PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA,
Pl aintiff - Appellee,

v. ROOSEVELT RICO DAHDA,
De fendant - Appellant. No. 15-3237

__________________ _______________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:12- CR-20083-KHV-2)

__________________ _______________ Mark L. Bennett, Jr., Bennett & He ndrix, LLP, Tope ka, Kansas, for Defendant-Appellant. Carrie N. Capwell, Assi stant United States Attorn ey (Thomas E. Beall, Acting United States Attorney, with her on the brief), Office of the United States Attorney, Kansas City, Kansas, for Plai ntiff-Appellee.

__________________ _______________ Before LUCERO and BACHARACH , Circuit Judges. 

__________________ _______________ BACHARACH , Circuit Judge.

 The Honorable Neil Go rsuch participated in or al argument, but he is not participating in the decision. The practice of this court permits the remaining two panel judges, if in agreement, to act as a quorum in deciding the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles , 106 F.3d 1516, 1516, at n* (10th Cir. 1997) (noting that this court allows remaining panel judges to act as a quorum to decide an appeal ). In this case, the two remaining panel members are in agreement. FILED United States Court of Appeals Tenth Circuit 

### April 4, 2017
Elisabeth A. Shumaker Clerk2 __________________ _______________ Mr. Roosevelt Dahda and 42 others faced criminal ch arges involving the operation of a marijuana-distribu tion network cent ered in Kansas. Roosevelt 1 was convicted on te n counts, and the dist rict court sentenced him to 201 months’ imprisonment and or dered forfeiture in the amount of $16,985,250. On appeal , Roosevelt raises se ven challenges to the convictions and sentence:
1. The evidence was insufficient to prove the conspiracy charged in count one, which involved 1,000 kilograms or more of marijuana.
2. There was an unconstitutional variance betwee n the single, large conspiracy charged in c ount one and the trial evidence, which showed numerous smaller conspiracies.
3. The district court erred in denying Roosevelt’s motion to suppress wiretap evidence.
4. The sentence of 201 months’ imprisonment exceeded the statutory maximum because the jury did not make a specific finding on th e quantity of marijuana involved in the conspiracy. 5. The district court erred in setting Roosevelt’s base-offense level by miscalculating the amoun t of marijuana attributed to Roosevelt.
6. The district court’s upward variance of 33 months was substantively unreasonable.
7. The district court erred in en tering a forfei ture judgment.

1 One of the co-defendants was Roosevelt’s brother, Mr. Los Dahda. To avoid confusion, we refer to Mr . Roosevelt Dahda and Mr. Los Dahda by their first names.3 We reject the challenges in 1-4 and 6-7. But we agree with the fifth challenge, concluding that the distri ct court miscalcula ted the amount of marijuana attributed to Roosevelt. Based on these conclusions, we affirm Roosevelt’s convic tions but remand for resentencing.
I. Sufficiency of the Evidence Count one charged Roosevelt with a conspiracy involving 1,000 kilograms or more of marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846, 856 ( 2012); 18 U.S.C. § 2. 2 Roosevelt argu es that the government failed to prove that he had joined the large conspiracy charged in count one. Acco rding to Roosevelt, the evidence es tablished only a number of smaller conspiracies. To decide whether the evidence of guilt suffice d, we engage in de novo review, considering th e evidence in th e light most fa vorable to the government to determine wh ether any rational jury could have found guilt beyond a reason able doubt. United States v. Yehling , 456 F.3d 1236, 1240 (10th Cir. 2006). We consider the dire ct and circumstantia l evidence but do not balance conflicting evid ence or consider the witnesses’ credibility. Id. To prove a conspiracy, the governm ent must show th at (1) two or more persons agreed to violate the law, (2) the defendant knew the

2 Count one also charged Roosev elt with a conspiracy involving cocaine. See 21 U.S.C. §§ 841(a)( 1), (b)(1)(A)(ii)(II), 846, 856; 18 U.S.C. § 2. But the cocaine component of the conspiracy was not submitted to the jury.4 essential objectives of the conspi racy, (3) the defe ndant knowingly andvoluntarily participated in the conspiracy, and (4) the alleged coconspirators were interdependent. United States v. Wardell , 591 F.3d 1279, 1287 (10th Cir. 2009). Determining the existence of a single conspiracy involves a question of fact for the jury. United States v. Dickey , 736 F.2d 571, 581 (10th Cir. 1984). This question turns on the existence of a common, illicit goal. Id . at 582. Based on the trial evid ence, we concluded in United States v. Los Dahda that the evidence was sufficient to permit the finding of a single conspiracy of 1,000 kilograms or more of marijuana. 3 ___ F.3d ___, No. 15-3236, slip op., Part II(A) (10th Cir. Apr. 4, 2017). Applying the same reasoning here, we reject Roos evelt’s argument th at the evidence established a number of smaller conspi racies rather than a single large conspiracy. The remaining question is whether the evidence was sufficient to show that Roosevelt join ed the large conspiracy involving 1,000 kilograms

