PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ORLANDO CORTEZ-NIETO, Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS CERVANTES-AGUILAR, Defendant - Appellant. No. 20-3184

No. 20-3189

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. Nos. 2:18-CR-20030-J AR-1 & 2:18-CR-20030-JAR-2)

________________ _________________ Paige Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, District of Kansas, for Defendant - Appe llant Orlando Cortez-Nieto. Candace Caruthers, Assistant Federal Public De fender (Virginia L. Grady, Federal Public Defender, and Shira Kieval, Assi stant Federal Public Defender, on the briefs), Office of the Federal Public Defender, Districts of Colorado and Wyoming, for Defendant - Appellant Jesus Cervantes-Aguilar. FILED United States Court of Appeals Tenth Circuit 

### August 5, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 12 James A. Brown, Assistant United States A ttorney (Duston J. Slinkard, Acting United States Attorney, and Emma J. Staats, Legal Intern, with him on th e brief), Office of the United States Attorney, District of Kansas, for Plaintiff - Appellee.

________________ _________________ Before HARTZ , HOLMES , and BACHARACH , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Defendants Orlando Cortez-Nieto and Jesu s Cervantes-Aguilar were convicted by a jury of four methamphetamine offe nses committed within 1,000 feet of a playground. After their convictions De fendants filed motions for judgment of acquittal. The district court granted the moti ons in part, setting aside the convictions on the ground that there wa s insufficient evidence that any of the offenses of conviction occurred within 1,000 feet of a playground but en tering judgments of conviction on lesser-included offenses—the four offens es without the proximity element. In their consolidated app eal, Defendants raise three is sues. First, they claim (a) that a jury instruction stating that the jury should not consider the guilt of any persons other than Defendants improperly precluded the jury from considering that two government witnesses were motivated to lie about Defendants to reduce or eliminate their own guilt and (b) that the pr osecutor improperly ma gnified this error by explicitly arguing that the jurors coul d not consider the witnesses’ guilt in assessing their credibility. We reject this claim because the instructions, taken as a whole, were unlikely to mislead the ju ry and the prosecutor’s argument likely Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 23 reduced the possibility of misundersta nding the instructions. Second, Defendants contend that the district court should not have imposed judgments of conviction on the lesser-included offenses after determining that the or iginal charges had not been proved because the jury had not been instructed on the lesser-included offenses. We hold that the district court simply perfo rmed its duty, and Defendants were not prejudiced by the absence of lesser-include d-offense instructions. Third, Defendants assert that remand is necessary to correct a clerical erro r in the judgment forms. The government concedes the point, and we agree. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district-c ourt judgments except that we remand for correction of the clerical error.
I. BACKGROUND On December 1, 2017, a fire broke out at a residence on Cleveland Avenue in Kansas City, Kansas. Firefi ghters and a search-and-resc ue crew responded to the scene, but when they arrived the fire was already extinguished, and it had caused little to no damage to the re sidence. No one was in th e house. The house was within walking distance of Klamm Park, which has a baseball field, tennis courts, and playgrounds. Investigators looking for the cause of th e fire discovered inside the residence some $200,000 worth of methamphetami ne and various items used in methamphetamine manufacturing, including em pty cans of acetone, heating devices, thermometers, pails, pots, a nd coolers. The investigators suspected that an apparatus Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 34 set up in the residence’s basement was a clandestine methamphe tamine lab designed to convert liquid methamphetami ne to its crystalline form. Further search of the resi dence turned up several rece ipts (dated less than 10 days before the fire) for goods purchas ed from general-merchandise, hardware, and automotive stores in Kansas City. Amon g other things, the receipts listed boxes, coolers, thermometers, pail s, and spray bottles. And, most notably, 11 receipts reflected the purchase of acetone, sometime s in quantities as larg e as a gallon (the function of acetone in producing marketable methamphetamine was not disputed at trial). Law-enforcement officers obtained video-surveillance foot age from the stores named on the receipts, which showed Defendants purchasing the items on the receipts. Defendants were arrested and indicted on four counts: (1) conspiracy to manufacture over 50 grams of methamphetamin e within 1,000 feet of real property comprising a playground; (2) manufacturi ng and attempting to manufacture 50 grams or more of methamphetamine within 1,000 feet of a playground; (3) possession with intent to distribute 50 grams or more of methamphetamine within 1,000 feet of a playground; and (4) opening, using, and ma intaining a residence for the purpose of manufacturing methamphetamine within 1,000 feet of a playground. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii) , 846, 856(a)(1), 860(a). Defendants did not challenge at trial, a nd have conceded on appeal, that they bought the materials listed on the receipts found at the Cl eveland Avenue residence. But they have argued that they had no kn owledge of the methamphetamine lab and Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 45 only purchased those material s at the request of others. The issue of knowledge was the focus of the trial. To tie Defendants to the Cleveland Ave nue residence, the government offered a fair amount of nontestim onial evidence. A FedEx parc el shipped on November 22 and addressed to Mr. Cortez- Nieto at the residence was found in the house, as was a sticky note on which was written the name “Orlando” and a phone number for which Mr. Cortez-Nieto was the named subscriber . In addition, police found within the home a camouflage-style coat that matche d the coat worn by Mr. Cortez-Nieto on the videos of his store purchases. As for Mr. Cervantes-Aguilar, o fficers found a receipt for sending a money transfer on November 24 that bore his name and the Cleveland Avenue address. They also found a “ledge r” (a blue spiral book of index cards on which were recorded apparent financial tr ansactions), which te stimony (as explained below) tied to Mr. Cervantes-Aguilar. And investigators obtained a Kansas certificate of title dated November 13 showing that so meone acting with a power of attorney for Mr. Cervantes-Aguilar purchased a Honda on November 12 and listed Mr. CervantesAguilar’s address as the Cleveland Ave nue residence. (Mr. Cervantes-Aguilar changed the address on the title a few days after the fire.) Two siblings connected to the house, Celia Suarez and Victor Suarez, were witnesses for the prosecution. Celia had rented the Clev eland Avenue house a few weeks before the fire. She testified under an agreemen t with the government to provide complete and truthful information; in return, th e government promised that her statements would not be used against her in any federal prosecution. Celia told Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 56 the jury that she had rented the house on behalf of a Me xican drug dealer named Jose Pantoja for use by a “Jesus Estrella,” the name by which she knew Mr. CervantesAguilar. When she met with the landlord for the Cleveland Avenue property to look at the residence, she was accompanied by her brother Ja ime (not Victor) and Mr. Cervantes-Aguilar. (At trial the landlord identified Mr. Cervantes-Aguilar as having accompanied Celia to the meeti ng.) She said that she had been romantically involved with Mr. Pantoja until the day of the fire. At the same time, however, she had also briefly dated Mr. Cervantes-A guilar and planned to move into the Cleveland Avenue residence with him until he broke things off upon learning that Celia had children. Celia denied knowing that th e house she rented would be used for drugs and denied any involvement in the drug ope rations there. She said she first learned the house was being used for methamphetamine manufactur ing on the day of the fire, when Mr. Cervantes-Aguilar called her to report th e fire and referred to the house as a “chingadera,” which she understood to m ean that the house contained drugs. R., Vol. II at 513–14. Despite her professe d lack of knowledge about what was happening in the Cleveland Av enue residence, she test ified that Mr. CervantesAguilar was in charge of the methampheta mine lab at the house and that he was working for another Mexican trafficker named Jesus Mendoza—the cousin of Mr. Pantoja and apparently a supe rior of Mr. Pantoja. Celia testified that she had never interacted much with Mr. Cortez-Nieto and knew him onl y as “Pacha.” She had seen him just twice—once at a horse race a nd once outside the Cleveland Avenue residence. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 67 Telephone records confirmed that Celia re ceived a phone call less than a half hour after the fire started. The phone number was linked to a prepaid phone, so no subscriber information was available; but the number was in Celia’s phone-contact list and she told investigators that the numbe r belonged to Mr. Ce rvantes-Aguilar. Of the 210 cell-tower connections made by that phone from November 20 (when the phone was activated) to December 1 (after which the phone was not used), 100 were to cell towers near the Clev eland Avenue residence, indi cating that the user was not far from the residence. Victor also testified under an agreem ent with the government. He had been indicted on federal drug and firearms charge s arising out of his involvement with a methamphetamine lab in Kansas City, Mi ssouri. Under his agreement his testimony would not be used against him in his Mi ssouri case and it might result in a lower sentence. Victor testified that he worked for Mr. Mendoza, who managed two separate groups producing a nd distributing methamphetamine, one in Missouri and one in Kansas. Victor was one of the men leading the Missouri operation. He identified “Jesus” (Mr. Cerv antes-Aguilar) and “Pacha” (M r. Cortez-Nieto) as the leaders of Mr. Mendoza’s Kansas operati on, with Mr. Cortez-Nieto manufacturing methamphetamine and Mr. Cervantes-Aguila r distributing it. Victor said that on several occasions when he owed money to Mr. Mendoza, he was instructed to give the money to Mr. Cervantes- Aguilar. According to Vict or, various entries in the ledger found at the Cleveland Avenue resi dence reflected those transactions. For example, the entry “Chongo medio $500 hotel” was stating that “Chongo [which Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 78 Victor said was his own nic kname] gave me $500 [at a] hot el” (“me dio” is Spanish for “gave me”). R., Vol. II at 656–57. Although Victor did not recognize the handwriting in the ledger or see Mr. Cervante s-Aguilar make entries in it, he inferred that the entries were made by Mr. Cervantes-Aguilar becau se he was the one Victor dealt with. The infere nce is also supported by the abse nce of Mr. Cervantes-Aguilar’s name or nickname in the ledger. Victor and Celia were not the most credib le witnesses to ever testify in federal court. As the prosecutor recognized in her re buttal closing argument , “If I got to pick witnesses, . . . I’d pick my mom, my minister.” Id. at 1196. Celia di d not explain how she knew that Mr. Cervantes-Aguilar wa s in charge of the methamphetamine operation on Cleveland Avenue and was working for Mr. Mendoza despite her professed ignorance about there being a methamphetamine laboratory there. Also, before her testimony at trial she had given several differen t versions of who was with her when she met the landlord, when and w ith whom she was havi ng affairs, and who asked her to rent the residence. Victor denied any involvement with the operation on Cleveland Avenue even thou gh his name was on the gas account for the address. A jury might well have doubted his explanation that his sist er asked him to open the account in his name because she already ow ed money to the gas company. And the jury might not have believed that the ledger entries for money coming from him reflected merely his repaymen t of debts to Mr. Mendoza. The major thrust of the attacks on Ce lia and Victor by defense counsel, however, focused on their motiv es to lie to escape the c onsequences of their own Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 89 criminal activity. Counsel s uggested that the true culp rits—those who were really running the methamphetamine lab on Clev eland Avenue—were Victor and Celia. Defendants had merely been enlisted to purch ase supplies, they ar gued, and they had no idea what the supplies would be used fo r. In closing argument, counsel for Mr. Cervantes-Aguilar said, “Celia Suarez, if she didn’t have any problems with innocence or guilt, then why does she need a letter from the government to protect her on what she’s saying and a lawyer to help her get it?” Id. at 1189–90. And on cross-examination, Victor, who had acknowle dged that he hoped his testimony in this trial would help reduce his sentence in the Missouri case, agreed with defense counsel that “people that are charged with drug crimes will lie a nd say anything to try to reduce their sentence,” id. at 683, although he expl ained his own testimony otherwise, saying, “I am he re because I don’t want anothe r person to stain my name about something that I did not do.” Id. The jury convicted Defendants as ch arged. After the verdict, however, Defendants, who had not previously challe nged the distance of the laboratory from Klamm Park, moved for judgments of acquittal. The district court agreed that there was not sufficient evidence to prove beyond a reasonable dou bt that the drug offenses occurred within 1,000 feet of Klamm Park . But the district court held that the government had presented sufficient eviden ce to support the lesse r-included offenses of the charged crimes—that is, the four charged crimes without the proximity element—and therefore entered against ea ch Defendant judgments of conviction on those four lesser-included offenses. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 910 II. DISCUSSION On appeal Defendants argue (1) that an improper jury instruction, exacerbated by the prosecutor’s improper closing argument, foreclosed consideration by the jury of their chief defense theory, (2) that the district court e rred in entering judgments of conviction on lesser-included offenses after determining that th ere was insufficient evidence of an element of the charged o ffenses, and (3) that the district court misstated the offenses of c onviction in the judgments of conviction. We begin with the jury instruction.
A. Jury instructions and alle ged prosecutorial misconduct We review jury instructi ons de novo to determine whether they, as a whole, correctly state the governing law, but we re view for abuse of di scretion the district court’s decisions regarding such matters as the framing, arti culation, and detail of the instructions. See United States v. Jean-Pierre , 1 F.4th 836, 846 (10th Cir. 2021) (“This court reviews the jury instructions de novo in the c ontext of the entire trial to determine if they accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues in the case. In doing so, we consider whether the district court abused its disc retion in shaping or phrasing a particular jury instruction and deciding to give or refuse a particular instruction.” (citation, brackets, and internal quotation marks omitted)). Defendants focus their challenge on the la st sentence of the following jury instruction: Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1011 INSTRUCTION NO. 24 You are here to decide whether th e government has proved beyond a reasonable doubt that each defendant is guilty of the crimes charged. The defendants are not on trial for any act, conduct, or crime not charged in the Superseding Indictment. It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the crime charged. The fact that another person also may be guilty is no defe nse to a criminal charge. The question of the possible guilt of ot hers should not en ter your thinking as you decide whether these defenda nts have been proved guilty of the crimes charged

