UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL C. REDIFER, Defendant - Appellant. No. 14-3031 (D.C. No. 2:12-CR-20003-CM-10) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ A jury convicted Michael C. Redifer of one count of conspiracy to possess with intent to distribute and to distribut e 50 grams or more of methamphetamine.
See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); 18 U.S.C. § 2. The district court sentenced him to 360 months’ imprisonm ent followed by a five-year term of supervised release. On app eal, he asserts numerous errors at his trial and sentencing. We affirm his conviction, but remand for resentencing.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 13, 2015
Elisabeth A. Shumaker Clerk of Court2 The second superseding indi ctment in this case ch arged fifteen defendants, including Mr. Redifer, with participation in the methamphetamine conspiracy. Many of the conspirators reached plea agreements with the gove rnment and testified against Mr. Redifer and his co-defendant, Steven M. Hohn, at trial. The testimony of these co-defendants, along with that of law enforcement officers who investigated Mr. Redifer’s activities, deta iled his participation in the charged conspiracy. The jury convicted Mr. Re difer on the conspiracy co unt. We previously affirmed Mr. Hohn’s conviction and sentence. See United States v. Hohn , 606 F. App’x 902 (10th Cir. 2015). To the extent Mr. Redifer raises issues previously disposed of in Hohn , we affirm for substantially the reasons stated in our previous decision. 1 Appointed counsel filed an opening brie f on behalf of Mr. Redifer. We granted counsel’s motion to withdraw and permitted Mr. Redifer to file a supplemental, pro se brief. In this decision, we address the issues presented in both the counseled and pro se briefing. ALLEGED TRIAL ERRORS I. Sufficiency of the Eviden ce/Variance From the Indictment Mr. Redifer first argues that there was insufficient ev idence to convict him of the charged conspiracy because “[ t]he evidence did not support a shared , single

1 These issues include: (1 ) denial of a mistrial ba sed on testimony concerning the Kingdom City shooting, see Hohn , 606 F. App’x at 907-08; (2) denial of Proposed Jury Instruction No. 4, see id. at 910; and (3) suffi ciency of the evidence that the methampheta mine was imported, see id. at 911.3 criminal objective or a common, illicit goal.” Aplt. Opening Br. at 11. In a related argument, he contends he “did not receiv e a fair trial because there were multiple separate conspiracies and evidence about the dates and amount of drugs charged varied from the indictment.” Id. at 15. “We review a sufficiency of the evidence challenge de novo.” United States v. Rodebaugh , 798 F.3d 1281, 1296 (10th Cir. 2015). “Under the sufficiency-of-the-evidence test, we view th e evidence in the light most favorable to the government and ask whether the eviden ce—and any reasonable inferences to be drawn from it—would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” United States v. Gallegos , 784 F.3d 1356, 1359 (10th Cir. 2015). To support [Mr. Redifer’s] conspiracy conviction, the government was required to prove [he] (1) agreed with at least one othe r person to violate the law, (2) knew of the conspiracy ’s objectives, and (3) knowingly and voluntarily involved [him]self in the conspiracy . The government also was required to demonstrate (4) interdep endence among the co-conspirators. Id. at 1360. To satisfy the requirement of interdependence, “[t]he alleged co-conspirators must have a sh ared, single criminal objective, not just have similar or parallel objectives between si milarly situated people.” United States v. Acosta-Gallardo , 656 F.3d 1109, 1123 (10th Cir. 2011) (internal quotation marks omitted). Mr. Redifer argues that the government fa iled to prove the charged conspiracy because the evidence at tria l revealed the conspirators had no common objective and no common, illicit goal. He contends that at times some of the conspirators exchanged only personal-use quantities, and at other time s some of them only sold4 methamphetamine to support their own drug ha bits rather than to make a profit. But an identical profit motive is not essential to a conspiracy, because “[t]he goals of all the participants need not be congruen t for a single conspiracy to exist, so long as their goals are not at cross purposes .” United States v. Harrison , 942 F.2d 751, 756 (10th Cir. 1991) (internal quotation marks omitted). A reasonable jury could have found that the participants here had congruent, if not identical goals, involving the distribution of methamphetamine to make money. Whether some of the conspirators used that money to live on or to purch ase methamphetamine for personal use is irrelevant. Further, the fact that the conspirato rs had their own cu stomers, benefitted separately from their own dr ug sales, or did not pool the money they received from drug sales did not prevent th em from “act[ing] together for their shared mutual benefit within the scope of the conspiracy charged.” United States v. Heckard , 238 F.3d 1222, 1231 (10th Ci r. 2001) (internal quotati on marks omitted) (italics omitted). Mr. Redifer also argues that there were fatal variances between the conspiracy charged and the proof at trial. “A varian ce arises when an indictment charges a single conspiracy but the evidence presente d at trial proves only the existence of multiple conspiracies.” United States v. Carnagie , 533 F.3d 1231, 1237 (10th Cir. 2008). “In the context of a conspiracy c onviction, we treat a variance claim as a challenge to the sufficiency of the evidence establishi ng that each defendant was a member of the same conspiracy.” Gallegos , 784 F.3d at 1362. “Whether sufficient5 evidence was presented to establish a single conspiracy is a question of fact for the jury to decide.” Acosta-Gallardo , 656 F.3d at 1124. Where the government has charged a defe ndant with participation in a larger conspiracy but the evidence instead esta blishes several smaller conspiracies, a defendant is entitled to revers al only if the variance prejudi ces his substantial rights. A variance prejudices a defendant’s subs tantial rights “if th e evidence adduced against co-conspirators involve d in separate conspiracies was more likely than not imputed to the defendant by the jury in its determination of th e defendant’s guilt.” Carnagie , 533 F.3d at 1241. In determining wh ether prejudice has been shown, we consider (1) “whether the proliferation of separate crimes or c onspiracies presented in the case impaired the ju ry’s ability to segregate eac h individual conspirator’s actions and the evidence asso ciated with . . . his par ticipation,” (2) “whether confusion among members of the jury concer ning the legal limitations on the use of certain evidence resulted from the variance,” and (3) “the strengt h or weakness of the evidence underlying the jury’s conviction.” Id. (brackets and internal quotation marks omitted). Even if the evidence s howed the existence of multiple conspiracies, Mr. Redifer fails to establish prejudice re quiring reversal of his conviction. Any evidence of separate conspir acies was unlikely to have im paired the jury ’s ability to segregate Mr. Redifer’s actions and participation in the c onspiracy to distribute and to possess with intent to distribute methamphetamine as charged in the indictment. The evidence of his participation was pr operly admitted and any limitations6 concerning its use in connec tion with the charged conspir acy were unlikely to have confused the jury. Finally , the evidence amply demonstr ated the existence of the charged conspiracy and Mr. Re difer’s participation in it. He has failed to demonstrate reversible error due to the alleged variance. 2
II. Admission of Prior State Conviction Mr. Redifer filed a pretrial motion in limine to exclude any mention of his Kansas state conviction for possession with intent to sell methamphetamine and possession of marijuana. The district c ourt denied his motion, finding that the evidence of the arrest and conviction was relevant and that its probative value was not substantially outweighed by a danger of unfair prejudice. See Fed. R. Evid. 403. The jury heard the following testimony i nvolving the prior conviction. Kerry Randall, one of the conspirators in this case, called Mr. Redifer on April 24, 2011, asking him to help move a trailer out of Mr. Randall’s storage unit. During their conversation, Mr. Redifer asked Mr. Ra ndall if he had any methamphetamine. Mr. Randall said he had “some to get rid of” and told Mr. Redifer that “you can make a little money and I can al so make some money.” R., Vol. 2 at 1900.