3 Roosevelt raises one argument no t raised in Los’s appeal: that Mr. Park and Mr. Swift “may have been in direct competition with [Mr. Bauman] at some points.” Appellan t’s Opening Br. at 34. In support, Roosevelt points to Mr. Park’s testim ony that an indivi dual working with Mr. Bauman might have stolen marijuana from Mr. Park’s store. R. vol. 3, at 1453. This testimony is not dispositive, and Mr . Bauman and Mr. Swift testified that they had never competed with one another. R. vol. 3, at 1182, 2351. Thus, we reject Roosevelt’s argument.5 or more of marijuana. We conclude that the evidence was sufficient based on six categories of evidence:
1. Roosevelt drove a truck with a hidden compartment, which was used by the group to transport drugs and cas h. R. vol. 1, at 406- 08; R. supp. vol. 4, Exhibit 704 -05. When Roosevelt drove the truck, the hidden compartment a pparently contained cash. Once Roosevelt arrived in California, he was to open the compartment to re move the cash. Id.
2. Roosevelt relayed a request from Mr. Park for Los to travel to Northern Californi a to inspect some mar ijuana grow operations. R. vol. 2, at 575; R. supp. vol. 4, Exhibit 823. In relaying this request, Roosevelt commented that he had seen some of the marijuana and that it “look[ed] very lovely .” R. supp. vol. 4, Exhibit 823.
3. Roosevelt sent boxes th rough the group’s sh ipping operation to Mr. Justin Pickel, who grew mariju ana in California. R. vol. 1, at 474; R. supp. vol. 4, Exhibit 753. Roosev elt also agreed to send money to Mr. Pickel. R. vol. 2, at 547-48; R. supp. vol. 4, Exhibit 794.
4. Roosevelt went to the group’s Kansas warehouse to pick up marijuana. R. vol. 3, at 1457-58. 5. In Kansas, Roosevelt sold pounds of mariju ana that had been sent from California, R. vol. 3 at 1231-50, 1260-62, 1293-95, 1606-07, 1612; R. supp. vol. 4, Exhibits 738, 767, 772-74, 853- 54.
6. The day after the police seized approximately 37 pounds of marijuana from Mr. Pickel, Ro osevelt and Los discussed the fact that they had lo st “half of what [the y] [had] worked for” and that they had to be cautious when “bring[ing] the rest of this back.” R. supp. vol. 4, Exhibit 860. Crediting this evidence and viewi ng it favorably to the government, we conclude that a rational fact-find er could conclude beyond a reasonable doubt that Roosevelt knowingly and volu ntarily participat ed in th e large6 conspiracy. This conclusion would have remained valid even if Roosevelt had occupied a relatively minor role in the conspiracy. See United States v.
Caro , 965 F.2d 1548, 1556 (10t h Cir. 1992) (“[A] defe ndant’s participation in the conspiracy may be slight and may be inferred from the defendant’s actions so long as the ev idence establishes a conn ection to the conspiracy beyond a reasonab le doubt.”). In United States v. Anaya , for instance, the defendant participated in a drug co nspiracy only by installing hidden compartments in vehicl es. 727 F.3d 1043, 1051 (10t h Cir. 2013). We held that the evidence was sufficient for conviction on a co nspiracy charge because the compartments had been insu lated to mask smells, the defendant had seen $800,000 in cash in one of the compartments, the compartments’ sizes had been measured in kilos, the defendant and his customers had communicated in code, an d the defendant had been warned not to discuss the compartments. Id. Similarly, Roosevelt might not have performed a major role in the conspiracy. But the trial ev idence was sufficient to show that he (1) had agreed to violate the la w, (2) had known that the essential objective of the conspiracy was transportation of marijuana from California to Kansas for resale in Kansas, (3) had knowingly an d voluntarily part icipated in the conspiracy, and (4) had facilitated the conspiracy’s objective. Roosevelt counters that th e government did not prove interdependence because he was unknow n to several co-c onspirators and7 the conspiracy could have operated without him. These arguments overstate what the government had to prove. The government di d not need to prove

 that Roosevelt knew or had conn ections with all other members of the conspiracy or

