FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-8014, 18-8015 (D.C. No. 1:17-CR-00167-ABJ-1) SAVON GERMAIN CARTER and (D.C. No. 1:17-CR-00167-ABJ-2) CHRISTINA MARIE EICHLER, (D. Wyo.)
Defendants - Appellants. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________
A federal jury convicted Savon Carter and Christina Eichler of the sole count
charged against them—conspiracy to distribute 500 grams or more of a mixture or
substance containing a detectible amount of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(l), (b)(1)(A), and 846. Carter and Eichler have individually
appealed, challenging their respective convictions and sentences.1 Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Carter and Eichler filed separate appeals. Because of the substantial overlap in the issues, we have consolidated their appeals in this order. BACKGROUND
The defendants, Christina Eichler and Savon Carter, both hail from Utah.
Eichler lived in Wyoming from May to July 2016, after which she returned to Utah,
where she and Carter cohabitated as a couple in Midvale, Utah, a suburb south of Salt
Lake City. Eichler returned to Wyoming every week or two to visit her two teenage
sons, who were living there in youth homes. But Eichler also traveled to Wyoming
for a second reason: to sell methamphetamine.
On September 18, 2016, during one of these trips to Wyoming, a Utah state
trooper stopped Eichler for speeding in her Chrysler PT Cruiser near Park City, Utah.
Eichler was on her way to sell “a couple ounces” of methamphetamine and “some
marijuana” to a Wyoming resident named Darrell Gilson at a Walmart in Evanston,
Wyoming. Carter’s ROA vol. 3 at 299:12. The state trooper smelled raw and burnt
marijuana wafting from Eichler’s car, so he searched the car and her purse. He found
about an ounce of marijuana and an ounce of methamphetamine. He arrested Eichler
and booked her into the Summit County, Utah jail. While detained, Eichler
repeatedly called Carter from the jail system’s recorded line. Among other things,
Carter and Eichler discussed obtaining money from their associates for Eichler’s
bond. Carter and Eichler also discussed the need for Carter to sell something to
Gilson while Eichler was detained. Eichler told Carter, “Tell [Gilson], like, I can
handle what Christina handled for you.” Govt. Exhibit 14A. Carter related to Eichler
his conversation with Gilson, in which Carter told Gilson that he should chip in to
help post Eichler’s bond because “she got pulled over going to meet you.” Id.
2 According to Gilson, Carter later told Gilson that he could sell him
methamphetamine at the same price Eichler was selling.
While in jail in Summit County, Eichler met a woman named Sadie McKenna,
a methamphetamine user since childhood. Because Eichler’s driver’s license was
suspended after her arrest, she began paying McKenna $50 to give her rides to
Wyoming, telling McKenna that she was traveling to Wyoming to see her children.
McKenna drove Eichler to Wyoming three times. During these trips, McKenna never
saw Eichler use methamphetamine.2
For their first trip, Eichler and McKenna traveled to Green River, Wyoming in
Eichler’s PT Cruiser to visit George Maestas, who had pitched in $250 for Eichler’s
bail. After arriving, Eichler met with Maestas alone in a room in his trailer for a
while. McKenna didn’t know what they were doing, but according to Maestas,
Eichler was selling him methamphetamine. Afterward, Eichler visited her children,
while Maestas and McKenna smoked methamphetamine together. While there,
McKenna saw several people coming and going from the house: knocking on the
door, coming inside to talk to Maestas, and staying for only five or ten minutes. After
Eichler returned from visiting her children, she and McKenna returned to Utah.
For the second trip, McKenna drove Eichler back to Green River, this time to
sell Eichler’s PT Cruiser to Maestas. Maestas paid $1,000 for the car. After selling
the car, Eichler and McKenna left to gamble and later returned to stay the night at
2 McKenna testified that she obtained methamphetamine from Eichler only one time—about $10 worth—and that Eichler did not charge her for it.
3 Maestas’s house. Again, people were coming and going from the house all night and
smoking methamphetamine. One of these people was Gilson. With the PT Cruiser
sold, Eichler and McKenna needed another car to get back to Utah, so Eichler
reached out to Gilson, who agreed to sell Eichler a Chrysler 300. Because the car
needed some repairs before it was drivable, Gilson drove Eichler and McKenna back
to Utah. Gilson later drove to Utah in the purchased car (that he had supposedly
repaired) to deliver it to Eichler.
