PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARVIN LEE ELLIS, Defendant - Appellant. Nos. 14-3165 & 14-3181

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. Nos. 2:12-CR-20066-KHV-J PO-30 and 2:06-CR-20180-KHV-1)

________________ _________________ Rabindranath Ramana, Calvert Law Firm, Oklahoma City, Oklahoma, for DefendantAppellant. Carrie N. Capwell, Assistant United States A ttorney (Barry R. Grissom, United States Attorney, with her on the brief), United States Attorney’s Office, Kansas City, Kansas, for Plaintiff-Appellee.

________________ _________________ Before HARTZ and PHILLIPS , Circuit Judges. *

________________ _________________

* The Honorable Neil Gorsuch heard oral argument but did not participate in this opinion. The practice of this court perm its the remaining two panel judges, if in agreement, to act as a quor um in resolving the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles , 106 F.3d 1516, 1516 n.* (10th Cir. 1997) (noting this court allows remaining panel judges to act as a quorum to resolve an appeal); Murray v. Nat’l Broad. Co ., 35 F.3d 45, 48 (2d Cir. 1994), cert. denied , 513 U.S. 1082 (1995) (remaining two judges of original three judge panel may decide petition for rehearing without third judge). FILED United States Court of Appeals Tenth Circuit 

### August 24, 2017
Elisabeth A. Shumaker Clerk of Court2 PHILLIPS , Circuit Judge.

________________ _________________ In 2009, law-enforcement officials be gan investigating a Mexican cocainetrafficking operation extending in to the Kansas City area. This led them to several suspects, including Marvin Ellis, a low- level powder-cocaine buyer, who was working with two others to buy powder cocaine and cook at least some of it into cocaine base (crack cocaine) for resale. In 2012, Kansas police arre sted Ellis after he fled from a traffic stop. At arrest, Ellis had a stolen handgun, miscellaneous drugs, and some drug-dealer paraphern alia. Later, based on this and separate evidence from the federal investigation, a federal grand jury charged Ellis with several drug and firearm felonies. The most se rious charge against Ellis wa s for his conspiring with 49 other persons to manufacture, distribute, or possess with the intent to distribute at least 5 kilograms of powder cocaine and 280 grams of crack cocaine. After the jury convicted Ellis on all charges, the district court imposed consecutive sentences for th e cocaine-conspiracy count and a firearm count and concurrent sentences for the remaining counts. Ellis receive d a sentence of life without release on the cocaine-conspiracy count (after applying a sentencing enhancement under 21 U.S.C. § 851 fo r his two earlier felony-drug-offense convictions), a mandatory-minimum five-year term for possession of a firearm in furtherance of a drug-trafficking crim e under § 924(c), and statutory maximum sentences on all remaining count s. Later, the district cour t revoked Ellis’s supervised3 release from a 2007 federal conviction a nd sentenced him to an additional consecutive 24 months’ imprisonment. Ellis now appeals some of his convic tions and sentences. In Appeal No. 14- 3165, Ellis (1) challenges his convicti ons under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), 18 U.S.C. § 924(c), and 21 U.S. C. § 856; (2) argues that his life sentence for the conspiracy conviction violates the Fifth and Sixth Amendments; and (3) argues that the district court violated his Sixth Amendment ri ght to counsel at sentencing. In Appeal No. 14-3181, Ellis challenges the consecutive sentence for his supervised-release violation, based on the district court’s denying him substitute counsel. In Appeal No. 14-3165, we affirm all of Ellis’s convictions and all of his sentences except one. Though we affirm Ellis’s cocaine-c onspiracy conviction, we reverse its accompanying life-without-releas e sentence because (1 ) the jury never found that Ellis was indivi dually responsible for the charged amounts of powder or crack cocaine, either from his own acts or the reasonably foreseeable acts of his coconspirators; and (2) the government’s ev idence does not show that omitting this element was harmless beyond a reasonable doubt. In Appeal No. 14-3181, we affirm Ellis’s sentence for violating his supervised release. We remand to the district court for a full resentencing, subj ect to resentencing on the co caine-conspiracy count under 21 U.S.C. § 841(b)(1)(C).4 BACKGROUND
I. The Investigation In 2009, Drug Enforcement Administratio n (DEA) agents began investigating a Mexican cocaine-trafficking network that was supplying the Kansas City area. Agents learned that Mexican drug sources were shipping multi-kilogram deliveries of powder cocaine from Mexico into and near Kansas City. In addition, agents learned that some of this powder cocaine was goi ng to local drug dealers, including Djuane Sykes, who was selling large amounts of cocai ne to several customers from the 2200 block of Russell Avenue in Kansas City, Kansas. Among Sykes’s many customers were At aven Tatum and Marvin Ellis. In August 2011, Ellis had been released from prison to superv ised release after serving time on a 2007 conviction for violating 18 U. S.C. § 924(c). By November 2007, Ellis had begun working with Tatu m and Ellis’s nephew, Theop lis Ellis (Theoplis), to buy powder cocaine from Sykes and cook at least so me of it into crack cocaine for sale to their customers. Over the next few months, the thre e men worked together to sell drugs, including crack cocaine. They so ld the drugs from different locations, including from a house at 921 Haskell Avenue. In October 2011, Ellis leased this residence, and in November, Tatum si gned a contract for deed to buy it.
II. Ellis’s Arrest In late April 2012, a Kansas City, Ka nsas police officer, Patrick Locke, stopped Ellis for a traffic violation. After fi rst pulling over to the roadside, Ellis sped5 away when Office Locke’s partner approa ched the car. Officer Locke gave chase until Ellis crossed the Kansas state line into Missouri. Two weeks later, just after midnight on May 11, Officer Locke again stopped Ellis for a traffic violation. As before, Ellis pulled over but then sped away. Again, Officer Locke chased Ellis, this time at speeds up to 80 miles per hour. The chase ended when Ellis lost control of his car after it hit a curb . When his car came to rest, Ellis jumped from it and ran. During the ensuing foot chase, Officer Locke saw that Ellis was carrying a green plastic bag. When Ellis was subdued on the ground, Officer Locke saw Ellis holding his right hand in his waistband—causing Officer Locke to fear that Ellis had a gun. Officer Locke tasered Ellis, yet Ellis refused commands to remove his hand from his waistb and. When Officer Lo cke threatened to shoot Ellis, Ellis dropped the green bag and threw a pistol about 10 to 15 feet away. After finally subduing a nd arresting Ellis, Officer Locke gathered Ellis’s thrown gun—a stolen, loaded .40 caliber pistol. Officer Lo cke also collected Ellis’s discarded green bag, which c ontained an empty sandwich-bag box, a digital scale, 2.5 grams of powder cocaine, about 32 grams of synthetic marijuana, 25.8 grams of PCP in a bottle, 3.1 grams of marijuana, 16 mollies (ecstasy/MDMA), and 8 Diazepam pills.
III. The Charges In October 2012, a grand jury sitting in the District of Kansas issued a sweeping 112-count Second Superseding Indi ctment against 51 de fendants, including6 Ellis, Tatum, and Theoplis. 1 In a vast cocaine-conspira cy count under 21 U.S.C. § 846, naming 50 defendants including Ellis (reaching all the way up to the Mexican cartel), the grand jury char ged that the 50 defendants [k]nowingly and intentionally conspi red and agreed together and with each other, and with other persons known and unknown to the Grand Jury, to commit the follo wing offenses against the United States: to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base, “crack ,” a controlled s ubstance; and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substa nce containing cocaine, a controlled substance; all in violation of Title 21, Unite d States Code, Sections 841(a)(1), (b)(1)(A)(ii), (b)(1)( A)(iii) and Title 18, United States Code, Section 2. R. vol. I (3165) at 547. Eight months after filing the Second Superseding Indictment, the government filed an Information under 21 U.S.C. § 851 to enhance Ellis ’s sentence. Because Ellis had two earlier convictions for felony drug o ffenses, the § 851 Information subjected him to an increased mandatory sentence—li fe without release—if he was convicted and sentenced for the conspiracy charge under 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). 2 The Second Superseding Indictment al so charged Ellis with six counts of knowingly and intentionally distributing cr ack cocaine, in violat ion of 21 U.S.C. §

1 The Second Superseding Indictment charged additional defendants in the conspiracy count. The conspi racy count included Ellis ea ch time, and the substance of the charge rema ined the same.