 that Roosevelt was indispen sable to the conspiracy. See United States v. Foy , 641 F.3d 455, 465 (10th Ci r. 2011). “[R]ather, it is sufficient that [Roosevelt] was an operational li nk within [the conspiracy].” United States v Cornelius , 696 F.3d 1307, 1318 (10th Cir. 2012). In light of th e evidence, we conclude that the evidence sufficed for a finding that Roos evelt had at least been “an operationa l link” within the conspiracy. Id.
* * * Viewed in th e light most favora ble to the governme nt, the evidence was sufficient to establish (1) the existence of the single conspiracy charged in count one and (2) Roosevelt’ s participation in that conspiracy. We therefore reject Roosevelt’s ch allenge to the su fficiency of the evidence on count one. II. Variance Roosevelt also urges a prejudicial variance between the conduct charged in count one and the trial ev idence. According to Roosevelt, the8 evidence established only smaller conspi racies rather than a single, large conspiracy. 4
“In the context of a cons piracy conviction, we treat a variance claim as a challenge to the su fficiency of the evidence establishing that each defendant was a member of the same conspiracy.” United States v. Gallegos , 784 F.3d 1356, 1362 (10th Cir. 2015). View ing the challenge in this manner, we enga ge in de novo review. United States v. Caldwell , 589 F.3d 1323, 1328 (10th Cir. 2009). Applying de novo review, we re jected the same challenge by Roosevelt’s co-defendant in United States v. Los Dahda , ___ F.3d ___, No. 15-3236, slip op., Part III (10th Cir. Apr. 4, 2017). Based on that opinion, we reject Roosevelt’s assertion of a variance between count one and the trial evidence.
III. The Wiretap Authorization Orders Much of the evidence introduced against Roos evelt was obtained through wiretaps of cell phones used by Roosevelt and four others. The wiretaps took place during the six months preceding Roosevelt’s arrest and

4 Roosevelt made a different variance argument in district court. There, Roosevelt argued that a variance had oc curred because (1) the charge involved both cocaine and ma rijuana and (2) th e trial evidence proved only a mari juana conspiracy. The government argues that we should apply plain-error review to the new variance argument ra ised on appeal. Because we would affirm even under de novo review , we do not consider whether the plain-error standard applies. See United States v. VasquezAlcarez , 647 F.3d 973, 977 (10t h Cir. 2011) (permitting us to assume, for the sake of argument, that an argument was not forfeited).9 had been authorized by the U.S. District Court for the District of Kansas. Prior to trial, Roosevelt move d to suppress the intercepted communications, arguing that the wiretap orders were facially insufficient because they had exceeded the district court’s territorial jurisdiction. We concluded in United States v. Los Dahda that suppression was not warranted even though the orders had been facially deficient. ___ F.3d ___, No. 15-3236, slip op., Part IV (10th Cir. Apr. 4, 2017). Based on our opinion in Los Dahda , we reject Roosevelt’s chal lenge to the denial of his motion to suppress.
IV. Sentencing Issues Roosevelt was sentenced to prison for a total of 201 months. In calculating the sentence, the district court determined that Roosevelt was responsible for 1,600 pounds (725.7 kilogr ams) of marijuan a, resulting in a base-offense level of 28. See U.S.S.G. § 2D1.1 (2014) . With adjustments and criminal history, the guidelin e range was 135 to 168 months. The district court then va ried upward by 33 months on the ground that Roosevelt had manipulated a co-defe ndant into not c ooperating with the government. Roosevelt urges a remand for resent encing based on three arguments:
1. The sentence exceeded the statut ory maximum because the jury did not specifically fi nd the quantity of marijuana involved in the conspiracy.10 2. The district court clearly erred in finding that Roosevelt was responsible for 1,600 pounds of marijuana.
3. The upward variance was substantively unreasonable because Roosevelt did not manipulate the co-defendant. We reject the first and third arguments but agree with the second. Because the district court erred in attributing 1,600 pounds to Roosevelt, we remand for resentencing. A. Jury Finding on Marijuana Quantity As noted, Roosevelt was found guilty on count one, part icipation in a conspiracy involving 1, 000 kilograms or more of marijuana. Roosevelt argues that the prison se ntence of 201 months on count one exceeds the statutory maximum because the jury did not specifically find the quantity of marijuana involved in the conspiracy. The penalties for violating 21 U.S.C. § 841(a) are set forth in subsection (b). The severity of the pe nalty turns on the quantity of drugs involved in the crime. Subsection (b )(1)(D) provides a ceiling of five years’ imprisonment for less than 50 kilograms of marijuana. 21 U.S.C. § 841 (b)(1)(D). Subsection (b)(1)(C) provides a maximum sentence of 20 years’ imprisonment when no specific quantity is charged. And subsections (b)(1)(A) and (B) provide even higher maximum sentences and mandatory minimums, depending on the type and qu antity of the substance. In cases involving at least 1,000 kilograms or more of marijuana, subsection11 (b)(1)(A) imposes a mandatory minimum sentence of ten years and a maximum sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(vii). Roosevelt was sentenced under subsection (b)(1)(C), 5 but he argues that he should ha ve been sentenced under (b)(1)(D) b ecause the verdict form had not included a specific finding on the marijuana quantity. But Roosevelt waived this argume nt in district court. When the district court asked Roosevelt’s attorney which subsection applied, the atto rney responded: Your Honor, I would agre e that (b)(1)(C) is the appropriate provision under S ection 841 as re gards to the defendant’s sentencing range an d that’s because the jury did not find the quantity of drugs necessary to trigger any mandatory minimum that’s base d on quantity, and (b)(1)(A) and (b)(1)(B) are based on quantities. (b)(1) (C) states that for any substance under Sche dule 1 or Schedule 2. It doesn’t have a quantity. And I think there’s case law in the Tenth Circuit that says that that provision ap plies in the absence of any quantity found by the jury. And so we would ar gue that (b)(1)(C) applies as the defendant’s statutory ra nge which has no mandatory minimum and has the maximum of 20 years. R. vol. 3 at 2648-49. The threshold issue is whethe r defense counsel’s statement constitutes a waiver, which would aris e if the statement had “invited” the alleged error. United States v. Carrasco-Salazar , 494 F.3d 1270, 1272