2 Mr. Redifer also complains that evidence of “the dates of the offense and the amount of drugs allegedly distributed presen ts a highly prejudicial variance from the offense as charged.” Aplt. Opening Br. at 13. The indi ctment charged a conspiracy involving 50 grams or more of metham phetamine. The gove rnment proved many times over that the conspirato rs, including Mr. Redifer pers onally, distributed greater quantities than the minimum 50 grams specified. As to the dates involved, the indictment stated that they were only “approximate and inclusive,” Second Superseding Indictment dated 5/22/2012, R., Vol. 1, docket number 84, at 1, and Mr. Redifer fails to show th at he was prejudiced by any va riance, particularly given the evidence of his personal participati on at both the beginning of the alleged conspiracy, and later, toward its end.7 Later that day, Mr. Randall and his wife met Mr. Redifer at the storage unit, where Mr. Randall provided Mr. Redifer wi th around a quarter ounce to a half ounce of methamphetamine. At some point, Mr . and Ms. Randall engaged in an argument at the storage locker, whic h escalated into Mr. Randall beating Ms. Randall. The couple then left in Mr. Randall’s truck. Mr . Redifer remained at the storage unit. That afternoon a police offi cer met with Ms. Randall. She informed the officer that Mr. Redifer had witnesse d the beating. The officer went to the storage unit, where she observed Mr. Redife r’s truck and then encount ered Mr. Redifer. While verifying Mr. Redifer’s identificat ion, the officer wa lked around to the driver’s side of his truck. After spotting what she be lieved was marijuana, she searched the truck and found three bags of white crystal meth, se veral glass pipes, a marijuana pipe, two scales, and additional i ndividual plastic baggies. In addition to these drug-related items, she found a bullet behind the driver’s si de seat, and a rifle bullet in the driver’s door poc ket. Mr. Redifer later plead ed guilty in state court to the drug offenses. This court reviews the district court’ s evidentiary rulings for an abuse of discretion. United States v. Hill , 786 F.3d 1254, 1273 (10th Ci r. 2015). The district court did not abuse its discretion in admi tting this evidence. The incident and resulting conviction occurred during the time period of the conspir acy. It involved the co-conspirators and the drug charged in the conspiracy count, methamphetamine. The probative value of the evidence subs tantially outweighed the danger of unfair prejudice from admission of the evidence.8 In his pro se brief, Mr. Redifer assert s additional challenges to the admission of this evidence. He ar gues that Mr. Randall committed perjury by testifying that Mike Roark provided the methamphetamine that Mr. Randall in turn provided to Mr. Redifer. But any inconsistenc ies in how Mr. Randall obtained the methamphetamine go to the weight of Mr. Randall’s testimony, and not its admissibility. The jury heard all of the testimony and could draw its own conclusions. Mr. Redifer also argues th at by admitting evidence of the prior conviction in his conspiracy trial, the di strict court subjected him to double jeopardy. This argument is meritless. See United States v. Felix , 503 U.S. 378, 389 (1992). (“[A] substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes.” (i nternal quotation marks omitted)). III. Admission of Photos of Conspirators Holding Guns Mr. Redifer challenges the admission at trial of a photograph showing himself and co-conspirators Mr. Hohn, Mr. Quick, and Mr. Randall, sitting on the couch holding guns. The district court admitted the photo at trial, af ter initially granting a motion in limine to exclude it. 3

3 Although the district court admitted onl y one of three photos, it appears to have been presented to the jury in two di fferent formats, as exhibits #124 (a photo download from a cell phone r ecovered from the residence at 809 S. Cedar in Gardner, Kansas), and #138 (a photo recovered from Mr. Quick’s Sony digital camera). The photo is sometimes referred to in the singular in th e relevant pleadings, and sometimes in the plural.9 In her opening statement at trial, Mr. Redifer’s counsel argued that there was no evidence that Mr. Redifer was involved w ith the conspirators the police targeted during their investigation. R., Vol. 2 at 608 (“[T]here’s no evid ence that Mr. Redifer was involved with any of thes e individuals at that time.” ). Based on this argument, the government sought rec onsideration of the motion in limine excluding the photograph, reasoning that it would show Mr. Redifer’s close association with his co-conspirators. The district court recons idered its earlier ruling and admitted the photo, finding that it was relevant b ecause it was physical evidence linking the co-conspirators. Mr. Redifer argues that the district court’s rationale for admitting this evidence is flawed because: (1) hi s counsel admitted during he r opening argument that the parties knew of and were involved with eac h other, and merely denied that their association constituted a “conspi racy”; and (2) the jury wa s informed that counsel’s argument was not evidence. Mr. Redifer also argues that in view of the other evidence these individuals knew each other, this evidence was not needed, and the photo was highly prejudicial. The photo was certainly pr ejudicial—given the firear ms shown in it—but it was also highly probative. It was taken during the course of the conspiracy and showed a close association between the conspi rators. The district court did not abuse its discretion in admitting the photo.10 IV. Testimony Contrary to In Limine Orders A. The Kingdom City Shooting The district court granted a motion in limine to exclude evidence of a shooting incident in Missouri that invol ved certain of Mr. Redifer’s co-conspirators. At trial, when discussing the contents of a not ebook found in her bedroom, a government witness made an incidental re ference to the shooting. The district court denied the defendants’ motion for a mistrial based on the reference. Mr. Redifer now argues that given this reference, “[t]he jury could now assu me or infer [that he] was involved with or associated with persons involved in robbery and shootings thereby making him a general bad actor.” Aplt. Opening Br. at 21. We discussed this issue in detail in connection with Mr. Hohn’s direct appeal. In our decision in that case, we stated: [A]t trial, as the government was questioning a witness concerning the contents of a notebook found in her bedroom, the witness identified names in the notebook as “names of the people that were involved in the shootout in Kingdom City.” R ., Vol. 2 at 1305. The defendants immediately moved for a mistrial based on the witness’s reference to the Missouri shooting. Th e district court determined that the government had inadvertently elicited the comment. As a curative matter, it called each of the jurors individua lly into the courtr oom and informed each juror that the statem ent was being stricken fro m the record and that they should disregard it. The court al so reminded the jurors that the names mentioned in the notebook were not those of the defendants. Finally, it asked each juror three questions: wh ether they could disregard the statement as instructed; wh ether they were still able to be fair and impartial to all parties in the case; and whether th ey were still able to decide the case based solely on the evid ence admitted at trial and the court’s instructions. Each juror answered all three questions affirma tively. The district court then denied the mo tion for mistrial.11 We review the district court’s denial of the motion for mistrial for an abuse of discretion. United States v. Morgan , 748 F.3d 1024, 1039 (10th Cir.), cert. denied , ––– U.S. ––––, 135 S.Ct. 2 98, 190 L.Ed.2d 217 (2014). Where inadmissible eviden ce is admitted, “a cautionary instruction is ordinarily sufficient to cure any a lleged prejudice to the defendant and declaring a mistrial is only appropriate