2 The government listed two state felony drug convictions neces sary to trigger the enhancement: one for felony possession of cocaine in 1997, and another for selling cocaine in 2003.7 841(a)(1) and (b)(1)(C), and aiding and abe tting those offenses, in violation of 18 U.S.C. § 2; one count of maintaining a drug-involved pr emises, in violation of 21 U.S.C. § 856(a)(1)–(2); one count of knowi ngly and unlawfully possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S. C. § 924(c); and one count of possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). IV. Trial Ellis was tried with several coconspi rators, some of wh om pleaded guilty during the trial. In the end, Ellis proceeded to a jury verdict with th ree others: Robert Vasquez, Vernon Brown, and Kyle Stephen. A. Conspiracy Evidence The government sought to prove the co caine-conspiracy count against Ellis by the testimony of several w itnesses, including three coope rating witnesses, four lawenforcement officers who had arranged th e controlled buys of crack cocaine from Ellis and Tatum, and other law-enforcemen t officers who had pa rticipated in the investigation. One government witness, Djuane Sykes, testified that he knew Ellis, Ataven Tatum, and Theoplis. Sykes said that in la te 2011, Ellis and Tatum approached him to buy powder cocaine for resale . At this meeting, Sykes so ld Ellis an ounce of cocaine for $700. Sykes also testified that Ellis— either for himself or for Tatum—continued to buy powder cocaine from him. Sykes said that Ellis some times bought half or full ounces of powder cocaine. Sy kes never said how many tim es Ellis alone had bought8 powder cocaine from him. But Sykes did say that Ellis, when with Tatum, had bought powder cocaine from him “[m]aybe ten or 15 times.” R. vol. IV (3165) at 1590. Each time, Ellis bought between a “half-oun ce to a [sic] ounce of cocaine.” Id. at 1589. In addition, Sykes said that Tatum bought a “half-ounce to three ounces” of powder cocaine from him “once or twice a week.” R. vol. IV (3165) at 1587. Sykes also said that Tatum sent Ellis or Theo plis to pick up cocaine “[p] robably four or five times.” Id

. at 1590. Another government witness, Ralph Ma yo, was a local drug dealer who confirmed that Ellis, Tatu m, and Theoplis had bought powder cocaine from Sykes. Mayo testified that he had seen Ellis “a few times” buying cocai ne from Sykes. R. vol. V (3165) at 1233. In addition , Mayo testified that Ma yo had sold “probably between a [sic] ounce or two ounces” of po wder cocaine to Ellis “[p]robably not more than two times.” Id. at 1234–35. A third government witness, Theoplis, testified about his drug activities with Ellis and Tatum. Theoplis recalled once go ing with Ellis to buy powder cocaine from Sykes. In addition, Theoplis recalled that Tatum and E llis had sent him to Sykes “two or three times” to pi ck up powder cocaine. Id. at 677. Though Theoplis did not say how much cocaine he bought dur ing his solo trips or during his single trip with Ellis, he did say that he picked up “three and a half ounces, four” wh en Tatum and Ellis sent him to Sykes. Id . at 6776

. Theoplis also testified that Tatum a nd Ellis cooked the powder cocaine into crack cocaine. The prosecutor asked, “once the pow der cocaine was purchased, was it9 always cooked into crack cocaine?” Theoplis answered, “Yes, ma’am.” Id. at 678. He further testified that after Tatum and Ellis bought powder cocaine from Sykes, they would “go back and cook the crac k and cook the soft to hard.” Id. at 673–74. But on cross-examination by Ellis’s attorney, Theoplis admitted th at he had seen Ellis cook crack cocaine just once, at Theoplis’s father’s house. Theoplis also answered affirmatively to the prosecuto r’s question asking him if he, Tatum, and Ellis had sold only crack cocaine and not powder cocaine. Theoplis never said how many times he sold crack cocaine, but he did say he so ld “pieces” for ten or twenty dollars. Id. at 683. The government called Kans as City police officer Nath an Doleshal to testify about the controlled buys he had arranged in which informants bought crack cocaine from Ellis, Tatum, and Theoplis 3 at 921 Haskell and elsewhere. 4 During the controlled buys, an informant typically call ed Tatum or Ellis to arrange the buy and then bought the crack cocaine from eith er one or both of them. During the first controlled buy, on February 7, 2012, an in formant bought 0.9 grams of crack cocaine from Ellis at 921 Haskell. The next day, the same informant bought another 0.7 grams of crack cocaine from El lis and Tatum at 921 Haskell. On February 9, an informant bought 2.5 grams of crack coca ine from Ellis and Tatu m, this time at a local grocery store. On February 10, informants bought 9.9 more grams of crack

3 Theoplis usually acted as a “doorman,” letting the informant-buyers into the house and taking them to Ellis and Tatum. R. vol. II (3165) at 119.

4 The record is unclear about the part icipants in and locations of some controlled buys.10 cocaine, this time purchased at an intersection and later another 1.2 grams of crack, this time at 921 Haskell. Law-enforcement officers also testifie d about more controlled buys in March 2012. On March 20, 2012, at a local pharmacy, an informant bought 3.4 grams of crack cocaine from Ellis. On March 23, at a local street inters ection, an informant bought 6.7 grams of crack cocaine and so me ecstasy pills from Ellis. All told, the controlled buys totaled 25. 3 grams of crack cocaine. 5
B. Evidence of Drug-Involved Premises The government produced evidence that Ellis had maintained 921 Haskell as a place for manufacturing and selling crack co caine. Although not specifying dates, Theoplis testified that Ellis had lived at 921 Haskell and sold crack cocaine, ecstasy, PCP, and marijuana there. Three of the controlled buys from Ellis happened at 921 Haskell, the last occurring on February 10, 2012. The go vernment also produced wiretapped phone calls (some in March and April 2012) in which Ellis, Tatum, and Theoplis arranged crack-cocai ne sales, and one call in which “[t]his young lady’s [sic] called Ataven [Tatum] to pretty much tell her [sic] that Messy or Marvin Ellis was wanting some supplies to cook crack cocaine.” See R. vol. III (3165) at 2270-88. In particular, Ellis suppos edly was seeking a whisk to “blend the ingredients together.” Id . at 2270.

5 The record is unclear why the officers stopped the controlled buys so close to 28 total grams of crack cocaine, which wo uld have activated a mandatory-minimum sentence under 21 U.S.C. §§ 851, 841(a)(1), (b)(1)(B).11 The evidence further show ed that in October 2011, Ellis signed a lease agreement for 921 Haskell. The lease requi red Ellis to pay a $300 deposit and $600 for the first month’s rent. Of this amount, Ellis paid $400, and Tatum paid $500. The next month, Tatum signed a contra ct for deed to buy the residence. When police officers searched 921 Haskell on May 30, 2012, they found a utility bill for service from April 13 to May 14, 2012, in E llis’s name. Though police had arranged controlled buys at 921 Haske ll during this billing period, Ellis was not present for them—he had left the house af ter a falling out with Tatum. In an intercepted phone call on April 12, a caller as ked Tatum “how Marvin E llis is doing,” and Tatum responded that he had put Ellis out of the house. R. vol. III (3165) at 2287. C. Evidence of Firearm Possession in Fu rtherance of Drug Trafficking Officer Locke testified that at the arrest, Ellis had a stolen, loaded .40 caliber pistol, along with several kinds of illegal drugs, an empty sandw ich-bag box, and a digital scale. Officer Locke testified that drug dealers us e these items for drug sales. Theoplis testified that he had previously seen Ellis with th is same pistol when selling drugs at 921 Haskell.
D. Jury Instructions and Verdict Form Before closing arguments, counsel met with the dist rict judge about jury instructions and a verdict form. During this conference, the dist rict court remarked that it had “e-mailed a draf t copy of the verdict [form] to all of the counsel of record.” R. vol. V (3165) at 1452. The district court further mentioned that “the main feedback we got was that the verdict form should not include the drug amounts and I12 think that feedback is corr ect. So we’ve prepared a revi sed verdict form which omits any reference to th e drug quantities.” Id. The district court did not identify which counsel had provided this feedback. 6 After this, the district court asked a ll counsel, “Is there any objection to the revised form of the verdict?” Id. No one objected. In par ticular, Ellis’s counsel responded, “None on behalf of Mr. Ellis, Your Honor.” Id. Thus, for the cocaineconspiracy count, the final ve rdict form asked the jury to determine Ellis’s guilt only in the broad conspiracy and did not require the jury to say how much powder or crack cocaine it attributed (1) to the entire conspiracy or (2) to Ellis from his own acts and the reasonably foreseeable act s of his coconspirators. The jury instruction for th e cocaine-conspiracy count listed the elements that “the government must prove beyond a reasonable doubt,” including one element requiring proof that “[t]he overall scope of the agreement involved more than 5 kilograms of cocaine or more than 280 gr ams of cocaine base, ‘crack.’” R. vol. I (3165) at 1510. Another element required that “[w]he n defendant joined, he knew the essential objective of the agr eement was to manufacture, to possess with intent to distribute or to distribute cont rolled substances in violati on of federal drug laws[.]” Id. The next instruction stated that “[ o]nce a person becomes a member of a conspiracy, he . . . is lega lly responsible for the acts of all other members in furtherance of the conspiracy, even if he . . . was not presen t or aware that the