5 Although Roosevelt was found guilty of participating in a conspiracy involving 1,000 kilograms or more of marijuana, th e government agreed to waive the ten-year mandatory minimum under § 841(b)(1)(A).12 (10th Cir. 2007); see also United States v. Olano , 507 U.S. 725, 733 (1992) (“[W]aiver is the intentional reli nquishment or aba ndonment of a known right.” (citations & intern al quotation marks omitted )). We conclude that defense counsel waived the present argument. When asked which statut ory provision should ap ply, defense counsel stated that Roosevelt should be se ntenced under § 841( b)(1)(C); and the district court relied on this represen tation. These circumstances constitute invited error. See United States v. Teague , 443 F.3d 1310, 1316 (10th Cir. 2006) (rejecting the defe ndant’s challeng e to the cond itions of his supervised release because he “ proposed the very limitation . . . to which [he] now objects”). Roosevelt disagrees, contending that the discussion at sentencing focused on whether a statutory mandatory minimum could be imposed given the lack of a specific finding on the marijuana quantity. The issue on appeal, he explains, is whether the sentence exceeded the statutory maximum given the lack of a jury fi nding on quantity. We disagree, for Roosevelt expressly agreed that the statutory maximum was provided in (b)(1)(C). But even if Roosevelt had not inv ited error in district court, we would reject the argument under the plain-error st andard. We find plain error when (1) the ruling constitutes error, (2) the error is plain, (3) the error affects substantial rights, and (4) the error seriously affects the13 fairness, integrity, or public reputation of judicial proceedings. United
States v. Romero , 491 F.3d 1173, 1178 (10th Cir. 2007).
In United States v. Los Dahda , we addressed whethe r the lack of an express jury finding on quantity require d resentencing of Los under 21 U.S.C. § 841(b)(1)(D), rather than § 841(b)(1)(C). ___ F.3d ___, No. 15- 3236, slip op., Part V (1 0th Cir. Apr. 4, 2017). Un der de novo review, we concluded that the answer was “ no” because the quantity of 1,000 kilograms constituted an elemen t of the charged conspiracy. Id. The same reasoning applies here. Using the same instructions and verdict form described in Los Dahda , the jury found R oosevelt guilty on count one, which required the jury to find that the cons piracy involved 1,000 kilograms or more of marijuan a. Therefore, Roos evelt’s sentence under 21 U.S.C. § 841(b)(1 )(C) did not constitute error, much less plain

error. See id

. In sum, Roosevelt waived his challenge to the statutory maximum. But even if this issue had not been waived, application of § 841(b)(1)(C) would not have cons tituted plain error.
B. Quantity of Marijuana Attributable to Roosevelt Roosevelt contends that in calculating his base-offense level, the district court erroneously calculated the quantity of drug s attributable to him. The district court adopted the presentence re port’s recommendation, which attributed 1,600 pounds (725.7 kilograms) of marijuana to14 Roosevelt. This quantity involved an estimate of the weight of marijuana shipped from California to Kansas between December 2010 and May 2012. 6 During this time-period, th e presentence report estimated that 20 pallets, each containing 80 pounds of marijuana, had been sh ipped from California to Kansas—for a to tal of 1,600 pounds. R. vol. 4, at 49-50. The district court determined that th is estimate had been “reasonable and reliable and conservative,” resulting in a base-offens e level of 28. R. vol. 3, at 2668. Roosevelt argues that (1) he wa s pinned with marijuana shipments that he could not have reasonably fo reseen and (2) even if the shipments had been reasonably foreseeable, th e district court clearly erred in estimating that each pallet co ntained 80 pounds of marijuana. 7 We reject

6 These dates were selected beca use Roosevelt had been in prison through November 2010 and was arrested on the present charges in May 2012.

