United States v. Hutchinson

FILE D
United States Court of Appeals
Tenth Circuit

PU B L ISH July 27, 2009
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

UNITED STATES OF AM ERICA ,

Plaintiff-Appellee ,

v. No. 07-1204

ALVIN HUTCHINSON, a/k/a Big Al ,

Defendant-Appellant .

UNITED STATES OF AM ERICA,

Plaintiff-Appellee,

v. No. 07-1230

LEE ARTHUR THOM PSON, a/k/a
“LT”,

Defendant-Appellant.

UNITED STATES OF AM ERICA,

Plaintiff-Appellee,

v. No. 07-1234

JUNIOR RAY MONTOYA,

Defendant-Appellant.
 UNITED STATES OF AM ERICA,

Plaintiff-Appellee,

v. No. 07-1264

W ILLIAM L. GLADNEY, a/k/a “L”,

Defendant-Appellant.

A ppeals from the U nited States D istrict C ourt
for the D istrict of C olorado
(D .C . N o. 05-C R -00141-M SK )

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. M oore with
him on the briefs), Denver, CO, for Defendant-Appellant Alvin Hutchinson.

Nancy L. Simmons, Law Offices of Nancy L. Simmons, P.C., Albuquerque, NM ,
for Defendant-Appellant Lee Arthur Thompson.

W ade H. Eldridge, Denver, CO, for Defendant-Appellant Junior Ray M ontoya.

Dennis W . Hartley, Dennis W . Hartley, P.C., Colorado Springs, CO, for
Defendant-Appellant W illiam L. Gladney.

James C. M urphy, Assistant United States Attorney (Troy A. Eid, United States
Attorney with him on the brief), Denver, CO, for Plaintiff-Appellee United States
in Case No. 07-1204.

John M . Hutchins, Assistant United States Attorney (Troy A. Eid, United States
Attorney; Gregory Rhodes, Assistant United States Attorney; Jaime A. Pena,
Assistant United States Attorney with him on the brief), Denver, CO, for
Plaintiff-Appellee United States in Case Nos. 07-1230, 07-1234, 07-1264.

Before G O R SU C H , M cK A Y , and B A L D O C K , Circuit Judges.

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G O R SU C H , Circuit Judge.

Denver’s Alpine Rose M otel was something of a “drive-thru” crack market.

Customers needed only to pull their cars into the parking lot to receive window-

side service from one of the motel’s resident drug runners. A runner would take

the customer’s order, proceed to different motel rooms occupied by crack dealers

until he found sufficient quantities to fill the order, and then make the delivery.

So-called enforcers helped keep the peace among the motel’s residents. Two

leaders of the operation replenished the various dealers’ drug supply on a daily

basis and mediated disputes. A peculiar sort of community spirit evolved, with a

M other’s Day “crack scramble” and an Easter egg hunt with rocks of crack

substituted for eggs. The business model proved highly successful— some 100

customers visited each day at the height of the motel’s crack dealing operation in

the summer of 2004.

The government brought a variety of charges against several of those

involved in the Alpine Rose operation, including counts under the Racketeer

Influence and Corrupt Organizations Act. Eventually, the district court held four

trials that resulted in the conviction of the defendants-appellants now before us:

Alvin Hutchinson, Lee Arthur Thompson, Junior Ray M ontoya, and W illiam L.

Gladney. Each of these individuals raises different challenges to his conviction

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or sentence, ranging from contesting the adequacy of the district court’s jury

instructions to disputing that court’s compliance with the Speedy Trial Act. In

the main, we affirm the district court’s disposition of these complex matters.

I

A

Viewed, as it must be, in the light most favorable to the government as the

prevailing party, the evidence shows that the Alpine Rose motel was a hub of

drug activity for years, but that business really ratcheted up in 2004 when Lee

Arthur Thompson and Alvin Hutchinson moved in. M r. Thompson, known to the

residents of the Alpine Rose as “LT,” was a crack supplier who made two regular,

daily deliveries of product to the motel. M r. Thompson’s best customer was M r.

Hutchinson, a prolific dealer at the Alpine Rose. But the relationship between

M r. Thompson and M r. Hutchinson was more than that of just seller and buyer.

One resident of the motel familiar with the drug operation described M r.

Hutchinson as M r. Thompson’s “right-hand man,” H. Vol. XXIII at 404; 1 another

described M r. Hutchinson’s role by saying “[h]e was right under [M r.

Thompson],” H. Vol. XXII at 195. Together, M r. Thompson and M r. Hutchinson

acted as authority figures, directing the drug trade at the Alpine Rose. Other

1
Record citations begin with the first initial of the last name of the
relevant defendant. For example, “H. Vol. XXIII at 404" indicates a citation to
the record from M r. Hutchinson’s proceedings.

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individuals never gave orders to M r. Thompson or M r. Hutchinson. Even the

owner of the motel, Jorge Banuelos, a drug addict who purchased from M r.

Thompson, followed orders given by M r. Thompson, his tenant.

Other Alpine Rose residents, following the lead of M r. Thompson and M r.

Hutchinson, performed a variety of roles. Some, the dealers, received drugs from

M r. Thompson and M r. Hutchinson and resold them to street-level customers.

Others, including Junior Ray M ontoya, were runners who worked on behalf of the

dealers as a sort of car-side waiter service, taking orders from customers sitting in

their cars in the motel’s parking lot, retrieving drugs from dealers located in the

motel’s various rooms, and then delivering the drugs to the waiting customers. In

return for their labor, runners were entitled to keep a small piece of the delivered

drug. Other individuals at the motel, widely known as enforcers, ensured that

motel residents abided M r. Thompson’s and M r. Hutchinson’s directions.

M r. Thompson and M r. Hutchinson exercised significant control over the

lives of the motel’s residents. They decided who could live at the motel and who

could not. They oversaw day-to-day aspects of the drug trade, and they mediated

customer complaints. For example, when a customer complained that M r.

M ontoya had tried to cheat him in a crack purchase, the customer complained to

M r. Thompson; M r. Thompson rebuked M r. M ontoya; and M r. Thompson then

gave the customer twice the crack he sought to settle the dispute.

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 M r. Thompson and M r. Hutchinson ruled in large measure through the

threat and use of violence. By way of illustration, M r. Hutchinson arranged for

several enforcers to beat up a runner named M arlo Johnson because M r. Johnson

slapped one of the dealer’s sons. On a different occasion, M r. Thompson directed

a group of enforcers to attack Paul Rose, another motel resident, because he

borrowed money from one of M r. Thompson’s girlfriends against M r. Thompson’s

wishes. M r. Thompson and M r. Hutchinson also used violence against the outside

world: they enlisted residents of the motel to use violence on their behalf to

collect debts, and armed their lieutenants to drive away from the Alpine Rose

rival drug dealers who threatened their commercial dominance of the area’s drug

trade.

Despite the occasional use of violence against and among residents, a kind

of community spirit developed at the Alpine Rose. M r. Thompson and M r.

Hutchinson organized cookouts, inviting all of those involved in the drug business

at the motel to attend. At these gatherings, M r. Thompson and M r. Hutchinson

provided food for everyone and gave away drugs as prizes. M r. Thompson

organized a “crack scramble” on M other’s Day, throwing crack from a balcony

onto the parking lot for the mothers in attendance to grab. H. Vol. XXII at 151.

M r. Thompson also organized an Easter egg hunt, though with the traditional egg

replaced by a “big rock of crack cocaine.” Id. at 154. One resident who attended

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these parties compared the atmosphere to a “company picnic.” H. Vol. XXIII at

416. M r. Hutchinson held frequent 6 a.m. meetings in his room. Dubbed

“Sunrise at Al’s,” these meetings were attended by, in one resident’s words,

“[e]verybody at the motel.” H. Vol. XXII at 155-56. M r. Hutchinson supplied

food, and the residents would discuss business and play dice games, with crack as

the prize. Residents regularly visited each other’s rooms to share food, play

games, and take drugs together. As one dealer described the atmosphere at the

Alpine Rose, residents “support[ed] each other, to keep the customers coming,

keep the people coming. It wasn’t really a big competition. Everybody was out

there to sell drugs, make money. And we just worked together.” H. Vol. XXIII at

374.

The residents also helped each other avoid the police. M r. Thompson, M r.

Hutchinson, and a few other residents had surveillance devices that transmitted

live footage of the parking lot and surrounding areas to television monitors in

their rooms. If residents became aware of police presence through either the

surveillance devices or observation, they notified others in the motel using cell

phones or walkie-talkies. M r. Thompson expected residents to notify him and

others if they became aware of either a police presence or some other disturbance.

