                                                                  FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                           December 22, 2017
                                     PUBLISH              Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                                 No. 16-3280
 KAREN ANTOINETTE JOHNSON,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                 (D.C. NO. 5:13-CR-40060-DDC-14)


Christopher M. Joseph, Joseph, Hollander & Craft LLC, Topeka, Kansas, for
Appellant.

James A. Brown, Assistant United States Attorney (Thomas A. Beall, United
States Attorney, with him on the brief), Topeka, Kansas, for Appellee.


Before BACHARACH, McKAY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
                               I. INTRODUCTION

      A jury convicted Karen Johnson of conspiring to distribute cocaine base.

See 21 U.S.C. §§ 841, 846. Johnson asserts the district court violated the Sixth

Amendment when it imposed on her the 120-month minimum sentence mandated

in 21 U.S.C. § 841(b)(1)(A)(iii) without submitting the drug-quantity issue to the

jury for determination under the beyond-a-reasonable doubt standard. Cf. Alleyne

v. United States, 133 S. Ct. 2151, 2155 (2013). Assuming she prevails on her

Sixth Amendment claim, Johnson argues a separate drug-quantity finding made

by the district court, a finding made solely for purposes of calculating a

sentencing range under the Sentencing Guidelines, is not supported by sufficient

evidence. Finally, she contends her conviction must be set aside because the

district court used an improper evidentiary standard in allowing the government to

adduce at trial intercepted cell phone communications. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court rejects Johnson’s

challenges to her conviction and to the drug-quantity determination made by the

district court for purposes of the Sentencing Guidelines. The district court did,

however, plainly err in applying the mandatory minimum set out in

§ 841(b)(1)(A)(iii) without submitting the quantity issue to the jury for resolution

under the beyond-a-reasonable-doubt standard. Accordingly, the district court is

affirmed in part and reversed in part and the matter is remanded to the district




                                         -2-
court to vacate Johnson’s sentence and resentence her without regard to the

mandatory minimum set out in § 841(b)(1)(A)(iii).

                                  II. ANALYSIS

A. Alleyne Error

      1. Background

      At the jury instruction conference, Johnson asked the district court to

submit the issue of drug-quantity to the jury as part of Instruction 12, an elements

instruction. 1 The district court refused this request and, instead, submitted the

matter of drug quantity to the jury in the form of a special verdict question,

Question 2. Of particular note, Question 2 did not require that the jury make its

drug-quantity finding by using the beyond-a-reasonable-doubt standard. The jury

found Johnson guilty and decided the conspiracy involved at least 280 grams of

      1
        To be clear, 21 U.S.C. §§ 841(a) and 846 make it illegal for any person to
conspire to, inter alia, distribute a controlled substance. A standard violation of
§ 841(a) is punishable by a term of imprisonment “of not more than 20 years.”
Id. § 841(b)(1)(C). Title 21 does, however, set out heightened penalties, both
with regard to minimum and maximum sentences, when a violation of § 841(a)
involves a given quantity of drugs. 21 U.S.C. § 841(b)(1)(A), (b)(1)(B); see
United States v. Cassius, 777 F.3d 1093, 1096-97 (10th Cir. 2015). That is, if a
violation of § 841(a) involves at least twenty-eight grams of cocaine base, the
defendant “shall be sentenced to a term of imprisonment which may not be less
than 5 years and not more than 40 years.” 21 U.S.C. § 841(b)(1)(B). If a
violation of § 841(a) involves at least 280 grams of cocaine base, the defendant
“shall be sentenced to a term of imprisonment which may not be less than 10
years or more than life.” Id. § 841(b)(1)(A). To trigger the enhanced statutory
penalties set out in § 841(b)(1)(A) and (b)(1)(B), the relevant drug quantity must
be submitted to the jury for resolution under the beyond-a-reasonable doubt
standard. Alleyne v. United States, 133 S. Ct. 2151, 2156, 2162 (2013); United
States v. Ellis, 868 F.3d 1155, 1170 & n.14 (10th Cir. 2017).

                                         -3-
cocaine base. Thereafter, over her objection, the district court sentenced Johnson

to a minimum mandatory term of 120 months’ imprisonment. See 21 U.S.C.

§ 841(b)(1)(A)(iii). Johnson asserts the district court violated her Sixth

Amendment rights when it sentenced her to a mandatory minimum sentence on

the basis of a jury finding that was not made under the beyond-a-reasonable-doubt

standard. See Alleyne, 133 S. Ct. at 2155.

           2. Standard of Review

           In its brief on appeal, the government asserts Johnson’s claim is not

preserved for appellate review because she did not object to Question 2 on the

ground it was inconsistent with Alleyne before the case was submitted to the jury.