7 At oral argument, Ro osevelt argued for the fi rst time that the jury should have determined the quantity of marijuan a used to calculate the base-offense level. But “[i] ssues raised for the firs t time at oral argument are considered waived.” Fed. Ins. Co. v. Tri-State Ins. Co. , 157 F.3d 800, 805 (10th Cir. 1998). Even if we were to consider the argument, it would fa il on the merits. The jury’s findings on count one resulted in a statutory maximum of 20 years’ imprisonment. See Part IV(A), above. If the drug quantity found by the sentencing judg e “did not cause [t he defendant’s] sentence to exceed the statutory maximum, Apprendi [ v. New Jersey , 530 U.S. 466 (2000)] [would] not require that th e jury make findi ngs on quantity.” United States v. Wilson , 244 F.3d 1208, 1215 ( 10th Cir. 2001). Here , the 1,600 pounds of marijuana attributed to Roosevelt did not cause his sentence to exceed the statutory maximum that would otherwis e have existed. Accordingly, there was no Apprendi violation.15 Roosevelt’s first argument but agr ee that the court clearly erred in estimating that each pallet contained 80 pounds of ma rijuana. Ac cordingly, we remand for resentencing. 1. Reasonable Foreseeability A defendant is accounta ble for all reasonably foreseeable drug quantities that were within the scope of the jointly undertak en criminal activity. U.S.S.G. § 1B 1.3 cmt. 2 (2014). “We review the distri ct court’s factual fi nding concerning the quantity of drugs for which a defend ant may be held accountable under a clearly erroneous standard.” United States v. Ortiz , 993 F.2d 204, 209 (10th Cir. 1993). The findin g is clearly erroneous on ly if it is implausible or impermissible based on the entire record. United States v. Torres , 53 F.3d 1129, 1144 (10th Cir. 1995). In examining the record, we must determine whether the dist rict court could reasonab ly have found that the government had satisfied its burden on foreseeab ility by a preponderance of the evidence. United States v. Roberts , 14 F.3d 502, 521 (10th Cir. 1993). Roosevelt contends that he cannot be held responsi ble for the first five shipments listed in the presentence report —representing 1,040 pounds of marijuana—because (1 ) these shipments were received by Mr. Bauman and (2) Roosevelt did not work with Mr. Bauman. As previously noted, Roosevelt’s lack of a direct conn ection with Mr. Bauman would not16 preclude responsibility fo r the five shipments. See Part I, above. And the evidence showed th at beginning in early 2011, Roosevelt was selling marijuana in Kansas that had been acqu ired in California. R. vol. 3, at 1231-50, 1260-62. Roosevelt also argues that he was not personally linke d to any of the shipments. But Roosevelt could be responsible for shipments even if he was not personally linked to them. “S ection 1B1.3(a)(1)(B) makes clear that in calculating a de fendant’s offense level under the Gu idelines, a defendant must be held accountable for the conduct of his co-conspirators, including conduct in wh ich the defendant did not pe rsonally participate, as long as the conduct was w ithin the scope of the jo intly undertaken criminal activity and was reasonably fo reseeable to th e defendant.” United States v. Sells , 541 F.3d 1227, 1235 (1 0th Cir. 2008).
In United States v. Williams , we upheld a defend ant’s base-offense level predicated on the entire quantity of drugs involved in the conspiracy. 897 F.2d 1034, 1041 (10th Ci r. 1990). We agre ed with the se ntencing court that “at a minimum” the defendan t “had knowledge of the criminal enterprise” and particip ated significantly (though only episodically). Id. Thus, the defendant “knew or should have known” of the total quantity of drugs involved in the conspiracy. Id. Our explanation in Williams is also applicable here. Roosevelt was aware of the drug distribu tion network and participated in that network.17 This participation included driving cash to California fo r someone in the group to buy marijuana, examining a field of marijuana, picking up marijuana shipments at the group’s Kansas warehouse, and selling marijuana in Kansas. See Part I, above. Nonetheless, the district court did not pin Roosevelt with all of the drugs involved in the conspiracy; instead, the court excluded marijuan a that had been dealt while Roosevelt was in prison. Thus, the district court did not clearly err in finding that the marijuana shipments had been reasonab ly foreseeable and within the scope of the criminal activity undertaken by Roosevelt. 