. R., Vol. I at 343 (emphasis added). The challenged sentence conveys an important, and quite proper, message. The jury should not be more lenient toward the accused just because others who have committed the sa me or similar offens es have gone free; nor should the jury be more inclined to convict the accused b ecause of the guilt of others. See Osborne v. United States , 371 F.2d 913, 923–24 (9th Cir. 1967) (guilt-ofothers instruction properly conveyed that “appellant stood alone as a defendant, and that his acts only were to be judged”); United States v. Oberle , 136 F.3d 1414, 1423 (10th Cir. 1998) (similar inst ruction “focused jurors on th e task at hand: determining whether [defendant] was guilty of the [cha rged offense]”). But Defendants suggest that the sentence could also have an improper effect. As we understand their argument, their complaint is th at if the guilt of Celia and Victor was not to enter the minds of the jurors, then th e jurors could not consider the possibility that the two witnesses were lying to cover up or mitigate their own guilt. There is enough force to this argume nt for us to recommend modifying the language of the instruction in similar future cases. But that force is greatly Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1112 diminished in this case by the other instru ctions given to the jury, as well as the closing arguments of counsel. At least three other inst ructions unambiguously im pressed upon the jury its duty to examine the Suarezes’ motives fo r their testimony. Instruction No. 4 addressed the beyond-a-reasona ble-doubt standard and instru cted the jurors generally on their duty to evaluate witness credibility:
INSTRUCTION NO. 4 I remind you that it is your job to decide whether the government has proved the guilt of each defendant be yond a reasonable doubt. In doing so, you must consider all of the evidence. This does not me an, however, that you must accept all of the evi dence as true or accurate. You are the sole judges of the credibility or “believability” of each witness and the weight to be given to the witn ess’s testimony. . . . In making that decision, I suggest that you ask your self a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome in this case? Did the witness have any re lationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he/she testified? Did the witness have the opportun ity and ability to understa nd the questions clearly and answer them directly? Did the witness’s testimony differ from the testimony of other witnesses? When weighing the conflic ting testimony, you should consider whether the discrepa ncy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection—like failure of recollection—is not uncommon. R., Vol. I at 318 (emphasis added). Instruction No. 6 emphasized the credibility concerns specific to witnesses like accomplices and informants who may have a special interest in the outcome of a

case: Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1213 INSTRUCTION NO. 6 Accomplice An accomplice is someone who joined with anothe r person in committing a crime, voluntarily and with comm on intent. The testimony of an accomplice may be received in evidence and cons idered by you, even though it is not supported by other evidence. You may decide how much weight it should have. You are to keep in mind, however, that accomplice testimony should be received with caution and co nsidered with great care

. You should not convict a defendant based on the uns upported testimony of an alleged accomplice, unless you believe the unsupported testimony beyond a reasonable doubt. Informant An informant is someone who provides evidence ag ainst someone else for a personal reason or advantage. The te stimony of an informant alone, if believed by the jury, may be of suffic ient weight to sustain a verdict of guilt, even though not corroborated or sup ported by other evidence . You must examine and weigh an informant’ s testimony with greater care than the testimony of an ordinary witne ss. You must determine whether the informant’s testimony has been affected by self-in terest, by an agreement he has with the government, by his own interest in the outcome of the case, or by prejudice agai nst the defendant. You should not convict a defendant base d on the unsupported testimony of an informant, unless you believe the unsupported testimony beyond a reasonable doubt. R., Vol. I at 321 (emphasis added). 1

