PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ROOSEVELT RICO DAHDA, 

 Defendant - 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 & Hendrix, LLP, Topeka, Kansas, for 

Defendant-Appellant. 

Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, 

Acting United States Attorney, with her on the brief), Office of the United 

States Attorney, Kansas City, Kansas, for Plaintiff-Appellee. 

_________________________________ 

 Before LUCERO and BACHARACH, Circuit Judges.

_________________________________ 

BACHARACH, Circuit Judge. 

 



 The Honorable Neil Gorsuch participated in oral 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 

Clerk 
2 

_________________________________ 

Mr. Roosevelt Dahda and 42 others faced criminal charges involving 

the operation of a marijuana-distribution network centered in Kansas. 

Roosevelt1

 was convicted on ten counts, and the district court sentenced 

him to 201 months’ imprisonment and ordered forfeiture in the amount of 

$16,985,250. On appeal, Roosevelt raises seven 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 between the single, 

large conspiracy charged in count 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 the quantity of marijuana involved in the 

conspiracy. 

5. The district court erred in setting Roosevelt’s base-offense 

level by miscalculating the amount of marijuana attributed to 

Roosevelt. 

6. The district court’s upward variance of 33 months was 

substantively unreasonable. 

7. The district court erred in entering a forfeiture 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 district court miscalculated the amount of 

marijuana attributed to Roosevelt. Based on these conclusions, we affirm 

Roosevelt’s convictions 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 argues that the 

government failed to prove that he had joined the large conspiracy charged 

in count one. According to Roosevelt, the evidence established only a 

number of smaller conspiracies. 

To decide whether the evidence of guilt sufficed, we engage in de 

novo review, considering the evidence in the light most favorable to the 

government to determine whether any rational jury could have found guilt 

beyond a reasonable doubt. United States v. Yehling, 456 F.3d 1236, 1240 

(10th Cir. 2006). We consider the direct and circumstantial evidence but do 

not balance conflicting evidence or consider the witnesses’ credibility. Id. 

To prove a conspiracy, the government must show that (1) two or 

more persons agreed to violate the law, (2) the defendant knew the 

 

2

 Count one also charged Roosevelt 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 conspiracy, (3) the defendant knowingly and 

voluntarily 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 evidence, 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 Roosevelt’s argument that the evidence 

established a number of smaller conspiracies rather than a single large 

conspiracy. 

The remaining question is whether the evidence was sufficient to 

show that Roosevelt joined the large conspiracy involving 1,000 kilograms 

 

3

 Roosevelt raises one argument not raised in Los’s appeal: that Mr. 

Park and Mr. Swift “may have been in direct competition with [Mr. 

Bauman] at some points.” Appellant’s Opening Br. at 34. In support, 

Roosevelt points to Mr. Park’s testimony that an individual 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 cash. R. vol. 1, at 406-

08; R. supp. vol. 4, Exhibit 704-05. When Roosevelt drove the 

truck, the hidden compartment apparently contained cash. Once 

Roosevelt arrived in California, he was to open the 

compartment to remove the cash. Id. 

2. Roosevelt relayed a request from Mr. Park for Los to travel to 

Northern California to inspect some marijuana 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 through the group’s shipping operation to 

Mr. Justin Pickel, who grew marijuana in California. R. vol. 1, 

at 474; R. supp. vol. 4, Exhibit 753. Roosevelt 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 marijuana 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, Roosevelt and Los discussed the 

fact that they had lost “half of what [they] [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 viewing it favorably to the government, 

we conclude that a rational fact-finder could conclude beyond a reasonable 

doubt that Roosevelt knowingly and voluntarily participated in the large 
6 

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 (10th Cir. 1992) (“[A] defendant’s participation 

in the conspiracy may be slight and may be inferred from the defendant’s 

actions so long as the evidence establishes a connection to the conspiracy 

beyond a reasonable doubt.”). In United States v. Anaya, for instance, the 

defendant participated in a drug conspiracy only by installing hidden 

compartments in vehicles. 727 F.3d 1043, 1051 (10th Cir. 2013). We held 

that the evidence was sufficient for conviction on a conspiracy charge 

because the compartments had been insulated 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, and 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 evidence was sufficient to show that he (1) had 

agreed to violate the law, (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 and voluntarily participated in the 

conspiracy, and (4) had facilitated the conspiracy’s objective. 