2. Estimate of Marijuana Quantity Roosevelt also argues that the di strict court clearly erred in estimating that each of the 20 shipped pallets contained 80 pounds of marijuana. We agree with Roosevelt. The government bears th e burden to prove drug quantity through a preponderance of the evidence. United States v. Ortiz , 993 F.2d 204, 209 (10th Cir. 1993). The base -offense level may consis t of an estimate if it contains some record support and is based on information bearing “minimum indicia of reliability.” United States v. Garcia , 994 F.2d 1499, 1508 (10th Cir.1993); United States v. Coleman , 7 F.3d 1500, 1504 (10th Cir. 1993). No such indicia of reliability are present here. The quantities in the pallets varied. For example, Mr. Baum an testified that each pallet had18 contained between “five or ten pounds to eighty pound s” of marijuana. R. vol 3, at 2251. Mr. Bauman and Mr. Swift remarked that toward the end of the conspiracy, each pall et usually contained 80 pounds, with Mr. Bauman adding that there “could have been” times when the pallets contained more than 80 pounds. R. vol. 3, at 1067, 2252. But this tes timony does not support a finding that th e pallets contained an average of 80 pounds. In fact, the presentence report states that on e of the shipments attributed to Roosevelt had contained on ly 33 pounds of marijuana. R. vol. 4 at 49. The government cites no evidence showing that the district court fairly attributed 80 pounds, rather than 5- 10 pounds, to the shipments used to calculate Roosevelt’s base-offense level. Nor is there any way to determine what time peri od Mr. Bauman and Mr. Swift were referencing when they testified that toward th e end of the conspiracy, the pallets usually contai ned 80 pounds.
In United States v. Roberts , we held that an es timate entailed clear error because the district court had atte mpted to extrapolat e drug quantities from one time period to another. 14 F.3d 502, 521 (10th Cir. 1993). There one defendant admitted that he had bought and redistributed 150-200 pounds of methamphetamine betw een 1987 and Fe bruary 1991. Id. at 520. The district court used this figure to estimate that the defendant was responsible for distri buting 60 pounds of meth amphetamine between January 1, 1989, and February 26, 1991. Id . at 519-20. We rejected this19 estimate, concluding that the district court had “ground[ed] its conclusion in midair” because no r easonable basis existed to extrapolate the finding from the 150-200 pound s that the defend ant had admitted. Id. at 521. United States v. Richards is also instructive. 27 F.3d 465 (10th Cir. 1994). There a witness testified th at she had bought drugs from the defendant in amount s varying from week to week , “sometimes one or two grams and sometimes four or five.” Id. at 469. Law enforc ement then used the maximum weekly quant ity of five grams to es timate that the witness had purchased “80 grams, on the assump tion that she [had] purchased five grams per week for sixteen weeks.” Id. We concluded that this calculation was based on “insufficient minimally reliable evidence” because the testimony had been vague, co nflicting, and unsupport ed by other evidence. Id. Though Mr. Bauman and Mr. Swift ar e arguably more reliable than the witness in Richards , their testimony was also vague. Without a way to tie their testimony concer ning the pallets of 80 pounds to the shipments attributed to Roosevelt, the testim ony of Mr. Bauman and Mr. Swift was insufficient to attribute 1,600 pounds to Roosevelt. The government argues that any error would be harmless because there was other evidence of marijuan a attributable to Roosevelt. The burden falls on the gover nment to demonstrate, by a preponderance of the20 evidence, that the error did not affect Roosev elt’s substantial rights. United States v. Harrison , 743 F.3d 760, 764 (1 0th Cir. 2014). The government did not satisfy this burden. The government’s argument on harmlessness consists of a single sentence, referring to 37 pounds and 200 marijuana pl ants seized from a co -conspirator. Under the guidelines, each marijuana plant counted as 100 grams. U.S.S.G. § 2D1.1 applic. note (E). Thus, th e additional evidence would account for just over 81 pounds, which was only about 5% of the mariju ana weight that the district court attributed to Roosevelt. Thus, th e government’s reliance on additional evidence would not take the district court’s finding outside the realm of speculation. In these circumstances, we remand for the district court to reassess the quantity of mari juana attributable to Roosevelt. C. Upward Variance Though we remand to the district court for resentencing, we address Roosevelt’s argument that the upward variance of 33 months was substantively unreasonable. 8