6 The record does not reveal which of the multiple counsel submitted proposed verdict forms to the district court, let alone whether a ny of those included spaces for the jury to individually attribute cocaine amounts to each defendant.13 specific acts were being committed.” Id. at 1513. Ellis did not object to these instructions. No instruction addr essed reasonable foreseeability.
E. Opening Statement and Closing Arguments In its opening statement and closing ar gument, the government argued Ellis’s guilt based largely on the acts of the Mexican cocaine sour ces, including those sources supplying powder cocaine to Sykes. For instance, in its opening statement, the government named Ellis as one of “a variety of individuals who were engaged in drug traffi cking in the Kansas City metropolitan area,” and then st ated that “Mexican cartel s use these public roadways to have large amounts of drugs transporte d from Mexico into th e United States by a variety of ways.” R. vol. III (3165) at 445. The governme nt spoke about “trusted couriers based from cell heads” who were distributing drugs and “polluting our community.” Id. at 445–46. It said th at “[m]illions of dollars of drugs are coming in and millions of dollars of money are going out.” Id. at 446. It tied small-time distributors of the cocaine—“st reet level dealers to mid-le vel dealers to large scale dealers”—to the cartel’s supply. Id. And in its closing argument, the government returned to this theme, emphasizing the conspiracy-wide amounts of cocaine: And I assert to you that it’s not impor tant that any particular defendant knew much at all about the overall scope of the conspiracy. It’s irrelevant that Marvin Ellis didn’t know a single Hispanic person on that chart. What’s important is that any reas onable person knows that drugs like cocaine come from a source. And it’s reas onable to conclude that the source would be a Hispanic source.14 R. vol. V (3165) at 1475–76. For interdependence, the government asserted a relationship between Ellis and the cartel and its suppliers: The suppliers rely upon people like Robe rt Vasquez to make sure that they can keep up getting a su pply. Without people like Robert Vasquez taking money loads back to the south, they’re [sic] aren’t going to be sending up anymore [sic] supply. And without customers like Kyle Stephen and Vernon Brown and Marvin Ellis, the suppliers aren’t going to have a business.
Id . at 1476. In his closing argument, Ellis’s counsel tried to counter this by arguing that Ellis was a “very, very small minnow in a very la rge ocean and he is nowhere near at the level of the great white sharks that [the government] paraded through that witness stand.” Id. at 1515. But in rebuttal, the government responded that “it doesn’t matter if you’re a little person, if you’re a bo ttom feeder, you’re still gui lty of the conspiracy.” Id . at 1558–59. The government stre ssed that it is “[p]eople like Marvin Ellis and Vernon Brown that keep people like Hector Aguilera in business.” Id. at 1568. The government had earlier described H ector Aguilera as the “kingpin.” Id . at 1482. It described the “scope of th e overall conspiracy” as th e quantities charged in the indictment, “[n]ot what each i ndividual person was involved with.” Id

. at 1563. V. Ellis’s Request for New Counsel While the probation office was completing its Pres entence Investigation Report (PSR), Jay DeHardt, Ellis’s counsel , moved to withdraw. DeHardt told the district court that Ellis had refused to read the PSR and had demanded that DeHardt15 no longer represent him. DeHa rdt told the court that E llis had even accused him of conspiring with the government to convict him. In short, DeHardt said that Ellis refused to listen to him or cooperate. At a hearing on the motion, Ellis expres sed his dissatisfaction with DeHardt’s trial performance, complaining that DeHard t had not challenged the length of time in which Ellis was involved in the conspiracy and had not separated him from the broad conspiracy. Ellis asked the district court to appoint new counsel . The district court denied Ellis’s request. The court ac knowledged the breakdow n of communication between Ellis and DeHardt but found Ellis responsible for “not reasonably trying to communicate” with DeHardt or to help DeHa rdt prepare a defense. R. vol. V (3165)
at 1613. With that, the district court gran ted DeHardt’s motion to withdraw. The district court then gave Ellis tw o options: he could hire a different attorney, or he could represent himself. Th e court strongly advised Ellis against selfrepresentation and questioned Ellis ’s decision to proceed pro se: Court: Do you want to represent yourself or do you want to hire an attorney? Ellis: I don’t have any money right now. Court: Okay. Then your choice is to stay with Mr. DeHardt and work with him or represent yourself. Ellis: He’s not work ing with me, Judge. Court: That is—I heard all I need to hear about that. Do you want to stay with him and cooperate and help him represent you or do you want to represent yourself? Ellis: I represent myself.16 Court: Okay. Then, Mr.—Do you want him to be available as stand-by counsel if you have questions? Ellis: I hope he wish me the best. Court: Do you want him to repres ent—to be available as stand-by counsel to answer any questions you may have? Ellis: No, ma’am. Court: Okay. Then, again, I thi nk this is an incredibly poor decision on your part, but I fi nd that you have voluntarily and knowingly given up your ri ght to counsel in this case and I will let you represent yourself for the purposes of sentencing and appeal. Id . at 1629–30. Before the sentencing hearing, Ellis twice renewed his motion to appoint him new counsel. In response to th e first motion, the district court reappointed DeHardt, who moved to withdraw a month after his r eappointment. DeHardt told the court that his attorney-client relationship with Ellis was “beyond resurrection.” R. Vol. 1 at
1547

. At the sentencing hearing, the distri ct court denied Ellis’s second motion because Ellis had failed to cooperate and b ecause it believed that a newly appointed attorney would take months to become sufficiently acquainted with Ellis’s case.
VI. Sentencing Ellis represented himself at the sentencing hearing. He objected to several paragraphs in the PSR, most of which co ncerned the facts underlying his conviction. After hearing Ellis’s objections , the district court denied them. Ellis also objected to the sentence enhancement under 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 851. The district court rejected this argument too. Before the distri ct court imposed a sentence,17 Ellis reiterated his request that the court appoint him ne w counsel. The court declined to revisit that issue. On the cocaine-conspiracy count, the di strict court senten ced Ellis to life imprisonment without release—the sent ence mandated by 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A) and 851. In addition, the district court se ntenced Ellis to the statutory maximum on all of his other convi ctions: 360 months for each of the six cocaine-possession and cocaine -distribution convictions, c oncurrent with each other and the life sentence; 240 months for th e drug-involved-prem ises conviction, concurrent with the other sentences; and 12 0 months for the felon-in-possession-of-afirearm conviction. Finally, the district court sentenced Ellis to the mandatoryminimum sentence of 60 months for the § 924(c) offense of possessing a firearm in furtherance of a drug-trafficking crime. Ellis ti mely appealed.
VII. Revocation of Ellis’s Supervised Release Soon after the sentencing h earing, the district court held a hearing on the government’s motion to revoke Ellis’s supervised releas e imposed for his § 924(c) conviction in 2007. At this hearing, DeHardt represented E llis, and Ellis again requested appointment of a different attorn ey. In response, the district court gave Ellis the same option it had given him at se ntencing: he could pr oceed with DeHardt, or he could proceed pro se. Ellis elected to “go pro se.” R. vol. II (3181) at 17. Before the revocation hearing began, the di strict court questione d Ellis about (1) his legal experience, (2) the penalty he was facing if the court revoked supervised release, (3) his awareness that he would ha ve no help during the hearing, and (4) his18 knowledge that he could have DeHardt represent him at the hearing. The district court strongly urged E llis “not to try to represent [himself].” Id. at 21. Despite this, Ellis chose to represent hims elf, and the district court found that Ellis had “knowing [sic] and voluntarily given up [his] right” to counsel. Id. Ellis did not contest that he had violated the terms of his supervised release. He asked only that the district court order any resulting pr ison sentence to run concurrently with his other se ntences. Instead, the district court sentenced Ellis to a consecutive term of 24 months’ imprisonment to the sentences he received in Appeal No. 14-3165. Ellis has appealed his c onviction and sentence for violating his supervised-release terms. DISCUSSION
I. Conspiracy Conviction A. District-Court Proceedings As noted, the government charged Ellis and 49 other defendants in a broad cocaine-distribution conspiracy stretching from a Kansas City street corner to a drug cartel in Mexico. In its jury instructions, the district court did not tell the jury to determine what cocaine amounts were indivi dually attributable to Ellis, by his own acts and the reasonably foreseeable acts of his co conspirators. And such an instruction would not have mattered anyway, beca use the district court did not furnish the jury a specialverdict form on which to enter those findings. Though the government o ffered some crack-cocaine ev idence, it sought Ellis’s conviction primarily by arguing that he wa s necessarily responsible for the cocaine19 kilograms trafficked into the area by the Me xican cartel. The gove rnment did so even though acknowledging that E llis knew no one in the chain above his street supplier, Djuane Sykes. From its opening statement th rough its closing arguments, the government pressed a Mexican-cartel theme. With this general-verdict form, the jury found Ellis guilty by checking the space next to “guilty.” R. vol. I (3165) at 1483. As mentioned, the verdict form provided no spaces by which the jury could say what amount of cocain e powder or crack cocaine the entire conspiracy involved, and no spaces to say what amounts it attributed individually to Ellis. As seen, the jury instruction had an “in fu rtherance” requirement for coconspirator acts, but it lacked a re asonable-foreseeability requirement. Id. at 1513. The general-verdict form underlies Ellis’s challe nge to his conviction and sentence on the cocaine-conspiracy charge. B. Ellis’s Contentions on Appeal 1. Sufficiency of the Evidence Ellis first asks us to vacate his conspi racy conviction. He contends that the government presented insufficien t evidence “to establish that the possession, distribution, or manufacture of either 280 grams of crack cocaine or five kilograms of powder cocaine was reasonably foreseeable to Mr. Ellis.” Appe llant’s Opening Br. at 16. Ellis argues that the district court erred in not requiring that the jury convict him for only the amounts it found reasonably foreseeable to him. 7 And, further, Ellis argues that the jury lacked

7 A jury may include within a defenda nt’s individually attributable drug amounts the defendant’s own acts as well as his coconspi rators’ reasonably20 sufficient evidence to find that he conspired to possess, distribute, or manufacture either 280 grams of crack cocaine 8 or 5 kg of powder cocaine. Thus, Ellis argues, we must reverse his conviction. Ellis builds his sufficiency-of-the-evidenc e argument on a mistak en legal premise. He assumes that the jury could not convict him for the cocaine-cons piracy count absent its finding that the conspiracy involved at least 5 kilograms of powder cocaine or 280 grams of crack cocaine. But to sustain his co nspiracy conviction, the government needed to prove only that Ellis cons pired “to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispens e” any amount of either substance. 21 U.S.C. §§ 841(a)(1); 846. And he certa inly did so. So, at the very least, Ellis stands properly convicted under 21 U.S.C. § 841(a)(1), (b)(1)(C). 9 See United States v. Cruse , 805 F.3d

foreseeable acts in furthe rance of the conspiracy. See United States v. Morales , 108 F.3d 1213, 1226 (10th Cir. 1997) (“Wher e the sentencing court determines a defendant was directly involved in the distri bution of a quantity of drugs sufficient to invoke a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), the quantity of drugs reasonably foreseeable to the defendant is irrelevant.”).

