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 Pub lic Defender (Virginia L. Grady, Federal Public Defender, with him on the supplement al brief, and Dionne M. Scherff, Erickson Scherff, LLC, Overland Park, Kansas, on th e 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 A ttorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United St ates Attorney for the District of Kansas, Topeka, Kansas, appeari ng for Plaintiff - Appellee.

Before LUCERO , MATHESON , and BACHARACH , Circuit Judges.

MATHESON , Circuit Judge.
Kennin Dewberry supplied significant am ounts of powder cocaine to Virok Webb and his associates, who ran a drug distribut ion ring out of Juncti on City, Kansas. Mr. FILED United States Court of Appeals Tenth Circuit 

### June 23, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - Webb and his associates would transform so me of this powder into crack cocaine 1 and expand the rest of it into more (albeit dilu ted) powder cocaine by using a process dubbed the “trick.” Mr. Webb and his associates then sold the crac k and powder to dealers and drug users. Based on this drug activity, the Governme nt charged Mr. Dewberry and several other codefendants with conspiracy to distri bute 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 containi ng a detectable amount of powder cocaine (Count 2). Only Mr. Dewberry went to tr ial, with the other codefendants entering into pl ea agreements with the Gove rnment. A jury found Mr. Dewberry guilty on both charges. The jury also returned special verdicts pertaining to the amount of drugs and findin g he conspired to distribute 280 grams or more of crack and 5 kilograms or more of powder. The di strict 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 ch allenges (A) the sufficiency of the evidence for the two conspiracy convictions, (B) the sufficiency of th e 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 provis ions 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 dist inguish cocaine base from powder cocaine.- 3 - 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. We bb’s drug-dealing activities be gan in 2009 or 2010. Mr. Webb was the “top guy” in a powder and cr ack 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 th e summer of 2009, Mr. Smith was shot and killed. After Mr. Smith’s death, Mr. Webb s ecured Mr. Dewberry, his half-brother, as his new source of supply. Mr. De wberry 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 co caine from Mr. Dewberry. Ms. Fuller and other witnesses testified that they received only po wder cocaine from Mr. Dewberry. By contrast, in the past, Mr. Webb had receive d 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.- 4 - 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 cr ack 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 s uperseding 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 Governme nt 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 conve rsion that is relevant for our later discussion of drug amount cal culations for sentencing.- 5 - On March 8, 2012, Mr. Dewberry filed a moti on 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 witn esses 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, deem ing 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 M r. Dewberry’s motion. Mr. Dewberry’s trial began on July 22, 20 13. 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, co oked 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 cl ose 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 return ed special verdicts pertaining to the amount of drugs and finding he conspired to distri bute 280 grams or more of crac k and 5 kilograms or more of powder. Mr. Dewberry moved for a new tria l under Rule 33 of the Federal Rules of Criminal Procedure, which the district court denied.
2. Sentencing The U.S. Probation Office pr epared a presentence report (“PSR”) that analyzed the amount of drugs attributable to Mr. Dewber ry and calculated his Guidelines range on- 6 - each offense. The parties discussed the PS R’s calculations at th e 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 adopte d the PSR’s calculations. ROA, Vol. IV at 261. We briefly recount this informati on from the PSR discussed at the sentencing hearing and in the parties’ briefs. The PSR determined the tria l evidence established that Mr. Dewberry provided Mr. Webb between 4.5 and 9 ounc es 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 we ek for 21 weeks. It then estimated that out of the 4.5 ounces of powder cocaine Mr. Webb receive d weekly, he converte d 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 oun ces 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 powd er 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) (provi ding a 21 U.S.C. § 846 offens e involving at least 3,000 kilograms but not more than 10,000 kilograms of marijuana equivalent has a base offense