W illiam Gladney, one of the defendants before us and a dealer at the Alpine

Rose, unwittingly played a role in the demise of the motel’s drug operations. M r.

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Gladney opened up shop and sold drugs out of his room at the motel after M r.

Thompson and M r. Hutchinson established their operation. W hen M r. Thompson

and M r. Hutchinson ran out of drugs, the dealers who normally depended on them

for supply sometimes turned to M r. Gladney, who had another, outside source of

supply. Though the relationship between M r. Gladney and M r. Thompson was

strained, M r. Gladney and M r. Hutchinson were friends and used drugs together.

On October 23, 2004, M arlo Johnson sought to purchase drugs from M r. Gladney.

M r. Gladney was not in his room, but Dino DeHerrera, M r. Gladney’s lookout,

gave M r. Johnson drugs. M r. Johnson later returned to the room, complaining

that he had been shorted. Apparently upset by the challenge to his (and his

lookout’s) honor, M r. Gladney responded by shooting and killing M r. Johnson.

M r. Gladney later told M r. DeHerrera that he did so to set an example for other

“punks.” G. Vol. V at 819-20.

The shooting was not good for business, and most of those involved in the

drug operation at the Alpine Rose, including M r. Thompson and M r. Hutchinson,

began drifting away from the motel. Still, some aspects of the operation

continued: M r. Thompson kept supplying M r. Hutchinson with crack, which M r.

Hutchinson and others sold from a new address, and when members of the Alpine

Rose were eventually arrested, M r. Thompson posted bail for them.

B

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 After the murder, law enforcement traced several of the former Alpine Rose

residents to a house on 96th and Federal in Denver. Officers raided the house and

found M r. Hutchinson there. Officers separately arrested M r. Thompson and M r.

M ontoya the same day; M r. Gladney’s arrest followed a few months later. At the

end of it all, the government obtained a second superseding indictment charging

eight individuals for their roles in the drug operation at the Alpine Rose. Seven

elected to go to trial: M r. Thompson, M r. Hutchinson, M r. Gladney, and M r.

M ontoya, as well as Steven Ellis, Cecilia Lozano, and Jessica Cruthers. After

considering various motions for severance, the district court initially decided to

hold four separate trials: (1) M r. Hutchinson alone; (2) M r. Thompson and M r.

Gladney together; (3) M r. Ellis alone; and (4) M s. Lozano, M s. Cruthers, and M r.

M ontoya together.

At the trial of M s. Lozano, M s. Cruthers, and M r. M ontoya, the jury

acquitted M s. Lozano of drug conspiracy, but convicted her of distribution. M s.

Cruthers was found guilty of one count of drug distribution. M r. M ontoya

conceded guilt on two drug distribution charges, but the jury was unable to reach

a verdict on conspiracy charges against him or M s. Cruthers, so the district court

declared a mistrial. M s. Cruthers subsequently pled guilty to the conspiracy count

and was not retried. Because M s. Lozano was acquitted of drug conspiracy and

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convicted of drug distribution, she was not retried. But this still left M r. M ontoya

to be retried.

This time, the district court opted to try M r. M ontoya alongside M r.

Thompson and M r. Gladney. In doing so, the district court concluded that the risk

of spillover prejudice from being tried with defendants facing more serious

charges could be abated by curative instructions. It also found that the risk of

prejudice was, in any event, outweighed by the inconvenience, expense, and

consumption of judicial resources that would be associated by holding yet

another, fifth, separate trial lasting between two and three weeks. This second

jury convicted M r. M ontoya of conspiracy.

The same jury that convicted M r. M ontoya also convicted M r. Thompson of

violating RICO, operating a continuing criminal enterprise (“CCE”), conspiring to

distribute and distributing drugs, laundering money, possessing with intent to

distribute, being a felon in possession of a weapon, and tampering with evidence.

This jury, too, found M r. Gladney guilty of a RICO violation, drug conspiracy,

and using a firearm during and in relation to a drug trafficking crime. In his

separate trial, a jury convicted M r. Hutchinson of a RICO violation, a CCE

violation, drug conspiracy, and five additional counts of crack cocaine

distribution. Likewise, in his separate trial, M r. Ellis was found guilty of

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possession with intent to distribute less than 5 grams of cocaine base and aiding

and abetting in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2.

M r. Hutchinson, M r. Thompson, M r. M ontoya, and M r. Gladney now

appeal their convictions or sentences. W e address each appellant’s arguments in

turn, beginning with M r. Hutchinson’s.

II

M r. Hutchinson brings two challenges to his convictions. First, he

contends that the district court failed to instruct the jury properly with respect to

RICO’s enterprise element. Second, he alleges that his convictions for drug

conspiracy and engaging in a continuing criminal enterprise violate the Double

Jeopardy Clause. W e conclude that M r. Hutchinson’s first argument does not

merit reversal, but that his drug conspiracy and CCE convictions must be reversed

and remanded for the district court to vacate the conviction on one of the charges.

A

In assessing a claim of instructional error, normally we will reverse when

“(1) we have substantial doubt whether the instructions, considered as a whole,

properly guided the jury in its deliberations; and (2) when a deficient jury

instruction is prejudicial.” Williams v. W.D. Sports, N.M ., Inc., 497 F.3d 1079,

1093 (10th Cir. 2007). Because M r. Hutchinson did not object to the court’s

RICO enterprise instruction at trial, however, he concedes that our review is

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confined to plain error. See Fed. R. Crim. P. 52(b); United States v. Hasan, 526

F.3d 653, 660-61 (10th Cir. 2008). Under that standard, M r. Hutchinson is

entitled to relief only if he can show that the district court’s jury instruction

constituted (1) error, (2) that is plain, and (3) affects his substantial rights, as well

as (4) the fairness, integrity, or public reputation of judicial proceedings. Hasan,

526 F.3d at 661. In light of the Supreme Court’s recent decision in Boyle v.

United States, 129 S. Ct. 2237 (2009), we cannot say the district court’s RICO

instruction was error at all, let alone reversible error under the onerous standard

M r. Hutchinson must meet.

RICO makes it a crime for individuals to engage in a pattern of

racketeering as part of “an enterprise,” 2 and proof of such an enterprise naturally

is essential to securing a conviction under the statute. Id. at 2243. After

Congress enacted RICO, however, the circuits promptly split about the meaning

and reach of the enterprise element. M ust an enterprise be a formal legal entity?

Or may the term also encompass looser, less formal groups? The Supreme Court

provided guidance on this question in United States v. Turkette, 452 U.S. 576

(1981). There, the Court held that “enterprises” include not just legal entities but

2
Under 18 U.S.C. § 1962(c), it is a crime “for any person employed by or
associated with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of racketeering activity
or collection of unlawful debt.”

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“any union or group of individuals associated in fact although not a legal entity,”

id. at 579 n.2 (quoting 18 U.S.C. § 1961(4)), adding that RICO enterprises

embrace any “group of persons associated together for a common purpose of

engaging in a course of conduct,” id. at 583. Such so-called association-in-fact

enterprises, the Court explained, may be “proved by evidence of an ongoing

organization, formal or informal, and by evidence that the various associates

function as a continuing unit.” Id.

It is this sort of informal, association-in-fact enterprise that M r. Hutchinson

was charged with leading at the Alpine Rose, and about which the district court

had to instruct the jury. Yet, while Turkette clarified much about the contours of

RICO’s enterprise element, it did not resolve everything. M irroring what

happened in the wake of RICO’s passage, shortly after Turkette the circuits again

promptly split. This time they debated, among other things, how much “structure”

an association-in-fact enterprise must display to distinguish it from a RICO

“pattern of racketeering,” in order to distinguish these distinct statutory elements.

Some courts, like the Third Circuit in United States v. Riccobene, 709 F.2d 214,

222 (3d Cir. 1983), required more proof of an enterprise’s structure; others, like

the Second Circuit in United States v. Boyle, 2007 W L 4102738 (2d Cir. 2007),

required less. See also Jed. S. Rakoff & Howard W . Goldstein, RICO: Civil and

Criminal Law and Strategy, at 1.05[1]-[3] (2007) (outlining circuit splits).

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 For our part, in United States v. Smith, 413 F.3d 1253 (10th Cir. 2005), we

sided with the Third Circuit and those courts requiring more rather than less

“structure.” W e held that, to distinguish the RICO enterprise element from the

statute’s pattern of racketeering activity, the government must prove: (1) the

existence of a decision-making framework or mechanism for controlling the

group, (2) that various associates functioned as a continuing unit, and (3) that the

enterprise had an existence separate and apart from the pattern of racketeering

activity. Id. at 1266-67. On appeal before us, M r. Hutchinson complains that the

district court’s jury instructions did not adequately take account of Smith. At

trial, the jury was instructed that an association-in-fact enterprise

includes a group of people associated for a common purpose of
engaging in a course of conduct over a period of time. This group of
people does not have to be a legally recognized entity such as [a]
partnership or corporation. This group may be organized for a
legitimate and lawful purpose, or it may be organized for an unlawful
purpose. This group of people must have (1) a common purpose and (2)
an ongoing organization, either form al or informal, and (3) personnel
who function as a continuing unit.

