PUBLISH 

UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

KENNIN DEWBERRY,

Defendant - Appellant.

No. 14-3018 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF KANSAS 

(D.C. No. 5:11-CR-40078-JAR-6) 

 

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal 

Public Defender, with him on the supplemental brief, and Dionne M. Scherff, Erickson 

Scherff, LLC, Overland Park, Kansas, on the brief), Office of the Federal Public 

Defender for the Districts of Colorado and Wyoming, Denver, Colorado, appearing for 

Defendant - Appellant. 

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States 

Attorney, with him on the brief), Office of the United States Attorney for the District of 

Kansas, Topeka, Kansas, appearing for Plaintiff - Appellee. 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

MATHESON, Circuit Judge. 

Kennin Dewberry supplied significant amounts of powder cocaine to Virok Webb 

and his associates, who ran a drug distribution ring out of Junction City, Kansas. Mr. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Webb and his associates would transform some of this powder into crack cocaine1

 and 

expand the rest of it into more (albeit diluted) powder cocaine by using a process dubbed 

the “trick.” Mr. Webb and his associates then sold the crack and powder to dealers and 

drug users. 

Based on this drug activity, the Government charged Mr. Dewberry and several 

other codefendants with conspiracy to distribute 280 grams or more of a mixture or 

substance containing a detectable amount of crack cocaine (Count 1) and conspiracy to 

distribute 5 kilograms or more of a mixture or substance containing a detectable amount 

of powder cocaine (Count 2). Only Mr. Dewberry went to trial, with the other 

codefendants entering into plea agreements with the Government. A jury found Mr. 

Dewberry guilty on both charges. The jury also returned special verdicts pertaining to 

the amount of drugs and finding he conspired to distribute 280 grams or more of crack 

and 5 kilograms or more of powder. The district court sentenced Mr. Dewberry to the 

mandatory minimum of 20 years in prison on Count 1 and 168 months on Count 2. It 

determined both sentences would run concurrently. 

On appeal, Mr. Dewberry challenges (A) the sufficiency of the evidence for the 

two conspiracy convictions, (B) the sufficiency of the evidence for the jury’s finding that 

he was accountable for 280 grams or more of crack, (C) the district court’s imposition of 

 

1

 The relevant statutes and Guidelines provisions in this case use the term “cocaine 

base,” which is also referred to as “crack.” See U.S.S.G. § 2D1.1(c)(D) (2013). We use 

“crack” throughout this opinion to easily distinguish cocaine base from powder cocaine. 

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a 168-month prison term on Count 2,2

 and (D) the district court’s denial of his initial 

pretrial motion to sever.3

 Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a), we affirm. 

I. BACKGROUND 

A. Factual History 

The investigation of Mr. Webb’s drug-dealing activities began in 2009 or 2010. 

Mr. Webb was the “top guy” in a powder and crack cocaine drug ring in the Junction City 

area of Kansas. ROA, Vol. III at 23-24. His first source of drug supply, Sammy Ray 

Smith, Jr., lived in Wichita, Kansas. In the summer of 2009, Mr. Smith was shot and 

killed. After Mr. Smith’s death, Mr. Webb secured Mr. Dewberry, his half-brother, as his 

new source of supply. Mr. Dewberry lived in Kansas City, Missouri, a two-hour drive 

from Junction City. 

Megan Fuller and Michael Lillibridge were two of Mr. Webb’s drivers. They 

would drive to Kansas City to retrieve cocaine from Mr. Dewberry. Ms. Fuller and other 

witnesses testified that they received only powder cocaine from Mr. Dewberry. By 

contrast, in the past, Mr. Webb had received crack cocaine from Mr. Smith. From the 

 

2

 As we explain in more detail below, the quantity of crack is relevant to both the 

conviction and sentence on Count 1 and the sentence on Count 2. 

3

 The court later granted his second pretrial motion to sever. 

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summer of 2009 to March 2010, Mr. Webb was buying about 4.5 to 9 ounces of powder 

cocaine from Mr. Dewberry on a weekly basis.4

Ms. Fuller and Mr. Lillibridge would bring the powder cocaine to Junction City, 

where drug ring members would cook some of it into crack cocaine or cut it with other 

ingredients—in a process dubbed the “trick”—to double the quantity of powder. Mr. 

Webb would then distribute the drugs for resale. Several people testified at trial that Mr. 

Webb sold both powder and crack cocaine. Only Mr. Lillibridge testified Mr. Webb 

“almost exclusively” sold crack. Id. at 279. 

B. Procedural History 

1. Trial 

On October 19, 2011, a grand jury returned a superseding indictment charging Mr. 

Dewberry, Mr. Webb, Ms. Fuller, and others with two drug conspiracies. Count 1 

charged them with conspiring to distribute 280 grams or more of crack cocaine in 

violation of 21 U.S.C. § 846, with reference to 21 U.S.C. §§ 841(a)(1) and 

841(b)(1)(A)(iii). Count 2 charged them with conspiring to distribute 5 kilograms or 

more of powder cocaine in violation of 21 U.S.C. § 846, with reference to 21 U.S.C. 