5 The Guidelines provide th at 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 toge ther. 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).- 7 - level of 34). The offense level combined w ith 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 se ntence of 20 years (240 m onths) on each count based on the quantity distributed and hi s 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—wh ich concerned a single cook of 3.5 grams of cocaine—did not, he contende d, establish that the large quantities of powder Mr. Webb converted into crack cocaine were reasonably fo reseeable to Mr. Dewberry. At the sentencing hearing on January 27, 2014, the district court rejected Mr. Dewberry’s objection to the PSR’s crack co caine 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 tu rn turned it into crack cocain e.” ROA, Vol. IV at 247. Nevertheless, the court found it was reasonabl y foreseeable to Mr. Dewberry that Mr. Webb was producing and selling crack cocai ne. 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 eviden ce illustrates is that Mr. Dewberry was aware that Mr. We bb distributed crack cocaine, th at 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.- 8 - The district court sentenced Mr. Dewbe rry 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 co nvictions and sentence.
II. DISCUSSION We affirm on all four issues presented in this appeal. The first two issues are sufficiency-of-the evidence cha llenges that stem from the dist rict court’s denial of two motions. In his motion for a judgment of ac quittal 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 th e drug quantities in either count. In his motion for a new trial br ought 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 al so 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 su fficiency-of-the-evidence challenge contends the prosecution failed to prove a prima facie ca se 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.- 9 - whether Mr. Dewberry appeals the denial of the motion for a judgme nt of acquittal, the motion for a new trial, or bo th, 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 judgme nt 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) (applyi ng 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 st andard to the denial of a Rule 33 motion when the underlying challenge concerned the sufficiency of th e evidence). “We review a sufficiency of the evidence challenge de novo, viewing the evidence and the reasonable inferences to be drawn th erefrom in the light most favorable to the government.” United States v. Hale , 762 F.3d 1214, 1222 (10t h Cir. 2014) (quotations omitted). “We will reverse only if no rational tr ier of fact could have found the essential elements of the crime be yond a reasonable doubt.” Id . at 1222-23 (quotations omitted). In other words, we ask whet her “a reasonable jury could find the defendant guilty.”- 10 - United States v. King , 632 F.3d 646, 650 (10th Cir. 2011) (quotations omitted). “In conducting this review we may neither we igh 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) (q uotations 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 inferenc e upon inference to conclude the defendant is guilty, we will reverse the conviction.” Id. (quotations omitted). “While the jury ma y 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 Ci r. 2004) (quotations omitted). And “[t]he evidence presente d 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 conte nd 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 insufficien t to establish that Mr. Dewberry participated in a conspiracy . . . .” Aplt. Br. at 14-15. He also writes that the “cooperating individuals posse ss a self interest that cann ot be overlooked and should be supported by corr oborating evidence.” Id . at 16.- 11 - We reject Mr. Dewberry’s ar gument 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 uncorrobora ted 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 asse ss the credibility of the witnesses on appeal; that task is reserved fo r 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 fact s 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 witn ess 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 pr osecutions 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 ju ry can assess the witness’s credibility, implying a guilty plea does not automatically make a witness incredible).- 12 - B. Sufficiency of the Evidence on Count 1 (Crack): Drug Quantity Mr. Dewberry also argues th e evidence was insufficien t to establish that he conspired to distribute 280 grams or more of cr ack. We review this issue under the same sufficiency-of-the evidence standard discussed above. Count 1 charged Mr. Dewberry with conspi ring to distribute 280 grams or more of crack cocaine, in violation of 21 U.S.C. § 846, with refere nce to penalty section 21 U.S.C. § 841(b)(1)(A)(iii), wh ich 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 minimu m 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 pr ior conviction, he woul d 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 (201 3). In reaching its guilty verdict on Count 1, the jury made a spec ial 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 ev idence 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,- 13 - 1292 (11th Cir. 2006) (“We believe the argum ent Segura-Baltazar has made is more in the nature of a challenge to th e sufficiency of the evidence. Essentially , he says that the evidence was insuffi cient to support the dr ug 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 wh ich was within the scope of the agreement and reason ably 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 mu st have based its finding of 280 grams or more of crack on reasonable foreseeability becau se 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 extensiv e powder cocaine conspi racy combined with