H. Vol. XXVII at 914. M r. Hutchinson complains that this instruction makes no

mention of the first or third Smith requirements— no mention of the need for a

decision-making framework or mechanism for controlling the group, and no

mention of the need for the enterprise’s existence separate and apart from the

pattern of racketeering activity.

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 W hatever we once might have said about the merits of M r. Hutchinson’s

arguments, the world now looks very different after the Supreme Court’s recent

decision in Boyle. Addressing the circuit split that arose in Turkette’s wake, the

Supreme Court in Boyle sided with the Second Circuit and against the side of the

split with which we enlisted in Smith, eschewing both requirements M r.

Hutchinson seeks to take the district court to task for failing to discuss.

First, the Supreme Court saw “no basis” in the language of the statute to

require the government to prove some decision-making framework or mechanism

for controlling the group; a RICO enterprise, the Court held, “need not have a

hierarchical structure or a ‘chain of command’; decisions may be made on an ad

hoc basis and by any number of methods— by majority vote, consensus, a show of

strength, etc.” Boyle, 129 S. Ct. at 2245. “M embers of the group need not have

fixed roles; different members may perform different roles at different times. The

group need not have a name, regular meetings, dues, [or] established rules and

regulations . . . .” Id.

Second, the Court held that, while the enterprise and pattern of racketeering

activity are “of course” separate elements under RICO, such that “proof of one

does not necessarily establish the other,” id. (quoting Turkette, 452 U.S. at 583),

at the same time “evidence used to prove the pattern of racketeering activity and

the evidence establishing an enterprise ‘may in particular cases coalesce.’” Id.

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(quoting Turkette, 452 U.S. at 583). Accordingly, “a group that does nothing but

engage in extortion through old-fashioned, unsophisticated, and brutal means may

fall squarely within the statute’s reach.” Id. at 2246. The district court in Boyle

was thus correct when it informed the jury both that it could find an enterprise

“where an association of individuals, without structural hierarchy, form[ed] solely

for the purpose of carrying out a pattern of racketeering acts,” and that

“[c]ommon sense suggests that the existence of an association-in-fact is

oftentimes more readily proven by what it does, rather than by abstract analysis of

its structure.” Id. at 2242 (alterations in original). Simply put, after Boyle, an

association-in-fact enterprise need have no formal hierarchy or means for

decision-making, and no purpose or economic significance beyond or independent

of the group’s pattern of racketeering activity. See also id. at 2244-45 (rejecting

a proposed requirement that the jury be told an enterprise’s structure must be

“ascertainable” on the ground that such an instruction is “redundant and

potentially misleading”).

In lieu of the structural requirements Smith once imposed, the Supreme

Court announced a new test for determining whether a group has sufficient

structure to qualify as an association-in-fact enterprise. Under this test, a group

must have “[1] a purpose, [2] relationships among those associated with the

enterprise, and [3] longevity sufficient to permit these associates to pursue the

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enterprise’s purpose.” Boyle, 129 S. Ct. at 2244. The Court explained the

statutorily pertinent “purpose” by reference to its decision in Turkette,

commenting that members of the group must share the “common purpose of

engaging in a course of conduct.” Id. at 2243 (quoting Turkette, 452 U.S. at 583)

(internal quotation mark omitted). As to the relevant “relationship,” the Court

explained that not only must members of the group only share a common purpose,

there also must be evidence of “interpersonal relationships” aimed at effecting

that purpose— evidence that the members of the group have “joined together” to

advance “a certain object” or “engag[e] in a course of conduct.” Id. at 2244. As

to longevity, the Court held that the group must associate on the basis of its

shared purpose for a “sufficient duration to permit an association to ‘participate’

in [the affairs of the enterprise] through ‘a pattern of racketeering activity,’” id.

(quoting 18 U.S.C. § 1962), though “nothing in RICO exempts an enterprise

whose associates engage in spurts of activity punctuated by periods of

quiescence,” id. at 2245. The Court acknowledged that its structural requirements

for an enterprise are modest, certainly far more modest than Riccobene’s or

Smith’s, but stressed that this result is compelled by the plain language of

Congress’s statute: “This enumeration of included enterprises is obviously broad,

encompassing [in RICO’s plain language terms] ‘any . . . group of individuals

associated in fact.’” Id. at 2243 (quoting 18 U.S.C. § 1961(4)) (final alteration in

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original) (emphasis in original). “The term ‘any’ ensures that the definition has a

wide reach, . . . and the very concept of an association in fact is expansive. In

addition, the RICO statute provides that its terms are to be ‘liberally construed to

effectuate its remedial purposes.’” Id. (quoting Pub. L. No. 91-452 § 904(a), 84

Stat. 947).

Boyle’s test now governs the disposition of this and future RICO cases in

our circuit, and whether or not they might have satisfied Smith, we have no doubt

that the district court’s jury instructions satisfy Boyle. The district court obliged

the government to show that the members of the alleged enterprise shared a

common purpose, that they interacted or associated in some way to advance this

shared purpose, and that the members of the enterprise so functioned long enough

to complete a pattern of racketeering activity. After Boyle, no more is required to

show that an enterprise has the requisite structure. Neither was any special

formulaic instruction or particular incantation required to convey Boyle’s test; the

Court has stressed that it isn’t concerned with the specific wording of a district

court’s instructions so long as they “adequately t[ell]” the jury what it needs to

find. Id. at 2247; see also Williams, 497 F.3d at 1093-94 (allowing the district

court significant leeway in the specific words of its instructions). The Court

approved the district court’s instructions in Boyle, which informed the jury that it

had to find “an ongoing organization with some sort of framework, formal or

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informal, for carrying out its objectives” in which “various members and

associates of the association function[ed] as a continuing unit to achieve a

common purpose.” Boyle, 129 S. Ct. at 2247 (alteration in original). The nearly

identical instructions in our case surely can be no less acceptable.

B

M r. Hutchinson’s second argument for reversal can be more succinctly

stated and is more availing. He says that his convictions for both drug conspiracy

under 21 U.S.C. § 846, and for participating in a continuing criminal enterprise

under 21 U.S.C. § 848, violate the Double Jeopardy Clause of the Fifth

Amendment because the § 846 conspiracy charge is a lesser included offense of

the § 848 CCE charge. The government concedes this is the case, as indeed it

must in light of our holding to just this effect in United States v. Atencio, 435

F.3d 1222, 1235 (10th Cir. 2006) (citing Rutledge v. United States, 517 U.S. 292,

300 (1996)). Necessarily, then, we remand this matter to the district court with

instructions to vacate M r. Hutchinson’s conviction on either the drug conspiracy

charge or the CCE charge.

III

From M r. Hutchinson we turn to M r. Thompson. M r. Thompson first

contends that the district court erred by denying his motion to suppress certain

evidence seized from his house during his arrest. Second, he argues that the

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district court abused its discretion in denying his motion for substitution of

counsel. Third, he submits that the district court erred in refusing to grant his

severance motion. Fourth and finally, he claims that his trial counsel was

ineffective. W e find none of these challenges persuasive. Yet, as with M r.

Hutchinson, M r. Thompson’s convictions for CCE and conspiracy cannot both

stand, and so we remand M r. Thompson’s case to the district court to vacate one

of them.

A

In assessing M r. Thompson’s appeal from the district court’s denial of his

suppression motion, we review de novo the legal question whether the arresting

officers’ conduct comported with the Fourth Amendment, but in doing so we

accept the district court’s factual findings unless clearly erroneous and must view

the evidence in the light most favorable to the prevailing party in the district

court— here, the government. See United States v. Cheromiah, 455 F.3d 1216,

1220 (10th Cir. 2006).

Before us, M r. Thompson contends that the officers who arrested him in his

home had no business entering the dwelling. Because they did so anyway, he

says, the evidence the officers found in his clothing at the time of the arrest

(drugs and a gun) should have been suppressed by the district court. W e cannot

agree. The officers in this case had a valid warrant for M r. Thompson’s arrest.

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Heeding the common law maxim that a “man’s house is his castle,” in Payton v.

New York the Supreme Court has held that law enforcement officers may enter a

home to execute an arrest warrant only when the officers have a reasonable belief

that (1) the arrestee lives in the residence and (2) the arrestee is in the residence

at the time of entry. 445 U.S. 573, 596-97, 602-03 (1980); Valdez v. M cPheters,

172 F.3d 1220, 1225 (10th Cir. 1999). The district court rightly acknowledged

this standard and correctly held that both of these requirements were met in this

case.