1 Counsel for Mr. Cortez-Nieto recognized the importance of Instruction No. 6 to the jury’s task of evalua ting the Suarezes’ credibility. In her closing argument, she specifically invoked this instruction, saying that the jurors woul d “see very quickly that Celia and Victor fit into either one of these categori es [accomplice or informant],” and admonishing the jurors to “proceed with cautio n,” “exercise great care,” and “slow down, pause, and qu estion” the Suarezes’ testimony “very carefully.” R., Vol. II at 1175. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1314 And Instruction No. 7 reiterated that accomplice testimony presented by the government required the jury ’s particular attention:
INSTRUCTION NO. 7 The government called as one of its witnesses an alleged accomplice, who was charged in another case. An alleged accomplice, in cluding one who ha s pending charges, is not prohibited from testifying. On the c ontrary, the testimony of an alleged accomplice may, by itself, support a guilty verdict. You should receive this type of testimony with cautio n and weigh it with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that te stimony beyond a reasonable doubt. R., Vol. I at 322 (emphasis added). Our precedents support the use of Inst ruction No. 24. This court has upheld identical or similar language in at least three previous cases. In Oberle a robbery defendant complained that an instruction telling jurors “not to concern themselves with the guilt of anyone excep t Oberle” foreclosed the ju ry’s consideration of his defense that his brother was the real perp etrator. 136 F.3d at 1422. We rejected the challenge, observing that the instruction, in combination with th e standard beyond-areasonable-doubt instruction, correctly “focused jurors on the task at hand: determining whether Oberle was guilty of the . . . robbery.” Id. at 1423. In United
States v. Arras , 373 F.3d 1071, 1076 (10th Cir. 2004), the instruction at issue stated: “You are here to decide whether the gove rnment has proven beyond a reasonable doubt that each defendant is guilty of th e crimes charged. And you must not be concerned with the guilt or innocence of othe r persons not on trial as a defendant in this case.” The defendants ’ trial strategy had been to show that a government Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1415 cooperating witness named Nielsen had been “lying to cover for” other individuals involved in the charged dr ug-dealing conspiracies. Id. The defendants argued that the guilt-of-others instruction foreclosed their defense theory because “the guilt of these external parties was relevant to [Nielsen’s] credibility.” Id. We rejected the challenge, first by holding that the argument was foreclosed by Oberle , and second by observing that the jury wa s given “specific instructions . . . admonishing them to weigh . . . Nielsen’s credibility with c onsiderable caution because she was a drug user, an accomplice, and a cr iminal defendant who was tes tifying as part of a plea agreement.” Id. at 1077. The guilt-of-others inst ruction was again at issue in United States v. Little , 829 F.3d 1177, 1186 (10th Cir. 2016), in which the defendant attacked an instruction that read: “[T]he question of the possible guilt of others should not enter your thinking as you decide whether this defendant has been proved guilty of the crime charged.” Little argued that the instruction undermined his chief defense at trial—that someone else was responsible for th e charged firearms offense. Id. We held that “[t]he district court prope rly instructed the jury that involvement by third parties would not constitute an absolute defense” and that Oberle precluded Little’s argument. Id. We are not persuaded by Defendan ts’ attempts to distinguish Oberle and
Arras . There are minor differences in the language of the in structions challenged in those cases and the language of Instruct ion No. 24; but substantively they are identical. Nor are we persuaded by De fendants’ attempts to distinguish Little . They argue that although the instruction in Little was identical to the one challenged here, Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1516 Little’s defense that “someone else comm itted the crime,” 829 F.3d at 1186, was not quite the same as Defendants’ defense here that key w itnesses were not credible because of their own guilt. But th e defendants’ trial strategy in Arras was essentially the same as that of Defendants here—ar guing that a cooperating witness was “lying to cover for” other guilty individuals and therefore was not credible. 373 F.3d
at 1076. Instructions 4, 6, and 7 told the jury to carefully consider the Suarezes’ motives to lie and to cred it their unsupported testimon y only if credible beyond a reasonable doubt. Under our pr ecedents, that sufficed to pr otect Defendants’ efforts to impeach the Suar ezes’ credibility. We do, however, add one qualification to this conclusion. We might take a different view of the challenged sentence fr om Instruction No. 24 if it had been improperly used, without correction from the di strict court, in closing argument. But we see no improper use by the prosecutor in this case. Defendant s allege that the prosecutor engaged in misconduct in closing argument by telli ng the jury that it could not consider the Suarezes’ moti ve to lie to conceal thei r own guilt in the offenses charged. See Cervantes-Aguilar Br. at 39 (pro secutor “not only emphasized the district court’s instructional error, but it also explicitly used that misstatement to improperly negate a legitimate defense theory”); Cortez-Nieto Br. at 27 (“The prosecutor misstated the law wh en she told the ju rors that the defendants’ challenge to the Suarezes’ credibility wa s foreclosed by Instructi on 24.”). They focus on two sentences from the prosecuto r’s rebuttal closing argumen t: “Instruction No. 24 tells Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1617 you what to do with this kind of argument. It tells you that the possible guilt of other people should not enter into your thinking as you decide whether or not these two defendants are guilty of the crimes that are charged in this indictment.” R., Vol. II at 1196. In identical language they both as sert that the “pro secutor argued during rebuttal that the jurors should not consid er [their] challenge to the Suarezes’ credibility to the ex tent that that challenge was based on their possible guilt.” Cervantes-Aguilar Br. at 35; Cortez-Nieto Br. at 26. This assertion, however, ignores context. The pros ecutor’s rebuttal argument began as follows: Let’s start by talking ab out Victor and Celia. I didn’t pick them as witnesses. If I got to pick witnesses, . . . I’d pick my mom, my minister. You know who picked them as witnesse s? These two because they got in bed with Victor and Celia to run this methamphetamine lab. Instruction No. 24 tells you what to do with this kind of argument . It tells you that the possible guilt of other pe ople should not enter into your thinking as you decide wh ether or not these two defe ndants are guilty of the crimes that are charged in this indictment. And it reminds me of when you ge t stopped for speeding, and you get stopped for speeding and you are spee ding. But there are people who are flying by you, going faster than you. When you get pulled over, you’re like, yeah, I was speeding, but those peopl e were speeding faster; why didn’t you get them . . . instead? It’s the sa me argument. It doesn’t make you less guilty. And Celia and Victor they don’t have to be innocent for you to find these two defendants guilty. But what we do . . . when we have people who are accomplices or informants is we tr y to corroborate them. R., Vol. II at 1196–97 (emphasis added). Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1718 We think it clear that the lesson the prosecutor was drawing from Instruction No. 24 was that the jury s hould not concern itself with whether accomplices were going free. The fact that the Suarezes may have been escaping punishment for their crimes did not lessen Defendants’ culpab ility. Defendants argue that there was no need to make this point becau se they did not suggest to th e jury that it should grant a jury pardon on the ground that those who were equally, or even more, culpable were escaping punishment. We take the point. Defendants did not make that argument; we have not been directed to anything improper in the closing argume nts for the defense. But that does not mean that the jury, pa rticularly after hear ing defense closing arguments (such as the arguments in this cas e) that paint the gove rnment witnesses as the real culprits, would not entertain th e thought that it woul d be unfair in the circumstances to convict the defendants. The prosecution has every right to try to forestall such action by the jury. Further, the prosecutor did not argue, or insinuate, that the criminality of the Suarezes should not diminish their credibility; nor did she object to the defense arguments that the Suarezes should not be believed because of their motive to escape punishment for their own crimes. She never suggested that they were not guilty of drug trafficking. On the contrary, she began the rebuttal cl osing by saying that Defendants were being tried “because they got in bed with Victor and Celia to run Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1819 this methamphetamine lab.” Id. at 1196. 2 And she conceded that because the Suarezes were accomplices (that is, were themselves criminals), their testimony was suspect. In addition, after discussing the evid ence corroborating the government’s case, the prosecutor repeated the same two points—(1) that accomp lice testimony is suspect and (2) that the guilt of Victor and Celia would not free Defendants of criminal responsibility: The instruction regarding the informants and the accomplices, if you believe them, if they’re corroborated and if you believe them beyond a reasonable doubt, absolutely it’s within your right to give their testimony that weight. The phone records corrob orate the testimony of those two people. This ledger corroborates the testimony of t hose two people. And even if Victor and Celia are involved in this, even if they’re the two main bank robbers in my analogy, that doesn’t mean that these two ar en’t involved. R., Vol. II at 1199–1200. We fail to see any impropriety, much less reversible error, in the prosecutor’s closing argument.