For the third trip, Eichler and McKenna drove Gilson back to Wyoming after
he delivered the Chrysler 300. On the way, the car would “just start chugging and
stop.” Carter’s ROA vol. 3 at 400:18. Gilson was able to temporarily fix the issue,
but it was a continuous problem during the drive. Because of the car’s ongoing
mechanical problems, Eichler and Gilson began haggling over the price. According
to Gilson, Eichler ultimately gave him three ounces of methamphetamine, a quarter
pound of marijuana, and cash in exchange for the Chrysler 300.
Later, Gilson began purchasing methamphetamine from Eichler and Carter at
their house in Midvale. Initially, Gilson would buy from Eichler, but then began
buying from Carter, although Eichler was present at the house for those transactions.
At some point, Gilson stopped buying from Eichler and Carter and started buying
from McKenna, because she could obtain methamphetamine at a better price.
When he couldn’t get in touch with McKenna, Gilson would buy from Michael
Flores (the third person charged in the conspiracy), who would obtain
methamphetamine from Carter and Eichler. Flores had met Eichler sometime near
4 September 2016. Like Gilson, Flores had first bought methamphetamine from
Eichler, but later began buying it from Carter instead (though Eichler was sometimes
at the house). On one occasion, Gilson was in the room when Carter delivered the
methamphetamine to Flores, and Carter became angry with Gilson because he had
been buying from McKenna instead of from him.
Around September 2016, agents of the Wyoming Division of Criminal
Investigation (DCI) began investigating Flores and Gilson for distribution of
methamphetamine. After about nine months of surveillance, DCI agents arrested
Flores in Green River on May 10, 2017, and in Flores’s backpack they found several
bags of marijuana and about four ounces of methamphetamine. Flores agreed to
cooperate in DCI’s investigation and told the agents that his suppliers were Eichler
and Carter. Gilson was later arrested on June 6, 2017.
At that point, DCI agents asked Flores to facilitate a controlled purchase with
Eichler and Carter, and Flores agreed. Flores called Carter from his cell phone. In the
calls, which the DCI agents recorded, Flores told Carter that he was “stranded” in
Evanston and asked if Carter could “come see” him. Govt. Exhibit 15A. Flores told
Carter to “bring whatever he c[ould]” because he had “a little bit of bread” to “play
around with.”3 Govt. Exhibit 15A. Flores asked, “you know what I mean?”, to which
Carter responded, “Yeah, OK, I’ll call you right back.” Id.
3 Flores explained at trial that “bread” referred to money. ROA vol. 3 at 502:4– 6.
5 In addition to making calls, Flores allowed DCI agents to send text messages
from his phone to Carter. From Flores’s phone, DCI agents texted Carter that Flores
was staying at a certain room in an Evanston motel. Carter responded that Eichler
was on her way to meet Flores there. The next morning, May 12, 2017, Eichler
arrived at the motel room, where DCI agents questioned and searched her. Despite
finding nothing illegal on her person or in her vehicle, DCI agents arrested Eichler
and booked her into Uinta County Detention Center.4
After Eichler’s arrest, DCI agents continued sending text messages to Carter
from Flores’s phone:
Flores: Christina said she has no dinner for me . . . she said she had to go to off track betting and then would come back to my room . . . what’s going on Carter: What??? She[’s] gambling??? She doesn’t have any money Flores: What’s going on I thought she was bringing me up some dinner Carter: Huh?? No she was just picking u up Flores: Ooooo u got dinner at home? Carter: Kan get some . . . are we talking salad?? Flores: . . . salad for dinner and snow if the weather is bad tonight Carter: Same order Flores: Usual Carter: Koo . . . no 5000$ Flores: 3000 $ ? [I] have to keep a little in pocket Carter: Ooooh Flores: But could do the 5 if it works better for both of us Carter: Sounds good
Govt Exhibit 21.
4 Though the DCI agents testified that they executed a probable-cause affidavit, the record does not indicate the basis for probable cause. Presumably, they asserted probable cause to believe Eichler was selling methamphetamine, based on her driving to meet Flores and the preceding text exchange.
6 While in custody at Uinta County Detention Center, Eichler placed a recorded
call to Carter. During the call, Carter asked Eichler, “Oh my god, what happened?”
Govt. Exhibit 29A. Eichler responded, “E-dub.” Id. Carter then asked, “Who!?” Id.
Eichler responded, “Mike [Flores].” Id. Eichler then said, “My charge is conspiracy
to deliver.” Id. Carter responded, “You didn’t have anything!” Id.