First, the officers had a reasonable belief that M r. Thompson lived in the

house in question. After several lower-level associates at the Alpine Rose were

arrested, a former Alpine Rose resident and associate of M r. Thompson’s, Lori

Chavez, told police officers she knew where M r. Thompson was living. M s.

Chavez then accompanied officers to a neighborhood in suburban Denver and

pointed to the house where, she said, M r. Thompson lived. Uniformed officers

approached the front door and knocked. A fifteen-year-old girl answered and,

when asked if M r. Thompson lived in the house, she confirmed that he did,

adding that he happened at the moment to be just down the hall in his bedroom.

Previously, we have held that an officer can reasonably rely on an informant who

personally accompanies the officer to the arrestee’s residence, points at it, and

affirms that the arrestee resides there. United States v. Gay, 240 F.3d 1222, 1227

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(10th Cir. 2001). Here, we have all that and more, with the person answering the

door confirming the informant’s account.

Second, officers also had reason to believe M r. Thompson was in the house

at the time of the arrest. In Gay, we found that officers could reasonably believe

that the target of an arrest warrant was at the home after an informant, in a face-

to-face encounter, told the officers the suspect was home and accompanied the

officers to the house. Id. at 1227-28. Here, again, we have more. The person

who answered the door not only acknowledged that M r. Thompson was in the

house, she told the officers the precise room in which M r. Thompson could then

be found. M r. Thompson contends that the officers should not have credited this

assertion because the person who answered the door was a teenager. A maligned

lot though teenagers sometimes are, we have no precedent indicating that they are

categorically unreliable when answering the door, and we are given no reason to

think a fifteen-year old’s statement at the door that a person is at home and in a

particular room is, by dint only of the utterer’s age, inherently fantastical.

Because M r. Thompson has only challenged the officers’ authority to enter

the home, and not the officers’ subsequent search of his clothing once they

entered the home, our analysis of his motion to suppress necessarily ends here;

having correctly found both Payton factors present, the district court was right to

deny the motion.

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 B

M r. Thompson next challenges the district court’s denial of his pre-trial

motion to substitute counsel, as well as his later renewal of that motion. To

warrant a substitution of counsel, a defendant must present the district court with

“good cause, such as a conflict of interest, a complete breakdown of

communication or an irreconcilable conflict which leads to an apparently unjust

verdict.” United States v. Beers, 189 F.3d 1297, 1302 (10th Cir. 1999); see also

United States v. Lott (Lott II), 433 F.3d 718, 725 (10th Cir. 2006). M r. Thompson

argued to the district court and now argues to us that he can meet this standard

because, in his case, there was a complete breakdown in communication between

himself and his attorney.

Our review of the district court’s disposition of motions for substitution is

confined to asking whether the court abused its discretion. Lott II, 433 F.3d at

725. By definition, questions committed to a district court’s discretion call on

the district court to exercise some degree of judgment and “render a decision

based upon what is fair in the circumstances and guided by the rules and

principles of law.” Shook v. Bd. of County Comm’rs, 543 F.3d 597, 603 (10th

Cir. 2008) (citation and alteration omitted). Such decisions often involve

consideration of “incommensurate and disparate considerations,” United States v.

M cComb, 519 F.3d 1049, 1053 (10th Cir. 2007), so “there will not necessarily be

- 23 -
a single right answer, but a range of possible outcomes the facts and law at issue

can fairly support,” Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t,

533 F.3d 1183, 1186 (10th Cir. 2008). In light of the fact that there may be more

than one reasonable resolution to a matter committed to the district court’s

discretion, appellate judges do not simply substitute our judgment for the district

judge’s but ask instead whether the district court’s chosen course qualifies as one

of those “rationally available choices given the facts and the applicable law in the

case at hand.” Shook, 543 F.3d at 603. It is only when the district court’s

decision is legally erroneous, or when the facts are so lopsided against the option

the district court has chosen (even when abiding the rule a district court’s factual

findings may be reversed only when clearly erroneous), that we reverse. See

M cComb, 519 F.3d at 1054 (“[W ]e will not hesitate to [reverse] where a decision

is either based on a clearly erroneous finding of fact or an erroneous conclusion

of law or manifests a clear error of judgment.”) (citations and quotation marks

omitted); see also id. at 1054 n.4.

W e see in this case no such abuse of the discretionary judgment entrusted

to the district court. The district court responded to M r. Thompson’s initial

motion by holding an ex parte hearing, a sometimes helpful if not always

necessary step, and one that certainly suggests a degree of care. Cf. United

States v. Lott (Lott I), 310 F.3d 1231, 1249 & n.15 (10th Cir. 2002). The sparse

- 24 -
evidence developed at that hearing and later proceedings and ultimately provided

in the record on appeal to us can be rationally read as supporting the view that,

while M r. Thompson and his counsel disagreed about strategy, they were still

capable of communicating. Indeed, M r. Thompson’s first motion itself attests to

several ongoing visits with his attorney. Under our binding case law, “strategic

disagreement[s],” while no doubt unhelpful to a productive working relationship,

are “not sufficient to show a complete breakdown in communication.” Lott II,

433 F.3d at 725 (quoting Lott I, 310 F.3d at 1249). Rather, “to prove a total

breakdown in communication,” under our precedent, “a defendant must put forth

evidence of a severe and pervasive conflict with his attorney or evidence that he

had such minimal contact with the attorney that meaningful communication was

not possible.” Lott I, 310 F.3d at 1249. And it is of course the defendant’s

burden to meet this high standard. W ithout any evidence precluding the

possibility of mere strategic disagreement or suggesting such a “total breakdown

in communication,” we cannot say the district court abused its discretion in

denying M r. Thompson’s motions.

C

M r. Thompson argues that the district court also erred when it denied his

motion for severance. In that motion, M r. Thompson asked (1) to be tried without

any codefendants on his RICO charge pursuant to Federal Rule of Criminal

- 25 -
Procedure 14 because he would be prejudiced by a joint trial; and (2) to receive a

separate trial, pursuant to Federal Rule of Criminal Procedure 8(a), for counts

arising from conduct after he left the Alpine Rose. The district court denied both

requests and held a trial in which M r. Thompson was tried alongside M r. Gladney

and M r. M ontoya. Before us, M r. Thompson renews his two arguments for

severance.

W e address first M r. Thompson’s Rule 14 claim. To win such a motion in

the district court, M r. Thompson was obliged to show, among other things, that

the denial of severance would result in “actual prejudice” to his defense, United

States v. Eads, 191 F.3d 1206, 1209 (10th Cir. 1999), and that this prejudice

would “outweigh” the expense and inconvenience of separate trials, United States

v. M artin, 18 F.3d 1515, 1518 (10th Cir. 1994). The district court’s ultimate

decision taking into account such disparate and incommensurable concerns is

reviewed on appeal for the sort of abuse of discretion we have previously

described. See Part III.B, supra; United States v. Olsen, 519 F.3d 1096, 1102-03

(10th Cir. 2008).

Such an abuse M r. Thompson cannot show. He suggests that, because he

was alleged to be the leader of the racketeering organization, the jury might have

improperly held the alleged bad acts of his subordinates against him. He places

special emphasis on the fact that M r. Gladney was accused of murdering M arlo

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Johnson, and argues that the jury might have convicted M r. Thompson because it

believed he was responsible for the acts of his “underling.” But the jury acquitted

M r. Thompson of one charge of distribution in this case, dispelling the notion that

it was inclined to convict M r. Thompson based solely on his associations rather

than on the evidence. As to the counts on which M r. Thompson was convicted,

moreover, the evidence was overwhelming, again casting doubt on any suggestion

that the jury improperly imputed M r. Gladney’s murder to him. See United States

v. Hardwell, 80 F.3d 1471, 1487 (10th Cir. 1996) (reasoning that strong evidence

against one codefendant negated the claim that he was convicted only because of

guilt-by-association).

Even if we assume (without granting) that the joint trial created a

significant risk of prejudice, the Supreme Court has recognized that, like the

decision to sever itself, “tailoring of the relief to be granted, if any, [is left] to the

district court’s sound discretion.” Zafiro v. United States, 506 U.S. 534, 539

(1993). Furthermore, limiting instructions are “ordinarily sufficient to cure

potential prejudice.” Hardwell, 80 F.3d at 1487. The jury instructions in this

case did just that. M r. Thompson’s jury was specifically instructed which

defendants were charged with which predicate act of the racketeering charges

against them. Jurors were further instructed that the murder was a predicate

racketeering act only for M r. Gladney. They then were instructed that, while M r.