7 Our case law holds a defendant acco untable 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 reason able foreseeability of the drug quantity, not whether the quantity was within the scope of the agreement. As such, we discuss only reasonable foreseeability.- 14 - 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. Dewb erry’s conviction and 240-month
sentence on Count 1. Circuit court decisions about conspira cies 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 di stribute marijuana and cocaine. Appellant Smith argued “his in volvement 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’] tele phones make the inference of his connection even more reasonable. Fi nally, Smith’s conten tion that he may not be connected to the single scheme because of the absence of his actual knowledge of cocaine distribution is wit hout merit. It is fundamental that a party may join an ongoing conspira cy 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 convi ction 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. Lillibridg e’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 statemen t.” 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.- 15 - 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 cr ack cocaine.” Mr. Akins could be held responsible for the powder given his “substantial role in the cons piracy and his relations hip to the other coconspirators.” Id . The court also noted Mr. Akins had some direct dealings in powder: “Trentargus Holt, a cocaine dealer and coopera ting witness, testified that he bought half an ounce to an ounce of po wder 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 ch allenge 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 ne ver sold crack, that did not undermine his conviction: The government’s evidence establishe d 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] co mplained 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 evid ence established that Jones once gave advice to [anothe r co-conspirator] about cooking the powder into an oil base. This evidence is suffi cient to connect Jones to the conspiracy to distribute crack, even if Jones himself never sold crack.

9 Although unpublished, this decisi on nonetheless has instructive value.- 16 - Id . at 247. In the instant case, a reasonable jury co uld 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 cons piracy. Mr. Dewberry became Mr. Webb’s source of powder cocaine supp ly 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, fro m about the summer of 2009 to about March 2010. Mr. Dewberry was therefore involved in an ex tensive powder cocaine conspiracy. His participation in transactions involving larg e 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 hi s associates converted some of the powder received from Mr. Dewberry into crack. Several witnesses testified that when the drivers returned to Junction City after pick ing up powder from Mr. Dewberry in Kansas City, drug organization members would cook so me of this powder into crack. Based in part on Mr. Dewberry’s knowledg e of the powder conspiracy, the close relationship between powder and crack (powde r being a necessary ingredient of crack), and Mr. Webb’s conversion of so me of this powder into cr ack, a reasonable jury could infer that Mr. Dewberry coul d reasonably foresee that Mr. Webb converted powder into- 17 - 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 tes tified that on one occasion, during “a delay in getting the stuff,” he went to a residence that belonge d to either Mr. Webb’s or Mr. Dewberry’s grandmother. ROA, Vol. III at 277. Ther e, Mr. Lillibridge, Mr. Dewberry, and Mr. Webb waited to pick up so me 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 conv erting the powder into crack. Moreover, it is significant that Mr. Dewberry cooked powder into crack not only in th e presence of a driver, but also with the “top guy” in the drug conspiracy. When asked why they cooked the 3.5 grams of powd er into crack, Mr. Lillibridge responded, “Because that’s what [Mr. Webb] so ld. I mean, he didn’t really sell much powder at all.” Id . Mr. Lillibridge continued to e xplain 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 convicti on even in the absenc e of evidence showing the appellant’s involvement w ith 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 ne eded. We discuss th at evidence next.

11 The Government conceded there is no evidence in the record that Mr. Lillibridge made this statement about Mr. We bb’s exclusive dealings with crack in Mr. Dewberry’s presence.- 18 - that it would be reasonable for a jury to in fer, 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 challe nge, we hold the larg e 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 gr ams or more of crack.
C. Sentence on Count 2 (Powder) Because we affirm the conviction a nd sentence on Count 1, we need not necessarily reach the next issu e on the imposition of the 168- month sentence on Count 2. The district court sentenced M r. Dewberry concurrently. So even if we were to reverse for a lower sentence on Count 2, Mr. Dewbe rry 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 discre tionary 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.- 19 - 1. Additional Procedural History Count 2 charged Mr. Dewberry with conspi ring to distribute 5 kilograms or more of powder cocaine in violatio n of 21 U.S.C. § 846, with refe rence 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 pr ior conviction for a felony drug offense raised the mandatory minimu m sentence on Count 2 to 20 years. See 21 U.S.C. § 841(b)(1)(A). The jury found Mr. De wberry guilty on Count 2 and made a special finding that he had conspired to di stribute 5 kilograms or more of powder cocaine. The PSR, however, determined that M r. 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 calcu lation was lower than the ju ry’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 co nspiracy 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, no t 20, years.