§§ 841(a)(1) and 841(b)(1)(A)(ii). The Government also filed an information stating Mr. 

Dewberry had a prior felony marijuana conviction, which would increase his mandatory 

minimum sentences on each of the two charges. 

 

4

 One ounce equals 28.3495 grams, a conversion that is relevant for our later 

discussion of drug amount calculations for sentencing. 

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On March 8, 2012, Mr. Dewberry filed a motion to sever, arguing “[a] joint trial in 

the present case will result in great prejudice to Ke[n]nin Dewberry and a denial of his 

Sixth Amendment rights to confront witnesses against him as well as his Sixth 

Amendment right to a speedy trial.” ROA, Vol. I at 62. On April 5, 2012, the district 

court denied his motion without prejudice, deeming it premature. On February 14, 2013, 

Mr. Dewberry filed a second motion to sever. Id. at 92-96. On March 5, 2013, the 

district court granted Mr. Dewberry’s motion. 

Mr. Dewberry’s trial began on July 22, 2013. The Government’s case against Mr. 

Dewberry was based almost entirely on the testimony of cooperating witnesses, including 

Ms. Fuller and Mr. Lillibridge. Mr. Lillibridge, in particular, testified that Mr. Dewberry 

and Mr. Webb had together, on one occasion, cooked powder cocaine into crack cocaine. 

All the witnesses had entered into plea agreements with the Government. 

Mr. Dewberry moved for a judgment of acquittal at the close of both the 

Government’s case and his case under Rule 29 of the Federal Rules of Criminal 

Procedure. The court denied both motions. The jury convicted Mr. Dewberry on both 

counts. The jury also returned special verdicts pertaining to the amount of drugs and 

finding he conspired to distribute 280 grams or more of crack and 5 kilograms or more of 

powder. Mr. Dewberry moved for a new trial under Rule 33 of the Federal Rules of 

Criminal Procedure, which the district court denied. 

2. Sentencing 

The U.S. Probation Office prepared a presentence report (“PSR”) that analyzed the 

amount of drugs attributable to Mr. Dewberry and calculated his Guidelines range on 

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each offense. The parties discussed the PSR’s calculations at the sentencing hearing, 

ROA, Vol. IV at 232-62, and in their briefs, Aplt. Br. at 24-26; Aplt. Supp. Br. at 6-8; 

Aplee. Br. at 27-30. The district court adopted the PSR’s calculations. ROA, Vol. IV at 

261. We briefly recount this information from the PSR discussed at the sentencing 

hearing and in the parties’ briefs. 

The PSR determined the trial evidence established that Mr. Dewberry provided 

Mr. Webb between 4.5 and 9 ounces of cocaine per week from at least October 1, 2009 to 

February 28, 2010. The PSR therefore recommended that Mr. Dewberry be held 

accountable for 4.5 ounces per week for 21 weeks. It then estimated that out of the 4.5 

ounces of powder cocaine Mr. Webb received weekly, he converted 2.5 ounces into 

crack, for a 21-week total of 52.5 ounces or 1,488.375 grams of crack, which equals 

5,314.98 kilograms in marijuana equivalent.5

 The remainder of the weekly powder 

cocaine—2.0 ounces—was doubled to 4.0 ounces by employing the trick, for a 21-week 

total of 84 ounces or 2,381.40 grams of powder. This equals 476.28 kilograms in 

marijuana equivalent. The crack and powder cocaine calculations in total equaled 

5,791.26 kilograms in marijuana equivalent. 

The PSR determined a base and total offense level of 34. See U.S.S.G. 

§ 2D1.1(c)(3) (2013) (providing a 21 U.S.C. § 846 offense involving at least 3,000 

kilograms but not more than 10,000 kilograms of marijuana equivalent has a base offense 

 

5

 The Guidelines provide that when combining different controlled substances to 

obtain a single offense level, each of the drugs must be converted to its marijuana 

equivalent and then added together. U.S.S.G. § 2D1.1, cmt. n.8(B) (2013). One gram of 

cocaine is equal to 200 grams of marijuana, and one gram of crack is equal to 3,571 

grams of marijuana. Id. at cmt. n.8(D) (2013). 

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level of 34). The offense level combined with Mr. Dewberry’s criminal history category 

of II yielded a Guidelines range of 168 to 210 months. But the PSR noted Mr. Dewberry 

faced a mandatory minimum sentence of 20 years (240 months) on each count based on 

the quantity distributed and his prior felony conviction. See 21 U.S.C. § 841(b)(1)(A). 

Mr. Dewberry filed written objections to the PSR’s crack cocaine calculation, 

noting that only Mr. Lillibridge’s testimony implicated him in any crack-related 

activities. This testimony—which concerned a single cook of 3.5 grams of cocaine—did 

not, he contended, establish that the large quantities of powder Mr. Webb converted into 

crack cocaine were reasonably foreseeable to Mr. Dewberry. 

At the sentencing hearing on January 27, 2014, the district court rejected Mr. 

Dewberry’s objection to the PSR’s crack cocaine calculation. The court noted, “Mr. 