2 In the same vein, the prosecutor had ended the government’s case with the following exchange with DE A agent Jennifer Waller on redirect examination: Q. Now, with regard to the role of both Victor and Celia Suarez in this case, it’s entirely possi ble that the both of th em are unindicted coconspirators? A. Correct. Q. We don’t have the evidence to charge them with that, correct? A. Correct. Q. But obviously they had some role in helping the two defendants in this case? A. Yes. Q. And at the very least, perhaps aided and abetted? A. Correct. R., Vol. II at 1035. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 1920 B. Lesser-included offenses Each of the offenses for which Defenda nts were initially convicted requires proof that the drug-trafficking activity occurre d “within one thousand feet of . . . real property comprising . . . a pl ayground.” 21 U.S.C. § 860(a) . Cleveland Avenue runs into Klamm Park. It has not been disputed that the park satisfied the playground requirement. To establish th e distance from the Clevela nd Avenue residence to the park, a law-enforcement agent holding a rolli ng measuring tape walked west from a sign a few feet inside the pa rk down Cleveland Avenue to the driveway on the east side of the residence. He measured 942 feet. A Google Ma ps printout depicting an aerial view of the park and the residence wa s admitted into evid ence. The map gave a distance of 602 feet. The government expl icitly disclaimed any reliance on the map for the purpose of proving distance, but the ag ent testified that the difference in the distances measured by Google and by the agent could be accounted for by a hill the agent had to walk up while going from the park to the house’s driveway. Defendants raised no challenge to the measurement during trial. Indeed, the prosecutor thought the measurement was uncon tested, telling the jury during closing argument: “[T]he fact that 2739 Cleveland Av enue is within 1, 000 feet of Klamm Park is not in dispute. So you can just ch eck that off the list of things you need to look at.” R., Vol. II at 1160. Nor did Defe ndants raise a challenge to the distance in any preverdict motion. The first mention of any problem with th e distance was in renewed motions for judgment of acquittal timely filed by Defend ants 45 days after the jury’s verdict. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2021 They argued that the distance must be measured from the pa rk to the lab itself, not just to the property line for the residence, and that the evidence failed to show that the lab was less than 58 feet from the street (1,000 feet minus the 942 feet measured by the agent), so the lab’s to tal distance from the park could have been more than 1,000 feet. The government responded that ph otos of the house, driveway, and doorway into the house bridged any gap in the measurement evidence. And it argued that since hilly terrain in flated the 942-foot walki ng measurement far beyond a measurement made as the crow flies, a jury could reas onably infer that the missing distance from the street to the lab would not bring the straight-line distance between Klamm Park and the lab above 1,000 feet. The district court agreed with Defendant s. Although it did not question what it termed a “broad consensus” th at the “distance is properly measured in a straight-line or ‘as the crow flies,’” R., Vol. I at 398, it noted that the government had explicitly disclaimed reliance on the Google Maps -measured distance of 602 feet and was bound by the measurement it offered of 942 feet from the park to the residence’s east-side property line. (The court did, however, subtract 10 feet from the measurement to account for the agent’s testimony that th e measurement began about 10 feet within the park, resulting in a distan ce of 932 feet.) It then concluded that the evidence offered by the government (in particul ar, pictures of the residence that did not show the end of the driveway) was in sufficient for a jury to find beyond a reasonable doubt that the distance from th e property line to the laboratory was less Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2122 than 68 feet (1,000 feet less 932 feet). 3 But because there was sufficient evidence of the other challenged elements, the district court did not grant Defendants the full

3 (The views expressed in this footnote are those solely of the author of the opinion.) The district court may well ha ve denied the motions for judgment of acquittal if the government had invoked one of the fundamental lessons of highschool geometry. Because the government ha s not cross-appealed the judgment of acquittal, we have no power to reverse that holding. See Greenlaw v. United States , 554 U.S. 237, 244–45 (2008) (“This Court, from its earl iest years, has recognized that it takes a cross-appeal to justify a remedy in favor of an appellee.”). But it may be useful to point out the error shou ld the issue recur in a future case. The district court acknowledged that the jury could in some circumstances use “common sense, common knowledge, and rou gh indices of distance” to determine whether the 1,000-foot requirement was sa tisfied when “the government does not offer a measurement to the location of the drug activity within the building but instead offers some other measurement (s uch as one to the property line for the entrance of the building).” R., Vol. I at 399 (internal quotation marks omitted). Whether the common-sense approach would be appropriate depended on whether the spatial leeway (the distance that the jury would have to estimate) was modest. If it was modest, actual measurement would be necessary. The court sa id that distances less than 100 feet have been treated by the courts as modest, so actual measurements would be needed in this case because th e measured distance al ong Cleveland Avenue was 932 feet, “leav[ing] a sp atial leeway of 68 feet.” Id. The spatial leeway, however, was much greater than 68 feet. The parties and the district court appeared to assume that the distance from the pa rk to the laboratory was the sum of the distan ce from the park to the property line along Cleveland Avenue plus the distance from Cleveland Aven ue to the laboratory. That is incorrect. The straight-line distance (the distance as the crow flies, which the district court took to be the proper measurement) between the la b and the park can be thought of as the hypotenuse of a right triangl e—as illustrated below—with the measured distance along Cleveland Avenue (which, as shown by an aerial view of Cleveland Avenue introduced into evidence, is a straight line) forming one of the legs and the unmeasured distance from the lab to th e street forming the other leg.

When, as here, one leg of a right triangl e is much longer th an the other, the hypotenuse is barely longer than the long le g. For the straight-l ine distance between Lab Park (b) 932 feet (a) Cleveland AvenueDriveway Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2223 relief they sought—dismissal of all charges. It decided th at it should not go so far and instead entered judgment on the lesser-incl uded offenses—that is , the four charged crimes absent the playground-proximity el ement of 21 U.S.C. § 860(a). On appeal Defendants challenge only the district cour t’s decision not to fully acquit them once