8 The government has a much stronger case to support a sufficiency-of-theevidence argument for the cr ack cocaine. The crack-cocai ne amount rests not on Mexican-cartel liability but instead on th e crack cooking and sales by Ellis, Tatum, and Theoplis. But we need not decide whet her sufficient evidence exists or not. The government failed to obtain a jury findi ng that 280 grams of crack cocaine were individually attributable to Ellis, so it must show the resulting error under Alleyne v. United States , 133 S. Ct. 2151, 2155 (2013), wa s harmless beyond a reasonable doubt.

9 This also disposes of Ellis’s alternative argument that even if sufficient evidence supported his conviction (for cons piring to distribute and manufacture at least 5 kilograms of powder cocaine and 280 grams of crack coca ine), the jury may have convicted not on the sufficient evidence of those amounts individually21 795, 817 (7th Cir. 2015) (concluding that “d rug quantity is not an element of a drug conspiracy under § 841(a)(1)”); United States v. Daniels , 723 F.3d 562, 572 (5th Cir. 2013) (concluding that the government’s fail ure to prove 5 kilograms of powder cocaine affected the sentence but did not undermine the conviction); United States v. Collins , 415 F.3d 304, 314 (4th Cir. 2005) (concluding that conviction under 21 U.S.C. § 846 was sound despite the government’s failure to pr ove the charged amount of crack cocaine); United States v. Vazquez , 271 F.3d 93, 105 (3d Cir. 2001) (en banc) (concluding that for an indictment charging 5 kilograms of powdercocaine, courts may sentence for a lesserincluded offense when the government’s proof doesn’t support that weight). 10
2. Sixth Amendment: Alleyne On appeal, Ellis contends that the distri ct court violated hi s “Sixth Amendment rights by imposing a life sentence on the cons piracy count without a required factual finding by the jury—that it was reasonabl y foreseeable to Mr. Ellis that other members of the charge [sic] conspiracy w ould distribute more than 280 grams of cocaine base and five kilograms of cocai ne.” Appellant’s Opening Br. at 17–18. Ellis argues that the district court erred by se ntencing him under § 841(a)(1), (b)(1)(A) without obtaining the jury’s findings of the weight of powder and crack cocaine reasonably foreseeable to him. attributable to him, but instead on amounts th at were not individually attributable to him.

10 See also United States v. Cernobyl , 255 F.3d 1215, 1218 (10th Cir. 2001) (“Federal courts have hist orically construed the provi sions of § 841(a) as the substantive elements of the offense . . . .”).22 The government argues that Ellis waived this issue by inviting any error in the verdict form. So we must ex amine how the verdict form was proposed and approved. We note that the district cour t told counsel at the jury-ins truction conference that “the main feedback” it had receiv ed after e-mailing a verdict fo rm with spaces for the jury to find cocaine amounts attributable to i ndividual defendants was that the verdict form should not leave spaces fo r the jury to make those fi ndings. R. vol. V (3165) at 1452. The district court mistak enly agreed that this feedb ack correctly stated the law. So the district court advised that it had “p repared a revised verdict form which omits any reference to th e drug quantities.” Id

. Based on this discussion, the government contends that Ellis rejected the original verdict form with spaces for the jury to make cocaine-quantity findings, thus waiving ap pellate review of the verdict form. We disagree with the government’s posi tion. We note that after the district court asked counsel if any pa rty objected to the verdict fo rm, Ellis’s counsel simply responded, “None on behalf of Mr. Ellis, Your Honor.” Id. By declining to object, a defendant does not knowingly waive an erro r. Nothing shows that Ellis’s counsel even provided “feedback” about the verdict form. Id. We see nothing showing that Ellis’s counsel proffered a ve rdict form without drug quantitie s to the district court or persuaded the district court to adopt one like that. See United States v. Sturm , 673 F.3d 1274, 1281 (10th Cir. 2012) (barring review under the invited-error doctrine where the defendant proffered the very inst ruction he attacked on appeal). So Ellis did not invite error as the government contends.23 In Alleyne v. United States , 133 S. Ct. 2151, 2155 (2013), the Supreme Court held that “any fact that in creases the mandatory minimum [sentence] is an ‘element’ that must be submitted to a jury.” 11 Put another way, the Cour t held that a district court violates the Sixth Amendment if it imposes a sentence based on a judge-found (and not a jury-found) fact that increases a minimum sentence. See id. at 2163–64. Thus, in Alleyne , the Supreme Court reversed a mandatory-minimum sentence increased from five to seven years under 18 U.S.C. § 924(c)(1)(A)(ii) for the defendant’s having brandished a firearm. Id. It did so because the district court, and not the jury, had found this fact that increased the mandatory -minimum sentence. Id.
at 2163. 12
In Alleyne , the defendant’s “brandishing” of the firearm was plainly an element of the crime. See id. at 2156; 18 U.S.C. § 924(c )(1)(A)(ii). But Ellis’s increased mandatory-minimum sentence de pended on conspiracy-cocaine amounts, not the manner of using a fi rearm. So to succeed on his Alleyne argument, Ellis must

11 Alleyne overruled Harris v. United States , 536 U.S. 545 (2002), where the Court “held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment.” 133 S. Ct. at 2155.

12 The government charged the brandishi ng element, and a special-verdict form gave the jury the opportunity to find that Alleyne had indeed brandished the firearm. The jury found that Alleyne had used the firearm but left blank the space indicating that Alleyne had brandished it. Alleyne , 133 S. Ct. at 2156; see Indictment, United States v. Alleyne , 3:10-cr-00134-REP-1 (E.D. Va. May 5, 2010), Verdict Form, United States v. Alleyne , 2:10-cr-00134-REP-1 (E.D. Va. Sept. 7, 2010). So it is not enough for the government to argue that a guilty verdict on a conspiracy count charging 5 kilograms of powder and cocaine and 280 grams of crack cocaine satisfies the government’s obligation to prove that element. As in Alleyne , merely charging the fact that increases th e mandatory-minimum senten ce is not enough—the jury must make that fact finding.24 still show that individually attributable cocaine amount s are an element of the cocaine-conspiracy charge. On this point, th e government asserts th at “this Court has not issued a published decision [after Alleyne ] expressly stating what determination the jury must make when a defendant is charged with an offense that carries a statutory mandatory-minimum penalty.” Appellee’s Br. at 29–30. But the government is mistaken.
In United States v. Dewberry , 790 F.3d 1022 (10th Cir. 2015), decided two years after Alleyne , we said that, because 280 grams of crack cocaine would increase the statutory mandatory-minimum sentence, that drug amount “was an element of the offense and had to be proved at trial.” Id . at 1029 (citing Alleyne , 133 S. Ct. at 2158).
In Dewberry , the district court properly had the jury make a special finding beyond a reasonable doubt about the amount of crack co caine individually attributable to the defendant. Id. at 1029. The jury found that he had conspired to distribute at least 280 grams of crack cocaine. Id. In evaluating the defendant ’s sufficiency-of-evidence challenge, we said that “[a] defendant can be held ‘accountable for that drug quantity which was within the scope of the agreem ent and reasonably foreseeable’ to him.” Id

. at 1030 (quoting United States v. Arias-Santos , 39 F.3d 1070, 1078 (10th Cir. 1994)). 13 We concluded that the government had presented sufficient evidence to

13 Though Dewberry was decided after Ellis’s trial, he gets any benefit from its ruling because it was decided while his case is on direct appeal. Griffith v. Kentucky , 479 U.S. 314, 328 (1987). A nd Ellis could even rely on United States v. Stiger , 413 F.3d 1185 (10th Cir. 2005), whic h directed that in setting a drug sentence, the district judge “may determine the ‘floor’ by finding the precise drug quantity attributable to each coconspirator.” Id . at 1193. Though Alleyne reassigned this role to the jury, the25 prove that the defendant “could have foreseen that [his coconspi rator] would convert powder cocaine into 280 grams or more of crack cocaine.” Id . at 1030. In view of the interplay between Alleyne and Dewberry , we hold that the district court committed Alleyne error by convicting a nd sentencing Ellis on 21 U.S.C. § 841(b)(1)(A) without the jury’s ha ving found his individually attributable amount of cocaine as at least 5 kilogram s of powder cocaine or 280 grams of crack cocaine. 14 So we turn now to whether this Alleyne error requires a reversal. In doing so, we must first determine what standard of review ap plies. And that depends on whether Ellis preserved an objecti on in the district court to the Alleyne error. In determining whether Ellis preserved an Alleyne objection, we must determine when an Alleyne error arises. Here, the Alleyne error arose when the district court sentenced Ellis to a lif e sentence under 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 851. We see no reason to require that Ellis have obj ected during trial to the jury instructions or the gene ral-verdict form to preserve an Alleyne objection. If measure stays the same—drug quantities for minimum senten ces must be attributed individually.