8 The district court stated that it was departing upward from the guideline range, but Roosevelt characterizes the sentence as a variance. The government refers to the sentence as both a departure and a variance and seems to use the terms interchang eably. We conclude that the court actually applied a variance rather than a departur e. The district court imposed the sentence base d on the 18 U.S.C. § 3553 (a) factors. When a court applies the § 3553(a) f actors to impo se a sentence outside the guideline range, the dist rict court is applying a variance rather than a departure. See United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1221- 22 (10th Cir. 2008).21 District courts enjoy broad discretion in sentencing, but sentences must be substantively reasonable. United States v. Hanrahan , 508 F.3d 962, 969 (10th Cir. 2007). Substantive reasonab leness focuses on the length of the sentence and requires th at sentences be neither too long nor too short. Id

. We review substantive reasonablene ss under the abuse-of-discretion standard, which requires us to give substantial deference to the district

court. United States v. Friedman , 554 F.3d 1301, 1307 (10th Cir. 2009). The district court abuses that discreti on when rendering a decision that is arbitrary, capricious, whimsical , or manifestly unreasonable. Id

. Roosevelt was sentenced to 201 months’ imprisonment, 33 months above the upper end of his guideline ra nge. The district court justified the variance on the gr ound that Roosevelt had pres sured a co-defendant, Ms. Sadie Brown, into not cooperating with the government. Because Ms. Brown did not coop erate with the government, she did no t receive a “safety-valve” adjustment. See 18 U.S.C. § 3553 (f)(5); U. S.S.G. § 5C1.2(a)(5). Without this adjustme nt, Ms. Brown obtain ed a sentence 12- 33 months higher than she mi ght otherwise have received. Roosevelt argues that the distri ct court lacked evidence to find manipulation of Ms. Brow n. We reject this argum ent. The district court could reasonably rely on the evidence presented at Roosev elt’s sentencing, combined with what the court had already known from Ms. Brown’s22 sentencing. See United States v. Spears , 197 F.3d 465, 471 (10th Cir. 1999). 9
At Roosevelt’s sentenci ng, the government produ ced two letters that Ms. Brown had received fr om Roosevelt. The first letter opens with “How is my favorite student?” and inst ructs Ms. Brown how to handle her criminal case. R. vol. 5, at 1. She was to try to withdraw her guilty plea, file a direct appeal base d on ineffective legal assi stance, and send a copy of correspondence about her case “home to [Roosevelt’s mother].” Id. at 1. The letter adds that trying for the sa fety-valve adjustment now would not hurt anyone. Id. at 2. The second letter sim ilarly tells Ms. Brown how to handle her sentencing and again says that her counsel provided ineffective assistance. Notably, Roosevelt sent these letters only after the end of his own criminal trial. Upon receipt of these letters, Ms . Brown tried to qualify for the safety-valve adjustment. At her sentencing, the government contended that Ms. Brown was ineligible because she had not been truthful. Tr. of Sentencing Volume II at 30-32, United States v. Brown , No. 12-20083-03-

9 Our understanding of Ms. Brown’s sentencing comes from our review of Ms. Brown’s senten cing transcripts. See Tr. of Sentenci ng Volume II, United States v. Brown , No. 12-20083-03-KHV-3 (D. Kan. Mar. 9, 2015), ECF No. 1813; Tr. of Sent encing Volume III, United States v. Brown , No. 12-20083-03-KHV-3 (D. Kan. Mar. 12, 2015), ECF No. 1815. The same district judge presided over the criminal cases of both Roosevelt and Ms. Brown and relied partly on evidence from Ms. Brown’s sentencing. Roosevelt does not questi on the district court’s ab ility to rely on Ms. Brown’s sentencing proceedings.23 KHV-3 (D. Kan. Mar. 9, 2015), ECF No. 1813. Ms. Brow n testified that she had provided information to the be st of her ability and that she had decided to pursue the safety-valve adjustment only after obtaining permission from Roosevelt. The government then called the cas e agent who had conducted the safety-valve interview. The case ag ent testified that Ms. Brown had not been forthcoming during her interview, adding that “during the course of the proffer examina tion, there [had be en] statements made relative to the Dahdas[’] manipulation of [Ms. Brown]” and that it had appeared that the Dahdas were continuing to communicate with Ms. Brown. Id. at 36-37. The case agent opined that during the sa fety-valve interv iew, there was discussion that the Dahd as had treated Ms. Brown “like a slave . . . .” Id. at 37. After hearing this testimony, th e district court continued the sentencing to give Ms. Brown a second opportunity to qualify for a safetyvalve adjustment. At the continued h earing, the case agent testified that Ms. Brown had still not been completely truthful and had minimized the criminal activity of individuals relate d to Roosevelt. Fo r instance, the case agent expressed the belie f that Ms. Brown had minimized the involvement of co-defendant Nathan Wallace—Ro osevelt’s half-bro ther—who had yet to be sentenced. Tr. of Sent encing Volume III at 73, United States v.
Brown , No. 12-20083-03-KHV-3 (D . Kan. Mar. 12, 2015), ECF No. 1815.24 Ms. Brown explained that she had not pursued the safety-valve adjustment earlier because she had not wanted to testify against Los and Roosevelt. Id. at 87. Ultimately, the district court determined that Ms. Brown had failed to satisfy the requirements for a safety-valve adjustment. Id. at 84. At Roosevelt’s sentenci ng, the district court found that Roosevelt was “legally and morally responsible fo r [the] extra time that [Ms. Brown] [was] doing” and that a sentence within the gu ideline range would not “adequately take into account all of th e relevant conduct here.” R. vol. 3, at 2685-86. These findings were not cl early erroneous. Thus, we conclude that the district court (1 ) acted within its discretion in varying upward and (2) imposed a substantiv ely reasonable sentence. V. Forfeiture Roosevelt’s final argument is that the district court erred in ordering forfeiture in th e amount of $16,985 ,250. According to Roosevelt, the forfeiture order s hould be vacated fo r three reasons:
1. The district court violated the fe deral rules by failing to enter a preliminary order of forfeiture.
2. The district court lacked suffic ient evidence for the amount of the forfeiture.
3. The district court failed to speci fy the amount of the forfeiture. We reject these arguments. First, Roosevelt urge s vacatur of the forfei ture order because the district court failed to enter a prelimin ary order of forfeiture as required by25 Fed. R. Crim. P. 32.2(b). Roosevelt did not raise this argument in district court, and our review is limited to the plain-error standard. United States