In an indictment filed on July 20, 2017, a federal grand jury charged Carter,
Eichler, and Flores with conspiracy to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(l), and (b)(1)(A). Flores
pleaded guilty and agreed to continue cooperating. Eichler and Carter opted to
proceed to trial. Meanwhile, Gilson and McKenna were charged in a separate drug-
conspiracy indictment. Like Flores, they each agreed to plead guilty and testify
against Carter and Eichler in exchange for a favorable sentencing recommendation
from the government.
Consistent with Rule 404(b) of the Federal Rules of Evidence, the government
notified Eichler and Carter of its intent to offer evidence of other crimes and wrongs
that they had committed but were not charged with, including distributing marijuana.
The government did not concede that the marijuana evidence was governed by Rule
404(b), but rather argued that it was inextricably intertwined with the
methamphetamine charge. Eichler and Carter filed written objections to the possible
Rule 404(b) evidence. Relevant here, the district court said the following at a pretrial
hearing on the proposed evidence:
7 I have thought about the marijuana thing. I just don’t see a way that in terms of telling the story of this case that it can be avoided. You would like everything to be totally sanitary, but that isn’t the way human beings work. Perhaps, it can be handled by way of some sort of instruction later on that reminds the jury that all we are considering is the charge in this case. . . . I think I have one that is included that is pretty close to doing that in the instruction package at this point.
Carter’s ROA vol. 3 at 190:1–10.
Trial began on November 28, 2017 and lasted four days. Gilson, Maestas,
Flores, and McKenna all testified for the government, as did several DCI agents
involved with the investigation.
Eichler and Carter each testified at trial. During her testimony, Eichler
admitted having consumed methamphetamine with Gilson, Flores, and Maestas while
she was in Wyoming to visit her sons, but she denied ever selling it. Carter also
denied selling methamphetamine. Both Carter and Eichler struggled to explain what
they meant during their recorded phone and text conversations. For example, Carter
struggled to explain how he knew that Eichler “didn’t have anything” when she was
arrested in Evanston. ROA vol. 3 at 660:8–16. And when asked what “E-dub” means,
Carter and Eichler explained that it refers to a “foul person,” id. at 656:1–13, or a
“person of questionable moral character,” id. at 686:11–20. But they struggled to
explain why there was no need to elaborate on how or why Flores was “E-dub.”5 Id.
at 656:19–657:7, 686:16–687:11. Similarly, Carter struggled to explain his text-
5 For example, the government asked Eichler, “So when you tell Mr. Carter that Mike is, ‘E-Dub. Leave it there,’ why are you telling him that?” Eichler responded that “I didn’t want to discuss it further. I didn’t understand what was going on. I was very upset.” Carter’s ROA vol. 3 at 687:6–9.
8 message conversation with Flores. One of the DCI agents testified that “salad” is
slang for “marijuana,” id. at 238:5–7, but Carter insisted that he was referring to
food, and that salad is “one of [Flores’s] favorite dishes,” id. at 665:3–4. As for
Flores’s asking about “snow,” Carter testified that he thought it was a typo and didn’t
think anything of it. Id. at 648:17–649:25, 666:7–667:4. But the DCI agent who sent
the messages from Flores’s phone testified that “snow” is slang for
“methamphetamine.” Id. at 580:6–8. When asked what he meant by “same order,”
Carter testified that he was referring to “[t]he same order of operations,” as in “salad,
dinner, . . . ribs, [video games], TV.” Id. at 667:5–16. And when asked what he was
referring to when he texted, “Koo, . . . no “$5,000?,” Carter maintained that he was
referring to money that Flores was purportedly going to pay Carter to help him fix his
car. Id. at 668:7–21.
All told, the jury heard evidence that Eichler and Carter sold more than a
kilogram of methamphetamine.6 First, Maestas testified that he had bought three
ounces and 19 grams7 of methamphetamine from Eichler, usually paying around $600
for an ounce. Second, Flores testified that Eichler had sold him methamphetamine
three times—19 grams for $300 the first time, 20 grams for $350 the second time,
and 16 grams for $300 the third time—for a total of 55 grams. Flores also testified
6 There are 28.35 grams in an ounce. 7 Maestas testified that he intended to buy an ounce, but that Eichler was “short” and provided only 19 grams, so he paid only $300. Carter’s ROA vol. 3 at 421:10–17.