Roosevelt counters that the government did not prove 

interdependence because he was unknown to several co-conspirators and 
7 

the conspiracy could have operated without him. These arguments overstate 

what the government had to prove. The government did not need to prove 

 that Roosevelt knew or had connections with all other members 

of the conspiracy or 

 that Roosevelt was indispensable to the conspiracy. 

See United States v. Foy, 641 F.3d 455, 465 (10th Cir. 2011). “[R]ather, it 

is sufficient that [Roosevelt] was an operational link within [the 

conspiracy].” United States v Cornelius, 696 F.3d 1307, 1318 (10th Cir. 

2012). In light of the evidence, we conclude that the evidence sufficed for 

a finding that Roosevelt had at least been “an operational link” within the 

conspiracy. Id. 

* * * 

Viewed in the light most favorable to the government, 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 challenge to the sufficiency of the 

evidence on count one. 

II. Variance

Roosevelt also urges a prejudicial variance between the conduct 

charged in count one and the trial evidence. According to Roosevelt, the 
8 

evidence established only smaller conspiracies rather than a single, large 

conspiracy.4

“In the context of a conspiracy conviction, we treat a variance claim 

as a challenge to the sufficiency 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). Viewing the challenge in 

this manner, we engage in de novo review. United States v. Caldwell, 589 

F.3d 1323, 1328 (10th Cir. 2009). 

Applying de novo review, we rejected 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 Roosevelt 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 occurred because (1) the 

charge involved both cocaine and marijuana and (2) the trial evidence 

proved only a marijuana conspiracy. The government argues that we should 

apply plain-error review to the new variance argument raised 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 (10th 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 moved 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 challenge 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 kilograms) of marijuana, resulting in a 

base-offense level of 28. See U.S.S.G. § 2D1.1 (2014). With adjustments 

and criminal history, the guideline range was 135 to 168 months. The 

district court then varied upward by 33 months on the ground that 

Roosevelt had manipulated a co-defendant into not cooperating with the 

government. 

Roosevelt urges a remand for resentencing based on three arguments: 

1. The sentence exceeded the statutory maximum because the jury 

did not specifically find 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, participation in a 

conspiracy involving 1,000 kilograms or more of marijuana. Roosevelt 

argues that the prison sentence 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 penalty 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 quantity of the substance. In cases 

involving at least 1,000 kilograms or more of marijuana, subsection 
11 

(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 have been sentenced under (b)(1)(D) because the verdict 

form had not included a specific finding on the marijuana quantity. But 

Roosevelt waived this argument in district court. 

When the district court asked Roosevelt’s attorney which subsection 

applied, the attorney responded: 

Your Honor, I would agree that (b)(1)(C) is the 

appropriate provision under Section 841 as regards to the 

defendant’s sentencing range and that’s because the jury did 

not find the quantity of drugs necessary to trigger any 

mandatory minimum that’s based on quantity, and (b)(1)(A) 

and (b)(1)(B) are based on quantities. (b)(1)(C) states that for 

any substance under Schedule 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 applies in the absence of any quantity found 

by the jury. And so we would argue that (b)(1)(C) applies as 

the defendant’s statutory range which has no mandatory 

minimum and has the maximum of 20 years. 

R. vol. 3 at 2648-49. 

 The threshold issue is whether defense counsel’s statement 

constitutes a waiver, which would arise 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, the 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 relinquishment or abandonment of a known 

right.” (citations & internal quotation marks omitted)). We conclude that 

defense counsel waived the present argument. 

When asked which statutory provision should apply, defense counsel 

stated that Roosevelt should be sentenced under § 841(b)(1)(C); and the 

district court relied on this representation. These circumstances constitute 

invited error. See United States v. Teague, 443 F.3d 1310, 1316 (10th Cir. 

2006) (rejecting the defendant’s challenge to the conditions 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 finding on quantity. We disagree, for 

Roosevelt expressly agreed that the statutory maximum was provided in 

(b)(1)(C). 

But even if Roosevelt had not invited error in district court, we 

would reject the argument under the plain-error standard. 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 the 
13 

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 whether the lack of an 

express jury finding on quantity required 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 (10th Cir. Apr. 4, 2017). Under de novo review, we 

concluded that the answer was “no” because the quantity of 1,000 

kilograms constituted an element of the charged conspiracy. Id.