14 The drug weights under 21 U.S.C. § 841(a)(1), (b)(1)(A), (B), and (C) establish different crimes, United States v. Jones , 235 F.3d 1231, 1236 (10th Cir. 2000), but the statute does not say whet her the drug weights are those of the conspiracy as a whole, or those of ea ch defendant’s individually attributable amounts. We note that, at le ast for now, one circuit a pplies the conspiracy-wide amount for both maximums and mandatory-min imum sentences under this section. See United States v. Gibson , 2016 WL 6839156, at *2 (6th Cir. Nov. 21, 2016) (recognizing that conspiracy-wide liability for limited-amount coconspirators “may appear unjust” and does not “serve the dr ug statute’s underlyi ng purpose of more severely punishing larger-amount drug dealer s,” the court declared itself bound by its precedent) (citing United States v. Robinson , 547 F.3d 632, 638 (6th Cir. 2008), rehearing en banc granted , 854 F.3d 367 (2017)).26 the government wanted a heightened senten ce under that subsection, it was obliged to ensure the jury rece ived proper jury instructions a nd a special-verdict form with spaces enabling the jury to find Ellis’s individually attr ibutable powder and crackcocaine amounts. See United States v. Haines , 803 F.3d 713, 740 (5th Cir. 2015) (concluding that defendants’ challenge at their sentencing hearing to their mandatory minimum sentences based on conspiracy-wide heroin am ounts, though not raised with an ideal level of specificity, were timely and sufficient to preserve their objections); United States v. Pizarro , 772 F.3d 284, 296 (1st Cir. 2014) (concluding that defendant preserved an Alleyne objection even though he did not object until sentencing, reasoning that a party is not obliged to object to something “inimical to his cause,” ensuring hi s eligibility for a l onger sentence) (quoting United States v. Pérez–Ruiz , 353 F.3d 1, 14 (1st Cir. 2003)). Th e district court did not commit an Alleyne error until it subjected Ellis to an increased mandatory-minimum sentence without the jury’s attri buting at least 280 grams of crack cocaine to Ellis individually. 15

15 Had the district court sentenced Ellis to the mandatory-m inimum term for conspiracy-wide cocaine amounts—10 years—th at sentence would have fallen within the § 841(a)(1), (b)(1)(C) range of 0 to 30 years. In that circumstance, the Alleyne error might have been harmless. See United States v. Long , 748 F.3d 322, 330 (7th Cir. 2014). But here the Alleyne error led to a life-with out-release sentence under § 851 that never could have ha ppened otherwise. The problem is not with the fact of the prior felony convictions, see Almendarez-Torres v. United States , 523 U.S. 224, 243 (1998) (prior convictions are not facts increasing a sentence that require jury findings), but with the sentenci ng increase made available by the Alleyne error.27 Next, we must determine whether Ellis raised an Alleyne objection before the district court sentenced hi m. He could do so by invoking the applicable decision (here, Alleyne ) “or by claiming that ‘the issue of drug quantity should go to the jury, . . . that an elemen t of the offense was not pr oved, that the judge cannot determine quantity, or that quantity must be proved be yond a reasonable doubt (and not by a preponderance of the evidence).’” United States v. Lott , 310 F.3d 1231, 1240 (10th Cir. 2002) (omissi on in original) (quoting United States v. Candelario , 240 F.3d 1300, 1304 (11th Cir. 2001)). Appearing pro se at the sentencing hearing, Ellis raised a sufficient Alleyne objection to the district court’s sentencing him on 280 grams or more of crack-cocaine without a jury finding that he was individually responsible for this amount: I don’t understand why I’m he re today. And for the ju ry to find me guilty, I didn’t understand because there was no amount – I didn’t even – the jury transcripts, it was no amount to say if I was guilty of 280 grams. I mean, even the videos that I wa s in does not show me specifically with crack cocaine in possession selling to no one. You know.
* * * And I was never shown to be convic ted by the jury by a certain drug amount because 280 grams, there’s ne ver no evidence, to my knowledge, that’s being brought up. R. Vol. V (3165) at 1644, 1686. In addition, we conclude that Ellis sufficiently raised an Alleyne objection to the district court’s sentencing hi m on five kilograms or more of powder cocaine without a jury finding. In a motion hearing five months before his sentencing hearing, Ellis argued that he should not be held accountable for cocaine distributio ns by the Mexican cartel and28 its distributors—“I didn’t kn ow none of these dudes.” Id . at 1591. He comp lained that his attorney didn’t present to the jury that “this is a conspiracy here and it’s another case here, so, I mean, you ought to separa te Mr. Ellis from this conspiracy[.]” Id . at 1593. And at his sentencing hearing, Ellis compla ined that for his “ guilty verdict [to] show that Perez and I combined to sell drugs is false because I don’t know him and he stated on the stand that he doesn’t know me.” Id . at 1641. In arguing that appointing him new counsel would not delay th e sentencing, Ellis argued that “[i]t would probably take them a week, two week’s time to look at what I was involved in to separate me from the rest of the conspiracy.” Id . at 1652. Objecting to bein g held accountable for other defendants’ drugs, Ellis said, “So the am ount of drugs that’s been placed on me, I wouldn’t want to call it so much as ghost dope because I didn’t have it. But it was presented in the courtroom. But I don’t know whose it was, but I never was in possession of it or seen doing anything with a certain amount.” Id . at 1664. Ellis continued to object to being held accountable for co caine in an overbroad conspir acy charge in these words: “And it was kind of like a lot easier for, I guess, the prosecutor to get the whole community wrapped up in one, tie them all in one to get it over with fast. And I don’t feel like everyone was connected.” Id

. Because the district court committed a constitutional error by not obtaining the jury’s finding on an element of the crime, we turn for guidance to Neder v. United States , 527 U.S. 1 (1999). In that case, the district court mistakenly determ ined that materiality was not an element of certain federal fraud statutes. Id . at 4. That meant that the jury never found that element beyond a reasonable doubt. For this error, the Court applied a29 constitutional harmless-error standard, one requiring the government to prove harmlessness beyond a reasonable doubt (as opposed to a structural-error standard requiring reversal per se). Id . at 12–13, 15. The Court found this standard met because the defendant “did not contest the el ement of materiality at trial,” and did not “suggest that he would introduce any evidence bearing upon the issue of ma teriality if so allowed.” Id . at 15. The Court required that the evidence be “uncontested and supported by overwhelming evidence, such that the jury ve rdict would have been the same absent the
error.” Id . at 17. And the Court set the test for a ffirmance as “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Id . at 15 (quoting Chapman v. California , 386 U.S. 18, 24 (1967)). i. Powder-Cocaine Conviction We first turn to Ellis’s conviction fo r conspiracy to distribute more than 5 kilograms of powder cocaine. De spite the government’s cartel-heavy presentation at trial, it has abandoned that approach on appeal. And when those cartel amounts—hundreds of kilograms 16 —are stripped away, the government cannot show that the Alleyne error was harmless beyond a reasonable doubt. Ellis c ontested his liability for at least five kilograms of powder cocaine, and the government didn’t introduce overwhelming

16 On direct examination, Officer Er ic Jones of the Kansas City Police Department estimated that Hector Agu ilera was responsible for hundreds of kilograms of cocaine. R. Vol. IV at 2278.30 evidence to prove that this amount was indi vidually attributable to him. Even the presentence report, applying a preponderan ce standard, fell short of this mark. 17
ii. Crack-Cocaine Conviction We next ask whether the government can show harmless error beyond a reasonable doubt with the necessary overwhe lming evidence that Ellis conspired to manufacture or possess with intent to dist ribute and to distribute 280 grams of crack cocaine. 18 Here, unlike with its Mexican-car tel powder-cocaine evidence, the government can rely on evidence more part icular to Ellis—the crack cocaine cooked and sold by Tatum, Ellis, and Theoplis. The government points to the controlled buys from Tatum and Ellis totaling 25.3 grams. But that still leav es the government needing to show overwhelming evidence of another 254.7 grams needed to sustain the district court’s sentence. And here, Ellis contested this elemen t at sentencing, and the record shows that the gove rnment’s proof of this re maining crack-cocaine amount is far from “uncontested and sup ported by overwhelming evidence.” Neder , 527 U.S.
at 17. To show that 280 grams of crack cocaine are individually attri butable to Ellis, the government relies primarily on the testimony of Ellis’s nephew, Theoplis.

17 The PSR attributed to Ellis a total of 4,167 grams of cocaine from his and Tatum’s months of cocaine pur chases from Sykes. Because of this calculation, we do not review the evidence of these cocaine-powder buys in detail.

18 Because of the government ’s cartel-heavy presentati on to the jury, and its failure during closing argument or rebuttal closing even to mention 280 grams of crack cocaine, we have doubts whether the jury convicted him of a crack-cocaine conspiracy of the aggravated crim e under 21 U.S.C. § 841(b)(1)(A).31 Theoplis responded affirmatively to the government’s question whether the powder cocaine Ellis purchased was “alw ays cooked into crack cocaine.” 19 R. vol. V (3165)
at 678. But Theoplis admitted that he had ju st once seen Ellis cook powder cocaine into crack. Theoplis also testified that he had once seen Tatum cook crack at Tatum’s girlfriend’s house, after complying with Ta tum’s request that Theoplis bring baking soda. Theoplis also testified that neither he, Tatum, nor Ellis bought crack cocaine. Finally, Theoplis testified that he sold “p ieces” of crack cocaine for $10 or $20, and that Tatum and Ellis sold “weight”—mean ing sixteenth- or eighth-ounce amounts. Id

. at 683–84. On appeal based on Theoplis’s testimony, the government argues that Ellis and Tatum cooked all their purchased powder co caine into crack. If so, the government would have a strong basis to argue that E llis and Tatum conspired to manufacture and distribute at least 280 grams of crack cocaine. But we are reviewing for constitutional ha rmless error, not for sufficiency of the evidence. And Theoplis’s testimony does not provide the “uncontested and overwhelming evidence” necessa ry for us to find the Alleyne error harmless beyond a reasonable doubt. In arguing othe rwise, the government points us to two cases. But as discussed below, in both cas es the government presented much stronger evidence of an omitted offense element th an the government did here.