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Gladney was charged with seven racketeering acts, M r. Thompson was charged

with four. And then the court reminded the jury that

[y]ou must consider whether the G overnment has proven the guilt of
each defendant independently with regard to the specific charges
brought against that defendant. You will return a separate verdict on
the charges against each defendant. You must consider the evidence
separately as to each charge against each defendant. Your verdict as to
one defendant should not influence your verdict as to any other.

T. Vol. XXIII at 1220-21.

That these considered and considerable instructions were sufficient to cure

prejudice (if any there was) is confirmed by the fact that they are analogous

to— and probably stronger than— those the Supreme Court found sufficient in

Zafiro. In Zafiro, two defendants with mutually antagonistic defenses sought

severance arguing, among other things, that the jury would believe one defense

and reject the other and thus find at least one of them guilty without regard to

whether the government proved its case beyond a reasonable doubt. 506 U.S. at

540. The Supreme Court held severance was not required because the following

instruction cured any possibility of prejudice: “[G]ive separate consideration to

each individual defendant and to each separate charge against him. Each

defendant is entitled to have his or her case determined from his or her own

conduct and from evidence [that] may be applicable to him or her.” Zafiro, 506

U.S. at 541 (alteration in original). W e cannot see any basis for thinking M r.

Thompson was under any greater risk of prejudice than the defendants in Zafiro;

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if the instructions in that case were sufficient to cure any possibility of prejudice,

the same, ineluctably, must hold true of the even more detailed instructions

offered here.

This leaves us with M r. Thompson’s Rule 8 argument that he should have

received a separate trial for offenses arising after he left the Alpine Rose because

they bore no relationship to the crimes he committed while at the motel. Unlike

the largely discretionary Rule 14 question whether to sever or join defendants, the

question whether to sever or join criminal counts turns on the purely legal

question whether the charged offenses are of the “same or similar character, or

are based on the same act or transaction, or are connected with or constitute parts

of a common scheme or plan.” Fed. R. Crim. P. 8. Accordingly our review here

is de novo, see United States v. Johnson, 130 F.3d 1420, 1427 (10th Cir. 1997),

though we are mindful to “construe Rule 8 broadly to allow liberal joinder to

enhance the efficiency of the judicial system,” id.

Our review of the offenses charged yields the same conclusion as the

district court’s did. The charges concerning M r. Thompson after he left the

Alpine Rose alleged that his drug business trotted along much as it had before.

He still supplied drugs for the operation. M r. Hutchinson still served as the

primary dealer. Other dealers remained largely the same. M r. Thompson even

bailed some of the Alpine Rose participants out of jail. Only the operation’s

- 29 -
central headquarters seems to have changed. In light of all this, we can see no

basis for disagreeing with the district court’s legal conclusion that the offenses

before and after the Alpine Rose were, in Rule 8’s vernacular, “connected with or

constituted parts of a common scheme or plan.”

D

Finally, as it did with respect to M r. Hutchinson, see supra Part II.B, the

government has conceded that a double jeopardy problem lurks in M r.

Thompson’s case because he was convicted both for drug conspiracy under 21

U.S.C. § 846 and for participating in a continuing criminal enterprise under 21

U.S.C. § 848. Answer Br. at 4 n.2. As we did in M r. Hutchinson’s case, we

remand the matter to the district court with instructions to vacate either M r.

Thompson’s conviction on the drug conspiracy charge or the CCE charge. 3

IV

3
M r. Thompson also argues before us that his trial counsel was
ineffective. In United States v. Galloway, however, we stated that ineffective
assistance claims brought on direct appeal are “presumptively dismissible, and
virtually all will be dismissed.” 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).
W hile Galloway recognized that there may be the “rare instance[]” in which an
ineffectiveness claim “may need no further development prior to review on direct
appeal,” id., this is not such a case. M r. Thompson’s ineffectiveness claim
depends upon his assertion that he did not consent to the strategy his counsel
pursued – a fact we are not well equipped to determine without the type of
evidentiary record that can be developed on collateral review.

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 At the conclusion of his retrial, M r. M ontoya was convicted and sentenced

for two counts of possession with intent to distribute crack cocaine in violation of

21 U.S.C. § 841 and one count of conspiracy to distribute drugs in violation of 21

U.S.C. § 846. M r. M ontoya’s complaints about his retrial boil down to this: it

should never have happened; it should have happened sooner; or at the very least

it should not have included M r. Thompson and M r. Gladney. M r. M ontoya also

brings several challenges to his sentencing. W e are, however, unable to agree

that any of these various arguments warrants reversal.

A

M r. M ontoya contends that the Double Jeopardy Clause barred his retrial

for conspiracy after the jury was unable to reach a verdict in his initial trial. M r.

M ontoya recognizes that a hung jury “is not an event which terminates jeopardy.”

Richardson v. United States, 468 U.S. 317, 325 (1984); cf. United States v. Farr,

536 F.3d 1174, 1186-87 (10th Cir. 2008). Still, M r. M ontoya suggests, double

jeopardy concerns are specially implicated in his case because he had a pending

motion for acquittal based on the prosecutor’s alleged misconduct during closing

argument. Thus, his argument appears to be that, but for the hung jury, the

district court would have had to grant his motion for acquittal.

W hatever else one might say about this argument, its final premise is

surely flawed. Even if the prosecutorial misconduct he alleges might have

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compelled the district court to grant a motion for mistrial, double jeopardy still

would not have prevented his retrial unless the government intended to provoke a

mistrial through its misconduct. Oregon v. Kennedy, 456 U.S. 667 (1982).

“Prosecutorial conduct that might be viewed as harassment or overreaching, even

if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial

absent intent on the part of the prosecutor to subvert the protections afforded by

the Double Jeopardy Clause.” Id. at 675-76. Yet, M r. M ontoya in no way

suggests that the prosecutor’s allegedly improper remarks in his case were

“intended to ‘goad’ [him] into moving for a mistrial,” id. at 676, or otherwise

secure a mistrial. To the contrary, M r. M ontoya argues, and from our review of

the record we agree, the prosecutor uttered the challenged remarks in a fit of zeal

aimed at securing a conviction, not a do-over. W ithout even an allegation (to say

nothing of evidence) that the prosecutor intended to provoke a mistrial, M r.

M ontoya cannot establish a double jeopardy bar to his retrial based on

prosecutorial misconduct.

B

M r. M ontoya next argues that his retrial was untimely under the Speedy

Trial Act. W e review the district court’s compliance with the Act’s legal

requirements de novo. United States v. Apperson, 441 F.3d 1162, 1177 (10th Cir.

2006). Those requirements provide, among other things, that when a defendant is

- 32 -
to be retried following a mistrial, the new trial “shall commence within seventy

days from the date the action occasioning the retrial becomes final.” 18 U.S.C.

§ 3161(e). M r. M ontoya disputes whether this requirement was satisfied in his

case.

It was. M r. M ontoya emphasizes that his trial took place more than 70 days

after the jury in his first case hung and the court declared a mistrial. But the

statute’s plain language does not guarantee a new trial within 70 days of a mistrial

being declared. Instead, it provides for a new trial within 70 days “from the date

the action occasioning the retrial becomes final.” M r. M ontoya urges that the

declaration of a mistrial normally constitutes the final action occasioning a retrial,

pointing to our decision in United States v. Doran, 882 F.2d 1511, 1514 (10th Cir.

1989), where the parties and court proceeded on such an assumption, albeit

without contesting the issue. Cf. Brecht v. Abrahamson, 507 U.S. 619, 631

(1993) (holding that, when a court assumes a legal conclusion without squarely

addressing the question, its assumption bears no stare decisis effect). Even if that

assumption is sometimes correct, however, it is not always and inevitably so. As

our sister circuits have recognized, when a pending appeal may preclude the

necessity of a retrial, it must be resolved before the statutory clock can start

ticking. See, e.g., United States v. Kington, 875 F.2d 1091, 1109 (5th Cir. 1989).

Of course, there was no appeal in this case. But at the time of the mistrial

- 33 -
declaration, the court did have under advisement a motion filed by M r. M ontoya

seeking a mistrial on the drug distribution counts for which the jury returned

guilty verdicts. In a supplemental brief in support of that motion, M r. M ontoya

argued that a retrial on any count, including the conspiracy count on which the

jury hung, would violate double jeopardy. Because the district court had M r.