9 that he bought methamphetamine from Carter eight times, usually obtaining between
one and two ounces each time. But on two of these eight occasions, Flores and Gilson
pooled their money to buy four ounces from Carter, for a total of eight ounces.8
Third, Gilson testified that Eichler had sold him between eight and eleven ounces of
methamphetamine: one ounce two or three times at Maestas’s house, one to two
ounces on two occasions at his (Gilson’s) house, three ounces for the Chrysler 300,
and one ounce at a hotel in Wyoming. Gilson also testified that he had bought
methamphetamine from both Eichler and Carter at their house in Midvale “[o]nce a
week for at least a couple months” and bought “at least a couple ounces” on every
trip, “sometimes four or five ounces.”9 Id. at 306:25–307:9. Gilson paid $600 per
ounce.
After the close of evidence, the court held a jury-instruction conference.
Relevant here, Eichler and Carter proposed that the court instruct the jury on the
“buyer-seller” defense. This defense, as provided for in the Seventh Circuit’s pattern
jury instructions, provides:
A conspiracy requires more than just a buyer-seller relationship between the defendant and another person. In addition, a buyer and seller of [a drug] do not enter into a conspiracy to [] distribute [the drug] . . . simply because the buyer resells the [drug] to others, even if the seller knows
8 Gilson’s testimony differed slightly from Flores’s on this point. Gilson testified that he and Flores pitched in and obtained eight ounces of methamphetamine from Carter on one occasion, rather than four ounces on two separate occasions. 9 The jury also heard evidence that Eichler intended to sell another one to two ounces of methamphetamine to Gilson, because Eichler was on her way to meet Gilson when she was stopped with an ounce of methamphetamine (though Gilson recalled the transaction as being for two ounces).
10 that the buyer intends to resell the [drug]. The government must prove that the buyer and seller had the joint criminal objective of further distributing [the drug] to others.
Seventh Circuit Criminal Pattern Jury Instructions, No. 5.10(A) (2012). The court
denied the request for the instruction. Despite their pretrial objection, neither Eichler
nor Carter proposed a limiting instruction regarding references to the marijuana.
After deliberation, the jury found both Eichler and Carter guilty of one count
of conspiracy to distribute methamphetamine. The jury instructions referenced the
specific quantity set forth in the indictment—500 grams or more of
methamphetamine—but did not inform the jury that it must find that quantity beyond
a reasonable doubt. But if the jury found the defendants guilty of the charged
conspiracy, a special interrogatory to the verdict form gave the jury three choices on
the methamphetamine weight—500 grams or more, 50 grams or more, or less than 50
grams. The special interrogatory required the jury to find the given methamphetamine
weight beyond a reasonable doubt. Here, the jury marked its finding that Carter and
Eichler had conspired to distribute at least 500 grams of a mixture or substance
containing a detectible about of methamphetamine.
On February 12, 2018, the district court sentenced Carter. Carter’s presentence
investigation report (PSR) assigned a base offense level of 30, under U.S.S.G. §
2D1.1(c)(3) (applying when the offense involves at least 500 grams but less than 1.5
kilograms of methamphetamine). Based on Carter’s and Eichler’s alleged threats
against McKenna before trial, the PSR applied the two-level enhancement under §
3C1.1 for obstruction of justice. Carter objected to the PSR on various grounds,
11 including that his advisory guidelines range of 151 to 188 months was too severe
when considering the sentencing factors listed at 18 U.S.C. § 3553(a). Ultimately, the
court varied downward from the advisory guideline range, sentencing Carter to 135
months’ imprisonment.
Eichler was sentenced the same day as Carter. Eichler’s PSR tracked Carter’s
on the drug weight and obstruction of justice, again providing a total offense level of
32. Relevant here, Eichler objected to the obstruction enhancement, arguing that
there was no evidence that she threatened McKenna. In response, the government
argued that “independent of any witness intimidation, Ms. Eichler should receive the
enhancement for committing perjury at trial.” Eichler ROA vol. 3 at 117. At
sentencing, the government did not call McKenna to testify about the alleged
intimidation, relying instead on Eichler’s alleged perjury.10 Eichler objected, arguing
that the jury’s verdict simply indicated it “believed [the government’s] witnesses
over her.” Id. at 799:13–14. Ultimately, the district court applied the enhancement
and sentenced Eichler to 121 months’ imprisonment (one month more than the
mandatory-minimum 120 months arising solely on the methamphetamine-conspiracy
conviction).11 Carter and Eichler both timely appealed.