the lab and the park to exceed the 1,000 -foot maximum, the Pythagorean theorem (a 2 + b 2 = c 2 , here a 2 + 932 2 = 1000 2 ) shows that the distance from the lab to the street would need to be more than approximately 362 feet—longer than a football field. It would have been perfectly reasonable fo r the jury to use its common sense to conclude that the lab was less than 1,000 feet from the park. (Adjusting for the fact that the drug activity was not conducted on the home’s east-side property line makes little difference. Photographs of the home s how how small it was. In particular, a photograph from the outside, which shows several people so that one can get a reasonable scale of distance, depicts a smal l garage near the east-side property line. Testimony placed methamphetamine in the kitc hen adjacent to the garage. Even if the kitchen was 40 feet from the property line, so that the long side of the right triangle would be 972 feet, the kitche n would be less than 1,000 f eet from the park so long as it was less than 234 feet from the street.) Of course, other considerations may come into play that would justif y the district court’s ultimat e determination. But that determination should be ba sed on sound mathematics. Just one final observation. It app ears to me that the decision in United States v. Soler , 275 F.3d 146, 154–55 (1st Ci r. 2002), is one that may well have come out the other way if the government ha d brought the Pythagorean th eorem to the attention of the court. The question was whether a heroin sale on th e third-floor landing of an apartment building took place within 1000 feet of a school building. See id. at 154. The court said it was to use a “strai ght-line rather than pedestrian-route measurement[].” Id. at 155 n.6. The court accepted th at the distance from the school to the rear entran ce of the apartment building was 963 feet. See id. at 154. “But,” according to the court, “this left an obvious gap—the distance between the base of the [apartment] building and the third-fl oor landing on which the heroin was sold— and the government offered no direct evidence as to that distance.” Id. The court said that the “spatial leeway” was only 37 feet, id. , and reasonably determined that the jury could not have accurately determined that distance from a video (which included glimpses of the relevant portion of the building) shown at trial, see id. at 155. The Pythagorean theorem, however, would have shown that the straight-line distance from the school to the third-floor landing w ould have been less than 1,000 feet so long as the landing was less th an 269 feet above the base of the apartment building, and the jury could certainly have used its common sense to make that finding. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2324 it concluded that there was insufficient evidence of the playground-proximity element. We reject the challenge. The district court did only what we have stated it should do on a motion to set aside a verdict for insu fficient evidence. In United States v. Wood , 207 F.3d 1222 (10th Cir. 2000), we gave the following directiv e: “When ruling on a motion for judgment of acquittal, a district court s hould consider not only whether the evidence would be sufficient to sustai n a conviction of the offense charged, but also whether it would be sufficient to su stain a conviction on a le sser included offense,” id. at 1229; see Gov’t of Virgin Islands v. Josiah , 641 F.2d 1103, 1108 (3d Cir. 1981) (“A jury’s finding of guilt on all elements of the greate r offense is necessarily a finding of guilt on all elements of the lesser offense, since a lesser-include d offense consists of some of the elements of the great er offense and does not require the proof of any element not present in the greater offense. . . . A tr ial court therefore has authority to enter a judgment of conviction on a le sser-included offense when it finds that an element exclusive to the greater offe nse is not supported by evidence sufficient to sustain the jury’s finding of guilt on th e greater offense.”). When we determine on appeal that ther e is insufficient evidence to support the verdict, we consider what we call the Allison factors in deciding whether to order entry of judgment on a lesser-included offense: “It must be clear (1) that the evidence adduced at trial fails to support one or more elements of the crime of wh ich appellant was convicted, (2) that such evidence suffici ently sustains all the elem ents of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will result to the accused.” Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2425 United States v. Smith , 13 F.3d 380, 383 (10t h Cir. 1993) (quoting Allison v. United
States , 409 F.2d 445, 451 (D.C. Cir. 1969)). In doing so we exercise the authority of appellate courts under 28 U.S.C. § 2106 to m odify erroneous judgments. (The statute was necessary to overcome “English common law rules restricting [appellate-court] authority.” Austin v. United States , 382 F.2d 129, 140 (D.C. Cir. 1967).) Although we apparently have never explicit ly instructed district cour ts to do so, we see no reason why a district court should not apply the same factors when it confronts the same issue. See United States v. Herron , 757 F. Supp. 2d 525, 532 (E.D. Pa. 2010) (applying Allison factors); United States v. Guerra-Javalera , No. CRIMA03-20054- 02KHV, 2006 WL 3772315, at *4 (D. Kan. Dec. 20, 2006) (same) . If anything, given its greater familiarity with th e record and proceedings, a dist rict court is in a better position than an appellate c ourt to assess these factor s in the first instance. Cf. Austin , 382 F.2d at 143 (stating, when remanding to district court to determine whether remedy should be new trial or entry of co nviction of lesser-inc luded offense after appellate court rules that ther e was insufficient evidence of greater offense, “It is our view . . . that optimum appli cation of Section 2106 bids an appellate court take into account that its remoteness may not provi de as good a vantage point as the trial court’s proximity for detect ing possibilities of prejudice in a particul ar case.”). The district court chose to apply the Allison factors and did so properly. We need not address whether our standard of re view is de novo, abuse of discretion, or otherwise, because the conclusion would be the same regardle ss. The only possible dispute is over the fourth factor of undue prejudice. But we see no undue prejudice Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2526 here. Defendants give us no reason to believ e, and we see none, that they omitted any evidence, argument, tactic, or strategy that they would have em ployed had the trial been limited to the lesser-included offenses. See, e.g. , Smith , 13 F.3d at 383 (“Mr. Smith has not offered the slightest sugge stion of how the defense might have differed.”); Allison , 409 F.2d at 451 (“There is no i ndication that defense presentation would have been altered had the [greater-offense] charge been dismissed at the close of the Government’s case.”); Austin , 382 F.2d at 143 (“We do not see how defense presentation might have been altered if the [greater-offense] charge had been dropped at the close of the Government’s evidence. ”). We reiterate that Defendants’ trial strategy had nothing to do with the proximi ty element, which was not disputed until after the verdict. Defendants do not contest the distri ct court’s application of the Allison factors but instead contend that the district court should have ne ver considered the issue of lesser-included offenses in th e first place. They argue that it was inappropriate for the court to enter judgment on lesser-included offenses when the prosecution had not sought a jury instruction on lesser-included offenses. Some circuits have agreed with that proposition, either in a holding, see United States v. Dhinsa , 243 F.3d 635, 675– 76 (2d Cir. 2001); United States v. Melton , 491 F.2d 45, 49 (D.C. Cir. 1973), or dictum, see United States v. Dinkane , 17 F.3d 1192, 1198 (9th Cir. 1994). But other circuits have said that a le sser-included-offense instructi on is not a prerequisite to imposing a conviction on a le sser-included offense. See United States v. SepulvedaHernandez , 752 F.3d 22, 30 n.3 (1st Cir. 2014) (remanding for entry of judgment on Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2627 lesser-included offense and noting that presence or absence of lesser-includedoffense instruction was irrelevant to court’s prejudice analysis under Allison ); United
States v. Petersen , 622 F.3d 196, 205–07 (3d Cir. 2010) (affirming district court’s entry of judgment on lesser-included offens e after jury returned an elements-based special verdict form on which only the elem ents of the lesser-i ncluded offense were marked as proved, despite defendant’s ar gument that jury could not so convict without a lesser-include d-offense instruction); United States v. Hunt , 129 F.3d 739, 745–46 (5th Cir. 1997) (applying Allison test and directing entry of judgment on lesser-included offense despite absence of jury instruction); United States v. Cobb , 558 F.2d 486, 489 & n.5 (8th Cir. 1977) (remanding for en try of judgment on lesserincluded offense when no instru ction was given). And in th is circuit our most recent opinion on the topic has not expressed such a requirement. See Smith , 13 F.3d at 383 (remanding for resentencing on lesser-inc luded offense despite absence of instruction). 4 Nor do we see any reason to require a request for a jury instruction as a

4 Defendants’ reliance on United States v. Mitcheltree , 940 F.2d 1329 (10th Cir. 1991), is misplaced. The defendant in that case was convicted of introducing a misbranded drug into intersta te commerce with intent to mislead or defraud and conspiracy to do the same. See id. at 1332–33. The government presented two theories: (1) that the defendant had defraude d a governmental agency and (2) that the defendant had defrauded consumers. See id. at 1346. We held that the evidence was sufficient to prove guilt onl y under the second theory . See id. at 1346, 1351. Because we could not determine the theory on whic h the jury convicted the defendant, we remanded for a new trial. See id. at 1352. (We should note th at under present doctrine we would have affirmed the c onviction, since we assume th at the jury did not convict on the theory for which there was insufficient evidence. See United States v. Ayon Corrales , 608 F.3d 654, 657 (10th Cir. 2010) (“[W]hen ther e is sufficient evidence to support a conviction on one theory of guilt on which the jury was properly instructed, we will not reverse the conviction on the gr ound that there was insufficient evidence Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2728 precondition to entering a conviction on a lesser-included offense. In some circumstances the prosecution’s failure to request a lesser-included-offense instruction might prejudice the defense in a way that makes it unfair for a court to enter judgment on a lesser-i ncluded offense. But the tw o reasons Defendants give here are not persuasive. First, Defendants suggest that given the district court’s deci sion that there was insufficient evidence, it is clear that the jury erred in not ac quitting defendant, and the prosecution should face the same consequence as if th ere had been an acquittal by the jury. But one could just as well argue th at the district court’s postverdict decision shows that the court erred in not detecting the evidentiary insufficiency during trial. And if the district court had detected th e evidentiary insuffici ency, there is little

to convict on an alternative ground on which the jury was instruct ed.”).) In a footnote we explained why we were not proceeding as we had in United States v. Industrial Laboratories , 456 F.2d 908 (10th Cir. 1972). See Mitcheltree , 940 F.2d at 1352 n.17. In Industrial Laboratories we held that the court had in correctly instru cted the jury on the elements of the offense. See 456 F.2d at 911. Although standard practice in this situation would have been to remand for retrial, both parties at oral argument had said that if the judgment had to be revers ed, they would be content with entry of a judgment on lesser-included offenses not affe cted by the improper instruction, so we remanded to the district court to ente r convictions on the lesser offenses. See id. at 911–12. The Mitcheltree footnote noted the possibility of entering convictions on lesser-included offenses in that case but declined to do so. We explained “that no lesser included offense instru ctions were given in this case”; that no party had “made any concessions on this issu e”; and that no party had a ddressed the issue. 940 F.2d at 1352 n.17. Perhaps (we are ha rdly certain) the panel thought that it could not enter judgment on a lesser-included offense when th e jury had not been instructed on the matter; but we do not consider that unela borated comment to constitute a binding holding when there were other compelling reasons not to enter the same sort of judgment as in Industrial Laboratories . For one thing, the government may have wished to pursue a conviction on the greater offense on retrial. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2829 doubt that the court had authority at that point to give a le sser-included-offense instruction. “It is perfectly proper for th e court to give a le sser included offense instruction under the necessary elements test at the re quest of the defendant, the prosecution, or sua sponte —whether or not any party objects.” Smith , 13 F.3d at 383 (brackets and internal quotation marks omitted); see also United States v. Begay , 833 F.2d 900, 901 (10t h Cir. 1987) (“The trial court inst ructs the jury in accordance with the evidence and the appli cable law whether requested or not. The decision of whether there is enough eviden ce to justify a lesser in cluded offense charge rests within the sound discretion of the trial judge.” (bracket s, citation, and internal quotation marks omitted)). 5 Alternatively, the district court might have declined to instruct on the greater offens e and instructed only on th e lesser-included offense. “[T]he possibility of su ch an instruction existed throughout the trial,” Smith , 13 F.3d