This court need not decide whether Johnson’s objections below preserved her

Alleyne claim for de novo review because she is entitled to relief even under the

rigorous plain error standard applicable to unpreserved claims of constitutional

error. 2

           2
        It is worth noting, however, that after the briefing was completed in this
appeal we rejected the notion that a defendant must object to jury instructions to
preserve a claim of Alleyne error. Ellis, 868 F.3d at 1170-71. Ellis made clear
that a defendant need not “object[] during trial to the jury instructions or the
general-verdict form to preserve an Alleyne objection.” Id. at 1171. Instead, the
burden is on the government to make sure the jury is properly instructed. Id. (“If
the government wanted a heightened sentence under [§ 841(b)(1)(A)], it was
obliged to ensure the jury received proper jury instructions and a special-verdict
form with spaces enabling the jury to find [the defendant’s] individually
attributable powder and crack-cocaine amounts.”). Nevertheless, a defendant
must object at some point before she is sentenced to preserve Alleyne error. Id.
To be clear, however, use of the term “Alleyne” is not a necessary predicate to
                                                                        (continued...)

                                             -4-
      Under the plain error standard, a defendant must establish

      (1) error, (2) that is plain, which (3) affects substantial rights, and
      which (4) seriously affects the fairness, integrity, or public reputation
      of judicial proceedings. Plain error affects a defendant’s substantial
      rights if there is a reasonable probability that, but for the error
      claimed, the result of the proceeding would have been different. A
      reasonable probability is a probability sufficient to undermine
      confidence in the outcome.

United States v. Wright, 848 F.3d 1274, 1278 (10th Cir. 2017) (quotations and

citations omitted). “Notably, this court applies [the plain error] requirements less

rigidly in cases, such as this one, that involve potential constitutional error.”

United States v. Powell, 767 F.3d 1026, 1029-30 (10th Cir. 2014) (quotations

omitted).


      2
        (...continued)
preservation. Id. (holding a defendant can preserve the type of error at issue here
“by invoking the applicable decision (here, Alleyne) or by claiming that the issue
of drug quantity should go to the jury, that an element of the offense was not
proved, that the judge cannot determine quantity, or that quantity must be proved
beyond a reasonable doubt (and not by a preponderance of the evidence)”
(quotations and alteration omitted)). At oral argument, the parties argued
vigorously over whether Johnson’s objections and statements in the district court
met even this forgiving standard. This court seriously doubts the government’s
assertion that Johnson did not preserve her claim of Alleyne error under the
standard set out in Ellis. After all, in asserting the issue of drug quantity should
be submitted to the jury in Instruction 12, Johnson relied on the fact drug quantity
is an element of any conviction under § 841(b)(1)(A). In opposing this request
and arguing in favor of submission of drug-quantity to the jury in a special
verdict form, the government specifically argued drug quantity was not an
element. Thus, it certainly appears Johnson preserved the issue under the
standard set out in Ellis. Nevertheless, as noted above, this court need not resolve
this issue because Johnson is entitled to relief even under plain error review.
That is, because Johnson is entitled to relief even under the most rigorous
possible standard of review, the question of preservation is ultimately irrelevant.

                                          -5-
      3. Analysis

      The government concedes on appeal that the district court committed an

error that is plain when it submitted the issue of drug quantity to the jury without

the required beyond-a-reasonable-doubt standard. The government nevertheless

argues Johnson is not entitled to relief because the error did not affect her

substantial rights and did not affect the fairness, integrity, or public reputation of

judicial proceedings. In so arguing, the government asserts the evidence as to

drug quantity is overwhelming. Notwithstanding the government’s assertions,

this court concludes Johnson has demonstrated the jury’s drug quantity

determination is not supported by overwhelming evidence. See Wright, 848 F.3d

at 1278 (holding the burden is on the defendant to demonstrate the error satisfies

each prong of the plain error test). Thus, the district court’s Alleyne error

affected her substantial rights. Furthermore, where a defendant has been denied

her “Sixth Amendment right to a jury determination of an important element of

the crime, the integrity of the judicial proceeding is jeopardized.” United States

v. Fast Horse, 747 F.3d 1040, 1044 (8th Cir. 2014) (quotation omitted).