Dewberry wasn’t engaged in selling crack cocaine; he was engaged in selling powder 

cocaine to Mr. Webb, who in turn turned it into crack cocaine.” ROA, Vol. IV at 247. 

Nevertheless, the court found it was reasonably foreseeable to Mr. Dewberry that Mr. 

Webb was producing and selling crack cocaine. The court relied on Mr. Lillibridge’s 

testimony that Mr. Dewberry witnessed Mr. Webb cooking powder into crack: “Whether 

that was one occasion or 200 occasions, what that evidence illustrates is that Mr. 

Dewberry was aware that Mr. Webb distributed crack cocaine, that he was at least turning 

part of the powder cocaine into crack cocaine.” Id. at 247-48. The court also noted, 

“Megan Fuller, though, also testified that Mr. Dewberry was aware of Mr. Webb 

distributing crack cocaine.” Id. at 248. 

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The district court sentenced Mr. Dewberry to 240 months on Count 1 and 168 

months on Count 2, with the sentences to run concurrently.6

 The court also sentenced 

him to 10 years of supervised release on Count 1 and 8 years on Count 2, to run 

concurrently. 

Mr. Dewberry appeals his convictions and sentence. 

II. DISCUSSION 

We affirm on all four issues presented in this appeal. The first two issues are 

sufficiency-of-the evidence challenges that stem from the district court’s denial of two 

motions. In his motion for a judgment of acquittal brought under Rule 29 of the Federal 

Rules of Criminal Procedure, Mr. Dewberry argued the Government (A) had not proven a 

prima facie case on either Count 1 or 2 and (B) had not proven the drug quantities in 

either count. In his motion for a new trial brought under Rule 33 of the Federal Rules of 

Criminal Procedure, Mr. Dewberry argued the testimony of the Government witnesses 

was uncorroborated and not credible, which also appears to be the basis for his first 

motion regarding the lack of proof for a prima facie case. The district court denied both 

motions. 

A. Sufficiency of the Evidence on Counts 1 (Crack) and 2 (Powder): Witness 

Corroboration and Credibility 

Mr. Dewberry’s first sufficiency-of-the-evidence challenge contends the 

prosecution failed to prove a prima facie case because it relied on cooperating witnesses 

who lacked credibility and because it did not corroborate their testimony. It is unclear 

 

6

 We explain below why Mr. Dewberry did not receive a 20-year mandatory 

minimum sentence on Count 2. 

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whether Mr. Dewberry appeals the denial of the motion for a judgment of acquittal, the 

motion for a new trial, or both, but, as explained below, this does not affect our 

disposition of this issue. 

1. Standard of Review 

We review a district court’s denial of a motion for a judgment of acquittal under a 

de novo standard. See United States v. Vigil, 523 F.3d 1258, 1262 (10th Cir. 2008). “We 

review the district court’s denial of a Rule 33 motion for abuse of discretion, reversing 

only if the court made a clear error of judgment or exceeded the bounds of permissible 

choice under the circumstances.” United States v. Zabriskie, 415 F.3d 1139, 1144 (10th 

Cir. 2005). 

Sufficiency-of-the-evidence challenges made in a Rule 29 or Rule 33 motion are 

adjudicated and reviewed under the same standard. Compare United States v. Vallo, 238 

F.3d 1242, 1246-48 (10th Cir. 2001) (applying the sufficiency-of-the evidence standard 

to the denial of a Rule 29 motion), and Zabriskie, 415 F.3d at 1144 (applying the 

sufficiency-of-the-evidence standard to the denial of a Rule 33 motion when the 

underlying challenge concerned the sufficiency of the evidence). 

“We review a sufficiency of the evidence challenge de novo, viewing the evidence 

and the reasonable inferences to be drawn therefrom in the light most favorable to the 

government.” United States v. Hale, 762 F.3d 1214, 1222 (10th Cir. 2014) (quotations 

omitted). “We will reverse only if no rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Id. at 1222-23 (quotations omitted). 

In other words, we ask whether “a reasonable jury could find the defendant guilty.” 

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United States v. King, 632 F.3d 646, 650 (10th Cir. 2011) (quotations omitted). “In 

conducting this review we may neither weigh conflicting evidence nor consider the 

credibility of witnesses. It is for the jury, as the fact finder, to resolve conflicting 

testimony, weigh the evidence, and draw inferences from the facts presented.” United 

States v. McKissick, 204 F.3d 1282, 1289-90 (10th Cir. 2000) (quotations and citation 

omitted). That is, “we owe considerable deference to the jury’s verdict.” United States v. 

Mullins, 613 F.3d 1273, 1280 (10th Cir. 2010). 

“While undoubtedly deferential, this review has some bite: if the evidence does 

no more than raise a mere suspicion of guilt or requires piling inference upon inference to 

conclude the defendant is guilty, we will reverse the conviction.” Id. (quotations 

omitted). “While the jury may draw reasonable inferences from direct or circumstantial 

evidence, an inference must be more than speculation and conjecture to be reasonable 

. . . .” United States v. Arras, 373 F.3d 1071, 1073 (10th Cir. 2004) (quotations omitted). 