10 At the sentencing hearing, the court noted that McKenna had “clammed up” during her trial testimony but acknowledged that the government was relying solely on Eichler’s alleged perjury for the obstruction-of-justice enhancement. Eichler ROA vol. 3 at 801:23. 11 Carter also received an obstruction-of-justice sentence enhancement based on his alleged perjury at trial, but Carter is not challenging that enhancement on appeal.
12 DISCUSSION
Eichler and Carter raise a total of six issues. First, both Eichler and Carter
argue that the district court erred by refusing to instruct the jury on their “buyer-
seller” defense. Second, Carter and Eichler contend that the evidence was insufficient
to sustain their respective convictions. Third, Eichler argues that the district court
abused its discretion by failing to provide instructions limiting the jury’s
consideration of testimony about marijuana. Fourth, Eichler contends that the court
erred in imposing the obstruction-of-justice sentence enhancement. Fifth, Carter
argues that the district court erred by failing to instruct the jury that the government
needed to prove—beyond a reasonable doubt—that the conspiracy involved at least
500 grams of methamphetamine. Finally, Carter challenges his sentence, arguing that
the district court failed to make specific findings as to the amount of
methamphetamine involved in the conspiracy and that the evidence was insufficient
to sustain a finding that he sold 500 grams or more of methamphetamine. We
consider each issue in turn.
I. The district court did not err by refusing to give the proposed “buyer- seller” instruction.
Carter and Eichler argue that the district court erred by refusing to give their
proposed “buyer-seller” instruction. As noted, this instruction would have required
the government to prove that Carter and Eichler had maintained a “joint criminal
objective of further distributing [drug] to others.” Seventh Circuit Criminal Pattern
Jury Instructions, No. 5.10(A) (2012); see also United States v. Turner, 93 F.3d 276,
13 285–86 (7th Cir. 1996). We review jury instructions de novo to determine whether
they “adequately apprised the jury of the issues and the governing law.” United
States v. Wolny, 133 F.3d 758, 765 (10th Cir. 1998).
“To obtain a conspiracy conviction, the government must prove: (1) an agreement
by two or more persons to violate the law; (2) knowledge of the objectives of the
conspiracy; (3) knowing and voluntary involvement in the conspiracy; and
(4) interdependence among co-conspirators.” United States v. Foy, 641 F.3d 455, 465
(10th Cir. 2011). “Interdependence is present when ‘each alleged coconspirator depends
on the operation of each link in the chain to achieve the common goal.’” United States v.
Evans, 970 F.2d 663, 670 (10th Cir. 1992) (brackets and citation omitted). Each element
must be proved beyond a reasonable doubt. Id. To convict, “[t]he jury may infer an
agreement constituting a conspiracy from the acts of the parties and other circumstantial
evidence indicating concert of action for the accomplishment of a common purpose.”
United States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998) (citation and internal
quotation marks omitted). And “conspirators are responsible for crimes committed
‘within the scope of the unlawful project’ and thus ‘reasonably foreseen as a necessary or
natural consequence of the unlawful agreement.’” United States v. Russell, 963 F.2d
1320, 1322 (10th Cir. 1992) (quoting Pinkerton v. United States, 328 U.S. 640, 647–48
(1946)).
The government’s theory at trial was that Carter, Eichler, and Flores were each
voluntary and interdependent members in an agreement to distribute 500 grams or more
of methamphetamine. See Foy, 641 F.3d at 465. But Carter and Eichler argue that the
14 government, under the Seventh Circuit’s buyer-seller rule, needed also to prove that
their drug customers in turn sold those drugs to others and then returned some of the
profits to Carter and Eichler. But our circuit has explicitly rejected the Seventh
Circuit’s interpretation of the buyer-seller rule. See United States v. Gallegos, 784 F.3d
1356, 1360 (10th Cir. 2015) (“[The Seventh Circuit’s] interpretation of the buyer-seller
rule is contrary to this court’s precedent.”). Instead, our court recognizes that “the
purpose of the buyer-seller rule is to separate consumers, who do not plan to
redistribute drugs for profit, from street-level, mid-level, and other distributors, who
do intend to redistribute drugs for profit, thereby furthering the objective of the
conspiracy.”12 United States v. Ivy, 83 F.3d 1266, 1285–86 (10th Cir. 1996). We
therefore conclude that the district court did not err by refusing to instruct as Carter
and Eichler requested.