where a cautionary instruction is unlikely to cure the prejudici al effect of an error.” Id. (internal quotation marks omitted). Here, the shooting re ference was unintentionally elicited, and the district court very carefully instructed and questioned each juror about the reference, satisfying itself th at “the character of the testimony [was not] such that it [would] create so strong an impression on the minds of the jurors that th ey [would] be unable to disregard it in their consideration of the case, alt hough admonished to do so.” Id. at 1040. Denial of the motion for a mistrial was therefore not an abuse of discretion. Hohn , 606 F. App’x at 907-08. The same reasoning applies here. The district court not only struck the offending testimony and gave the jurors a cautionary instruction, it took the extraordinary step of questi oning each juror individually concerning the inadvertently elicited testimony to insure that it did not unduly prejudice the defendants. For the same reasons stated in our previous deci sion, the district court did not abuse its discretion in denying Mr. Redi fer’s motion for a mistrial based on the reference to the Kingdom City shooting. B. The Garnett, KS, Arrest Mr. Redifer sought to exclude testimony a bout his arrest in Garnett, Kansas, which resulted in his convic tion for fleeing and eluding an officer and for various other minor offenses. The dist rict court denied his motion for an order in limine as moot, because the government promised not to introduce evidence about the arrest during its case-in-chief.12 At trial, however, Mr. Quick was as ked about an instance when he picked up Mr. Redifer’s truck after Mr. Redifer wa s arrested at the storage unit. The government asked Mr. Quick, “And were there any other times that you had possession of his truck?” R., Vol. 2 at 2353. He answered, “When he got arrested in Johnson County, and then when he got arrested in Garnett , both times. . . .” Id. at 2353-54 (emphasis added). Mr . Redifer moved for a mistrial , which the district court denied. We review the denial of a mi strial for an abuse of discretion. See United
States v. Farmer , 770 F.3d 1363, 1370 (10th Cir. 2014). The district court did not abuse its di scretion in denying the mistrial. The remark was only incidental, and the underl ying evidence was rele vant to show the close relationship between Mr . Quick and Mr. Redifer, i llustrated by the fact that Mr. Quick retrieved Mr. Redife r’s truck three times when Mr. Redifer was arrested. Mr. Redifer complains th at the comment allowe d the jury to infer that he was “in and out of jail.” Aplt. Opening Br. at 21. But this was clear from other evidence that was admitted at trial. V. Denial of Requested Jury Instructions Mr. Redifer complains that four requested instructi ons were denied. “We review de novo whether the jury instructions given were adequate,” and the denial of particular defense instructions for an abuse of discretion. United States v. Gallant , 537 F.3d 1202, 1233 (10th Cir. 2008) (internal quotation ma rks omitted). We uphold the denial of the requested instructions.13 Mr. Redifer’s proposed instruction No. 3 would have stated that a simple agreement to pool money and buy drugs is in sufficient to establish a conspiracy, even where each buyer intends to resell methampheta mine. This instruction also listed factors that could be used to distinguish a joint buyer relationshi p from a conspiracy. The substance of this instru ction was adequately covered by the Tenth Circuit Pattern Jury Instruction on conspiracy charges. In addition, the pr oposed instruction contained an inaccurate stat ement of Tenth Circuit law. In this circuit the buyer-seller rule (that a mere buyer-seller relations hip does not establish a conspiracy) does not apply to defendants w ho plan to resell dr ugs for a profit. See, e.g. , United States v. Wright , 506 F.3d 1293, 1299 (10th Cir. 2007) (“[T]he purpose of the buyer-seller rule is to se parate consumers, who do not plan to redistribute drugs for profit, from street-level, mid-level, and other distributors, who do intend to redistribute drugs for profit, thereby furthering the objective of the conspiracy.” (internal quot ation marks omitted)). Proposed instruction No. 4 would have instructed th e jury concerning various issues involving proof of a c onspiracy. We previously up held the denial of this instruction in Hohn , 606 F. App’x at 910. Proposed instruction No. 7 d ealt with Rule 404(b) evid ence. The district court found that its existing Rule 404(b) instructi on “is an accurate reflection of the law, and is better left more generic than speci fic so as not to highlight any particular evidence admitted in th e case.” R., Vol. 2 at 2431. In addition, in view of the14 overwhelming evidence against hi m at trial, Mr. Redifer fa ils to show that he was prejudiced by the denial of th is requested instruction. Mr. Redifer also requested an instruction that would ha ve told the jury that a person cannot conspire with a law enforc ement officer. Hi s counsel expressed concern about evidence of controlled buys made by Ms. Rockers from law enforcement agents. The di strict court denied this instruction because “Tracy Rockers cannot conspire solely with law enforcement in re gards to this evidence, but the purchases that were made can still be considered as part of the scope of the alleged conspiracy.” Id. at 2435. In view of the ev idence of a conspiracy involving non-government agents, any error in failin g to give the requested instruction was harmless. See United States v. Delgado , 672 F.3d 320, 341-42 (5th Cir. 2012) (en banc) (“Where the evidence clearly estab lishes that the defendant conspired with non-governmental participants , the mere fact a government agent was also involved in the scheme does not necessitate [an] instruction [that an agreement with a government agent cannot be the basis for a conspiracy conviction].”). VI. Admission of Co-Conspirator Statements Mr. Redifer complains that he was denied a fair trial in connection with the admission of hearsay statem ents by his co-conspirators. Federal Rule of Evidence 801(d)(2)(E) provides that “[a] statement . . . is not hearsay” if it is “offered against an opposing party and . . . was made by the party’s coconspirator during and in furtherance of the conspiracy.” “For a statement to be ad missible under Fed. R. Evid. 801(d)(2)(E), the District Court must first find the following elements by a15 preponderance of the evidence: (1) that a conspiracy exis ted; (2) that the declarant and the defendant were both members of the conspiracy; and (3) th at the statements were made in the course of and in furtherance of the conspiracy.” United States v. Hall , 473 F.3d 1295, 1302-03 (10th Cir. 2007) (internal quot ation marks omitted). These findings are generally made after a so-called James hearing, 4 held outside the presence of a jury. The district court held a James hearing, at which it he ard testimony from the government’s case agent, Deputy Williams; concluded that the necessary factors had been established for admission of the co-cons pirators’ statements; and stated that if Mr. Redifer believed that any additiona l statements the government sought to introduce at trial were not in furtherance of the conspir acy, he could “bring those up at trial.” R., Vol. 2 at 301. Mr. Redifer argues that the hearsay statements the government sought to introduce were made during post-conviction interviews with the co-conspirators, and were therefore not made “in the c ourse of and in furtherance of the conspiracy,” Hall , 473 F.3d at 1303. During the James hearing, however, Deputy Williams stated that he interviewed the co-conspira tors, and that during those interviews, they provided information about conversations they had during the course of the conspiracy. R., Vol. 2 at 243. He also presented information concerning his investigation to establish the ex istence of the conspiracy. In addition, Mr. Redifer fa ils to identify any specific co-conspirator statements admitted during trial that were hearsay and not made in the course of or in