And “[t]he evidence presented to support a conviction must be substantial.” United 

States v. Morales, 108 F.3d 1213, 1221 (10th Cir. 1997). 

2. Analysis 

We understand Mr. Dewberry to contend the Government witnesses’ testimony 

was uncorroborated and not credible. In his brief, he asserts, “The testimony of alleged 

co-conspirators without additional substantive evidence is insufficient to establish that 

Mr. Dewberry participated in a conspiracy . . . .” Aplt. Br. at 14-15. He also writes that 

the “cooperating individuals possess a self interest that cannot be overlooked and should 

be supported by corroborating evidence.” Id. at 16. 

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We reject Mr. Dewberry’s argument and affirm on this issue. First, assuming the 

testimony was uncorroborated, “[w]e will not reverse a conviction merely because the 

verdict was grounded on the uncorroborated testimony of a coconspirator.” United States 

v. Ivy, 83 F.3d 1266, 1284 (10th Cir. 1996); see United States v. Magallanez, 408 F.3d 

672, 682 (10th Cir. 2005) (“A conviction may stand merely on the uncorroborated 

testimony of an accomplice.”). 

Second, credibility challenges are generally disfavored, and Mr. Dewberry gives 

us no reason to entertain them here. “It is not our function to assess the credibility of the 

witnesses on appeal; that task is reserved for the jury.” United States v. Fox, 902 F.2d 

1508, 1515 (10th Cir. 1990). “We will not hold that testimony is, as a matter of law, 

incredible unless it is unbelievable on its face, i.e., testimony as to facts that [the witness] 

physically could not have possibly observed or events that could not have occurred under 

the laws of nature.” United States v. Mendez-Zamora, 296 F.3d 1013, 1018 (10th Cir. 

2002). Mr. Dewberry does not assert the witness testimony was unbelievable on its face. 

He suggests the witnesses testified out of self-interest because they were offered plea 

deals, but this is common in criminal prosecutions and does not necessarily render 

testimony incredible. See United States v. Whitney, 229 F.3d 1296, 1306 (10th Cir. 2000) 

(noting the government can ask a witness about a guilty plea so that a jury can assess the 

witness’s credibility, implying a guilty plea does not automatically make a witness 

incredible). 

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B. Sufficiency of the Evidence on Count 1 (Crack): Drug Quantity 

Mr. Dewberry also argues the evidence was insufficient to establish that he 

conspired to distribute 280 grams or more of crack. We review this issue under the same 

sufficiency-of-the evidence standard discussed above. 

Count 1 charged Mr. Dewberry with conspiring to distribute 280 grams or more of 

crack cocaine, in violation of 21 U.S.C. § 846, with reference to penalty section 21 

U.S.C. § 841(b)(1)(A)(iii), which imposes a 10-year mandatory minimum sentence for 

distributing this quantity of crack cocaine. Mr. Dewberry’s prior conviction for a felony 

drug offense raised the mandatory minimum on Count 1 to 20 years. 21 U.S.C. 

§ 841(b)(1)(A). If he had been found instead to have distributed only 28 grams or more 

and less than 280 grams of crack, with his prior conviction, he would have been subject 

to a 10-year mandatory minimum. See id. § 841(b)(1)(B). 

Because the indictment’s allegation that Mr. Dewberry conspired to distribute 280 

grams or more of crack cocaine increased Mr. Dewberry’s statutory mandatory minimum 

exposure, the 280-gram amount was an element of the offense and had to be proved at 

trial. See Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013). In reaching its guilty 

verdict on Count 1, the jury made a special finding that the Government had “proved 

beyond a reasonable doubt that the defendant . . . conspired to distribute 280 grams or 

more of . . . crack cocaine.” ROA, Vol. I at 187. 

A defendant may challenge whether the evidence is sufficient—as Mr. Dewberry 

does here—to support the jury’s determination as to any element of a charge, including 

its drug quantity determination. See United States v. Segura-Baltazar, 448 F.3d 1281, 

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1292 (11th Cir. 2006) (“We believe the argument Segura-Baltazar has made is more in 

the nature of a challenge to the sufficiency of the evidence. Essentially, he says that the 

evidence was insufficient to support the drug quantity necessary to trigger the mandatory 

minimum. We do not read his challenge as addressing the district court’s guideline 

calculation.”); United States v. Ricketts, 317 F.3d 540, 545 (6th Cir. 2003) (“The district 

court cannot ignore the jury’s findings as to drug quantity unless there is insufficient 

evidence to support those findings.”). 

A defendant can be held “accountable for that drug quantity which was within the 

scope of the agreement and reasonably foreseeable” to him. United States v. AriasSantos, 39 F.3d 1070, 1078 (10th Cir. 1994);7 see also United States v. Evans, 970 F.2d 

663, 678 (10th Cir. 1992) (suggesting a jury can make “findings as to how much crack 

cocaine the conspiracy handled or the amount of crack that was foreseeable to each 

defendant”). Here, the jury must have based its finding of 280 grams or more of crack on 

reasonable foreseeability because there is no evidence in the record Mr. Dewberry 

actually handled this amount. Mr. Dewberry challenges whether such a quantity could 

have been reasonably foreseeable to him. 