      In arguing Johnson has failed to demonstrate the district court’s Alleyne

error satisfies the third and fourth prongs of plain error review, the government

asserts the evidence admitted at trial allowed the jury to “reasonably infer” the

following three facts: (1) Johnson was working with co-defendants Anthony

Thompson and Albert Banks during the critical period when Thompson and Banks

                                          -6-
were selling cocaine base to the confidential informant; (2) Johnson was aware of

Thomson’s and Banks’s drug dealings during this time period; and (3) Johnson

was buying cocaine base from Thompson and Banks during this period, showing

Thompson’s and Banks’s dealings with the confidential informant were

reasonably foreseeable to Johnson. This court certainly agrees the evidence

presented would allow the jury to reasonably infer these three facts. That the jury

could do so, however, does not mean it would have been unreasonable for the jury

to reach a contrary conclusion.

      Indeed, the issue of quantity was heavily contested at trial. During cross-

examination of government witnesses, Johnson adduced the following testimony:

(1) despite the confidential informant having successfully embedded himself in

the conspiracy, he never saw Johnson selling cocaine base, cooking drugs, or

handling large sums of money, R. Vol. 3 at 202-04, 216, 259, 351; (2) Johnson

did not drive Thompson or Banks to any of the drug transactions with the

confidential informant, the very transactions that made up the bulk of the

government’s quantity assertion, R. Vol. 3 at 228-29; (3) upon execution of the

search warrants, no drugs, drug-dealing paraphernalia, or large sums of money

were found in Johnson’s car or home, R. Vol. 3 at 229, 293; and (4) the

government’s quantity assertion was undermined by evidence that (a) Thompson

and Banks sold both cocaine base and powder cocaine, (b) quantity amounts

discussed in wiretapped phone calls were often inflated as Thompson and Banks

                                        -7-
cheated drug buyers by inflating drug weights, and (c) coded language used in

wiretapped phone calls was possibly subject to wildly different interpretations, R.

Vol. 3 at 234, 238, 241-42, 250. Apparently recognizing the force of Johnson’s

arguments as to the scope of the conspiracy, the government argued as follows

during its closing:

             What was the common goal? The common goal was to
      distribute crack cocaine. There may not have been a common goal to
      agree to distribute more than 280 grams, but that’s not what the
      instructions require. Okay? I urge you to read the instructions from
      the judge and follow them. Okay?

             . . . . The question is this defendant’s involvement with the
      coconspirators that you heard about. Did two or more people agree
      to violate the federal law? That’s all that’s required for that element.
      Not that everyone charged in the indictment conspire to distribute
      more than 280 grams. That’s just not in the instructions.

             ....

             Finally, there’s the issue of weight. Again, if you look at
      those four elements, weight is not required. You don’t have to
      determine that there was more than 280 grams involved to determine
      that she’s guilty. Please read the verdict form carefully. If you find
      that she satisfies the elements, the four elements, you convict on
      Count 1. If you convict on Count 1, then you go examine the weight.

R. Vol. 3 at 547-49.

      As the above recitation makes clear, the evidence as to drug quantity was

heavily contested at trial and far from overwhelming. That being the case,

Johnson has satisfied the third and fourth prongs of plain error review and is

entitled to relief on her Alleyne-based Sixth Amendment claim.


                                         -8-
B. Sentencing Guidelines Quantity Determination

      Although it considered itself bound by the minimum mandatory set out in

§ 841(b)(1)(A), the district court, nevertheless, calculated Johnson’s advisory

sentencing range under the Sentencing Guidelines. In arriving at her offense

level, the district court found Johnson was responsible for 361.86 grams of

cocaine base, the quantity of cocaine base Banks and Thompson sold to the

confidential informant. Based in part on that quantity finding, the district court

determined Johnson’s advisory guidelines range was 87 to 108 months’

imprisonment. The district court noted that, in its view, both the mandatory

minimum sentence set out in § 841(b)(1)(A) and the low-end of the advisory

guidelines range were excessively harsh given the facts and circumstances of the

case. Were it free to impose a sentence it thought appropriate, the district court

indicated it would vary downward from the advisory guidelines range and impose

a sentence of less than eighty-seven months’ imprisonment. Because, however, it

was bound by the provisions of § 841(b)(1)(A), it imposed a sentence of 120

months’ imprisonment. 3

      On appeal, Johnson mounts a narrow challenge to the district court’s for-

guidelines-purposes quantity determination. She asserts the district court erred in

finding her responsible for any of the sales of cocaine base to the confidential


      3
      Of course, as set out above, the district court erred in imposing upon
Johnson the mandatory minimum set out in § 841(b)(1)(A).

