even unreasonable—the

district court’s finding that Mr. Ellis and Mr. Tatum—along with

Theoplis—“would all work together to sell ‘crack’ cocaine to various street level

customers,” R., Vol. IV, ¶ 75, at 43, and, more specifically, that the two men

“were involved in jointly undertaken criminal activity that included purchasing

cocaine from Djuane Sykes and selling crack cocaine at various locations together

in the community and from 921 Haskell Street,” id., ¶ 107, at 49.

Indeed, congruent with Guidelines commentary—the district court would

not have been unreasonable in finding support for its jointly undertaken criminal

activity finding in the fact itself that the two men elected to “coordinate their . . .

efforts” and, specifically, chose to travel together to make the cocaine purchases.

See U.S.S.G. § 1B1.3 cmt. 4(C)(viii). From their coordination of their travel to

Mr. Sykes, Mr. Ellis and Mr. Tatum plausibly could be deemed to have gained

“mutual assistance and protection”—even if they ultimately made separate

purchases from him. See id. (noting that individuals hired separately to smuggle

marijuana “across the border from Mexico into the United States” could be

deemed to have engaged in jointly undertaken criminal activity, where they

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“receive[d] their individual shipments from the supplier at the same time and

coordinate[d] their importation efforts by walking across the border together for

mutual assistance and protection”). As such, their coordinated conduct would

support a plausible finding that they each should be held “accountable for the

aggregate quantity” of cocaine that they purchased to further their crack

distribution activities. Id.

And lastly, in support of his contrary view of the evidence, Mr. Ellis points

to the one transaction during the latter part of the six-month period in which Mr.

Ellis arguably behaved more like a competitor than a collaborator with Mr.

Tatum. Recall that in that incident, Mr. Ellis reportedly “told the [CI] to ‘not

mess’ with [Mr.] Tatum anymore and to only contact him for drugs.” R., Vol. IV,

¶ 300, at 103. However, the existence of this single incident—which took place

about one month before Mr. Ellis parted company with Mr. Tatum—is hardly

inconsistent with the district court’s overall finding that Mr. Ellis and Mr. Tatum,

during the six months at issue, banded “together to sell ‘crack’ cocaine to various

street level customers.” Id., ¶ 75, at 43. Indeed, the incident does not even show

that Mr. Ellis engaged in a side deal that was inconsistent with his jointly

undertaken criminal activity with Mr. Tatum—only that he contemplated doing so

in the future. Cf. United States v. Childress, 58 F.3d 693, 711 n.3 (D.C. Cir.

1995) (“[T]he fact that certain conspirators engage in independent drug

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transactions does not on its own negate the existence of a single conspiracy.

Though genuine side deals would not be attributable to the conspiracy charged in

this case, neither would their existence prevent the jury from concluding that a

core, single conspiracy was also in operation simultaneously.” (citation omitted)).

At bottom, this one incident does not render implausible—or even

unreasonable—the court’s ultimate finding that Mr. Ellis was engaged in jointly

undertaken criminal activity with Mr. Tatum during the relevant six-month period.

Therefore, for the foregoing reasons, we also reject Mr. Ellis’s second

challenge. There was ample record evidence to support the district court’s

finding that, during the six-month period from mid-October 2011 to mid-April

2012, Mr. Ellis and Mr. Tatum were engaged in a jointly undertaken criminal

activity to purchase powder cocaine and distribute crack (i.e., cocaine base).

And, even if that were not so, under the deferential clear-error standard of review,

we certainly could not conclude on this record that the court’s finding in this

respect was implausible, and therefore the finding should be upheld.

IV

For these reasons, we AFFIRM the district court’s sentencing judgment.

52