II. The evidence at trial was sufficient to support Carter’s and Eichler’s convictions.
Carter and Eichler each argue that the evidence at trial was insufficient to establish
that they were guilty of a conspiracy to sell 500 grams or more of methamphetamine. We
review de novo any challenges to the sufficiency of evidence. United States v. Ramos-
Arenas, 596 F.3d 783, 786 (10th Cir. 2010). In doing so, we review “the evidence and its
reasonable inferences in the light most favorable to the government.” Id. We will reverse
“only if no rational trier of fact could have found the essential elements of the crime
12 The government argued at trial that Carter, Eichler, and Flores were each distributors—not consumers—who agreed among each other to sell to consumers.
15 beyond a reasonable doubt.” Id. (quoting United States v. Brown, 400 F.3d 1242, 1247
(10th Cir. 2005)). Carter and Eichler raise several arguments to support their respective
sufficiency challenges.
First, Carter argues that the only evidence supporting the government’s conspiracy
charge was (1) that Carter was in a relationship with Eichler, (2) that Carter entered into a
series of buy-sell agreements with Flores, and (3) that Carter was aware that Eichler sold
drugs to Flores. We disagree. Carter’s “participation in or connection to the conspiracy
need[ed] only be slight, so long as sufficient evidence exists to establish [his]
participation beyond a reasonable doubt.” See Johnston, 146 F.3d at 789. And a rational
trier of fact could conclude that, beyond mere “slight” involvement, Carter worked
closely with Eichler in selling methamphetamine. See id. For example, during Eichler’s
phone call from Summit County jail, Eichler and Carter agreed that Carter would
continue selling to Gilson whatever Eichler had been selling him. Because Eichler had
been pulled over with methamphetamine and because Gilson testified that Eichler was on
her way to sell him methamphetamine, a rational trier of fact could conclude that Carter
was going to continue Eichler’s methamphetamine sales to Gilson. Likewise, because
Carter sent Eichler to pick up Flores at the motel in Evanston in response to Flores’s texts
requesting “snow,” a rational jury could conclude that Eichler and Carter were working in
tandem to sell methamphetamine to Flores.
Second, Eichler argues that the government failed to prove beyond a reasonable
doubt that 500 grams or more were “directly attributable” or reasonably foreseeable to
her. Eichler Opening Br. at 23. Speaking to her own methamphetamine distribution,
16 Eichler says that “[a]t most, the evidence is that Ms. Eichler sold or gave away a
maximum of 243 grams of methamphetamine to people she knew and hung out with in
Wyoming.” Id. at 25. She argues that the testimony supporting her conviction is “highly
suspect,” because the individuals who testified against her were all drug addicts who
struggled from memory loss. Id. at 23. But as the government correctly notes, Eichler
presented this argument to the jury, and we cannot second-guess the jury’s credibility
determinations. United States v. Yoakam, 116 F.3d 1346, 1349 (10th Cir. 1997). These
matters are properly in the jury’s province, and Eichler offers nothing to upset that rule.
Instead, “we must accept the jury’s resolution of the evidence as long as it is within the
bounds of reason.” Id. (citation and internal quotation marks omitted).
In short, viewing the evidence in the light most favorable to the government, a
rational trier of fact could conclude that Eichler and Carter (1) agreed to distribute more
than 500 grams of a mixture or substance containing a detectible amount of
methamphetamine, in violation of federal law, (2) knew the objectives of the agreement,
(3) voluntarily joined the conspiracy, and (4) acted interdependently. See Foy, 641 F.3d
at 465; Evans, 970 F.2d at 670.
III. The district court did not abuse its discretion in admitting testimony about marijuana without a limiting instruction.
Eichler argues that the district court should have excluded all testimony about
marijuana or at least given a limiting instruction to minimize its prejudicial impact.
When a defendant objects to the admission of evidence at trial, we review the trial
court’s decision to overrule the objection for abuse of discretion; otherwise, we
17 review for plain error. Nat’l Envtl. Serv. Co. v. Ronan Eng’g Co., 256 F.3d 995, 1001
(10th Cir. 2001). Here, Eichler objected before trial to testimony about marijuana, but
the trial court made no “definitive” ruling. See id. And Eichler did not request a
limiting instruction during trial or even at the jury-instruction conference. But
because both Eichler and the government agree that abuse-of-discretion review
should apply here, we need not decide whether Eichler preserved the issue. See
McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (“A party cannot count on
us to pick out, argue for, and apply a standard of review for it on our own initiative,
without the benefit of the adversarial process, and without any opportunity for the
adversely affected party to be heard on the question.”). We will therefore review
Eichler’s claim for an abuse of discretion. Under this standard, we will not reverse
“unless we find that the district court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.” United States v. Nicholson, 17
F.3d 1294, 1298 (10th Cir. 1994) (citation and internal quotation marks omitted).