We hold there was sufficient evidence for a reasonable jury to make this finding. 

Mr. Dewberry’s participation in an extensive powder cocaine conspiracy combined with 

 

7

 Our case law holds a defendant accountable for drug quantities that are both

within the scope of the agreement and reasonably foreseeable to the defendant. See 

United States v. Asch, 207 F.3d 1238, 1245 n.7 (10th Cir. 2000); Arias-Santos, 39 F.3d at 

1078. Mr. Dewberry contests only the reasonable foreseeability of the drug quantity, not 

whether the quantity was within the scope of the agreement. As such, we discuss only 

reasonable foreseeability. 

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Mr. Lillibridge’s testimony was sufficient for a reasonable jury to find that Mr. Dewberry 

could have foreseen that Mr. Webb would convert powder cocaine into 280 grams or 

more of crack cocaine.8

 As such, we affirm Mr. Dewberry’s conviction and 240-month 

sentence on Count 1. 

Circuit court decisions about conspiracies involving two different drugs are 

instructive here. In United States v. Dickey, 736 F.2d 571, 583, 585 (10th Cir. 1984), this 

court upheld a conviction for conspiracy to distribute marijuana and cocaine. Appellant 

Smith argued “his involvement merely in two marijuana transactions may not raise a 

presumption of his knowledge of a scheme to distribute cocaine.” Id. at 585 (emphasis in 

original). We rejected his argument: 

Because Smith was involved in transactions involving large amounts of 

marijuana (600 pounds at one time), his knowledge of a broader venture is 

readily subject to an inference. Further, the several calls from his 

telephone to [co-conspirators’] telephones make the inference of his 

connection even more reasonable. Finally, Smith’s contention that he may 

not be connected to the single scheme because of the absence of his actual 

knowledge of cocaine distribution is without merit. It is fundamental that a 

party may join an ongoing conspiracy during its progress and become 

criminally liable for all acts done in furtherance of the scheme. 

Id. (emphasis added) (citation and quotations omitted). 

Other circuits have emphasized that a conviction for one drug can be upheld even 

when a defendant dealt mostly with another drug in light of some evidence indicating 

 

8

 In addition to Mr. Lillibridge’s testimony, the district court also asserted that 

“Megan Fuller . . . testified that Mr. Dewberry was aware of Mr. Webb distributing crack 

cocaine.” ROA, Vol. IV at 248. In its briefing, the Government concedes it “is not 

aware of any record support for this statement.” Aplee. Br. at 29 n.7. The Government 

also conceded at oral argument that it does not rely on Ms. Fuller’s testimony to support 

its argument on this issue because her testimony concerned the trick, not crack. As such, 

we will not consider this testimony here. 

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knowledge of a conspiracy with the first drug. In United States v. Akins, 746 F.3d 590, 

607 (5th Cir. 2014), the Fifth Circuit upheld a jury’s determination that Appellant Akins 

was responsible for 5 kilograms or more of powder cocaine even though most of his 

“direct dealings focused on crack cocaine.” Mr. Akins could be held responsible for the 

powder given his “substantial role in the conspiracy and his relationship to the other coconspirators.” Id. The court also noted Mr. Akins had some direct dealings in powder: 

“Trentargus Holt, a cocaine dealer and cooperating witness, testified that he bought half 

an ounce to an ounce of powder cocaine a couple of time[s] per week from Akins from 

the early part of 2006 to that summer.” Id. at 607 & n.38. 

 In United States v. Duffy, 30 F. App’x 240, 246 (4th Cir. 2002) (unpublished),9

 the 

Fourth Circuit considered Appellant Jones’s challenge to his conviction for conspiracy to 

distribute crack. He argued that although he was a seller of large quantities of powder, 

there was no evidence that he knowingly became a part of the conspiracy to distribute 

crack. Id. The court disagreed, first noting Mr. Jones regularly distributed large amounts 

of powder and then determining that although he never sold crack, that did not undermine 

his conviction: 

The government’s evidence established that Jones was well aware that his 

cocaine powder was being converted into crack cocaine. When one batch 

of powder did not convert properly, [a co-conspirator] complained to Jones 

about it and cooked a gram of cocaine in Jones’s presence to show him 

what was happening. In addition, the government’s evidence established 

that Jones once gave advice to [another co-conspirator] about cooking the 

powder into an oil base. This evidence is sufficient to connect Jones to the 

conspiracy to distribute crack, even if Jones himself never sold crack. 

 

9

 Although unpublished, this decision nonetheless has instructive value. 

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Id. at 247. 

In the instant case, a reasonable jury could find that Mr. Dewberry could have 

foreseen that Mr. Webb converted powder into 280 grams or more of crack based, in part, 

on his involvement in a large powder conspiracy. Mr. Dewberry became Mr. Webb’s 

source of powder cocaine supply after Mr. Smith passed away. Mr. Dewberry personally 

sold Mr. Webb and his associates powder cocaine once or twice a week, in quantities 

between 4.5 and 9 ounces, from about the summer of 2009 to about March 2010. Mr. 