M ontoya’s motion for a mistrial on the distribution counts under advisement at

the time of the mistrial declaration, and because he sought in that motion to

preclude the government from retrying him for conspiracy, the mistrial

declaration in this case was hardly, in the words of the Act, the final action

“occasioning the retrial.” Until the district court ruled on M r. M ontoya’s double

jeopardy argument against any retrial, it was not clear whether a retrial was

necessary. So even though M r. M ontoya’s motion was ultimately rejected, until it

was rejected the necessity of any retrial had not “become[] final.” Cf. United

States v. Rivera, 844 F.2d 916, 919 (2d Cir. 1988) (finding time required to

resolve a double jeopardy motion filed after a mistrial declaration to be

excludable delay).

Having said this much, the question still remains whether the qualifying

final action came when the district court denied the motion for a mistrial and

found no double jeopardy problem with retrial, or when it entered an order setting

the new trial. But this we need not resolve. Either way, M r. M ontoya’s retrial

- 34 -
took place in a timely fashion. W orking from the earliest possible date, the day

the district court disposed of M r. M ontoya’s motion for acquittal, the 70 day

clock began ticking on October 11, 2006. One day elapsed until M r. M ontoya

filed a motion to extend his time for an interlocutory appeal on October 12, 2006.

M . Vol. III doc. 935. After a seven-day period of excludable delay, see 18 U.S.C.

3161(h)(1)(H), the district court granted the motion on October 19, 2006. M . Vol.

III doc. 943. Thirty-four days then elapsed until November 22, 2006, when the

first of several pretrial motions was filed, triggering the excludable delay

provisions of 18 U.S.C. § 3161(h)(1)(D). See M . Vol. III doc. 967 (government’s

motion to reset the trial); see also id. doc. 970 (Nov. 27, 2006) (M r. M ontoya’s

motion to dismiss conspiracy charge under the Speedy Trial Act); id. doc. 990

(Dec. 11, 2006) (M r. M ontoya’s motion for severance from codefendants); id.

doc. 1067 (Jan. 5, 2007) (M r. M ontoya’s second motion to dismiss under the

Speedy Trial Act). The district court resolved all of these motions in a single

order on January 11, 2007. Id. doc. 1081. As of that date, then, thirty-five

nonexcludable days had elapsed since October 11, and another thirty-five days

remained on the clock. Barring any further excludable delay, M r. M ontoya’s trial

therefore had to begin on or before February 15, 2007. The retrial began on

February 7, with eight days to spare.

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 C

Even if his second trial was timely, M r. M ontoya argues that the district

court should not have retried him with M r. Thompson and M r. Gladney. Here,

M r. M ontoya claims that the district court should have severed his trial under

Federal Rule of Criminal Procedure 14 because of the risk from trial alongside

defendants who faced more serious charges. W e apply the same abuse of

discretion standard of review to M r. M ontoya’s challenge as we did to M r.

Thompson’s Rule 14 severance argument, see Part III.C, supra, and, in doing so,

find no such abuse.

Before the district court, M r. M ontoya asserted that trying him alongside

M r. Thompson and M r. Gladney, men charged with more serious crimes, created a

risk that the jury might convict him merely because of his association with

them— and that this risk “outweighed” the burdens associated with holding an

additional trial. At first, the district court seemed to agree, granting M r. M ontoya

a separate trial. But after the jury at M r. M ontoya’s trial hung, the district court

decided to rejoin his case with M r. Thompson’s and M r. Gladney’s rather than

hold yet another Alpine Rose trial. In doing so, the district court cited the burden

of holding another— fifth, in all— trial in this matter and noted that “[t]he sole

remaining charge against M r. M ontoya, the conspiracy charge in Count 3, [was]

the same as that asserted against M r. Thompson and M r. Gladney.” M . Vol. III at

- 36 -
1081. Thus, as the district court now viewed the case, it was “one where an

allegedly low-level member of a conspiracy is to be tried on a single conspiracy

count along with allegedly high-level members of the same conspiracy who are

also charged with [other offenses].” Id. The district court acknowledged that

evidence against M r. Thompson and M r. Gladney had the potential to “spill over

into a jury’s determination of the conspiracy charge against M r. M ontoya,” but

the court thought the difference in culpability between M r. M ontoya and his

codefendants might actually benefit M r. M ontoya by reinforcing his argument that

he was just an “errand boy,” not a conspirator. Id. at 13 & n.9. The court added

that it believed the effect of any such prejudice could be addressed through

appropriate jury instructions. Id. at 13 & n.10. After weighing any potential

prejudice against the expense and inconvenience of another separate trial for M r.

M ontoya, the district court concluded severance was not essential.

In this appeal, M r. M ontoya argues that the district court was right the first

time and was, a fortiori, wrong the second time. But this argument misconceives

the nature of abuse of discretion review. As we emphasized in explaining the

abuse of discretion standard in Part III.B, supra, when a question is committed to

the district court’s discretion, it is possible that there is no single right answer

that the district court must reach to be affirmed. Rather, as the Seventh Circuit

has explained, when a matter is entrusted to the district court’s discretion:

- 37 -
 [I]t is possible for two judges, confronted with the identical record, to
come to opposite conclusions and for the appellate court to affirm both.
That possibility is implicit in the concept of a discretionary judgment.
If the judge could decide only one way he would not be able lawfully
to exercise discretion; either he would be following a rule, or the
circumstances would be so one-sided that deciding the other way would
be an abuse of discretion. If the judge can decide either way because
he is within the zone in which he has discretion . . . this implies that
two judges faced with the identical record could come to opposite
conclusions yet both be affirmed.

United States v. Williams, 81 F.3d 1434, 1437 (7th Cir. 1996) (emphasis in

original) (citation omitted). W e must therefore resist M r. M ontoya’s invitation to

weigh the relative merits of the district court’s two conflicting judgments on

severance; instead, we may consider only whether the decision before us, to

permit rejoinder, was a “rationally available choice[] given the facts and the

applicable law in the case at hand.” Big Sky Network Canada, 533 F.3d at 1186.

W e believe it was. It is true that M r. M ontoya’s alleged culpability was far

less than that of his codefendants, and that much of the RICO evidence against

M r. Thompson and M r. Gladney would not otherwise have been admissible at his

trial. And it is true that the Supreme Court in Zafiro recognized that evidence

admissible only against some codefendants can create the risk of an unfair trial

for the other codefendants, particularly in complex cases where defendants have

markedly different degrees of culpability. 506 U.S. at 539. But it is also true that

Zafiro recognized such prejudice usually can be cured by limiting instructions to

the jury. Id. And here, again, the district court offered extensive limiting

- 38 -
instructions that, if anything, exceeded those employed and approved in Zafiro.

See Part III.C, supra (recounting instructions). W e, too, have previously found

instructions analogous to those employed by the district court sufficient in cases,

much like M r. M ontoya’s, involving multiple defendants with significantly more

and less criminal exposure. See, e.g., United States v. Thompson, 518 F.3d 832,

862-63 (10th Cir. 2008); Hardwell, 80 F.3d at 1487; United States v. Emmons, 24

F.3d 1210, 1219 (10th Cir. 1994). Seeing no credible way to distinguish Zafiro or

our own precedents, we cannot help but conclude that the limiting instructions

cured any possibility of prejudice and thus that the court acted within its

discretion in denying M r. M ontoya’s motion for severance.

D

M r. M ontoya raises several challenges to his sentence. W e review

sentences imposed by the district court for “reasonableness.” See Gall v. United

States, 552 U.S. 38 (2007); Rita v. United States, 551 U.S. 338 (2007); United

States v. Todd, 515 F.3d 1128, 1134 (10th Cir. 2008). Our review “includes both

a procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).

All of M r. M ontoya’s challenges involve alleged procedural defects in his

- 39 -
sentence. Ultimately, we agree with one of M r. M ontoya’s sentencing challenges,

return the second to the district court for its consideration, and reject the rest.

First, M r. M ontoya argues that the district court erred when it concluded

that it was bound by a twenty-year statutory minimum on his § 841 convictions

for possession with intent to distribute. W e agree with M r. M ontoya that this was

error. W hile the government did file an information pursuant to 21 U.S.C.

§ 851(a) to establish M r. M ontoya’s prior felony drug conviction, and while his

prior conviction increased the applicable statutory maximum sentence, see 21

U.S.C. §841(b)(1)(C), his possession with intent to distribute convictions carry no

statutory minimum, id. The district court’s conclusion that a twenty-year

statutory minimum applied to these convictions was therefore wrong. Neither can

we say confidently that this error was harmless: the district court seemed to

indicate that it would have imposed a much lower sentence on the possession with

intent to distribute convictions but for the fact that it believed it was bound by a

statutory minimum sentencing requirement. Accordingly, we reverse M r.

M ontoya’s sentence on his two possession with intent to distribute counts and

remand with instructions for the district court to reconsider his sentence.