v. Wright , ___ F.3d ___, No. 15- 5090, 2017 WL 677485, at *4 (10th Cir. Feb. 21, 2017). We find plain error when (1) the ruling is erroneous, (2) the error is pl ain, (3) the error affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Romero , 491 F.3d 1173, 1178 (10th Cir. 2007); see Part IV(A) above. Rule 32.2 provides that upon a finding that pr operty is subject to forfeiture, the court must enter a preliminary forfe iture order “sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order become s final . . . .” Fe d. R. Crim. P. 32.2(b)(2)(A)-(B), 32.2(b )(4)(A). The court did not comply with this requirement. The government concedes that this om ission constituted an error that was plain. The resulting issue is whet her the error affected Roosevelt’s substantial rights and “seriously affect [ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano , 507 U.S. 725, 732 (1993). The erro r affected Roosevelt’s substa ntial rights only if the outcome was likely affected. Romero , 491 F.3d at 1178. The outcome here was un affected because Roos evelt had notice of a potential forfeiture in the amount of $16, 985,250. Indeed, Roosevelt does26 not question th e existence of notice. Nor could he do so, for he objected before the hearing to any forfeiture. R. vol. 3, at 2678-80; R. vol. 4, at 77-
78. 10 Though he was on notice of a potential forfeitur e, Roosevelt argues that he was deprived of “procedures to c ontest the deprivation of property rights.” Appellant’s Repl y Br. at 22 (internal quo tation marks & emphasis omitted). He argues that his circumstances are analogous to those in United
States v. Shakur, where the defendant had “timely contested six of the government’s Forfeiture A llegations, but his obj ections were entirely ignored.” 691 F.3d 979, 988 (8th Cir. 2012). Roosevelt does not expl ain how the lack of a preliminary forfeiture order deprived him of an opportunity to be heard. Nor does he argue that he would have made additional objections if a preliminary order of forfeiture had been en tered. These circumstan ces differ from those in Shakur , where the defendant’s pre-sentenci ng objections we re completely ignored. In contrast, Roosevelt’s only objection was addressed to his satisfaction at the sent encing. Nor is it true here, as it was in Shakur , that “[t]he only mention of forfeiture cam e at the very e nd of the lengthy

10 In objecting before the hearing, Roosevelt argued that it was unclear how much of the $16,985,250 had been genera ted by sales of marijuana rather than cocaine. R. vol. 4, at 77. That objection was addressed to Roosevelt’s satisfaction at the senten cing, and the issue became moot. R. vol. 3, at 2680.27 hearing when the district court stated, after pronouncing Shakur’s sentence, ‘I am going to enter a forfeiture in this case.’” Id . at 986. Thus, we conclude that the lack of a prelim inary order of forfeiture did not affect Roosevelt’s substantial rights. In addition, Roosevelt “challenge s the forfeiture judgment for the same reasons that he ch allenges his conspiracy conviction, namely that there was insufficient evid ence of the single conspiracy, and a variance.” Appellant’s Opening Br. at 59. We re ject this argument for the same reasons discussed above. See Parts I-II, above. Roosevelt also urges va catur on the ground that the final judgment did not state the forfeitur e amount. It is true th at the final judgment omitted the amount of the forfeiture. Inst ead, the judgment purported to make the preliminary order of forfeiture final as to Roosev elt. But as just discussed, the court never filed a pr eliminary order of forfeiture. As a result, the final judgment failed to inco rporate the amount of the forfeiture. It was clear from the sentencing proceeding, however , that forfeiture was ordered in the amount alleged in the superseding indictment and reported in the presente nce report, $16,985,250. R. vol. 3, at 2679-80 (addressing Roosevelt’s ob jection to the forfeiture amount listed in the presentence report). Federal Rule of Criminal Procedure 32.2(b)(4)(B) provides that the court must (1) “include the fo rfeiture when orally announcing the senten ce or must otherw ise ensure that the defendant knows28 of the forfeiture at se ntencing” and (2) “include the forfeiture order, directly or by reference, in the judgment, but the court’s failure to do so may be corrected at any time under Rule 36.” In turn, Rule 36 provides that “the court may at any time correct a cl erical error in a judgment . . . .” Fed. R. Crim. P. 36. Roosevelt does not disp ute oral pronouncement of a forfeiture order in the amount of $16 ,985,250. Thus, the failure to specify th e forfeiture amount in the final judgme nt is an error that ma y be corrected “at any time” under Rule 36. See United States v. Sasser , 974 F.2d 1544, 1561 (10th Cir. 1992) (holding that a written judgment could be corrected to provide that the defendant’s sentences would be served consecutively because the sentencing transcript re vealed that the district court had intended the sentences to run consecutively); see also United States v. Villano , 816 F.2d 1448, 1451 (10th Cir. 1987) (en banc) (“The sentence orally pronounced fr om the bench is the sentence.”). In sum, the failure to state the forfeiture am ount in the judgment does not warrant vacatur of the forfeiture. But we call the oversight to the attention of the district court so that it may correct the judgment. We affirm the order of forfeitu re in the amount of $16,985,250.29 VI. Disposition We affirm the convictions and fo rfeiture order, but remand for resentencing based on th e error in calculating the amount of marijuana attributable to Roosevelt.