Dewberry was therefore involved in an extensive powder cocaine conspiracy. His 

participation in transactions involving large amounts of powder makes “his knowledge of 

a broader venture [] readily subject to an inference,” Dickey, 736 F.2d at 585—in this 

case, a broader venture involving crack cocaine. 

Ample evidence showed Mr. Webb and his associates converted some of the 

powder received from Mr. Dewberry into crack. Several witnesses testified that when the 

drivers returned to Junction City after picking up powder from Mr. Dewberry in Kansas 

City, drug organization members would cook some of this powder into crack. 

Based in part on Mr. Dewberry’s knowledge of the powder conspiracy, the close 

relationship between powder and crack (powder being a necessary ingredient of crack), 

and Mr. Webb’s conversion of some of this powder into crack, a reasonable jury could 

infer that Mr. Dewberry could reasonably foresee that Mr. Webb converted powder into 

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280 grams or more of crack. But as in Akins and Duffy, we do not rely solely on the 

powder conspiracy.10 

According to Mr. Lillibridge’s testimony, Mr. Dewberry participated in at least 

one cook. Mr. Lillibridge testified that on one occasion, during “a delay in getting the 

stuff,” he went to a residence that belonged to either Mr. Webb’s or Mr. Dewberry’s 

grandmother. ROA, Vol. III at 277. There, Mr. Lillibridge, Mr. Dewberry, and Mr. 

Webb waited to pick up some drugs. As they waited, Mr. Dewberry and Mr. Webb 

cooked a small quantity—“like an 8-ball or something”—of Mr. Dewberry’s powder 

cocaine. Id. at 278. An 8-ball is about 3.5 grams of cocaine. Mr. Dewberry thus knew 

Mr. Webb was capable of converting the powder into crack. Moreover, it is significant 

that Mr. Dewberry cooked powder into crack not only in the presence of a driver, but also 

with the “top guy” in the drug conspiracy. 

When asked why they cooked the 3.5 grams of powder into crack, Mr. Lillibridge 

responded, “Because that’s what [Mr. Webb] sold. I mean, he didn’t really sell much 

powder at all.” Id. Mr. Lillibridge continued to explain that Mr. Webb was almost 

exclusively a crack cocaine dealer.11 Mr. Dewberry’s counsel conceded at oral argument 

 

10 Dickey involved only one conspiracy charge for two different drugs. This could 

explain why the court affirmed the conviction even in the absence of evidence showing 

the appellant’s involvement with one of those two drugs. By contrast, because Mr. 

Dewberry faced a separate charge for a crack conspiracy, we believe some evidence of 

Mr. Dewberry’s dealings with crack is needed. We discuss that evidence next. 

11 The Government conceded there is no evidence in the record that Mr. 

Lillibridge made this statement about Mr. Webb’s exclusive dealings with crack in Mr. 

Dewberry’s presence. 

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that it would be reasonable for a jury to infer, from Mr. Lillibridge’s statements, that Mr. 

Dewberry knew Mr. Webb was selling at least some crack cocaine. 

Mindful that all reasonable inferences are construed in favor of the Government in 

reviewing a sufficiency-of-the-evidence challenge, we hold the large quantities of powder 

Mr. Dewberry sold Mr. Webb, combined with Mr. Lillibridge’s testimony that he 

witnessed Mr. Dewberry and Mr. Webb cooking crack together, would permit a 

reasonable jury to find that Mr. Dewberry could reasonably foresee that Mr. Webb 

converted powder into 280 grams or more of crack. 

C. Sentence on Count 2 (Powder) 

Because we affirm the conviction and sentence on Count 1, we need not 

necessarily reach the next issue on the imposition of the 168-month sentence on Count 2. 

The district court sentenced Mr. Dewberry concurrently. So even if we were to reverse 

for a lower sentence on Count 2, Mr. Dewberry would still be subject to the 20-year 

mandatory minimum on Count 1. Under the concurrent sentence doctrine, we could 

therefore summarily affirm the sentence on Count 2. See United States v. Montoya, 676 

F.2d 428, 431-32 (10th Cir. 1982). 

That being said, this doctrine is discretionary rather than jurisdictional. See United 

States v. Harris, 695 F.3d 1125, 1139 (10th Cir. 2012). Moreover, because the parties 

discuss this issue at length without touching upon the concurrent sentence doctrine, and 

because the merits determination here flows from our disposition on the previous issue, 

we proceed to the merits and affirm. 

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1. Additional Procedural History 

Count 2 charged Mr. Dewberry with conspiring to distribute 5 kilograms or more 

of powder cocaine in violation of 21 U.S.C. § 846, with reference to penalty section 21 

U.S.C. § 841(b)(1)(A)(ii), which sets a 10-year mandatory minimum sentence upon 

conviction for this quantity of powder. Mr. Dewberry’s prior conviction for a felony 

drug offense raised the mandatory minimum sentence on Count 2 to 20 years. See 21 

U.S.C. § 841(b)(1)(A). The jury found Mr. Dewberry guilty on Count 2 and made a 

special finding that he had conspired to distribute 5 kilograms or more of powder 

cocaine. 