19 As mentioned, at arrest Ellis had a variety of drugs and paraphernalia, which included a small amount of powder cocaine but no crack.32 First, in Pizarro , 772 F.3d at 298, the governme nt presented overwhelming evidence that far exceeded the drug amount necessary to trigger the mandatoryminimum sentence. Law-enforcement offici als had seized 81 kilograms of cocaine from luggage at the airport. Id. at 299. Further, multiple ot her witnesses testified that Pizarro had personally handled more than 5 kilograms of powder cocaine. Id. Because overwhelming evidence supported Pi zarro’s responsibility for more than 5 kilograms of powder cocaine, the Alleyne error was harmless beyond a reasonable doubt. Id. Second, in United States v. Mann , 786 F.3d 1244 (10th Cir. 2015), we affirmed a defendant’s increased mandatory -minimum sentence under 18 U.S.C. 924(c)(1)(A)(iii) becaus e the evidence was “overw helming” that Mann had discharged a firearm—an element om itted from the jury instructions. Id. at 1251–52. In a recorded interv iew with FBI agents played to the jury, Mann admitted several times that he had disc harged his firearm. Id. at 1251. And on appeal, Mann conceded that the jury would have “found the mere fa ct of discharge of a firearm” had the verdict form asked the jury to answer that question. 20 Id. at 1251–52. See also United

20 In a Fed. R. App. P. 28(j) letter, the government also cites United States v. Morris , 784 F.3d 870, 875 (1st Cir. 2015), as “persuasive support” for its overwhelming-evidence argument. In Morris , the defendant’s counsel conceded during closing argument that th e jury should attribute 4 tran sactions to him, each with 62 grams of powder cocaine, and that the jury could attribute crack cocaine from those 248 grams of crack on a 1:1 ratio. 784 F.3d at 875. The First Circuit had no trouble finding overwhelming evidence of at least another 32 grams of crack cocaine, noting that Morris himself testified that he was involved “in a bout eight other drug transactions of at least 28 grams each.” Id. at 876. On the other hand, Ellis’s counsel disputed the cocaine amounts during trial, and Ellis himself did so at sentencing.33 States v. McIvery , 806 F.3d 645, 651 ( 10th Cir. 2015) (quoting Morris , 784 F.3d at 874) (stating the government must show “a corpus of evidence such that no reasonable jury could find, based on the record , that the [drug] qua ntity was less than that required for the mandatory minimum to apply”). Here, Ellis contested cons piring to manufacture a nd distribute at least 280 grams of crack cocaine. Our review of th e record does not persuade us that the government offered overwhelming evidence to satisfy this omitted element “such that the jury verdict would have been the same abse nt the error.” Neder , 527 U.S. at 17. Put another way, the government has not pr esented “a corpus of evidence such that no reasonable jury could find, based on the r ecord, that the [drug] quantity was less than that required for the ma ndatory minimum to apply.” McIvery , 806 F.3d at 651 (quoting Morris , 784 F.3d at 874). C. The Government’s United States v. Stiger Argument 1. How Stiger Fits into the Analysis Taking a wide turn around these Alleyne problems, the government asserts that this circuit “has adopted the conspiracy-wide approach for statutory maximums.” Appellee Br. at 29; 57. The government trea ts the general verdict as a jury finding that the conspiracy as a whole involved at least five kilograms of powder cocaine and

Certainly, Ellis never admi tted that he was involved w ith either 5 kilograms of powder cocaine or 280 grams of crack cocaine.34 280 grams crack cocaine. 21 From this, the government implicitly argues that the conspiracy conviction sets a 10-to-life sentencing range under § 841(b)(1)(A), which authorizes Ellis’s life sentence. Because the government relies on United States v. Stiger , 413 F.3d 1185 (10th Cir. 2005) to render the Alleyne-Dewberry problem moot, we examine Stiger in detail.
In Stiger , the court reviewed a conviction in a much smaller conspiracy than charged in Ellis’s case. 413 F.3d at 1189. Stiger was intimatel y involved in the conspiracy’s workings. For example, he helped prepare drugs for shipping and assisted in transporting th e drugs as well as transfer ring large sums of money. Id . As Ellis did here, Stiger receiv ed a mandatory life sentence b ecause of the conspiracy’s drug weight and two prio r felony convictions. Id . at 1191. On appeal, Stiger argued that the di strict court had violated his Sixth Amendment rights “by not requiring the jury to make a specific finding as to the amount of drugs for which he was personally responsible.” Id . In that case, unlike here, the jury had at least found that the c onspiracy as a whole had trafficked more than 5 kilograms of powder cocaine. Id . The court declared that Stiger had raised an issue of first impression in our court—“whether a jury, after Apprendi and Booker ,

21 But the government cannot excuse a la ck of a jury finding of an element (here drug weight) by relying on a guilty ve rdict for an indictment count charging that element. For instance, in a prosecution under 18 U.S. C. § 924(c)(1)(a)(ii), as in Alleyne , the government is not excused from obtaining a jury finding on “brandishing” by charging that element in the indictment. See, e.g. , United States v. Kiel , 658 F. App’x 701, 705, 710 (5th Cir. 2016); United States v. McKinley , 732 F.3d 1291, 1293, 1297 (11th Cir. 2013); United States v. Mack , 729 F.3d 594, 607-08 (6th Cir. 2013). Here, the jury did not make a finding of the cocaine quantities charged, let alone that those quantities were reasonably foreseeable to Ellis.35 must determine the amount and type of drug attributable to individual coconspirators rather than simply attributab le to the entire conspiracy.” Id . at 1192. We joined five other circuits 22 in announcing a rule that “in the c onspiracy context, a finding of drug amounts for the conspiracy as a whole sets the maximum se ntence that each coconspirator could be given.” Id . (citing Derman v. United States , 298 F.3d 34, 42 (1st Cir. 2002)). We then le ft it to the district judge to “determine the ‘floor’ by finding the precise drug quantity attri butable to each coconspirator.” Id . at 1193. We don’t read Stiger as giving an unqualified ru le that, in wide global conspiracies as charged here, the lowest street-l evel dealers are automatically subject to the same maximum penaltie s as drug kingpins. Indeed, in United States v. Evans , 970 F.2d 663, 670 (10th Cir. 1992), decided 13 years before Stiger , we noted that defendants must “have a general awareness of both the scope and the objective of the

22 Notably, of these five circuits, th ose that have revi sited the issue postAlleyne have not reached Stiger ’s result. See Cruse , 805 F.3d at 817 (concluding that the district court erred in te lling the jury that the two de fendants were responsible for the cocaine involved in the conspiracy and all acts of the coconspirators in furtherance of the conspiracy and not telling the jury that the acts must be reasonably foreseeable to th e two defendants); Haines , 803 F.3d at 740–42 (t hough stating that “for determining statutory minimum and maximum sentence s, our cases always have limited the defendant’s liability to the quantity of drugs w ith which he was directly involved or that was reasonabl y foreseeable to him,” the court went on to say that whether conspiracy-wide amounts apply to determine statutory maximums is “a bridge we need not cross today”); Pizarro , 772 F.3d at 293 (explaining that “[h]enceforth, under Alleyne and Apprendi , the jury must find the mandatoryminimum and statutory-maximu m triggering elements,” in drug cases based on drug quantity). And another of the cited circuits reached a different result even earlier. Collins , 415 F.3d at 314 (reversing drug senten ce because “the district court’s sentence effectively attributed to Collins, an individual member of the conspiracy, the quantity of cocaine base dist ributed by the entire conspiracy”).36 enterprise to be regarded as a coconspirator.” And we followed those words with a general limitation on a conspiracy’s reach: This is not to say, however, that a defendant may be convicted of a conspiracy that defies common se nse simply because he or she possesses a general awareness of the breadth of its illeg al activities. For example, at oral argument, the gove rnment suggested that a drug dealer who knows that his suppl y can be traced to the Medillin cartel has joined a vast conspiracy with the members of the cartel to distribute crack illegally for profit. Under su ch an approach, a small-time drug dealer could be held re sponsible for all of the drugs originated by the cartel for sentencing purposes, result ing in a guaranteed life sentence. Such an approach would pervert the concept of conspiracy. Mere knowledge of illegal activity, even in conjunction with participation in a small part of the conspiracy, does not by itself establish that a person has joined in the grand conspiracy. Id

. Under the government’s reading of Stiger , any prosecution built upon a sufficiently wide conspir acy involving a defendant with two prior felony-drugoffense convictions would require a mandatory life-without-release sentence— regardless of how little of the conspiracy-w ide drugs are individually attributable to that defendant. For a variety of reasons , we reject that interpretation of Stiger

. First, Stiger itself found it important that th e district court had “determined Mr. Stiger was integral to the conspiracy and could be sentenced as though he were responsible for the full drug types a nd quantities.” 413 F.3d at 1192 (emphasis added). And in rejecting Stiger’s appeal, we noted that substantial evidence showed that he had taken “ essential and integral steps to help the organization profit from the sale of illegal drugs.” Id . at 1194 (emphasis added). We carefully reviewed the evidence against Stiger—extensive testim ony about his packaging and coordinating37 drug shipments, about his se nding large amounts of money to the head man in the conspiracy, and about his gr uesome torture of a woman concerning a dispute about drug-sale proceeds. Id . at 1191. In comparison, we cannot say that Ellis was integral to the vast conspiracy charged in this case. After all, Elli s was a relatively small-time drug dealer, and the Mexican cartel was importing hundreds of kilograms of cocaine into the Kansas City area. 23 We read Stiger to say that conspirato rs who are “integral” to an entire conspiracy can be senten ced at the conspiracy-wide drug amount. In our view, conspirators are “integral” when their individually attributable drug amounts correspond to the conspiracy-w ide drug amounts. This approach reads Stiger in closer harmony to our circuit’s pr ecedents than does the government’s approach. Obviously, Stiger did not overrule Evans and its prohibition against cartelwide liability for small participants. Evans denounced the sort of conspiracy liability that the government argued to the jury. 24 970 F.2d at 670. As mentioned, it required that conspiracy convictions obey common sense, requiring more than “a general awareness of the breadth of its illegal activities.” 25 Id . It described cartel liability for

23 Left unexplained in Stiger is how a district court’s finding that Stiger was “integral” to the conspiracy is not, under Apprendi , a fact that increases the maximum sentence, and so requires a jury finding.