The same reasoning applies here. Using the same instructions and 

verdict form described in Los Dahda, the jury found Roosevelt guilty on 

count one, which required the jury to find that the conspiracy involved 

1,000 kilograms or more of marijuana. Therefore, Roosevelt’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 constituted 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 drugs attributable to 

him. The district court adopted the presentence report’s recommendation, 

which attributed 1,600 pounds (725.7 kilograms) of marijuana to 
14 

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, the presentence report estimated that 20 pallets, 

each containing 80 pounds of marijuana, had been shipped from California 

to Kansas—for a total of 1,600 pounds. R. vol. 4, at 49-50. The district 

court determined that this estimate had been “reasonable and reliable and 

conservative,” resulting in a base-offense level of 28. R. vol. 3, at 2668. 

Roosevelt argues that (1) he was pinned with marijuana shipments 

that he could not have reasonably foreseen and (2) even if the shipments 

had been reasonably foreseeable, the district court clearly erred in 

estimating that each pallet contained 80 pounds of marijuana.7

 We reject 

 

6

 These dates were selected because Roosevelt had been in prison 

through November 2010 and was arrested on the present charges in May 

2012. 

7

 At oral argument, Roosevelt argued for the first time that the jury 

should have determined the quantity of marijuana used to calculate the 

base-offense level. But “[i]ssues raised for the first 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 fail 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 judge “did not cause [the defendant’s] sentence to exceed 

the statutory maximum, Apprendi [v. New Jersey, 530 U.S. 466 (2000)]

[would] not require that the jury make findings 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 otherwise have existed. Accordingly, there 

was no Apprendi violation. 
15 

Roosevelt’s first argument but agree that the court clearly erred in 

estimating that each pallet contained 80 pounds of marijuana. Accordingly, 

we remand for resentencing. 

1. Reasonable Foreseeability 

A defendant is accountable for all reasonably foreseeable drug 

quantities that were within the scope of the jointly undertaken criminal 

activity. U.S.S.G. § 1B1.3 cmt. 2 (2014). 

“We review the district court’s factual finding concerning the 

quantity of drugs for which a defendant may be held accountable under a 

clearly erroneous standard.” United States v. Ortiz, 993 F.2d 204, 209 

(10th Cir. 1993). The finding is clearly erroneous only 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 district court could reasonably have found that the 

government had satisfied its burden on foreseeability 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 responsible 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 connection with Mr. Bauman would not 
16 

preclude responsibility for the five shipments. See Part I, above. And the 

evidence showed that beginning in early 2011, Roosevelt was selling 

marijuana in Kansas that had been acquired in California. R. vol. 3, at 

1231-50, 1260-62. 

Roosevelt also argues that he was not personally linked to any of the 

shipments. But Roosevelt could be responsible for shipments even if he 

was not personally linked to them. “Section 1B1.3(a)(1)(B) makes clear 

that in calculating a defendant’s offense level under the Guidelines, a 

defendant must be held accountable for the conduct of his co-conspirators, 

including conduct in which the defendant did not personally participate, as 

long as the conduct was within the scope of the jointly undertaken criminal 

activity and was reasonably foreseeable to the defendant.” United States v. 

Sells, 541 F.3d 1227, 1235 (10th Cir. 2008). 

In United States v. Williams, we upheld a defendant’s base-offense 

level predicated on the entire quantity of drugs involved in the conspiracy. 

897 F.2d 1034, 1041 (10th Cir. 1990). We agreed with the sentencing court 

that “at a minimum” the defendant “had knowledge of the criminal 

enterprise” and participated 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 distribution network and participated in that network. 
17 

This participation included driving cash to California for 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 marijuana 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 reasonably foreseeable and within the scope 

of the criminal activity undertaken by Roosevelt.

2. Estimate of Marijuana Quantity 

Roosevelt also argues that the district court clearly erred in 

estimating that each of the 20 shipped pallets contained 80 pounds of 

marijuana. We agree with Roosevelt. 

The government bears the 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 consist 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. Bauman testified that each pallet had 
18 

contained between “five or ten pounds to eighty pounds” of marijuana. R. 

vol 3, at 2251. Mr. Bauman and Mr. Swift remarked that toward the end of 

the conspiracy, each pallet 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 testimony does not 

support a finding that the pallets contained an average of 80 pounds. In 

fact, the presentence report states that one of the shipments attributed to 

Roosevelt had contained only 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 period Mr. Bauman and Mr. Swift were referencing 

when they testified that toward the end of the conspiracy, the pallets 

usually contained 80 pounds. 