Second, M r. M ontoya argues that the district court committed further

procedural error on his § 841 convictions when it refused to deviate from the

Sentencing Guidelines’ treatment of cocaine base relative to cocaine powder. The

- 40 -
district court ruled that under then-operative Tenth Circuit law, it was “restricted

to the calculation in the guidelines and [was] not free to impose its own view of

what proportionality should be applied to correlations between cocaine powder

and cocaine base.” Id. at 21. After the district court’s ruling, however, the

Supreme Court held in Kimbrough v. United States, 552 U.S. 85 (2007), that a

district court is not bound by the Guidelines’ crack/powder distinctions when they

produce a sentence that is “greater than necessary” to achieve the purposes set out

in 18 U.S.C. § 3553(a), id. at 564. So while the district court was correct to say

that it could not consider M r. M ontoya’s argument under our then-governing

precedents, Kimbrough has since freed it to do so. Of course, the district court is

under no obligation to adopt M r. M ontoya’s argument, but it must entertain it if

his sentence is to qualify as procedurally reasonable today. W e also note that, in

calculating the advisory Guidelines sentence for M r. M ontoya’s § 841

convictions, the district court should use the now-operative version of § 2D1.1 of

the Sentencing Guidelines. See United States v. Regalado, 518 F.3d 143, 150-51

(2d Cir. 2008) (directing district court to consider amended Sentencing Guidelines

when resentencing defendant on remand).

Third and finally, M r. M ontoya claims he was entitled to a two-level

acceptance-of-responsibility reduction in the calculation of his advisory

Guidelines sentence on the two § 841 counts. See U.S.S.G. § 3E1.1(a). M r.

- 41 -
M ontoya claims his acceptance of responsibility was established when his lawyer,

in his opening statement at M r. M ontoya’s first trial, admitted his client’s guilt

with respect to the possession counts with which he was charged and ultimately

convicted. The district judge refused to award the two-level sentencing reduction,

explaining that this was not an actual acceptance of responsibility but rather a

“strategic decision by the defense” aimed to preserve a chance of acquittal. M .

Vol. XXXIV at 21.

W e review a district court’s determination not to allow a reduction for

acceptance of responsibility for clear error, United States v. M cAlpine, 32 F.3d

484, 489 (10th Cir. 1994), and discern none here. W e have held that “[w]hen a

defendant is convicted at trial, a sentencing court’s determination that he has

accepted responsibility is based primarily on pre-trial statements and conduct.”

United States v. Eaton, 260 F.3d 1232, 1237 (10th Cir. 2001) (emphasis added);

see also U.S.S.G. § 3E1.1 cmt. 2 (“This adjustment is not intended to apply to a

defendant who puts the government to its burden of proof at trial . . . .”). In

Eaton, the district court refused to award the defendant an acceptance-of-

responsibility reduction even though the defendant had testified to his factual

guilt at trial. W e affirmed, explaining that the defendant’s mid-trial mea culpa

was insufficient to establish the reduction and that there were no pretrial

statements or conduct by the defendant to support the acceptance of responsibility

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determination. Eaton, 260 F.3d at 1237. This case is no different: the only basis

M r. M ontoya offers for the reduction is his attorney’s statement at trial, and we

have held that an admission of guilt at trial does not suffice. 4

V

M r. Gladney challenges his RICO and drug conspiracy convictions, arguing

that there was insufficient evidence for the jury to convict him on either score. In

reviewing sufficiency challenges, we ask whether, viewing the evidence in the

light most favorable to the government as the prevailing party, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt. United States v. Rakes, 510 F.3d 1280, 1284 (10th Cir. 2007). In so

doing, we do not weigh evidence or credibility; we ask instead only whether the

4
M r. M ontoya raises two additional challenges to his sentence that do not
require significant discussion. Though he acknowledges that the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), permits the
fact of a prior conviction to be established by information instead of by proof to a
jury, id. at 226-27, he notes “for the record” his objection to this practice in the
event the Supreme Court someday overrules Almendarez-Torres. Additionally, he
claims that 21 U.S.C. § 851(a), the statute that allows the prosecutor to establish a
prior conviction by information, violates the constitutional doctrine prohibiting
the delegation of legislative power because it does not prescribe an “intelligible
principle” for the executive to follow in deciding whether to seek a sentencing
enhancement on this basis. But allowing prosecutors discretion to seek (or not
seek) sentencing enhancements involves no delegation of legislative power: such
a decision is an exercise of the prerogative power committed to the executive
department, see Greenlaw v. United States, 128 S. Ct. 2559, 2565 (2008); United
States v. Nixon, 418 U.S. 683, 693 (1974), and is no different than the discretion
possessed by prosecutors to bring (or not bring) criminal charges in the first
instance.

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government’s evidence, credited as true, suffices to establish the elements of the

crime. Id. W hile this standard of review is deferential, it is not decrepit. W e

will not, for example, uphold a conviction “obtained by piling inference upon

inference, and the evidence supporting a conviction must do more than raise a

mere suspicion of guilt.” Id.

A

M r. Gladney’s first sufficiency challenge is to his RICO conviction. Before

us, M r. Gladney argues that the evidence at his trial showed he and others were

merely independent operators who just happened all to live and sell drugs at the

Alpine Rose. He disputes the existence of evidence sufficient to show either (1)

that there was a bona fide “enterprise” at the Alpine Rose, or (2) that he

participated in that “enterprise.” There was, however, ample evidence of both.

W e have already outlined what is required to show a group has sufficient

structure to warrant RICO’s “enterprise” appellation – purpose, interpersonal

relationships, and longevity. See Part II.A, supra. As the facts we recited at the

outset of our opinion, see Part I, supra, illustrate, each of these elements was

alive and well at the Alpine Rose. W ithout repeating all those facts here, it

suffices to recall that the participants in the drug trade at the Alpine Rose did not

view each other as competitors but instead worked together to sell drugs and

make money; that they worked toward this common aim by each performing their

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designated job responsibilities at the direction of M r. Thompson and M r.

Hutchinson; that the residents also worked together to avoid police detection

through the use of numerous surveillance devices; that the residents often

gathered together for meetings where they discussed aspects of the drug-dealing

business and for celebrations on special occasions; and that all of this lasted

sufficiently long for the Alpine Rose to become so well-known as a crack market

that over 100 customers stopped there daily to buy drugs. From this alone, it is

obvious that the motel’s residents joined together with the common purpose of

collectively selling drugs and making money, that the residents developed many

interpersonal relationships integral to carrying out this goal, and that this

persisted for enough time for the participants to engage in a pattern of

racketeering activity. After Boyle, this is more than enough to qualify as an

enterprise.

There was likewise ample proof from which the jury could conclude that

M r. Gladney participated in the enterprise. In Reves v. Ernst & Young, 507 U.S.

170 (1993), the Supreme Court held that, to establish that the defendant

“conduct[ed] or participate[d], directly or indirectly, in the conduct of such

enterprise’s affairs,” as § 1962(c) requires, the government must show that he or

she “participated in the operation or management of the enterprise.” Id. at 179.

This language, read in isolation, could plausibly be understood to narrow the class

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of individuals who can be convicted under § 1962(c) to the bosses of the

enterprise. Yet, the Supreme Court has explained that, to participate in the

operation or management of an enterprise, the defendant must only have “some

part in directing the enterprise’s affairs.” Id. at 179 (emphasis in original). The

Court has stressed, too, that “[a]n enterprise is ‘operated’ not just by upper

management but also by lower rung participants in the enterprise who are under

the direction of upper management.” Id. at 184.

As with many other of RICO’s requirements, various of our sister circuits

have, arguably at least, come to slightly different conclusions on how best to read

Reves. In United States v. Oreto, 37 F.3d 739, 750 (1st Cir. 1994), for example,

the First Circuit suggested that individuals inside an enterprise who “knowingly

implement[] decisions” made by upper management may be held liable. See also

United States v. Fowler, 535 F.3d 408, 419 (6th Cir. 2008); M CM Partners, Inc.

v. Andrews-Bartlett & Assocs., Inc., 62 F.3d 967, 978 (7th Cir. 1995); United

States v. Starrett, 55 F.3d 1525, 1548 (11th Cir. 1995). The Second Circuit,

meanwhile, has suggested that more may be required, holding that a defendant did

not “conduct or participate . . . in the conduct” of an enterprise’s affairs even

though he transported stolen goods at the direction of the enterprise’s kingpin.

United States v. Viola, 35 F.3d 37, 41-43 (2d Cir. 1994), abrogated on other

grounds by Salinas v. United States, 522 U.S. 52 (1997). As the Second Circuit

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later explained its test, while a defendant need not “act[] in a managerial role” to

conduct or participate in the conduct of an enterprise, he or she must at least

“exercise[] broad discretion in carrying out the instructions of his principal.”