4 See United States v. James , 590 F.2d 575, 582 (5th Cir. 1979).16 furtherance of the conspiracy. Finally, Mr. Redifer fails to show that his rights were violated by the government’s choice to present its evidence at the James hearing through the testimony of Deputy Williams. See United States v. Owens , 70 F.3d 1118, 1124 (10th Ci r. 1995) (“[A]t a James hearing, the district court has the discretion to consider any evidence not s ubject to a privilege, including both the coconspirator statements the government se eks to introduce at trial and any other hearsay evidence, whether or not that eviden ce would be admissible at trial.”). VII. Government’s Alleged Use of Perjured Testimony Mr. Redifer argues that the co-conspira tor witnesses agai nst him committed perjury. He contends that the government offered their testimony knowing that it was false. He asks that th is issue be reviewed for plai n error due to the lack of objection at trial, and th e government also asserts that it is governed by the plain-error standard. When reviewing an issue for plain error, we ask whether “(1) there was error, (2 ) that is plain, (3) that affect s substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Kalu , 791 F.3d 1194, 1201 (10th Ci r. 2015) (internal quotation marks omitted). To establish this claim, Mr. Redifer mu st show that “(1) a government witness committed perjury, (2) the prosecution kne w the testimony to be false, and (3) the testimony was material.” United States v. Garcia , 793 F.3d 1194, 1207 (10th Cir. 2015). The government argues that Mr. Redifer has failed to alle ge facts showing that it knowingly offered pe rjured testimony and that a ny inconsistencies in the17 witnesses’ testimony are immateri al to the jury’s verdict. Having carefully reviewed Mr. Redifer’s arguments and the record, we c onclude that he has fa iled to show that any of the alleged instances he identifie s rise to the level of knowingly offered perjured testimony. Mr. Redifer fails to sh ow error, much less plain error, in the admission of the challenged testimony. VIII. Admission of Firearm Mr. Redifer argues that the district c ourt plainly erred by improperly admitting into evidence Exhibit No. 74, a pistol that Mr. Randall tes tified had been stolen from Mr. Redifer. The pistol was recovered from Mr. Quick’s mother after Mr. Quick’s arrest. The pistol was rele vant because it appeared to be the same firearm that Mr. Redifer was holding in the December 17, 2010, photograph of himself and his co-conspirators. Moreover, in light of the other evidence of Mr. Redifer’s participation in the conspiracy, he fail s to show how introduc tion of the pistol seriously affected the fairness, integrity or public reputati on of the judicial proceedings. Admission of the pistol wa s therefore not plainly erroneous. IX. “Adequate Court Facilities” Claim Prior to trial, Mr. Redifer filed a mo tion to be provided a separate counsel table from his co-defendant, Mr. Hohn. He argued he w ould “be prejudiced by being forced to sit in close proxi mity to an alleged co-conspi rator throughout the trial,” because this would “increase[] the probabi lity the alleged bad acts of the alleged co-conspirator will be attributed to Mr. Re difer by the jury,” and might cause the jury to view Mr. Redifer and his co-defendant as a “group.” Motion of Defendant Michael18 C. Redifer for Adequate C ourt Facilities and Memorandum In Support Thereof dated 05/04/2013, R., Vol. 1, docket number 276, at 1. The district court denied the motion, stating that it did not believe that [Mr. Redife r] will be prejudiced by sitting at the same table as his co-defendant. There are legitimate [spatial] as well as security-related and as well technologi cal reasons the courtroom is set up the way it is, and the court would find th is case does not present any special circumstances such that would require r eevaluating that set-up. In addition, the court will instruct the jury to c onsider the innocenc e and guilt of each defendant separately. R., Vol. 2 at 302-03. Mr. Redifer has failed to show that being seated at a table with his co-defendant posed “an unacceptable risk . . . of impermissible factors coming into play” in the jury’s determination of his personal guilt or innocence. Holbrook v. Flynn , 475 U.S. 560, 570 (1986) (internal quot ation marks omitted). In addition, the district court instructed the jury that the defendants were charged separately and that the jury must consider the innocence and guilt of each defendant separately. The district court did not abuse its discretion in denying Mr. Redifer’s motion to sit at a separate table from his co-defendant. 5

5 Mr. Redifer argues that the failure to seat him separately from Mr. Hohn prejudiced him because there was insufficien t evidence to convict him at trial; and that he was convicted solely based on prior bad acts, perjured testimony by the government’s witnesses, and guilt by association. For th e reasons we have already stated, his sufficiency-of-the -evidence challenge fails, and he fails to establish prejudice.19 X. Prosecutor’s Alleged Comm ents on Mr. Redifer’s Silence Mr. Redifer asserts that the prosecuto r made improper comments infringing on his right to remain silent. As the government points out, see Aplee. Br. at 66, although Mr. Redifer cites dozens of pages fr om the trial transcri pt in his pro se supplemental brief, the only pertinent in stance he identifies involves a comment made during the government’s closing argument. During closing, the prosecutor stated, “Steven Hohn and Mi chael Redifer have argued through cross-examination of witnesses, through opening statements that we didn’t do anythi ng wrong. We are not guilty.” R., Vol. 2 at 24 47 (emphasis added). Mr. Re difer’s counsel objected and moved for a mistrial, contending that the government had “commented on the defendants’ right to remain silent by indicating that the defendants are arguing [their innocence] through closing.” Id. at 2448. The district court denied the motion, reasoning that it had instructed the jury th at statements of counsel were not evidence and that the defendants had pleaded not guilty. It then instructed the jury once again that statements of counsel were not eviden ce. Even if the cha llenged statement could be viewed as a comment on Mr. Redifer’s failu re to testify, it wa s not so prejudicial as to deprive him of his Sixt h Amendment right to a fair tr ial. The district court did not abuse its discretion in denying the requested mistrial. XI. Post-Verdict Questioning of Jurors Mr. Redifer complains that after the verdict was r eached, the district court improperly permitted the prosecution to qu estion jurors about wi tness credibility for20 sentencing purposes. He claims this viol ates Fed. R. Evid. 606(b)(1), which provides: (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment , a juror may not testify about any statement made or incident that occu rred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdic t or indictment. The court may not receive a juror’s affidavit or eviden ce of a juror’s statement on these matters. Here, the government’s alleged inquirie s likely did not fall within Rule 606(b)(1), because there is no showing that they represented an inquiry into the validity of the jury’s verdict