The PSR, however, determined that Mr. Dewberry was responsible for only 

2,381.40 grams of powder, which was below the jury’s determination of 5 kilograms or 

more. In his sentencing memorandum objecting to the PSR, Mr. Dewberry indicated that 

the PSR’s powder cocaine calculation was lower than the jury’s determination. He 

argued that, as such, he should be subject to 21 U.S.C. § 841(b)(1)(B), which imposes a 

5-year mandatory minimum sentence for a conspiracy involving 500 grams or more and 

less than 5 kilograms of powder and a 10-year mandatory minimum sentence if the 

offender has a prior felony drug offense.12 The Government agreed Mr. Dewberry should 

be subject to § 841(b)(1)(B), not § 841(b)(1)(A). The district court accepted the parties’ 

position that the mandatory minimum should be 10, not 20, years. 

 

12 Puzzlingly, Mr. Dewberry suggested he should be held accountable for 2,679.02 

grams of powder, an amount higher than the PSR’s and district court’s finding of 

2,381.40 grams. He does not contest that either amount would subject him to a 10-year 

mandatory minimum sentence. 

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To calculate the Guidelines range for Count 2, the court considered the quantities 

of both the powder and the crack and then translated this amount to its marijuana 

equivalent. The court adopted the PSR’s calculations, finding Mr. Dewberry was 

responsible for distributing 2.5 ounces of crack weekly for 21 weeks, for a total of 52.5 

ounces, or 1,488.375 grams of crack. The PSR multiplied the 1,488.375 grams of crack 

by 3,571 grams of marijuana for a total marijuana equivalent of 5,314.98 kilograms. The 

court also accepted the PSR’s calculation that Mr. Dewberry was responsible for 

2,381.40 grams of powder. The PSR multiplied the 2,381.40 grams of powder by 200 

grams of marijuana for a total marijuana equivalent of 476.28 kilograms. The total 

amount of marijuana equivalent was 5,791.26 kilograms, which corresponded to a base 

offense level of 34. Combined with a criminal history of II, this yielded a Guidelines 

range of 168-210 months on Count 2. The district court sentenced Mr. Dewberry to 168 

months, to run concurrently with Count 1. 

2. Analysis13

Mr. Dewberry argues the district court erred in holding him accountable for 

1,488.375 grams of crack, and that he should have been held accountable for only 127.57 

grams. He reaches this amount by multiplying 4.5 ounces and 28.3495 (because 1 ounce 

 

13 As explained above, the issue before this court on Count 1 concerned an element 

of the crime—whether a reasonable jury could have found beyond a reasonable doubt 

that Mr. Dewberry conspired to distribute 280 grams or more of crack. As such, Mr. 

Dewberry’s challenge constituted a sufficiency-of-the-evidence issue. By contrast, Mr. 

Dewberry challenges the district court’s drug quantity findings for the 168-month 

sentence on Count 2. 

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is equal to 28.3495 grams).14 He argues that this amount, combined with his calculated 

powder quantity and converted into a marijuana equivalent of 1,246 kilograms, would 

result in an offense level of 32, rather than 34. 

Mr. Dewberry makes a procedural reasonableness challenge to the district court’s 

sentence, which we review for abuse of discretion. See Gall v. United States, 552 U.S. 

38, 46 (2007). “In determining whether the district court correctly calculated the 

recommended Guidelines range, we . . . review its factual findings, including its 

determination of the quantity of drugs for which the defendant is held accountable under 

the Guidelines for clear error.” United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 

2008). “Drug quantities employed by the district court to calculate the applicable 

Guidelines range may be said to be clearly erroneous only when the district court’s 

finding was without factual support in the record or we are left with the definite and firm 

conviction that a mistake has been made.” Id. (quotations omitted). “To constitute clear 

error, we must be convinced that the sentencing court’s finding is simply not plausible or 

permissible in light of the entire record on appeal, remembering that we are not free to 

substitute our judgment for that of the district judge.” United States v. Torres, 53 F.3d 

1129, 1144 (10th Cir. 1995). 

“We view evidence underlying a district court’s sentence, and inferences drawn 

therefrom, in the light most favorable to the district court’s determination.” United States 

 

14 Mr. Dewberry may have miscalculated if he based the 4.5 ounces on Mr. 

Lillibridge’s testimony; he should have used 3.5 grams instead of 4.5 ounces because Mr. 

Lillibridge testified to 3.5 grams of crack, not 4.5 ounces. This possible mistake does not 

affect our analysis on this issue, however, because we affirm the district court’s crack 

quantity finding. 

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v. Walters, 269 F.3d 1207, 1214 (10th Cir. 2001) (alterations and quotations omitted). 

But “[t]he government bears the burden of proving, by a preponderance of the evidence, 

the quantities of drugs attributable to each defendant.” Torres, 53 F.3d at 1144. 