5 We note that in civil cases a part y could not proceed as Defendants did here—challenging the sufficiency of the evid ence for the first time after the jury has been excused (when it is too late to provide new jury instructi ons or to allow the opposing party to offer additional evidence). See Mountain Dudes v. Split Rock Holdings, Inc ., 946 F.3d 1122, 1135 (10th Cir. 2019) (“[T]he district court’s posttrial decision to grant Defendants judgment as a matter of law under [Federal] Rule [of Civil Procedure] 50(b) on grounds Defendants never asserted in either their Rule 50(a) or 50(b) motions, was error be cause it deprived Mountain Dudes of the pre-deliberation notice and opportunity to r ectify any deficiency in its evidence that Rule 50 was intended to provide.”). To be sure, the rule is otherwise in criminal cases. See Fed. R. Crim. P. 29(c)(1) (permit ting a motion for judgment of acquittal after guilty verdict or discha rge of jury). But we doubt that the moving force behind the criminal rule was a desire to en courage defendants to do what was done (intentionally or inadvertently ) in this case: that is, tr y to preclude a conviction on a lesser-included offense by not challenging th e element in the greater offense until it is too late to instruct the jury on the lesser-included offense. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 2930 at 383, so Defendants cannot plausibly claim to be blindsided by their convictions on the lesser-included offenses. Second, Defendants contend that the district court’ s “sua sponte” decision to enter judgment on lesser-include d offenses violated the pa rty-presentation principle. The party-presentation principle, however, restricts courts from raising new issues. See United States v. Sineneng-Smith , 140 S. Ct. 1575, 1579 (20 20) (“[I]n both civil and criminal cases, in the fi rst instance and on appeal, we rely on the parties to frame the issues for decision and as sign to courts the role of ne utral arbiter of matters the parties present.” (ellipsis and internal quotation marks omitted)). The principle does not say that once an issue has been raised and responded to, a court must render its decision in accordance with the position of one of the parties. Courts have always had authority to resolve raised issues as fairness requires. If one party says that a contract unambiguously means A and the op posing party says that it unambiguously means B, the court may decide that the c ontract is ambiguous and that its meaning needs to be decided using extrinsic eviden ce. If one party challenges the admissibility of evidence and the proffering party provi des a ground of admissibility, the court may admit the evidence but give a limiting in struction. Or if opp osing parties file cross-motions for summary judgment on the same clai ms, the court may split the difference by granting in part and denyi ng in part each motion. In this case, Defendants sought acquittal due to the govern ment’s failure to prove the proximity element, and the government countered th at there was sufficien t evidence of that Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 3031 element. The district court in our view fairly resolved the dispute by giving Defendants some, but not all, of the relief they sought. We affirm the decision of the district court to enter judgment on the lesserincluded offenses.
C. Clerical error Finally, the district court’s judgments of conviction misstat e the offenses of conviction as the charged, br oader offenses (with the proxi mity element) rather than the lesser-included offenses (without that element). All parties agree that this was simply a clerical error and that the remedy should be remand. We therefore remand to the district court to correct the judgments.
III. CONCLUSION
We AFFIRM the convictions on the lesser-included offenses. But we
REMAND for correction of the clerical erro r in the judgments of conviction. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 31United States v. Cortez-N ieto & Cervantes-Aguilar , Nos. 20-3184, 20-3189 HOLMES , J., Concurring.

I feel obliged to write separately for the following reasons. I join all the wellwritten lead opinion, except fo r footnote 3. I share many of the concerns that Judge Bacharach raises in his thou ghtful separate writing regard ing the substance of this footnote, especially the party-presentation co ncerns (i.e., no part y makes the argument found in footnote 3). Howeve r, unlike Judge Bacharach, I resp ectfully decline to engage with footnote 3’s Pythagorean theorem analys is; doing so, in my view, only compounds the problem of writing about—a nd arguably opin ing on—matters that the parties do not discuss. I think it is sufficient to note my re spectful objection to footnote 3 and to decline to join it. I do agree with the limiting discussion of Part II.B of Judge Bacharach’s separate writing, and I therefore join it. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 32United States of America v. Orlando Cortez-Nieto & Jesus CervantesAguilar , Nos. 20- 3184, 20-3189, BACHARACH , J., concurring in part and dissenting in part. I agree with the majority that (1) the district court did not err by sua sponte entering convictio ns on lesser-included offenses, (2) the prosecutor did not commit misconduct, and (3) we must remand for correction of the clerical error in the j udgment. But I do not join the lead opinion’s discussion questioning the correctness of the district court’s entry of an acquittal on the greater offe nse, and I would find instructional error. That error prevented the jury from consid ering how the witne sses’ own possible guilt might have affect ed their credib ility. Because th e error was not harmless beyond a reasonab le doubt, I would revers e the district court’s judgment and remand for a new trial. I also write to emphasize the limite d scope of our opi nion on the sua sponte entry of a conviction on the lesser-included offe nse. Although the majority upholds this conviction, th e reasoning turns on our facts. In another case, where the government might opt fo r an all-or-nothing strategy, we might reac h a different outcome.
I. The jury inst ructions were erroneous. Instruction 24 directed the jurors not to le t the possible guilt of others enter their minds. On its face, this instruction prevented the jury from considering the defendants’ argum ent that the Suarez siblings had Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 332 falsely testified to hide their own gu ilt. At best, the other instructions contradicted this instruction, confusing the jury. This confusion would re quire reversal unless the government showed that the error had been harmless beyond a reasonab le doubt. Th e evidence of guilt had been strong, but not overwhelming. So I would reverse and remand for a new trial with a properly inst ructed jury.
A. Our review is de novo. Because Mr. Cervantes and Mr. Cort ez-Nieto objected to the jury instruction, we conduct de novo review for legal er ror, asking whether the instructions “in the context of the enti re trial . . . accurately state[d] the governing law and provide[d ] the jury with an acc urate understanding of the relevant legal standards an d factual issues in the case.” United States v.
Jean-Pierre , 1 F.4th 836, 846 (10t h Cir. 2021) (quoting United States v. Christy , 916 F.3d 814, 854 (10th Cir. 2019)). If an instruction were ambiguous, we wo uld ask “whether there is a reasonable likelihood that the jury . . . applied th e challenged instruction in a way that prevent[ed] the consideration of constitutionally relevant evidence.” Boyde v. California , 494 U.S. 370, 380 (1990). A defendant must show more than a possibilit y (though not necessa rily a likelihood) that the jury ha d been misled. Id. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 343 B. The jury instructions told th e jury not to consider a key defense argument on credibility. Instruction 24 told the jury: You are here to decide whet her the government has proved beyond a reasonable doubt that each defendan t is guilty of the crimes charged. The defendants are not on trial for any act, conduct, or crime not charged in the Superseding Indictment. It is not up to you to decide whether anyone who is not on trial in this case should be pros ecuted for the crim e charged. The fact that another person also ma y be guilty is no defense to a criminal charge. The question of the possible gu ilt of others shou ld not enter your thinking as you decide wh ether these defendants have been proved guilty of the crimes charged. R. vol. 1, at 343 (emphasis added) . The italicized sentence could have misled the jury to think that it couldn’t cons ider the Suar ezes’ possible motives to lie. The starting poin t is the instruction’s text . The challeng ed language was broad, prohibiting th e jury from even “thinking” a bout “the question of the possible gu ilt of others.” Id. Standing alone, th is language could easily mislead the jury. On its face, the language pr ohibited consideration of the possible guilt of others. This broa d prohibition doomed the defense’s argument that th e Suarez siblings had li ed to conceal their own guilt. The government counters th at this instruction di dn’t “facially purport to address matters of w itness credibility.” Appellee’s Resp. Br. at 18. But Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 354 the instruction prohibit ed the jury from “thi nking” about the Suarez siblings’ possible guilt. R. vol. 1, at 343. That pr ohibition would necessarily prevent consideration of the siblings’ possible guilt when assessing their credibility. So the jury was reasonably likely to read the challenged instruction to prohibit the defendants’ argument on credibility.
C. The context created a contradiction rather than clarity. The government argues that the context resolves any possible problems with the instruction because

 the rest of Instruct ion 24 clarified the challenged language and

 other instructions allowed the jury to consid er the Suarez siblings’ credibility. But even with this context, the inst ructions were reasonably likely to mislead the jury. The Rest of Instruction 24 The rest of Instruction 24 does not resolve the issues with the challenged language. The government argues that the challenged instruction is best read to merely restate the prior two sentences, which told the jury: It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the cr ime charged. The fact that another person may also be gu ilty is no defense to a criminal charge. Id. For two reasons, the jury was unlikely to read the instruction that way. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 365 First, those two sentences appeared a paragraph away from the challenged sentence. The se paration could lead a juro r to infer that the last paragraph conveyed a separate idea. The separation of ideas appeared implicit in the structure of the instruction, which consisted of three paragraphs. The first two paragraphs conveyed two separate ideas:

 Paragraph 1: The jury shoul d not consider whether the defendants committed any crimes not charged in the indictment.