24 At Ellis’s sentencing, the prosecutor explained the government’s approach to the case as follows: “As the evidence unfolded, Mr. Ellis wants to say, well, I didn’t know Perez-Alcala, and I agr ee he didn’t, but the drugs th at Perez-Alcala and Hector Aguilera [the “kingpin”] were getting were ending up in the hands of Marvin Ellis. That’s why he’s connected.” R. Vol. V (3165) at 1668.

25 On this general-awareness point , the government’s examination of cooperating-witness Theoplis is revealing:38 small-time drug dealers an approach that “would pervert the concept of conspiracy.” Id

. And we decided Stiger after we decided other cases imposing a personalresponsibility limitation on conspiracy liability. See, e.g. , Arias-Santos , 39 F.3d at 1078 (concluding that the defendant “may be sentenced on the basis of cocaine possessed by another conspirator, so long as the amount is within the scope of the conspiracy and foreseeable by [her]”); United States v. Russell , 963 F.2d 1320, 1322 (10th Cir. 1992) (quoting Pinkerton v. United States , 328 U.S. 640, 646–47 (1946) for the principle that conspi rators are responsible only fo r coconspirators’ acts in furtherance of the conspiracy and crim es committed “within the scope of the unlawful project” 26 and thus “reasonably foreseen as a necessary or natural

Q: Would it be reasonable for you to conclude that the cocaine you were buying on Duce Duce [22nd Street] was coming from some source? A: What do you mean by that? Q: Well, it was coming from somewher e, would you agree with that? A: Correct. Q: Would it be reasonable to concl ude that it came from a Mexican source? A: Not that I know of. Q: You don’t know? A: I don’t know. Q: But you know it came from somewhere? A: Correct. R. Vol. V (3165) at 727.

26 In its closing argument, the government told the jury that “it’s not important that any particular defendant knew much at all about the overall scope of the conspiracy.” R. vol . V. (3165) at 1475.39 consequence of the unlawful agreement”). 27 And our post- Stiger cases cite and rely on these earlier cases too. See Dewberry , 790 F.3d at 1030 (determining that evidence was sufficient to support a crack-cocaine sentence, citing Arias-Santos favorably to conclude that a reasonable ju ry could find that Dewberry “could have foreseen that Mr. Webb would convert pow der cocaine into 280 grams or more of crack cocaine”). 2. How Alleyene Affects Stiger 28 Alleyne directly overruled Stiger on one point. Stiger directed that the district court, and not the jury, find the sentencing “floor” based on individually attributable drug amounts. Stiger , 413 F.3d at 1193. But the Alleyne

- Dewberry tandem requires that the jury make this fa ct finding if it increases a ma ndatory-minimum sentence. So what did Stiger mean by the sentencing “floor”? Id. Did this reference allow a district court to ignore the mandatory-minimum se ntence associated w ith the statutory sentencing range given by the conspiracy-w ide drug amount? In other words, if the jury found that the conspiracy-wide amount was at least 280 grams of crack cocaine, would Stiger open the door to § 841(a)(1), (b)(1 )(A) for the maximum life sentence,

27 In United States v. Allen , 9 F. App’x 936, 938 (10th Cir. 2001) (unpublished), we said that “because the jury did not de termine the amount of drugs attributable to defendant,” we could not uphold under Apprendi “a conviction for the quantities identified in § 841(b)(1)(A) or (B)[.]”

28 Judge Hartz joins the opinion in full except for Discussion Section I.C.2, which he does not join.40 but somehow ignore the corresponding 10-year mandatory-minimum sentence? 29 Obviously, courts have no authority to disr egard a statutory sentencing range. So I interpret Stiger ’s sentencing “floor” to be the mandatory-minimum sentence plus whatever increase a defendant ’s relevant conduct under the sentencing guidelines gives. I cannot construct a 0-to-life sentencing range by merging § 841(b)(1)(A), (B), or (C). Until Alleyne

- Dewberry , Stiger ’s one-size-fits-all approach, whatever its wisdom, was at least legally permissible (if the “floor” could not go beneath the mandatory minimum). But Alleyne

- Dewberry changes that. Now, the mandatoryminimum sentence is unhitched from the c onspiracy-wide maximum sentence. In a reversal of fortune, Stiger ’s conspiracy-wide maximum sentence is now limited by the mandatory-minimum senten ce’s statutory range. For ex ample, if a defendant’s individually attributable amount of crac k cocaine is 100 grams, that compels a statutory sentencing range of 5 to 40 year s, under § 841(b)(1)(B). And even if the conspiracy-wide crack-cocai ne amount far exceeds 280 gr ams, the maximum cannot rise past 40 years without creating a new se ntencing range of 5 years to life. Nothing

29 In Morales , 108 F.3d at 1225, we stated that “[in] general, ‘district courts have broad discretion in sentencing a de fendant within the range prescribed by Congress.’” (quoting United States v. Robertson , 45 F.3d 1423, 1448 (10th Cir. 1995)).41 in § 841(b) suggests that Congress intende d us to merge its precise statutory sentencing ranges in this fashion. 30 And there lies a problem for the govern ment. To sustain Ellis’s life-withoutrelease sentence, it must show that Elli s’s offense is one “i nvolving” at least 280 grams of crack cocaine, 21 U.S.C. § 841(a)(1 ), (b)(1)(A)(iii), before it can reach a sentencing range of 10-years-to -life imprisonment. But after Alleyne

- Dewberry , we must ask whether the offense involves that much individually attributable cocaine before imposing the associated sentencing range that includes the 10-year mandatoryminimum sentence. A conspiracy-wide crac k-cocaine finding of 280 grams or more cannot establish the mandatory-minimum term of 10 years—only jury-found, individually attributable amounts can auth orize that sentence for a defendant. And absent getting to § 841(a)(1), (b)(1)(A ), the government cannot rely on § 851 convictions to increase Ellis’s sentence to mandatory life without release.

30 The 5-year term is called a mandato ry-minimum sentence for a reason. And the sentencing guidelines apparently agr ee, because in cases where a statutory minimum exceeds an adviso ry guideline range, the mandatory-minimum term becomes the guideline sentence. See U.S. Sentencing Guidelines Manual § 5G1.1(b). Even so, we recognize that the government has sometime s taken a contrary view without explanation. See Dewberry , 790 F.3d at 1033 (noting that the government agreed that a 10-year manda tory minimum sentence from the jury’s special-verdict finding that he conspired to distribute 5 k ilograms or more of powder cocaine should be reduced to a five-year mandatory mi nimum sentence under § 841(b)(1)(B) because the PSR found him responsible for less than 5 kilograms); United States v. Biglow ( Biglow II ), 635 F. App’x 398, 39 9 (10th Cir. 2015) (unpub lished) (explaining that the government conceded the district court’s error in imposing a five-year mandatory-minimum sentence based on a jury verdict finding that the conspiracy as a whole had involved at least 500 grams of powder cocaine, when the district court at sentencing attributed 192 grams to the defendant individually).42 3. Summary As stated, we read Stiger differently than the govern ment does, and we vacate Ellis’s sentence under §§ 841(a)(1), (b)(1)( A) and 851 and remand that count for resentencing under §§ 841(b)(1)(C) and 851. 31 In remanding cases for violations of Apprendi , we have ordered that the district court resentence under § 841(a)(1), (b)(1)(C) when the conv iction stands but the sentence does not. See Jones , 235 F.3d at 1236–37 (“A district court may not im pose a sentence in excess of the maximum set forth in 21 U.S.C. § 841(b)(1)(C) unle ss the benchmark quantity of cocaine base for an enhanced penalty is al leged in the indictment in a ddition to being submitted to the jury and proven beyond a reasonable doubt.”); see also Vazquez , 271 F.3d at 98 (explaining that, because “drug quantity wa s neither submitted to the jury nor reflected in its verdict,” “§ 841(b)(1)(C) define[d] Vaz quez’s prescribed statutory maximum sentence”).
II. Drug-Premises Conviction Ellis next argues that th e evidence was insufficient to support his conviction for maintaining drug-involved premises. Alth ough the indictment charges that this crime occurred “[o]n or about April 27, 2012,” Ellis ignores the “on or about” qualifier, concentrating instead on the part icular date of Apr il 27, 2012. R. vol. I (3165) at 585. According to Ellis, the gove rnment did not prove beyond a reasonable