United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999) (internal quotation marks

omitted).

Happily, we have no need today to weigh into the debate over what it takes

to “participate” in the conduct of an enterprise. Even under the strictest

formulation apparently available, the Second Circuit’s requirement that the

defendant both carries out the decisions of the enterprise bosses and has “broad

discretion when doing so,” there was sufficient evidence for the jury to find that

M r. Gladney participated in the conduct of the Alpine Rose enterprise.

A jury could rationally conclude, for example, that M r. Gladney was

working under the direction of M r. Thompson and M r. Hutchinson, in part

because it seems utterly doubtful that M r. Thompson and M r. Hutchinson would

have allowed M r. Gladney to stay at the Alpine Rose if he was working

independently. As noted in Part I, supra, M r. Thompson and M r. Hutchinson

regularly ordered residents out of the Alpine Rose if they did not want them

around. Rival drug dealers especially were not tolerated and they were often

violently attacked. Yet, despite a policy against competitors that would make

even the most brazen monopolist blush, M r. Thompson and M r. Hutchinson

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allowed M r. Gladney to live at the motel and sell drugs out of his room. Had M r.

Gladney not been working for the enterprise under the direction of M r. Thompson

and M r. Hutchinson, it seems highly unlikely that they would have tolerated M r.

Gladney’s presence as a rival supplier. A more plausible explanation for M r.

Gladney’s presence at the motel is that he was directed by M r. Thompson and M r.

Hutchinson to sell drugs at the motel and afford the enterprise an alternative

source of supply. Indeed, it would make sense for M r. Thompson and M r.

Hutchinson to accept an alternative supplier in the operation so that the enterprise

would not lose business on those occasions when it would otherwise be unable to

meet demand. And, in fact, the dealers at the Alpine Rose treated M r. Gladney in

just this way, turning to him for drugs when M r. Thompson’s supply ran out.

Further connecting M r. Gladney to M r. Thompson and the rest of the enterprise is

the fact that many runners who worked for M r. Thompson also ran drugs for M r.

Gladney. And then there is the episode involving the Alpine Rose customer who

testified that he was cheated on a drug order by M r. M ontoya. The customer

complained to M r. Thompson who rebuked M r. M ontoya and gave the customer

double the drugs to compensate. The customer testified that, in the future, he

bought drugs from M r. Gladney and M r. Gladney provided a double order as well.

Given the abundant evidence demonstrating M r. Thompson’s role as the leader of

the drug business at the Alpine Rose, a rational jury could have found that M r.

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Gladney provided that double order because he was carrying out M r. Thompson’s

wish to make amends for a bad customer service experience.

There is also sufficient evidence for a jury to find that M r. Gladney

exercised “broad discretion” in his role as backup supplier to the enterprise. The

fact that M r. Gladney received drugs from someone other than M r. Thompson

itself establishes a certain degree of discretionary authority. The evidence also

shows that M r. Gladney exercised considerable managerial power in his drug

sales at the Alpine Rose. Several people who worked with M r. Gladney to

distribute drugs considered him their “boss.” G. Vol. V at 805. He told his

employees what to do, and when one of those employees, Yvette DeHerrera, did

not perform as M r. Gladney wanted her to, M r. Gladney did what middle

managers often do: he fired her. Id. at 802. All of this shows that M r. Gladney

was no low-level employee without discretionary authority, but a significant

player in the Alpine Rose who, though he served under M r. Thompson and M r.

Hutchinson, was given significant latitude in how he did his job.

B

M r. Gladney also appeals his conviction for conspiracy to distribute more

than 50 grams of crack cocaine under 21 U.S.C. § 846 and 21 U.S.C. §§ 841(a)(1)

and (b)(1)(A). To prove that M r. Gladney was guilty of conspiracy, the

government had to show that (1) two or more persons agreed to distribute cocaine,

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(2) M r. Gladney knew the essential objectives of the agreement, (3) he knowingly

and voluntarily became a part of it, and (4) the alleged coconspirators were

interdependent. United States v. Carnagie, 533 F.3d 1231, 1238 (10th Cir. 2008).

M r. Gladney’s challenge to this conviction mirrors his challenge to the RICO

charge: he contends that the evidence at trial shows, at most, that he was an

independent drug dealer who happened to use the Alpine Rose as his base of

operations, and that there is no evidence (1) he became a part of the conspiracy or

(2) the alleged coconspirators were interdependent. Again, we are unable to

agree.

Turning first to the question whether there is evidence that he joined the

conspiracy, M r. Gladney points out that the government must prove that he had a

“unity of purpose or a common design and understanding” with the other

coconspirators to distribute cocaine. See United States v. Fox, 902 F.2d 1508,

1514 (10th Cir. 1990). But we have recognized that “[b]ecause a criminal

conspiracy by its very nature is usually shrouded in a further conspiracy of

silence, the common plan or purpose must often be, and may legitimately be,

proved by circumstantial evidence.” United States v. Robertson, 45 F.3d 1423,

1442 (10th Cir. 1995). And there was a great deal of circumstantial evidence in

this case suggesting that M r. Gladney shared with M r. Thompson and M r.

Hutchinson a common plan and purpose to distribute drugs. This evidence

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included the facts that M r. Gladney resided and sold drugs at a motel where the

other alleged coconspirators also lived and sold drugs; that M r. Thompson and

M r. Hutchinson would not tolerate anyone unaffiliated with them to remain at the

motel, yet they did not try to drive out M r. Gladney; that M r. Gladney was good

friends with M r. Hutchinson and served as a source to dealers who also purchased

from M r. Thompson and M r. Hutchinson; that runners who worked for M r.

Thompson and M r. Hutchinson also worked for M r. Gladney; and that M r.

Gladney ostensibly followed M r. Thompson’s lead in overcompensating a

customer after he was shortchanged by M r. M ontoya. Such evidence was more

than sufficient for the jury to find that M r. Gladney joined the Alpine Rose

conspiracy. See id. (finding sufficient evidence that the defendant joined drug

conspiracy because he was associated with coconspirators; sold drugs at the

organization locations; was present at organization houses; exchanged money with

coconspirator; and provided drugs to coconspirator).

There was also sufficient evidence for the jury to find interdependency

between the coconspirators. “Interdependence requires that a defendant’s actions

facilitate the endeavors of other alleged coconspirators or facilitate the venture as

a whole.” Carnagie, 533 F.3d at 1238 (internal quotation marks omitted).

Testimony at trial suggested, among other things, that M r. Gladney supplied the

dealers of the Alpine Rose with drugs when M r. Thompson or M r. Hutchinson ran

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out. Even without resort to ample other proof, this evidence alone shows that M r.

Gladney facilitated the actions of the venture as a whole.

M r. Gladney argues that the government has not shown that the other

dealers at the motel depended on him to achieve their goal. See United States v.

Yehling, 456 F.3d 1236, 1241 (10th Cir. 2006) (explaining that interdependence is

present when each coconspirator depends on the actions of other coconspirators to

achieve the common goal). M r. Gladney complains that he only supplied a small

portion of the total drugs sold at the Alpine Rose and that, as a result, the entire

operation could not have depended on his contribution. W e do not draw the same

conclusion. Even if the evidence showed that M r. Gladney supplied a (relatively)

modest amount of cocaine, the Alpine Rose was meeting the demands of over 100

customers each day, and there were times when demand outstripped M r.

Thompson and M r. Hutchinson’s supply. The jury could have reasonably

concluded that, if M r. Gladney was not available to fill orders when the other

dealers ran dry, customers would have to be turned away. And if this happened

too many times, the Alpine Rose might lose its reputation as a “drive-thru” market

where crack was available on demand. On this view of the evidence, a view

compelled by our standard of review, M r. Gladney was plainly integral to the

success of the operation, and interdependence was shown.

***

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 At the end of this long road, a map sketching where we have traveled may

prove helpful to the parties and district court. W e affirm M r. Hutchinson’s (Case

No. 07-1204) conviction for violating § 1962(c), but reverse his convictions for

conspiracy and CCE with instructions for the district court to vacate one of the

convictions in accordance with Part II.B, supra. W e also reverse M r. Thompson’s

(Case No. 07-1230) convictions for conspiracy and CCE with the same

instructions, but otherwise affirm M r. Thompson’s convictions. W e affirm M r.

M ontoya’s (Case No. 07-1234) convictions along with his sentence on the

conspiracy count, but reverse his sentences for both counts of drug possession

with the intent to distribute, and remand with instructions for the district court to

reconsider his sentence in light of Part IV.D. Finally, we affirm M r. Gladney’s

(Case No. 07-1264) convictions.

So ordered.

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