As a threshold matter, the parties disagree about whether the marijuana
evidence constitutes character evidence under Rule 404(b) of the Federal Rules of
Evidence, or rather whether it was intrinsic evidence because it was inextricably
intertwined with the charges. Evidence is admissible under Rule 404(b) only if (1)
the evidence is offered for a proper purpose, (2) the evidence is relevant, (3) the
evidence’s probative value is not substantially outweighed by its potential for unfair
prejudice; and (4) the district court, upon request, instructs the jury to consider the
evidence only for the purpose for which it was admitted. United States v. Becker, 230
18 F.3d 1224, 1232 (10th Cir. 2000). But if the evidence is “inextricably intertwined”
with the charged offense, as the government argues, then it falls outside Rule
404(b)’s ambit. See United States v. Oles, 994 F.2d 1519, 1522 (10th Cir. 1993)
(“[A] 404(b) analysis does not apply to other acts which are so inextricably
intertwined with the crime charged that testimony concerning the charged act would
have been confusing and incomplete without mention of the prior act.”) (citation and
internal quotation marks omitted).
We agree with the government that the marijuana evidence is inextricably
intertwined with the methamphetamine conspiracy “because it tended to elucidate the
relationships among the members of the conspiracy and tended to show their course
of dealings.” See United States v. Vasquez, 422 F. App’x 713, 717 (10th Cir. 2011).
For example, the jury would not have been able to understand the text message
communications between Carter and Flores involving “salad” and “snow” without
explaining what those words referred to. Similarly, the jury would not have received
the full picture about Eichler’s traffic stop in Utah without learning that the state
trooper searched her car because he smelled marijuana. Moreover, whatever
prejudice the marijuana evidence caused Eichler, it was slight. Accordingly, because
it acted within “the bounds of permissible choice in the circumstances,” the district
court did not abuse its discretion by admitting the marijuana evidence or failing to
give a limiting instruction. See Nicholson, 17 F.3d at 1298.
19 IV. The district court did not err in enhancing Eichler’s sentence for obstruction of justice.
Eichler argues that the district court erroneously enhanced her sentence under
U.S.S.G. § 3C1.1., which provides for a two-level increase in the offense level if:
(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.
U.S.S.G. § 3C1.1. “Applicability of a guideline is an issue of law that we review de
novo, while issues of fact are reviewed under the clearly erroneous standard.” United
States v. Massey, 48 F.3d 1560, 1572 (10th Cir. 1995).
When, as here, the obstruction-of-justice enhancement is based on alleged
perjury, the government must establish that the defendant (1) made a false statement
under oath, (2) concerning a material matter, (3) with the willful intent to provide
false testimony. United States v. Hawthorne, 316 F.3d 1140, 1146 (10th Cir. 2003).
“Of course, not every accused who testifies at trial and is convicted will incur an
enhanced sentence under § 3C1.1 for committing perjury.” United States v.
Dunnigan, 507 U.S. 87, 95 (1993). For example, “an accused may give inaccurate
testimony due to confusion, mistake, or faulty memory.” Id. For this reason, the
Supreme Court requires that, when the defendant objects, “a district court must
review the evidence and make independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt to do the same . . . .” Id. But
“[t]he Tenth Circuit’s standards are stricter than those expressed in Dunnigan.”
20 Hawthorne, 316 F.3d at 1146. “We require that a district court be explicit about
which representations by the defendant constitute perjury.” Id. Moreover, we require
that the court make explicit findings as to each element: falsity, materiality, and
willful intent to provide false testimony. United States v. Medina-Estrada, 81 F.3d
981, 987 (10th Cir. 1996).
Here, the district court made the following finding as to Eichler’s perjury:
Ms. Eichler explained that she had traveled to Wyoming to visit her children, admitted to sharing methamphetamine with various people: Gilson, Flores and Flores’ sister, which directly contradicts Gilson’s testimony that Ms. Eichler became his source, because she could provide it about $300 per ounce cheaper than he was getting it from others. Mr. Flores was involved with Mr. Gilson initially. Really[,] Flores was the guy who was living as a couch surfer for several years, and eventually, was introduced by—through Ms. Eichler—just through circumstances— to Mr. Carter. Ms. McKenna testified about their acquaintance which began that fateful arrest that occurred on the highway outside of Park City in September of 2016. It went on from there, and really involved her being the driver—McKenna being the driver on several trips to Wyoming and what she saw there, which proved at trial not to be much. The testimony of Mr. Maestas concerning what was occurring and his acquisition of methamphetamine from Ms. Eichler which was brought from—brought with her. . . . I find that there is credible evidence of prevarication—of obstruction in this matter. That it did involve material evidence in this case as I have referred to the testimony of Gilson, Flores, Maestas, and even McKenna, as well as the recorded statements of Ms. Eichler that occurred after her arrest.