 Paragraph 2: The jury should no t acquit the defendants merely because somebody else al so committed the crime. Id. So the jury was reasonably likely to assume that th e third paragraph would convey a separate idea—rather than restate the previous paragraph. Second, the jury could reasonably infer that the court would not needlessly repeat instructions. We apply a similar inference when interpreting statutes and contracts. Navajo Nation v. Dalley , 896 F.3d 1196, 1215 (10th Ci r. 2018); 11 Williston on Contracts § 32:5 (4th ed.). This inference is not abso lute, but it is a common default rule in both legal and non-legal writing. Antonin Scalia & Bryan A. Garner, Reading Law 174 (2012). The jury was thus reasonabl y likely to interp ret the challenged sentence as something different than the prior sentences.
Instructions on W itness Credibility The government also urges clarific ation from Instructions 4 and 6, stating that they told the jury to cons ider the possibility of a reason to lie. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 376 Instruction 4 told the jury to consid er whether a witness had any reason to lie or any personal interest in the case. R. vol. 1, at 318. Instruction 6 told the jury to

 use particular caution when considering informant testimony and

 consider whether an informant had an agreement with the government, an interest in the ou tcome of the case, or prejudice against the defendant. Id. at 321. But neither instruction discussed a witness’s possibl e guilt. Both instructions just implicitly authorized the jury to consider whether the Suarez siblings’ potential guilt had creat ed a motive to lie . So the jury was left with conflicting instructions: Instruction 24 implicitly barred consideration of the siblings’ potentia l guilt, and Instructions 4 and 6 implicitly allowed su ch consideration. We cannot assume that the jury would have co rrectly reso lved this conflict. “Language that merely co ntradicts and does not explain a constitutionally infirm instruction w ill not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applie d in reaching their verdict.” Francis v. Franklin , 471 U.S. 307, 322 (1985). The uncertainty is particular ly significant he re because

 the instructions did not indicate that one was more important than another and Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 387  the correct instructio n was “given earlier and separately from” the erroneous instruction. Baer v. Neal , 879 F.3d 769, 780 (7th Cir. 2018). We thus can’t possibly know whether the ju rors followed

 Instruction 24’s prohibition on considering the Suarez siblings’ possible guilt or

 the directives in Instructions 4 and 6 to consider witnesses’ motives to fals ely testify. The government also relie s on our cases presuming that jurors follow the court’s instructions. Bu t that presumption doesn’t tell us what the jury does when the instructions contradict each other.
D. Our previous opinions haven’t addressed this situation. The government relies on three of our prior opin ions. But those opinions involved either a different instruction or a different defense argument. The first case, United States v. Oberle , involved a different argument. 136 F. 3d 1414 (10th Cir. 1998). There the defendant was charged with robbing banks. Id. at 1417. The defendan t argued that (1) there was only one r obber and (2) his brother was the culprit. Id. So if the jury believed that if the brother had robbed the banks, the defendant couldn’t have comm itted the crime. Given the defendant’s argument, we addressed only an instruction to disregard the guilt of othe rs. We concluded that th is instruction hadn’t Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 398 prevented the consideration of the defendant’s innocence. Id. at 1422–23. We didn’t discuss how such an instruction would affect an evaluation of credibility. The second case, United States v. Arras , involved an argument resembling the one here. But that case involved different instructional language. 373 F.3d 1071 (10th Cir. 2004). In Arras , the trial court instructed the jury: You are here to decide whet her the governmen t has proven beyond a reasonable doubt that each defendan t is guilty of the crimes charged. And you must not be concerned with the guilt or innocence of other pers ons not on trial as a defendant in this case. Id. at 1076. That instruction resembled th e second paragraph of Instruction 24—which the defendan ts do not challenge. 1 We did not consider the validity of an in struction categorically barri ng consideration of the possible guilt of others, like the third paragraph of our instruction. In the third case, United States v. Little , the trial court gave the same instruction as the one given here. 829 F.3d 1177 , 1186 (10th Cir. 2016). But the defe ndant in Little argued that this inst ruction had prevented the

1 The second paragraph of Instruction 24 told the jury It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the cr ime charged. The fact that another person also may be guilty is no defense to a criminal charge. R. vol. 1, at 343. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 409 jury from considering th e possibility that some body else committed the crime. Id. The defendant in Little did not question the im pact of the jury instruction on credibility. So the panel ap plied our preceden t to foreclose this challenge. Id. Little thus provides no m eaningful guidance.
* * * Our review of the alleged instruct ional error is fact-dependent. We consider the instructions in the cont ext of the full reco rd, including the other instructions and the nature of the defendant’s argument. United
States v. Jean-Pierre , 1 F.4th 836, 846 (10th Cir. 2021). So we can draw little help from the three c ited cases; all of them involve instructions or arguments diffe ring from ours.
E. The government has not show n the error was harmless beyond a reasonable doubt. The parties agree that if the jury instructions were erroneous, the error would have violated the defe ndants’ Sixth Ame ndment right to confront prosecution witnesses. B ecause the jury in structions were erroneous, we must reverse unless the government proved that the error had been harmless beyond a reasonable doubt. United States v. Holly , 488 F.3d 1298, 1307 (10th Cir. 2007 ). In other words, we can affirm only if the government proved “beyond a reasonable doubt that the er ror complained of [had not] contribute[d] to the verdict obtained.” Id. (quoting Neder v. United States , 527 U.S. 1, 15 (1999)). Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4110 The government argues that an y error was harmless beyond a reasonable doubt because

 the challenged instruction was unlikely to affect the jury’s evaluation of the Suarezes’ credibility and

 the evidence of guilt was overwhelming. I disagree. Effect on Credibil ity Determinations. The government presents two reasons to discount po ssible influence on the jury’s asse ssment of credibility: (1) other instru ctions allowed the jury to consider whether the Suarez siblings had fals ely testified to hide their own guilt and (2) other information gave the jury reason to doubt the sibl ings’ credibility. Both
reasons are qu estionable. The first reason (the other instru ctions) shows only that the jury faced a conundrum. On the one hand, the instructions told the jury that it could consider the siblings’ reason s to lie. On th e other hand, the instructions stated that the jury couldn’t consider the siblings’ guilt. This conflict would create confus ion rather than clarity. The second reason (other information a bout the siblings ’ credibility) didn’t diminish the impact of the er ror. The government’ s briefing cited other reasons to doubt Vi ctor’s testimony, but fe w other reasons to doubt Celia’s testimony. So th e jury may have credite d Victor’s testimony because Celia had corrobora ted it. We cannot be conf ident that a correctly Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4211 instructed jury would make the sa me decision about the siblings’ credibility. Evidence of Guilt. We can consider the evidence when deciding whether an error was harmless beyond a reasonabl e doubt. But we cannot “become in effect a second jury to determine whether the defendant is guilty.” Neder v. United States , 527 U.S. 1, 19 (1999 ) (quoting Roger J. Traynor, The Riddle of Harmless Error 21 (1970)). When the jury has been erroneously instructed, the error is not harmless if the evidence would allow the jury to acquit. See id. (error would not be harmless when “the defendant contested the omitted elemen t and raised evidence sufficient to support a contrary finding”). The evidence of gu ilt was strong but no t overwhelming. The government presented extensive evidence that

 the defendants had bought items us ed to process methamphetamine, in cluding large quanti ties of acetone, and

 those items had appeared in the Cleveland Avenue house. But the defend ants conceded th at they had bought these items. The government needed to prove not only the pur chases but also the defendants’ inte nded use of th e items for an illegal purpose. The government tried to prove in tent based on the defendants’ presence in the Cleveland Avenue house. The governm ent theorized that if the defendants had been inside the house while the lab was in operation, Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4312 they would have seen th e methamphetamine. To advance this theory, the government presented eviden ce that the defendants ha d used the address of the house. For example, in the kitchen was a p ackage addressed to Mr. Cortez-Nieto at th e house’s address. Elsewher e in the house was a money order listing Mr. Cervante s as the sender and his address as the Cleveland Avenue house. And somebody had registered a car, giving the Cleveland Avenue address as the address for Mr. Ce rvantes. But none of this evidence actually placed the defendants inside the house—they could have simply used the house to receive mail or to show a loca l residence. The jury needed to infer that the defendan ts had actually entered the house. The landlord testified that he had seen Mr. Cervante s enter the house; but before trial, the land lord hadn’t been able to pick out Mr . Cervantes from a photo. So the jury might have discredited th e landlord’s testimony. The government also showed the jury (1 ) photographs of a camouflage coat inside the house and (2) survei llance footage of Mr. Cortez-Nieto wearing a si milar coat. But the inves tigators did not seize the coat or determine whethe r it was Mr. Cortez-Nieto’s size. So the jury may have concluded that the government hadn’t proven that it was the same

