United States v. Ellis, 19-3148

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHOLMES, Circuit Judge.
Citation23 F.4th 1228
Parties UNITED STATES of America, Plaintiff - Appellee, v. Marvin Lee ELLIS, Defendant - Appellant.
Docket NumberNo. 19-3148,19-3148
Decision Date26 January 2022

23 F.4th 1228

UNITED STATES of America, Plaintiff - Appellee,
v.
Marvin Lee ELLIS, Defendant - Appellant.

No. 19-3148

United States Court of Appeals, Tenth Circuit.

FILED January 26, 2022


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 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

23 F.4th 1231

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.

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. 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

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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 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, ¶ 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

[k]nowingly and intentionally conspir[ing] and agree[ing] together and with each other, ... to manufacture, to possess with intent to distribute and to
23 F.4th 1233
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 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...

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