Eichler ROA vol. 3 at 802:2–803:11 (emphasis added).
Eichler argues that the district court did not make findings as to willful intent,
and that the record does not support a finding of perjury. We agree that the district
court failed to make an express finding of willful intent. Indeed, the government
admits that “the district court did not explicitly address the willfulness element.”
21 United States’ Combined Resp. Br. at 47. But we may “reject[] a requirement that the
district court make explicit findings on every element required under Section 3C1.1
where the district court’s ultimate conclusion is clear and the record unambiguously
supports its conclusion.” United States v. Cayatineto, 49 F. App’x 278, 284–85 (10th
Cir. 2002). Here, the court’s ultimate conclusion is clear, and the record supports a
finding of willfulness. Eichler does not contend that her testimony resulted from
“confusion, mistake, or faulty memory,” see Dunnigan, 507 U.S. at 95, and the
district court had a sufficient basis to find that Eichler had acted with willful intent
when she denied selling methamphetamine in Wyoming. Because the record also
supports a finding that Eichler’s testimony was false and material, we conclude that
the district court did not err in imposing the obstruction-of-justice enhancement. See
Hawthorne, 316 F.3d at 1146.
V. The district court did not err by not instructing the jury on the specific quantity of methamphetamine that Carter and Eichler allegedly conspired to distribute.
A methamphetamine conspirator faces a ten-year mandatory minimum sentence
for an offense involving at least 500 grams, a five-year mandatory minimum sentence for
an offense involving at least 50 grams, and no mandatory minimum sentence otherwise.
See 21 U.S.C. §§ 841(b)(1)(A)(viii), (B)(vii), (C), and 846. But “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 103 (2013)
(citation omitted). Therefore, under Alleyne, the mandatory minimum penalties under
22 § 841(b) apply only if the jury finds the relevant drug quantity beyond a reasonable
doubt. See id.
Here, Carter argues that the jury instructions did not tell the jury to use the
beyond-a-reasonable-doubt standard in finding the quantity of methamphetamine
involved in the conspiracy. Carter contends that this violated Alleyne. Because Carter
failed to raise this claim below, we review for plain error. United States v. Powell,
767 F.3d 1026, 1029 (10th Cir. 2014). This requires Carter to show “(1) an error,
(2) that is plain, which means clear or obvious under current law, and (3) that affects
substantial rights.” See id. And (4), “[i]f he satisfies these criteria, [we] may exercise
discretion to correct the error if [] it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” See id. (citation omitted).
Carter relies on United States v. Johnson, 878 F.3d 925, 928 (10th Cir. 2017),
where we vacated a sentence because the district court had relied on a special
interrogatory that did not require the jury to find a specific quantity beyond a
reasonable doubt. But unlike Johnson, the special interrogatory contained in Carter’s
verdict form required the jury to “unanimously agree, by proof beyond a reasonable
doubt, that the quantity of methamphetamine that the Defendant, Savon Germain
Carter, conspired to distribute, including all reasonably foreseeable acts and
omissions of others in furtherance of the conspiracy” was less than 50 grams, at least
50 but less than 500 grams, or 500 grams or more. Carter’s ROA vol. 2 at 35
(emphasis added). We thus reject Carter’s jury-instruction challenge, because even
23 assuming Carter could demonstrate an error that is plain, he has failed to establish
that the error affected his substantial rights. See Powell, 767 F.3d at 1029.
VI. The district court did not commit plain error in calculating Carter’s base offense level.
Finally, Carter challenges his sentence. The district court imposed a base-
offense level of 30, based on the jury’s convicting him of a conspiracy to distribute
500 grams or more of methamphetamine—based on his own acts and reasonably
foreseeable acts of his co-conspirators. Accordingly, Carter’s argument that the
district court failed to make specific findings about the quantity Carter intended to
distribute is misplaced. We have already rejected his argument that the jury’s
findings lack sufficient evidence to support them.
CONCLUSION
For these reasons, we affirm.
Entered for the Court
Gregory A. Phillips Circuit Judge