. See Warger v. Shauers , 135 S. Ct. 52 1, 528 (2014) (stating Rule 606(b) applies “during a pr oceeding in which the verdict may be rendered invalid.” (emphasis om itted)). But in any event, the record does not reflect that the district court ever permitted the government to question the jurors about the credibility of the witn esses at trial. The last men tion of this issue on the record appears to be the district court’s statement just before it adjourned the proceedings: With regards to the contact with the jury . . . every courtroom or every court possibly does it in a different manner. In the past, we – we don’t allow the contact after a trial for different reasons . I’ll take into consideration what you’ve said, and I’ll let you know af ter I finish speaking with them. R., Vol. 2 at 2518. But there is no indication that the distri ct court permitted inquiry of the jury “after . . . speaki ng with them.” Id. Mr. Redifer thus fails to show record support for his argument.21 XII. Cumulative Error Mr. Redifer’s counseled brief incl udes a perfunctory cumulative error argument. After stating the standard for cu mulative error, he argues: “Based upon the aforementioned accumulation of errors co mmitted in this cas e, Mr. Redifer is entitled to a reversal of hi s conviction.” Aplt. Opening Br. at 25. The purpose of cumulative error analysis is to address whether the “cumula tive effect of two or more individually harmless errors has the poten tial to prejudice a defendant to the same extent as a single reversible error.” United States v. Harlow , 444 F.3d 1255, 1269 (10th Cir. 2006) (int ernal quotation marks omitted). We have held that Mr. Redifer failed to establish prejudice in connecti on with his claim of a variance from the indictment, and that the failure to give his requested instruction concerning conspiracy with a law enforc ement officer was at most ha rmless error. Considering these two alleged errors in th e aggregate with any other pot ential trial errors we have mentioned that were individually harmless, we conclude he failed to show that the errors alleged affected his substantial rights. In light of the evidence against Mr. Redifer presented at trial, the alleged cumulative erro rs were harmless beyond a reasonable doubt. See United States v. Battles , 745 F.3d 436, 462 (10th Cir. 2014) (discussing cumulative erro r standard). Therefore, his cumulative -error argument fails. ALLEGED SENTENCING ERRORS The district court sentenced Mr. Redi fer within the advisory Sentencing Guideline range calculated by the Probation Office. The Guideline range was based22 on a total offense level of 42 and a criminal history score of II, yielding an advisory Guideline range of 360 months to life. Mr . Redifer brings several challenges to the calculation of his offense leve l. “[W]e review the distri ct court’s legal conclusions under the Guidelines de novo and its findings of fact fo r clear error, giving great deference to the district court's applica tion of the Guidelines to the facts.” United
States v. Evans , 782 F.3d 1115, 1117 (10th Cir. 2015). XIII. Four-Level Guid eline Increase for Conduct Involving Greg Price The presentence report (PSR) r ecommended two enhancements in Mr. Redifer’s base offense le vel based on his involvement in uncharged conduct that led to the death of Greg Pr ice, a drug user who died at a trailer home owned by Mr. Redifer’s co-conspirators. First, it recommended a two-level increase for Mr. Redifer’s use of violence and threats of violence against Mr. Pric e in an effort to collect on drug debts. See U.S.S.G. Manual § 2D1.1(b)(2 ) (2012) (“If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels.”). Second, it recomme nded a two-level enhancement for physically restraining Mr. Price dur ing the course of the offense. See id. § 3A1.3 (“If a victim was physically restrained in the course of the offense, increase by 2 levels.”). The district c ourt heard testimony concerning Mr . Price’s death, ruled that the enhancements were appropriate, and incorporated them into its Guideline calculation.23 A. Standard of Proof Ordinarily, sentencing enhancements are determined by a preponderance of the evidence. See United States v. O’Brien , 560 U.S. 218, 224 (2010). But Mr. Redifer argues that because of the disproporti onate effect on his sentence, the two enhancements related to Mr. Price’s deat h required an extraordinary standard of proof and should have been found by “clear and convincing” evidence. The Supreme Court addressed the “e nhanced level of proof” issue in United
States v. Watts , 519 U.S. 148 (1997), “acknowledg[ ing] a divergence of opinion among the Circuits as to whether, in extr eme circumstances, rele vant conduct that would dramatically increase the sentence must be based on clear and convincing evidence,” id. at 156. The Court found it unnecessary to reach the issue, because the cases before it did not present such extreme or exceptional circumstances. Id. at 156-57; see also McMillan v. Pennsylvania , 477 U.S. 79, 88 (1986) (upholding use of the preponderance standard where the pet itioner did not allege that the sentencing enhancement was “a tail which wags the dog of the substantive offense”), overruled on other grounds , Alleyne v. United States , 133 S. Ct. 21 51, 2157 (2013); Kinder v. United States , 504 U.S. 946, 948 (1992) (White , J., dissenting from denial of certiorari) (acknowledging circu it split concerning whether “a clear-and-convincing-evidence st andard is appropriate wh en the relevant conduct offered at sentencing would dramat ically increase the sentence”). Although we have left open the possibili ty that extraordinary circumstances might justify the use of a more dema nding standard at sentencing than a24 preponderance of the evidence, we have never applied such an enhanced standard of proof. See, e.g. , United States v. Olsen , 519 F.3d 1096, 1105 (10th Cir. 2008) (“[O]ur circuit has never adopted the clea r and convincing standard in so-called disproportionate impact cases,” but “we have reserved the question of whether, in some extraordinary or dramatic case, due process might require a higher standard of proof”); United States v. Smith , 208 F.3d 1187, 1189 (10t h Cir. 2000) (assuming “that a heightened burden of proof might be appropriate in case s of extraordinary upward adjustments in sentences,” but finding no extraordinary circumstances justifying such a standard under circumstances of case); United States v. Washington , 11 F.3d 1510, 1516 (10th Cir. 1993) (recognizing “the str ong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof,” but a pplying preponderance standard to drug-quantity issue). But see United States v. Constantine , 263 F.3d 1122, 1125 n.2 (10th Cir. 2001) (stating that binding precedent forecloses any argument for higher standard for burden of proof in this circuit); United States v. Valdez , 225 F.3d 1137, 1143 n.2 (10th Cir. 2000) (same). Mr. Redifer fails to show that the circumstances of his case were so extraordinary that the distri ct court should have applied a heightened standard of proof. Although the conduct th at resulted in the enhancemen ts led to the death of the victim, the enhancements them selves were not murder-based . The district court did not err in applying a preponderance standard to the enhancements relating to Greg Price.25 B. Sufficiency of the Evidence Three witnesses—co-conspirators Mich ael Quick and Tracy Rockers, and detective Perry Williams—tes tified at Mr. Redifer’s se ntencing hearing about the events surrounding Mr. Price’ s death. Although there were some discrepancies in the testimony concerning Mr. Re difer’s role in the ev ents, the motivation for Mr. Redifer’s conduct, and the precise cause of death, the district court sufficiently resolved the conflicts and made appr opriate findings using the preponderance standard. Specifically, with regard to use of vi olence in an effort to collect on drug debts, the district court found that “the Greg Price incide nt was in fact related to collection of drug debt,” and that violence or a credible threat of violence was used. R., Vol. 2 at 2769. It noted that Michael Quick and Tracy Rockers both te stified credibly that [Mr. Redifer], Michael Quick and Kerry Randall made cr edible threats to use violence by taking Mr. Price to the farm. Tracy Ro ckers also testified that defendant contacted Kerry Randall as somewhat of a scare tactic to get Mr. Price to explain about where the money was. Tracy Rockers also testified that defendant actually used violence by gr abbing Mr. Price by the arms to force him out the door. During this incident, defendant and Kerry Randall shoved Mr. Price, and Mr. Pr ice