12 Puzzlingly, Mr. Dewberry suggested he should be held accountable for 2,679.02 grams of powder, an amount higher than th e PSR’s and district court’s finding of 2,381.40 grams. He does not contest that e ither amount would subject him to a 10-year mandatory minimum sentence.- 20 - To calculate the Guidelines range for C ount 2, the court cons idered 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 crac k weekly for 21 weeks, for a total of 52.5 ounces, or 1,488.375 grams of crack. The PS R 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 th at Mr. Dewberry was responsible for 2,381.40 grams of powder. The PSR multiplied the 2,381.40 gram s of powder by 200 grams of marijuana for a tota l marijuana equivalent of 4 76.28 kilograms. The total amount of marijuana equivalent was 5,791.26 kilograms, which corresponded to a base offense level of 34. Combined with a crimin al history of II, this yielded a Guidelines range of 168-210 months on Count 2. The di strict court sentenced Mr. Dewberry to 168 months, to run concurren tly with Count 1.
2. Analysis 13 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 am ount by multiplying 4.5 ounces and 28.3495 (because 1 ounce

13 As explained above, the issue before th is court on Count 1 concerned an element of the crime—whether a reasonable jury c ould have found beyond a reasonable doubt that Mr. Dewberry conspired to distribute 28 0 grams or more of crack. As such, Mr. Dewberry’s challenge constitute d 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.- 21 - is equal to 28.3495 grams). 14 He argues that this amount, combined with his calculated powder quantity and converted into a mariju ana equivalent of 1, 246 kilograms, would result in an offense level of 32, rather than 34. Mr. Dewberry makes a procedural reasonabl eness 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 . . . revi ew 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 employe d by the district court to calculate the applicable Guidelines range may be said to be clearl y erroneous only when the district court’s finding was without factual suppor t 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 sentenci ng 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 miscalculate d 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, be cause we affirm the district court’s crack quantity finding.- 22 - v. Walters , 269 F.3d 1207, 1214 (10t h Cir. 2001) (alterations and quotations omitted). But “[t]he government bears the burden of proving, by a preponderan ce of the evidence, the quantities of drugs attribut able to each defendant.” Torres , 53 F.3d at 1144. The Guidelines authorize a sentencing co urt to consider “r elevant 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 c ontraband with which he was directly involved and, in the case of a jointly undertaken criminal acti vity, all reasonably foreseeable quantities of contraband that were within th e scope of the criminal activity that he jointly undertook.” Id . at cmt. n.2 (2013). Mr. Dewberry does no t 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 go es only to the quantity of crack, contending 1,488.375 grams of crack were not reas onably foreseeable to Mr. Dewberry. The district court did not clearly err in a ttributing 1,488.375 gr ams of crack to Mr. Dewberry. Based on Mr. Lillibridge’s te stimony about Mr. Webb and Mr. Dewberry cooking cocaine together, the district c ourt 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 cour t’s account of the ev idence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though- 23 - convinced that had it been sitting as the trie r 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 discreti on in imposing the 168- month sentence, which was within the correctly-calculated Guidelines range.
D. Motion to Sever Mr. Dewberry argues the district court ab used its discretion in denying his initial motion to sever in April 2012, even though the court grante d 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 sanc tioned. 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 moti on 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).- 24 - 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 briefi ng 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. Dewb erry 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 particip ated in the same act or transaction, or in the same series of acts or transactions, constitu ting an offense or offenses.” Fed. R. Crim. P. 8(b). Rule 14(a), however, permits a court to sever a trial if jo inder would prejudice a defendant. See Fed. R. Crim. P. 14(a). To determine whether the di strict 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 Ame ndment privilege; 2) the significance of the testimony in relation to the de fendant’s theory of defense; 3) the exculpatory nature and effect of such testimony; 4) the likelihood that the co-defendant’s testimony would be impe ached; 5) the extent of prejudice caused by the absence of the testimony; 6) the effect of a severance on judicial administration and economy; [a nd] 7) the timeliness of the motion. United States v. McConnell , 749 F.2d 1441, 1 445 (10th Cir. 1984). Although the district court denied his fi rst motion to sever, it granted his second motion to sever under Rule 14(a). Mr. Dewberry received the severed trial he requested.- 25 - None of the McConnell factors are implicated. Thus, he does not show how denial of the first motion prejudiced him. Because he fa ils 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 M r. Dewberry’s convictions and sentence.