coat. Finally, the government presented eviden ce that the defendants’ cell phones had pinged towers near the Cleveland Aven ue house. But a defense expert testified that th e same towers had also served a different house Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4413 where both defendants lived at about the same time. So a reasonable jury could conclude that th e cell tower data hadn’t shown the defendants’ presence in the Clev eland Avenue house. The jury could also have doubted guilt base d on gaps in the government’s proof. For example, the government had no DNA from any of the evidence at the Cleveland Avenue house. Nor was there any evidence of criminal acts even though th e government had monitored both defendants for four to five months. So a jury could legitimately question the defendants’ i nvolvement in drug distribution. The government countere d with the Suarez sibl ings’ testimony to close these gaps and place the defe ndants at the hou se. The siblings testified that Mr. Cervantes had head ed the methamphetamine lab in the Cleveland Avenue house and had obtained help from Mr. Cortez-Nieto. A reasonable jury could have viewed this testimony as dire ct evidence of the defendants’ guilt. The Su arez siblings’ testimony , if credited, would significantly boost the government’s case by re moving any inferential
gaps. In considering harmless error, we must ask whether the government proved beyond a reasonable doubt that the error hadn’t affected the verdict.
See p. 9, above. Here th e government pres ented strong ci rcumstantial evidence of guilt, which could have a llowed the jury to find guilt even with proper instructions. But gaps existed between the circumstantial Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4514 evidence and the necessary mens rea, and a reasonab le jury could conclude that the Suarez siblings had closed those gaps. The instructions thus improperly narrowed consideration of the siblings’ credibility.
II. I would also affirm the district co urt’s entry of a conviction on a lesser-included offense. I agree with most of the majority’s analysis of the district court’s decision to enter convictions for le sser-included offenses. But I write separately for two reasons:
1. I disagree with the lead opinion’s critici sm of the district court’s entry of acquittal. 2. Although we affirm the district co urt’s entry of c onviction on a lesser-included offense, our r easoning turns on the facts. A. I respectfully disagree with foot note 3 of the lead opinion. The government did not cr oss-appeal the district court’s grant of a motion of acquittal, so we cannot reverse that deci sion and no one briefed it. See Johnson v. Spencer , 950 F.3d 680, 722–23 (10th Cir. 2020). But the lead opinion analyzes the district court’s reasoning anyway, suggesting that the government could have successfully defend ed the conv iction on the greater offense. In do ing so, the lead opinion

 presents an argument th at nobody made here or in district court and

 makes significant assu mptions and inferences from the record.
See Lead Op. at 22 n.3. So I decline to join footnote 3. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4615 In footnote 3, the lead opinion describes a tr iangle form ed by three points: (1) the lab, (2) the end of the driveway, and (3) the park. The end of the driveway wa s 932 feet from the park. So for guilt on the greater charge, the line from the lab to the park had to be shorte r than 1000 feet. 2
But the record does not show (1) the distance from the end of the driveway to the lab (marked x below) or (2) the angle be tween that line and the line from the driveway to the park (marked θ below):

If the angle were 90°, th e lead opinion might be right. The three points would form a righ t triangle, with one leg (from the end of the driveway to the park) that is 932 feet long and a hypotenuse (the line from the lab to the park ) that had to be less th an 1000 feet long. And the Pythagorean theorem tells us that the remaining le g of the triangle would be roughly 362 feet long if the hypotenuse were 1000 feet long ( √ 1000 ଶ

െ 932 ଶ is roughly 362). So the majority reasons that

2 As the district court concluded, “the distance is properly measured from the [playground] to the lo cation within the building where the drugrelated activity occu rred.” R. vol. 1, at 398 (citing United States v. Soler , 275 F.3d 146, 155 n.6 (1st Cir. 2002) and United States v. Johnson , 46 F.3d 1166, 1169–70 (D.C. Cir. 1995)) (empha sis in original). Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4716  the lab would have been with in 1000 feet of the park if the lab had been within 362 feet of the end of the driveway and

 the jury could have used common sense to conclude that the lab would have been within 362 feet of the end of the driveway.

But assumptions matter in geometry. For example, the Pythagorean theorem works only for right triangle s. Jay Abramson, Algebra and Trigonometry 145 (2d ed. 2021), available at https://openstax.or g/details/books/al gebra-and-trigonomet ry-2e. So the analysis would change if the angl e were between 90° and 180°. In that case, the distance from th e lab to the park could exceed 1000 feet with a shorter distance from the lab to the end of the driveway. Footnote 3 of the lead opinion wo uld resolve this issue by extending the measured leg 40 feet, assuming that the la b couldn’t have been more than 40 feet from the street because the house look s “small” from photographs. With this extended leg, the lead opinion reasons that if the Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4817 lab were within 234 feet of the street, the lab woul d have been within 1000 feet of the park. ( ඥ 1000 ଶ

െ ሺ 932 ൅ 40 ሻ ଶ is between 234 and 235.)

But “[d]istances are notoriousl y difficult to gauge in still photographs.” United States v. Soler , 275 F.3d 146, 155 (1st Cir. 2002); see also United States v. Baylor , 97 F.3d 542, 546 (D.C. Cir. 1996) (“Spatial relationships are hardly intu itive, and photog raphs can distort distances.”). What if the lab were 65 feet into the proper ty? The lab would then need to be only 78 feet from the street to fall outside the 1000-foot limit. ( ඥ 1000 ଶ

െ ሺ 932 ൅ 65 ሻ ଶ is between 77 and 78.) If the lab were 67 feet from the eastern property li ne, the lab would need to be only 45 feet from the street to exceed 1000 fe et from the park. And if the lab were 68 feet from the eastern property line, the lab would al ways be more than 1000 feet from the park. Wit hout any evidence or argum ent, we cannot assume that we know the layout of the house , the drivew ay, and the park better than the parties or the district court. Given the importance of using the correct inputs, other courts allow the use of the Pythagor ean theorem “only where there existed reliable Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 4918 evidence of a right angle and the measurements of the two shorter sides of the triangle were sufficiently relia ble and precise, based on admitted evidence.” State v. Wisowaty , 200 Vt. 24, 31 (2015) (collect ing cases). So, for example, the Py thagorean formula co uld not be used

 “to support a rational inference” that a defendant had violated a restraining order when the length of one side of the triangle entailed an estimate ba sed on an officer’s examination of the scene, State v. Miller , 289 Or. App. 353 , 358–59 (2017), or

 to show that a weapon had been out of r each when two officers estimated distances inside a car, People v. Harre , 155 Ill. 2d 392, 397 (1993). Both cases involved estimates based on personal observati on of the scene, but footnote 3 asks us to estimate the lengths of bo th legs of the triangle based solely on photograp hs suggesting that th e house looks “small.” Estimating the lengths of these le gs is precarious and unnecessary, for neither party has suggested that the jury could have relied on the Pythagorean theore m. In my view, we should not address the issue sua sponte. Second-guessing the district cour t on grounds that the parties have not discussed is unfair to the parties, who get no chance to respond to our new mathematical theories. I would instead leave the selection and crafting of arguments to the parties. The government is free to argue the Pythag orean theorem the next time this issue arises. If the government do es so, the parties can explain and defend their assump tions. But we st ray beyond our ro le when we Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 5019 search through the record and make si gnificant assumption s to justify an argument that nobody has made on an issue be yond our auth ority to resolve. See United States v. Sineneng-Smith , 140 S. Ct. 1575, 1579 (2020) (explaining that courts, as “passive instruments of government,” must “wait for cases to come to them, and . . . normally decide only questions presented by the parties” (cleaned up)). So I do not join footnote 3 of the lead opinion.
B. The majority’s opinion does not address the outcome where the government consciously pu rsues an all- or-nothing strategy. I also write to emphasize the narr owness of the majority conclusion. The majority concludes that the di strict court properly applied the Allison factors, which govern wh en entry of convictio n on a lesser-included offense is appropriate. Lead Op. at 24–26. This conclusion stems from our unusual facts: The defend ants waited until after the finding of guilt to argue that the lab was more th an 1000 feet fr om the park. Id . at 20–21. Until then, the parties hadn ’t contested the distance from the lab to the park. A different outcome might be appropriate when a defendant contests an element and obtains an instruction only on the gr eater offense. In that case, the district court would need to carefully determine whether the defendant had suffered “ undue prejudice” from the failure to instruct on Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 5120 the lesser offense. United States v. Smith , 13 F.3d 380, 383 (10th Cir. 1993). If the government knows th at an element is co ntested but does not seek instruction on the lesser offens e, the government could obtain a strategic benefit by presenting the jury with an all-or-nothing choice. When the jury is not instructed on a lesser-included offense, there is a danger that the jury will unjustly convict a defend ant on the greater offense: “Where one of the elements of the offense ch arged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v. United States , 412 U.S. 205, 212–13 (1973) (emp hasis in original). But an all-or-not hing strategy carries ri sks for the government. The jury might acquit, or the judge might grant a post-v erdict motion to acquit. Entering a convicti on on a lesser-included offe nse after the verdict would eliminate the second risk, creatin g a strategic ad vantage for the government to pursue an all-or-nothing strategy. That strategic benefit could unfairly prejudice the defendant. But there’s no un fair prejudice here. The defendants waited until after the trial to contest the distance fr om the lab to the park. So the entry of a conviction on a lesser-included o ffense doesn’t rewa rd the government for pursuing an all- or-nothing strategy. Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 5221 III. Conclusion I respectfully dissent from Part II(A) of the majority opinion because I would find instructional error and remand for a new tr ial. But I agree with most of the majority’s analysis of the lesser-included offense and agree that the district co urt must correct its cleri cal error. So I join

 Part II(B) of the lead opinion (except for footnote 3) and

 Part II(C). Appellate Case: 20-3184 Document: 010110720980 Date Filed: 08/05/2022 Page: 53