fell against the door. Id. The district court also found the “use of restraint” enhancement appropriate. It stated that it heard evidence that defendant, Michael Quick, Tracy Rockers, and later Kerry Randall threatened Greg Price, and made it clear to him that he was not free to leave the trailer. They used guns for intimidation. In the Tenth Circuit, using guns to keep someone from moving is sufficient for a Section26 3 A 1.3 enhancement even if defenda nt does not physically touch the victim. . . . But in this situation, th e defendant and Kerry Randall took the physical restraint even further and did touch Mr. Price. Miss Rockers credibly testified that they both gr abbed Mr. Price’s arms and physically took him to the door. As the court ha s [already] stated, the evidence about the Greg Price incident is credible, and giving an enhancement for physical restraint and use of violence is not d ouble-counting. They are independent considerations, as the court previously he ld. The court, again, finds that the restraint occurred in relation to collection of a drug debt. Id. at 2771. The district court’s legal conclusions were proper and its findings of fact were not clearly erroneous. Although the w itnesses disagreed on some points, for essentially the reasons the district court e xpressed, there was su fficient evidence to justify the sentencing Guideline enhancemen ts. We therefore af firm the Guideline enhancements related to Greg Price’s death. XIV. Two-Level Enhancement fo r Possessing a Dangerous Weapon The district court also enhanced Mr. Redi fer’s base offense level two levels for possession of a dangerous weapon in connection with a drug offense. See U.S.S.G. § 2D1.1(b)(1). It noted that “on more than one occasion, [Mr. Redifer] possessed a firearm during commission of the offense, including the incident in which he threatened Greg Price partly for non-paym ent of drug debts.” R., Vol. 2 at 2768. Mr. Redifer argues that th ere was insufficient evid ence to show a connection between the firearms he possessed and the alleged drug conspiracy. The enhancement “should be applied if the w eapon was present, unless it is clearly improbable that the weapon was c onnected with the offense.” See § 2D1.1 app. n. 11(A). The government must prove only that the gun “was present or possessed27 either during the charged offense or during other drug trafficki ng activity that was part of the same course of conduct or common scheme or plan as the offense of conviction.” United States v. Shippley , 690 F.3d 1192, 1199 (10th Cir. 2012) (internal quotation marks omitted). “Once the governme nt proves that much, the burden shifts to the defendant to show that it is clear ly improbable that the weapon was connected with the offense.” Id. (internal quotation marks omitted). The government presented evidence that Mr. Redifer possessed a pistol in connection with threatening Gr eg Price to collect a drug debt from Mr. Price. The enhancement was appropriate ly applied. XV. Two-Level Enhancement for Imported Methamphetamine The district court enhanced Mr. Redife r’s base offense level by two levels because “the offense involved the importa tion of . . . metham phetamine or the manufacture of . . . methamphetamine from li sted chemicals that the defendant knew were imported unlawfully.” U.S.S.G. § 2D 1.1(b)(5). He argues this enhancement was inappropriate because the government di d not establish, by a preponderance of the evidence, that (1 ) the methamphetamine was import ed and (2) that he knew it was imported. He also contends that the enhancement di d not apply because he was not convicted of importation or manufacturing of methamphetamine. We addressed the first of these issues in Mr. Hohn’s case, and need not repe at our analysis here. The other two issues lack merit.28 A. Knowledge that Methamphetamine was Imported This issue involves the corre ct interpretation of the ph rase “that the defendant knew were imported unlawfully” in § 2D1.1( b)(5). Mr. Redifer contends this scienter requirement a pplies both to offenses involving importation of methamphetamine and to offenses involving the ma nufacture of methamphetamine from listed chemicals. The Fifth Circuit has held, however, that a defendant who possessed and distributed imported methamphe tamine, even absent knowledge that he knew it was imported, is subj ect to the enhancement. United States v. Serfass , 684 F.3d 548, 550-52 (5th Cir. 2012). We need not resolve th is issue, because regardless of the correct r eading of the Guideline provisi on, we determine that the government proved by a preponderance of the evidence that Mr. Redifer knew the methamphetamine was imported. B. Whether Mr. Redifer’s Crime Involved Importation Mr. Redifer argues that “there is no basis for applying the importation enhancement because he was not charge d with any importation or manufacturing offense.” Aplt. Opening Br. at 35. He does not cite any authority favorable to this position, and well-reasoned authority ap pears to be to the contrary. See, e.g. , United States v. Foulks , 747 F.3d 914, 915 (5th Cir. 2014); United States v. Biao Huang , 687 F.3d 1197, 1206 (9th Cir. 2012) (“[A] defendant need not be personally involved in the importation of illegal dr ugs to receive an enhancement under § 2D1.1(b)(5); it is enough for the government to show that the drugs were imported.”). We will29 follow our sister circuits and conclude th at it was sufficient for the government to show that the drugs were imported. 6 XVI. Drug Quantity A. PSR Calculations In sentencing Mr. Redifer, the dist rict court relied on the drug quantity calculation contained in the presentence report (PSR). See R., Vol. 2 at 2767-68. The PSR assigned Mr. Redifer a base offe nse level of 34, ba sed on an offense involving between 1.5 and 5 k ilograms of methamphetamine. See U.S.S.G. § 2D1.1(c)(3). Mr. Redifer raises numerous eviden tiary challenges to the PSR’s drug quantity calculation. He argues that (1 ) “[b]ecause the government alleged the conspiracy began in Octobe r, 2010, any drug quantities from September, 2010, are excluded from the PSR,” Aplt. Opening Br. at 37; (2) pe rsonal-use quantities should not be included in the calculation; a nd (3) only the methamphetamine that Mr. Redifer distributed during three of th e months involved—October 2010, January 2011, and May 2011—was suff iciently proved to count as relevant conduct for purposes of his offense level computation.

6 In his supplemental brief, Mr. Redi fer argues that the evidence supporting this enhancement was hearsay. District courts can rely on hearsay at sentencing, so long as the evidence is sufficiently reliable. United States v. Caiba-Antele , 705 F.3d 1162, 1165 (10th Cir. 2012). Mr. Redifer fails to s how that the evidence supporting the importation enhancement was unreliable. He also argues that there was a lack of proof because “[t]he alleged [H]ispanic sources were not indicted, or even identified.” Supp. Br. at 11-12. They we re in fact identifie d, as the Reynoso and Marquez brothers. We note also that Jo rge and Daniel Reynoso were indicted as conspirators in this case.30 The district court reached the 1.5 kilogr am threshold based on an estimate in the PSR that from September 2010 until June 2011, Mr. Redifer had received 1.5 ounces of methamphetamine per week from Mr. Quick: Based on information available to the Probation Office including investigative reports and interviews with co-defendants, Mr. Redifer was involved in the distribution of meth amphetamine from at least September 2010 until June 2011[. T]he Indictme nt charges that the defendant was involved in the conspiracy, beginni ng in September 2010. According to [co-defendant Michael Quick’s] estimates , he distributed at least 1.5 ounces of methamphetamine weekly during that time period, approximately 9 months (40 weeks). This equates to approximately 60 ounces (1.5 ounces x 40 weeks = 60 oz.). 60 ounces is a pproximately 1,701 grams (1.701 Kilograms methamphetamine). R., Vol. 3 at 25 (emphasis omitted). 7 This paragraph of the PSR incorrectly identified the commencement date for the conspiracy charged in the Second S uperseding Indictment as September 2010 rather than October 2010. But in a footnot e, the PSR corrected th is error, and also further explained the basis fo r the figure of 1.5 ounces pe r week allegedly distributed from Mr. Quick to Mr. Redifer as part of the conspiracy , concluding that the 1.5 kilogram threshold would be met even if th e time period in question began in October