31 In view of this holding, we have no need to address Ellis ’s Fifth Amendment argument, one based on his asserted due-p rocess right to avoid an “aggravated conspiracy charge” (longer imprisonment for more drug involvement) “based upon the conduct of others that is not reasonably foreseeable to him.” Appellant’s Opening Br. at 4.43 doubt that he maintained 92 1 Haskell as a drug-traffick ing house on April 27, 2012. The government contends that it proved th at Ellis maintained the residence at 921 Haskell for drug-trafficking purposes some time within a few weeks of April 27, 2012—a time period sufficiently close to April 27 to compel an affirmance. On appeal, Ellis argues th at insufficient evidence s upports this count of conviction. Further, he acknow ledges that he did not object in the district court on sufficiency-of-evidence grounds. Id . In this circumstance, we review Ellis’s challenge under the plain-error standard. United States v. Goode , 483 F.3d 676, 681 (10th Cir. 2007). To meet hi s burden under this standard, Ellis must show that the district court committed “(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights.” If Ellis does so, “this Court may exercise discretion to correct the e rror if it seriously af fects the fairness, integrity, or public reputation of judicial proceedings.” Id . (quoting United States v. Kimler , 335 F.3d 1132, 1141 (10th Cir. 2003)). We conclude that Ellis has not even shown error. First, as noted, the indictment was not limited to a specific da te—instead, it charged Ellis with violating § 856 “on or about April 27, 2012.” R. vol. I (3165) at 585. Indeed, the government produced evidence of Ellis’s maintaining 921 Haskell as a drug premises during the month before the date charged in the indict ment. When an indictme nt lists a specific date, the government must produce “some ev idence which tends to show that the defendant committed the charged offense on ‘a date reasonably near to the specified date’ alleged in the indictment.” United States v. Charley , 189 F.3d 1251, 1273 (10th44 Cir. 1999) (reversing because the evidence s howed the defendant’s actions from two years before the date listed on the indictment) (quoting United States v. Castillo , 140 F.3d 874, 885 (10th Cir. 1998)). Evidence that a de fendant committed the crime within a few weeks of the specified date suffices. Id. at 1272; see also Kokotan v. United States , 408 F.2d 1134, 1138 (10th Cir. 1969) (“[I]f the prosecution proves that the offense was committed within a few week s of the date, the proof will be deemed sufficient to hold defendant re sponsible for the charge.”). The government proved that Ellis mainta ined 921 Haskell as a drug premises within a few weeks of Apr il 27. The jury heard a phone call between Ellis and an unidentified male on April 4, 2012 on a phone line that Ellis, Tatu m, and others used for drug sales—some of which took place at 921 Haskell. Whenever, if ever, the spat between Tatum and Ellis ende d, Ellis’s use of this phone suggests that it had not begun by April 4, 2012. Ellis points to a recorded phone call be tween Tatum and an unknown male on April 12, 2012, where Tatum says that he and Ellis had a “falling out.” R. vol. III (3165) at 2287–88. But the government produ ced a utility bill for 921 Haskell for service from April 13 to May 14, 2012, still in Ellis’s name. Contrary to Ellis’s contention that he di d not have a “requisite c onnection” to 921 Haskell, Appellant’s Opening Br. at 31, the utility b ill—one reasonably near the date listed on the indictment—was evidence upon which the jury could rely in convicting Ellis of this count. Cf. United States v. Renteria-Saldana , 755 F.3d 856, 85 9–60 (8th Cir. 2014) (concluding that the two-level drug-house senten cing enhancement was proper based on, in part, the defe ndant’s having and pa ying the utility bill s for the house).45 III. Conviction for Firearm Possession in Furtherance of Drug Trafficking Next, Ellis argues that th e evidence was insufficient to sustain his conviction under 18 U.S.C. § 924(c) for po ssessing a firearm in furthe rance of a drug-trafficking crime. Ellis contends that the drugs and other items he was carrying—namely, the 2.5 grams of powder cocaine—were for pe rsonal use, not distribution. Ellis acknowledges that he di d not move for acquittal, so we again review for plain error. Goode , 483 F.3d at 681. To establish a § 924(c) violation, the government must prove that Ellis (1) committed a drug-trafficking offense (2) and knowingly possessed a firearm (3) “in furtherance of” that crime. United States v. Nava-Sotelo , 354 F.3d 1202, 1205 (10th Cir. 2003). To support this conviction, th e government must es tablish “some nexus” between the firearm and th e drug-trafficking crime. United States v. Luke-Sanchez , 483 F.3d 703, 706 (10th Cir. 2007). The government can use circumstantial evidence to show both an intent to possess the weapon, United States v. McGehee , 672 F.3d 860, 871 (10th Cir. 2012), and an intent to distribute drugs, United States v. Burkley , 513 F.3d 1183, 1189 ( 10th Cir. 2008). We disagree with Ellis that he can show an error that was plain, let alone one that affected his substantial rights. Ellis claims that he had the 2.5 grams of powder cocaine for personal use, not distribution. But based on the evidence, the jury could rationally conclude that, when police arre sted him on May 11, 2012, Ellis possessed46 the cocaine with the intent to distribute it . After all, the jury knew from the evidence that Ellis was a drug dealer . And in evaluating what E llis intended to do with the cocaine, the jury could consider that officers recovered fro m Ellis’s bag more evidence of drug dealing than the powder co caine itself: an empty sandwich-bag box, a digital scale, about 32 grams of synthetic marijuana, 25.8 grams of PCP in a bottle, 3.1 grams of marijuana, 16 mollies ( ecstasy/MDMA), and 8 Diazepam pills. See United States v. Khondaker , 263 F. App’x 693, 701 (10t h Cir. 2008) (unpublished) (holding that jury could conclude that the defendant possessed drugs for retail distribution based on the amount of drugs and the variety of drugs found—including crack and powder cocaine, meth amphetamine, and ecstasy); see also United States v.
Triana , 477 F.3d 1189, 1195 (10th Cir. 2007) (d escribing scales and plastic baggies as “tools of the drug trade”). We af firm Ellis’s § 924( c) conviction.
IV. Right to Counsel at Sentencing Ellis next argues that the district cour t violated his Sixth Amendment right to counsel when it refused to appoint substitu te counsel at sentencing and when it found that Ellis had knowingly waived his right to counsel. He asks us to vacate the sentences on all convictions and remand for resentencing after appointment of substitute counsel. Because we remand for a full resenten cing, and now order that Ellis receive different counsel to assist him at the rese ntencing, we conclude that these claims are moot and address them no further.47 V. Supervised-Release Violation Ellis also filed an app eal in Appeal No. 14-3181 after the district court sentenced him to 24 months for the supervised -release violation. But in his appellate brief, Ellis makes one fleeting mention of th is violation in his argument. He asserts that “Ellis is also entitled to substitute counsel in th e related case involving the revocation of his supervised release. As noted above, the complete breakdown in communication between Mr. Ellis and Mr. De Hardt continued in the proceedings in that case.” Appellant’s Opening Br. at 40 n.7. Ellis’s bare assertion is insufficien t to preserve this claim for our consideration. See United States v. Fishman , 645 F.3d 1175, 1194 (10th Cir. 2011) (concluding that “[w]e will not manufactur e arguments for an appellant, and a bare assertion does not preserve a claim” that the appellant “fail[ed] to develop [the] argument or provide any citations to authorities or the record”); United States v. Hardman , 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc) (“ Arguments raised in a perfunctory manner, such as in a footnote, are waived.”). Ellis’s single footnote is insufficient to trigger our review. 32 We decline to address this argument and affirm Ellis’s supervised-release-viol ation conviction and sentence.

32 Even if Ellis had preserved this ar gument, we would conclude that Ellis knowingly and voluntarily waived counsel at the revocation-vi olation sentencing. Before proceeding, the district court aske d Ellis whether he wanted to represent himself (to which Ellis res ponded affirmatively), whether Ellis understood the charge and the maximum sentence, a nd whether Ellis understood th at it was a bad idea to represent himself, especially given his lack of any lega l education. Based on these questions, we would conc lude that the district court ad equately covered topics such as the nature of the charges, the range of punishment, possi ble defenses, and a48 CONCLUSION In Appeal No. 14-3165, we affirm all of Ellis’s convictions and all but one of his sentences—the mandatory -life sentence for the coca ine conspiracy. On that sentence, we conclude that the dist rict court committed plain error under Alleyne by failing to obtain the jury’s findings on th e conspiracy’s cocaine amounts reasonably foreseeable to Ellis. We further conclude that the di strict court’s errors were not harmless, because the governme nt’s evidence was not overw helming that Ellis could reasonably foresee at least 5 kilograms of powder cocaine in the conspiracy, and that Ellis (and his coconspirators Tatum and Th eoplis) manufactured or sold at least 280 grams of crack cocaine. Thus, we reverse Ellis’s conspiracy sentence and remand for a full resentencing, subject to the cocaine-conspiracy conviction being resentenced under 21 U.S.C. § 841(b)(1)(C). We affirm all of Elli s’s other convictions and sentences. In Appeal No. 14-3181, we a ffirm Ellis’s supervis ed-release-violation conviction and sentence.

disclosure of risks involved in representing oneself pro se before permitting Ellis to proceed pro se at sentencing. See Turner , 287 F.3d at 983.