The Guidelines authorize a sentencing court to consider “relevant conduct” in 

determining a defendant’s base offense level. See U.S.S.G. § 1B1.3. “With respect to 

offenses involving contraband (including controlled substances), the defendant is 

accountable for all quantities of contraband with which he was directly involved and, in 

the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of 

contraband that were within the scope of the criminal activity that he jointly undertook.” 

Id. at cmt. n.2 (2013). Mr. Dewberry does not argue that the district court erred in 

finding that crack cocaine dealings would be relevant conduct for sentencing on a powder 

cocaine conviction. Instead, his argument goes only to the quantity of crack, contending 

1,488.375 grams of crack were not reasonably foreseeable to Mr. Dewberry. 

The district court did not clearly err in attributing 1,488.375 grams of crack to Mr. 

Dewberry. Based on Mr. Lillibridge’s testimony about Mr. Webb and Mr. Dewberry 

cooking cocaine together, the district court found the crack quantity was reasonably 

foreseeable to Mr. Dewberry. For the reasons articulated above under the second issue, 

we affirm the district court’s finding. Because the district court made a plausible finding, 

it was not clearly erroneous. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-

74 (1985) ( “If the district court’s account of the evidence is plausible in light of the 

record viewed in its entirety, the court of appeals may not reverse it even though 

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convinced that had it been sitting as the trier of fact, it would have weighed the evidence 

differently.”). 

Since the district court did not clearly err in calculating the amount of crack 

attributable to Mr. Dewberry, it did not err in calculating Mr. Dewberry’s total offense 

level and the Guidelines range. Thus, it did not abuse its discretion in imposing the 168-

month sentence, which was within the correctly-calculated Guidelines range. 

D. Motion to Sever 

Mr. Dewberry argues the district court abused its discretion in denying his initial 

motion to sever in April 2012, even though the court granted his second motion to sever 

in March 2013 and commenced his severed trial in July 2013. His claim of error consists 

mainly of two sentences: “Mr. Dewberry experienced an unnecessary delay in being 

brought to trial which the government sanctioned. From April 2012 until July 2013 Mr. 

Dewberry waited unnecessarily for trial.” Aplt. Br. at 20. He also states: “The 

requirements of the Speedy Trial Act must be strictly construed. The Sixth Amendment 

argument set forth and argued by Mr. Dewberry in his first motion to sever were not 

waived nor abandoned.” Id. (citation omitted). 

This court reviews the denial of a motion to sever for abuse of discretion. United 

States v. Clark, 717 F.3d 790, 818 (10th Cir. 2013). “We will not disturb the trial court’s 

decision absent an affirmative showing of abuse of discretion and a strong showing of 

prejudice.” United States v. Stiger, 413 F.3d 1185, 1197 (10th Cir. 2005) (quotations and 

emphasis omitted). 

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We reject Mr. Dewberry’s arguments and affirm on this issue. Mr. Dewberry’s 

attempt to link the denial of his motion to “unnecessary delay” under the Speedy Trial 

Act or the Sixth Amendment is waived for inadequate briefing given the paltry nature of 

the above-excerpted lines as to any such arguments on appeal. See Adler v. Wal-Mart 

Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the 

opening brief are waived . . . .”). 

Regarding any remaining argument Mr. Dewberry may be making that the district 

court abused its discretion in denying his initial motion, some legal background may be 

helpful. Rule 8(b) of the Federal Rules of Criminal Procedure permits joinder of 

defendants “if they are alleged to have participated in the same act or transaction, or in 

the same series of acts or transactions, constituting an offense or offenses.” Fed. R. Crim. 

P. 8(b). Rule 14(a), however, permits a court to sever a trial if joinder would prejudice a 

defendant. See Fed. R. Crim. P. 14(a). To determine whether the district court abused its 

discretion in denying a motion to sever, we evaluate the following, nonexhaustive list of 

factors (the “McConnell factors”): 

1) the likelihood that the co-defendant would in fact testify at the movant’s 

severed trial and waive his Fifth Amendment privilege; 2) the significance 

of the testimony in relation to the defendant’s theory of defense; 3) the 

exculpatory nature and effect of such testimony; 4) the likelihood that the 

co-defendant’s testimony would be impeached; 5) the extent of prejudice 

caused by the absence of the testimony; 6) the effect of a severance on 

judicial administration and economy; [and] 7) the timeliness of the motion. 

United States v. McConnell, 749 F.2d 1441, 1445 (10th Cir. 1984). 

Although the district court denied his first motion to sever, it granted his second 

motion to sever under Rule 14(a). Mr. Dewberry received the severed trial he requested. 

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None of the McConnell factors are implicated. Thus, he does not show how denial of the 

first motion prejudiced him. Because he fails to demonstrate prejudice, let alone “a 

strong showing of prejudice,” his claim fails. See Stiger, 413 F.3d at 1197 (quotations 

and emphasis omitted). 

III. CONCLUSION 

For the foregoing reasons, we affirm Mr. Dewberry’s convictions and sentence. 

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