2010: This estimate was determined based on various co-defendants’ statements, see paragraphs 54, 55 and 64, of this report. Specifically, in his statements, Michael Quick indicated that he was providing meth to Mr. Redifer in 1⁄2 ounces [sic] quantities, several time s a week and he estimated that

7 According to a source not reasonably subj ect to dispute, one ounce is equal to 28.3495 grams. See https://www.google.com/?gws_r d=ssl#q=ounces+to+grams (visited October 27, 2015). If 1.5 ounces per week are at tributable to Mr. Redifer, this equals 42.5242 grams per week.31 Mr. Redifer was provided with a “m inimum” of 1.5 ounces a week, the conspiracy charges from October 2010 . The defendant believes that the defendants should not be held accountable to any ac tivity prior to the dates charged in the Indictment. Usi ng the defendant’s start date, and maintaining an estimate of 1.5 ounces weekly, this calculates to 1.53 Kilograms from October 2010 to June 2011. However, the U.S. Probation Office is of the opinion that the defe ndant’s dealings with Michael Quick starting in September 2010, were part of the instant offense and included as relevant conduct pursuant to USSG §1 B1.3. Based on these statements, the amount of methamphetamine deemed attr ibutable to the defendant in this report is based on a conservative estimat e, calculated to the benefit of the defendant. Id. at 25, n.3. 8
The footnote in the PSR cited and relie d upon paragraphs 54, 55, and 64 of the report. These paragraphs read as follows: 54. Tracy ROCKERS . . . . said she was introduced to Mike QUICK in approximately October of 2010. ROCK ERS stated QUICK was a source of supply for methamphetamine to a subject she knew from the Garnett, Kansas area named Jerry MACAFEE. . . . REDIFER would . . . sell . . . 1⁄2 ounce of methamphetamine to ROCK ERS and MACAFEE. After a period of time, ROCKERS began dealing with QUICK and REDIFER without MACAFEE. . . . ROCKERS called REDI FER and [met] him in Lawrence, Kansas to pick up 1⁄2 ounce quantitie s of methamphetamine, which he

8 If the relevant time frame is Septembe r 2010 until June 1, 2011, this is 273 days, or 39 weeks. Thirty-nine weeks times 42.5242 grams per week yields 1658 grams, above the 1.5 kilogram threshold. (The PSR’s figure, based on 40 weeks, is 1701 grams). On the other hand, if the time peri od for drug quantity calculation began on October 1, 2010—the approxima te beginning date of the conspiracy as pled in the indictment—the relevant peri od would be 243 days, or 34.7 weeks. 34.7 weeks times 42.5242 grams per week yields 14 76 grams, which would be just under the 1.5 kilogram threshold. But the PSR’s figure for this period is 1.53 kilograms, which likely means that the Probation Office used a 36-week figure. Thirty-six weeks times 42.5242 grams per week yields 1530.87 gr ams, a result very close to the 1.53 kilograms in the PSR’s alternative figure fo r October 2010 to June 2011. This figure is still over the 1.5 kilogram threshold, but just barely.32 fronted to her. ROCKERS was able to sell the 1⁄2 ounce in a 3 hour time period. ROCKERS then re-contacted REDIFER to get another 1⁄2 ounce to sell. ROCKERS received the seco nd 1⁄2 ounce from QUICK at his residence, where REDIFER bragged to QUICK about how fast ROCKERS sold the first 1⁄2 ounce. ROCKERS was provided the second 1⁄2 ounce from QUICK and REDIFER. ROCKERS was also able to sell the second 1⁄2 ounce quantity in a short period of time. ROCKERS be gan her dealings with REDIFER in late November or early December of 2010. ROCKERS got approximately 1 ounce of methamphetamine “every couple days” to sell. Id. at 21. 55. ROCKERS began dea ling directly with QUICK in late January of 2011. ROCKERS knew REDIFER’s sour ce of supply wa s QUICK, so she began dealing directly with him, so as to cut out the middle man. QUICK had a better price for the methamph etamine. ROCKERS was getting 1⁄2 ounce quantities from REDIFER for $950.00 and QUICK was selling 1 ounce quantities for $1,600 .00. ROCKERS began to accompany QUICK to his source of supply located in Deso to, Kansas, where they would get 1-2 ounce quantities of methamphetamine from two Mexican br others, every 2 or 3 days, for approximately 5 mont hs on a consistent basis from the brother she knew as “LADIO.” Depend ing on her business at the time, ROCKERS might retain 1 ounce of methamphetamine while, according QUICK would retain an additional 1 ounc e, that he would split with Steven HOHN, who was living with QUI CK in Eudora, Kansas. Id. 64. Michael QUICK . . . . stated that in September 2010, he started fronting 1⁄2 ounce quantities of methamphetami ne several times a week to Mr. Redifer. He stated that he sold to Mr. Redifer a minimum of one a and half ounces every week until about N ovember 2010, when he quit dealing directly to Mr. Redifer because of a disagreement over customers. Starting in November, Mr. Redifer began getti ng his methamphetamine from Steven Hohn. According to Mr. Quick, he was still supp lying Mr. Redifer during this time because Hohn was getting me thamphetamine from Mr. Quick and supplying it to Mr. Redifer during th is time. Mr. Redifer and Mr. Quick worked out their differen ces and Mr. Quick resumed direct dealings with Mr. Redifer. Id. at 24.33 B. Mr. Redifer’s Challenges to the PSR’s Drug Quantity Figure Using his own calculations, Mr. Redifer arrives at a figure totaling 510.29 grams, only about a third of the PSR’s fi gure. The 510-gram figure would put his base offense level at 32 inst ead of 34. Thus, his tota l offense level would be 40 rather than 42, resulting in a Guideline range of 324 mont hs to 405 months, rather than 360 months to life. See Sentencing Table, U.S.S.G. Manua l, Ch. 5, pt. A (2012). C. Is There Sufficient Eviden ce to Support the Drug Quantity Figure in the PSR? Under U.S.S.G. § 1B1.3, a defendant’s base offense level is based on his “relevant conduct.” United States v. Damato , 672 F.3d 832, 839 (10th Cir. 2012) (internal quotation marks omitted). In ca ses such as a drug conspiracy where a quantity distributed establishes the base offense level, this includes “acts and omissions . . . that were part of the sa me course of conduct or common scheme or plan as the offense of convi ction.” U.S.S.G. § 1B1.3(a )(2). Both the PSR and the district court recognized th at in addition to the meth amphetamine involved with Mr. Redifer’s own drug activity, he could be held responsible for the reasonably foreseeable drug activity of his co-conspi rators. But the specific drug quantity attributed to him was predicated on hi s personal drug activity rather than on reasonably foreseeable activity by his co-cons pirators, and the PSR did not attempt to quantify their activity in order to attribute it to Mr. Redifer. Therefore, in order to justify the computation used in the PSR, it was necessary th at there be evidence that34 Mr. Redifer distributed or possessed with intent to distribute at least 1.5 ounces weekly from September 2010 to J une 2011. We begin by observing that Mr. Redi fer’s possession or distribution of methamphetamine in Septembe r 2010, though it predates th e conspiracy charged in the indictment, meets every requirement for an act that was part of the same course of conduct as those alleged as pa rt of the conspiracy. It wa s similar to the distribution during the conspiracy, involve d a repetition of conduct alleged as part of the conspiracy, and immediately pr e-dated the time period of th e conspiracy. Therefore, the district court properly used the PSR ’s relevant conduc t estimate based on quantities distributed beginni ng in September 2010. See Shippley , 690 F.3d at 1200 (stating government can consider uncharged re levant conduct arisi ng prior to charged conspiracy). Mr. Quick testified that during Sept ember and October 2010 he provided Mr. Redifer with a minimum of one and one-half ounces of meth each week. In November 2010, Mr. Redifer and Mr. Quic k had a falling-out, and Mr. Hohn began supplying Mr. Redifer, presumably with th e same quantities. Th en, at some point, Mr. Quick and Mr. Redifer patched up th eir differences, a nd Mr. Quick began supplying Mr. Redifer again. But this is where the factual recitati on in the PSR concerning Mr. Redifer’s dealings with Mr. Quick ends. 9 While the facts recited are sufficient to justify a