In United States v. Roberts, we held that an estimate entailed clear 

error because the district court had attempted to extrapolate 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 between 1987 and February 1991. Id. at 520. 

The district court used this figure to estimate that the defendant was 

responsible for distributing 60 pounds of methamphetamine between 

January 1, 1989, and February 26, 1991. Id. at 519-20. We rejected this 
19 

estimate, concluding that the district court had “ground[ed] its conclusion 

in midair” because no reasonable basis existed to extrapolate the finding 

from the 150-200 pounds that the defendant had admitted. Id. at 521. 

United States v. Richards is also instructive. 27 F.3d 465 (10th Cir. 

1994). There a witness testified that she had bought drugs from the 

defendant in amounts varying from week to week, “sometimes one or two 

grams and sometimes four or five.” Id. at 469. Law enforcement then used 

the maximum weekly quantity of five grams to estimate that the witness 

had purchased “80 grams, on the assumption 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, conflicting, and unsupported by other evidence. 

Id. 

Though Mr. Bauman and Mr. Swift are arguably more reliable than 

the witness in Richards, their testimony was also vague. Without a way to 

tie their testimony concerning the pallets of 80 pounds to the shipments 

attributed to Roosevelt, the testimony 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 marijuana attributable to Roosevelt. The 

burden falls on the government to demonstrate, by a preponderance of the 
20 

evidence, that the error did not affect Roosevelt’s substantial rights. 

United States v. Harrison, 743 F.3d 760, 764 (10th 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 plants 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, the additional evidence would account for just over 

81 pounds, which was only about 5% of the marijuana weight that the 

district court attributed to Roosevelt. Thus, the 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 marijuana 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 interchangeably. We conclude that the court 

actually applied a variance rather than a departure. The district court 

imposed the sentence based on the 18 U.S.C. § 3553(a) factors. When a 

court applies the § 3553(a) factors to impose a sentence outside the 

guideline range, the district 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 reasonableness focuses on the 

length of the sentence and requires that sentences be neither too long nor 

too short. Id. 

We review substantive reasonableness 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 discretion 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 range. The district court justified the 

variance on the ground that Roosevelt had pressured a co-defendant, Ms. 

Sadie Brown, into not cooperating with the government. Because Ms. 

Brown did not cooperate with the government, she did not receive a 

“safety-valve” adjustment. See 18 U.S.C. § 3553(f)(5); U.S.S.G. 

§ 5C1.2(a)(5). Without this adjustment, Ms. Brown obtained a sentence 12-

33 months higher than she might otherwise have received. 

 Roosevelt argues that the district court lacked evidence to find 

manipulation of Ms. Brown. We reject this argument. The district court 

could reasonably rely on the evidence presented at Roosevelt’s sentencing, 

combined with what the court had already known from Ms. Brown’s 
22 

sentencing. See United States v. Spears, 197 F.3d 465, 471 (10th Cir. 

1999).9

At Roosevelt’s sentencing, the government produced two letters that 

Ms. Brown had received from Roosevelt. The first letter opens with “How 

is my favorite student?” and instructs 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 based on ineffective legal assistance, and send a copy 

of correspondence about her case “home to [Roosevelt’s mother].” Id. at 1. 

The letter adds that trying for the safety-valve adjustment now would not 

hurt anyone. Id. at 2. The second letter similarly 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 sentencing transcripts. See Tr. of Sentencing Volume II, 

United States v. Brown, No. 12-20083-03-KHV-3 (D. Kan. Mar. 9, 2015),

ECF No. 1813; Tr. of Sentencing 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 question the district court’s ability to rely on Ms. 

Brown’s sentencing proceedings. 
23 

KHV-3 (D. Kan. Mar. 9, 2015), ECF No. 1813. Ms. Brown testified that 

she had provided information to the best 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 case agent who had conducted the 

safety-valve interview. The case agent testified that Ms. Brown had not 

been forthcoming during her interview, adding that “during the course of 

the proffer examination, there [had been] 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 safety-valve interview, there was 

discussion that the Dahdas had treated Ms. Brown “like a slave . . . .” Id. at 

37. 