9 The PSR does report that Mr. Quick late r bonded Mr. Redifer out of jail after Mr. Redifer’s arrest in June 2011. R., Vol. 3 at 24, ¶ 65. Mr. Quick stated during a35 conclusion that Mr. Redife r received one and one-half ounces of meth per week during September, October, and November 2010, there is no sp ecific evidence that Mr. Redifer continued to receive that qua ntity of meth from Mr . Quick after that point. The government attempts to fill in this blank with its statement that “[Mr.] Quick’s drug ledger, admitted at tr ial . . . reflected th at [Mr. Redifer] continued to obtain distribution-quantity amounts of methamphetamine from Quick into late May 2011.” Aplee. Br. at 52 (e mphasis added). The implication is that Mr. Quick supplied distribution qua ntities of meth to Mr. Redifer throughout the time period of December 2010 throu gh May 2011. If that were true, it could be sufficient to satisfy the preponderance standard. But that is not what Mr. Quick’s ledger said, and it was not what he testified to in the testimony cited by the government. At trial, the government introduced a not ebook kept by Mr. Quick to record his drug transactions. The notebo ok contained a reference to Mr. Redifer obtaining 20 or 24 grams of meth from Mr. Quick, for which he paid $650. R., Vol. 2 at 2348. There
was also reference to an old debt that Mr. Redifer owed to Mr. Quick. In addition, it stated that he received a half ounce, owed $850, and pa id $900. There was also a reference to a transaction on May 13, when “Mike [Redifer] got a half ounce, 850, paid and then got 12, I don’t know what that 12.72, I don’t know what that is, then

proffer interview on March 30, 2012, that Mr. Redifer owed him $2,500 for meth and bond money, but the PSR does not attempt to identify how much was owed for meth as opposed to bond money, what quantity of methamphetamine was involved, or when the drug debt was incurred.36 paid 725, then got a seven, owed 440, paid 80, and paid 20, then 10 for something.” Id. at 2349. Mr. Quick described additiona l transactions from May 2011 as follows: May 21st, he got – earlier today, he go t an ounce, owed 16, paid 14, owed 200, got a seven, owed 600, paid 3 00, got another seven, owed 700, paid 400, owed 300, paid 1-- 180, owes 12 0, got another ounce, owed 16 plus 120, owed 1720, and then paid 1200, 520 owed, got a half ounce, owed 1320, paid 400, owes 125 plus 125, 400 plus 125, ow es 795, paid 550, paid 150, then 95 owed.

. . . . Then got an ounce for 16. So, that pl us 95, paid 700, owed 995, paid 10, owes 895. Id. at 2351. Although this testimony described pro lific drug activity in or around May 2011 by Mr. Redifer, involving perhaps se veral ounces of methamphetamine, it does not fill the evidentiary gap in his drug activities between December 2010 and mid-May 2011. In its brief, the government also cites the testimony of Ms. Rockers. It claims that she testified at trial that “in early 2011, she obtained a half ounce of methamphetamine every couple of days from the defendant on credit, which she sold to her customers in Garnett.” Aplee. Br. at 52. From th is, and her statement that she obtained methamphetamine from Mr. Re difer 15 to 25 times, the government concludes that she obtained “between 210 and 350 grams of methamphetamine” total from Mr. Redifer. Id. The government appears to be assuming that Ms. Rockers obtained one-half ounce (about 14.17 grams) ea ch time she dealt w ith Mr. Redifer. (14.17 times 15 = 213; 14.17 times 25 = 354). But even if she dealt with him 1537 times, or even 25 times, receiving a half-oun ce each time, this would hardly cover the one-and-one half ounces a week for four mont hs that the government needs to fill in between the substantiated dealings i nvolving Mr. Redifer and Mr. Quick. In sum, the evidence cite d in the PSR does not s upport the conclusion that Mr. Redifer was involved with one and one -half ounces per week from October 2010 to June 2011. The evidence thus does not support the drug quantities attributed to Mr. Redifer in calculating his sentence. We take no position on whether the evidence adduced at trial and at senten cing, if properly considered, is sufficient to justify the sentence the district court awarded. We determine only that th e evidence cited does not support the methodology adop ted in the PSR and relied upon by the district court. In its response brief, the government falls back on reasonably foreseeable conduct not specifically relied on in the PSR . It argues that “[ Mr. Redifer], Quick, Hohn, Rockers and Randall had a close and tr usting relationship, th at [Mr. Redifer] often stayed at Quick’s residence . . . and that [Mr. Redifer] was often present when Quick provided methamphetamine to others for resale.” Ap lee. Br. at 53. It notes that Mr. Quick “admitted to selling metham phetamine at a conservative average of 3 ounces . . . every 3 days for three years.” Id. (internal quotation marks omitted). But the government fails to estab lish the necessary elements of relevant conduct that would tie Mr. Redifer to the quantities distributed by Mr. Quick. More importantly, it fails to show that the dist rict court made any such findi ngs, and we decline to do so in the first inst ance. Such sentencing findings are best made by the district court, applying the appropriate criteria. See, e.g., United States v. Jim , 786 F.3d 802, 81638 (10th Cir. 2015) (rema nding, after clarification of le gal error at sentencing, for district court’s considerati on of proper legal standard in the first instance). We conclude that a remand for resentencing, with further findings concerning the appropriate drug quantity to be attributed to Mr. Redifer, is the appropriate course of action here. See United States v. Kristl , 437 F.3d 1050, 1054-55 (10th Cir. 2006) (when district court errs in applying the Guidelines, rema nd is appropriate unless the error is harmless). XVII. Mr. Redifer’s Request for a Variance Finally, Mr. Redifer argues that the distri ct court erred in denying his request for a downward variance, because (1) his “cond uct was less cul[p]ab le and in a much smaller scale than others i nvolved”; (2) his “criminal hist ory was substantially less than the others”; and (3) his “sentence s hould align with that of [Mr.] Quick who received a Rule 11(c)(1)(c) 20- year sentence.” Aplt. Open ing Br. at 41. Mr. Quick, of course, pleaded guilty and was therefore not similarly situated to Mr. Redifer. But the district court may wish to reconsider Mr. Redifer’s request for a variance after the redetermination of drug quantities we have ordered on remand. Mr. Redifer also makes a conclusory ar gument that “the Trial Court failed to properly consider [18 U.S.C. § 3553(a)] factors and furt her imposed a sentence that was disproportionate to those indi vidual factors for Mr. Redifer.” Id. This one-sentence argument, unaccompanied by any details or discussion of the relevant sentencing factors, does not show that the district court abused its discretion in sentencing Mr. Redifer.39 CONCLUSION We affirm Mr. Redifer’s conviction but remand for resentencing as set forth herein. All remaining pending a ppellate motions are denied.

Entered for the Court
Carolyn B. McHugh Circuit Judge