 After hearing this testimony, the district court continued the 

sentencing to give Ms. Brown a second opportunity to qualify for a safetyvalve adjustment. At the continued hearing, the case agent testified that 

Ms. Brown had still not been completely truthful and had minimized the 

criminal activity of individuals related to Roosevelt. For instance, the case 

agent expressed the belief that Ms. Brown had minimized the involvement 

of co-defendant Nathan Wallace—Roosevelt’s half-brother—who had yet 

to be sentenced. Tr. of Sentencing 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 sentencing, the district court found that Roosevelt 

was “legally and morally responsible for [the] extra time that [Ms. Brown] 

[was] doing” and that a sentence within the guideline range would not 

“adequately take into account all of the relevant conduct here.” R. vol. 3, 

at 2685-86. These findings were not clearly erroneous. Thus, we conclude 

that the district court (1) acted within its discretion in varying upward and 

(2) imposed a substantively reasonable sentence. 

V. Forfeiture

Roosevelt’s final argument is that the district court erred in ordering 

forfeiture in the amount of $16,985,250. According to Roosevelt, the 

forfeiture order should be vacated for three reasons: 

1. The district court violated the federal rules by failing to enter a 

preliminary order of forfeiture. 

2. The district court lacked sufficient evidence for the amount of 

the forfeiture. 

3. The district court failed to specify the amount of the forfeiture. 

We reject these arguments. 

 First, Roosevelt urges vacatur of the forfeiture order because the 

district court failed to enter a preliminary order of forfeiture as required by 
25 

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 plain, (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 property is subject to 

forfeiture, the court must enter a preliminary forfeiture order “sufficiently 

in advance of sentencing to allow the parties to suggest revisions or 

modifications before the order becomes final . . . .” Fed. 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 omission constituted an error that 

was plain. The resulting issue is whether 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 error affected Roosevelt’s substantial rights only if the 

outcome was likely affected. Romero, 491 F.3d at 1178. 

The outcome here was unaffected because Roosevelt had notice of a 

potential forfeiture in the amount of $16,985,250. Indeed, Roosevelt does 
26 

not question the 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 forfeiture, Roosevelt argues 

that he was deprived of “procedures to contest the deprivation of property 

rights.” Appellant’s Reply Br. at 22 (internal quotation 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 Allegations, but his objections were entirely 

ignored.” 691 F.3d 979, 988 (8th Cir. 2012). 

Roosevelt does not explain 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 entered. These circumstances differ from those in 

Shakur, where the defendant’s pre-sentencing objections were completely 

ignored. 

In contrast, Roosevelt’s only objection was addressed to his 

satisfaction at the sentencing. Nor is it true here, as it was in Shakur, that 

“[t]he only mention of forfeiture came at the very end of the lengthy 

 

10 In objecting before the hearing, Roosevelt argued that it was unclear 

how much of the $16,985,250 had been generated by sales of marijuana 

rather than cocaine. R. vol. 4, at 77. That objection was addressed to 

Roosevelt’s satisfaction at the sentencing, 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 preliminary order of forfeiture did not affect 

Roosevelt’s substantial rights. 

In addition, Roosevelt “challenges the forfeiture judgment for the 

same reasons that he challenges his conspiracy conviction, namely that 

there was insufficient evidence of the single conspiracy, and a variance.” 

Appellant’s Opening Br. at 59. We reject this argument for the same 

reasons discussed above. See Parts I-II, above. 

Roosevelt also urges vacatur on the ground that the final judgment 

did not state the forfeiture amount. It is true that the final judgment 

omitted the amount of the forfeiture. Instead, the judgment purported to 

make the preliminary order of forfeiture final as to Roosevelt. But as just 

discussed, the court never filed a preliminary order of forfeiture. As a 

result, the final judgment failed to incorporate 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 presentence report, $16,985,250. R. vol. 3, at 2679-80 

(addressing Roosevelt’s objection 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 forfeiture when orally 

announcing the sentence or must otherwise ensure that the defendant knows 
28 

of the forfeiture at sentencing” 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 clerical error in a judgment . . . .” 

Fed. R. Crim. P. 36. 

Roosevelt does not dispute oral pronouncement of a forfeiture order 

in the amount of $16,985,250. Thus, the failure to specify the forfeiture 

amount in the final judgment is an error that may 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 revealed 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 from the bench is the sentence.”). 

In sum, the failure to state the forfeiture amount 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 forfeiture in the amount of $16,985,250. 

 
29 

VI. Disposition

We affirm the convictions and forfeiture order, but remand for 

resentencing based on the error in calculating the amount of marijuana 

attributable to Roosevelt.