                                         -9-
informant because there is insufficient evidence to prove she was a member of the

conspiracy during the time of those transactions. See U.S.S.G. § 1B1.3 cmt.

n.3(B) (“A defendant’s relevant conduct does not include the conduct of members

of a conspiracy prior to the defendant’s joining the conspiracy, even if the

defendant knows of that conduct . . . .”). This court reviews for clear error the

district court’s factual determination that Johnson was a member of the

conspiracy during the drug sales to the confidential informant. See United States

v. Aranda-Flores, 450 F.3d 1141, 1144 (10th Cir. 2006) (“We review for clear

error the district court’s factual findings regarding sentencing and review de novo

its legal interpretation of the sentencing guidelines.”). In so doing, this court

views “the evidence, and inferences drawn therefrom, in the light most favorable

to the district court’s determination.” United States v. Brown, 314 F.3d 1216,

1221 (10th Cir. 2003).

      Although it does not compel such a finding, the evidence adduced at trial is

sufficient to support the district court’s finding that Johnson was a member of the

conspiracy during the period the confidential informant bought drugs from Banks

and Thompson. During a post-arrest interview, an agent told Johnson authorities

had been investigating the conspiracy for “over a year.” At the conclusion of the

interview, Johnson stated she had given rides to Banks and Thompson up to three




                                         -10-
times per week “within that whole year you guys had that investigation.” 4 This

admission supports an inference Johnson joined the conspiracy prior to Banks’s

and Thompson’s dealings with the confidential informant. 5 Furthermore,

      4
          The relevant conversation was as follows:

            Agent: How many times you think like in a week’s time
      span—how many trips did you make with AB or Ant sellin’ like that
      drivin’?

               Johnson: You mean in a day?

               Agent: Yeah, I mean just in a week?

               Johnson: Oh, in a week?

               Agent: Yeah, a week’s time.

               Johnson: Probably three times out of the week maybe, maybe
      two.

               Agent: You’d go with AB more than you would Ant?

             Johnson: Yeah . . . within that whole year you guys had that
      investigation, I might have did half with Ant and half with AB . . . .
      5
        As noted above in addressing whether the trial evidence regarding quantity
was overwhelming, the mere fact Johnson’s interview statements support such an
inference does not mean a contrary inference would be unreasonable. After all,
Johnson did not drive Banks or Thompson to any of the transactions with the
confidential informant and Johnson did not directly admit during the interview
that the purpose of the rides provided to Thompson or Banks was to allow them to
sell cocaine base. Instead, Johnson seemed to suggest the purpose of her giving
rides to Banks was to allow him to buy marijuana or “K2.” Given the additional
trial evidence identified infra, however, it was reasonable for the district court to
rely on Johnson’s statement as support for its temporal finding while, at the same
time, discounting Johnson’s attempt to minimize the criminal purpose of the rides
she provided to Banks and Thompson. This is especially true given that such for-
                                                                        (continued...)

                                         -11-
Johnson’s monitored phone calls temporally overlapped, at least marginally, with

the controlled buys from the confidential informant, supporting the inference she

was working with Banks and Thompson during the time period that they were

selling drugs to the confidential informant. 6 This temporal overlap supports the

inference Johnson was a knowledgeable member of the conspiracy during the

“whole year” she was giving rides to Thompson and Banks to help them with their

drug dealing. Finally, the confidential informant testified at trial that Johnson

was buying crack from Banks and Thompson as early as 2012.

      In sum, given the permissible inferences flowing from the evidence

adduced by the government at trial, the district court permissibly attributed to

Johnson the cocaine base Banks and Thompson sold to the confidential informant

because Johnson was an active member of the conspiracy when the confidential

informant purchased the drugs.

C. Intercepted Communications

      Evidence Johnson conspired to distribute cocaine base included intercepted

cell phone calls between her, Thompson, and Banks. This court addressed those

calls at length in United States v. Thompson, 866 F.3d 1149, 1152-61 (10th Cir.

      5
       (...continued)
guidelines-purposes findings need only satisfy the preponderance-of-the-evidence
standard. United States v. Dahda, 852 F.3d 1282, 1294 (10th Cir. 2017).
      6
       On March 14, 2013, Johnson asked Banks to bring her $100 worth of crack
cocaine. The last controlled buy occurred on March 18, 2013, when the
confidential informant purchased crack cocaine from Banks.

                                        -12-
2017). The intercepted phone calls were obtained via orders issued by a state

court pursuant to Kansas’s wiretap statute, Kan. Stat. Ann §§ 22-2514 to -2519.

See Thompson, 866 F.3d at 1153. Kansas law confines a state judge’s authority to

order a wiretap to the judge’s territorial jurisdiction. Kan. Stat. Ann. § 22-

2516(3); see Thompson, 866 F.3d at 1153. Given this state-law limitation, the

federal district court ruled the government could introduce intercepted calls at

Johnson’s trial only to the extent it could prove the wiretapped cell phone was

located within the state court’s jurisdiction at the time the call was intercepted.

See Thompson, 866 F.3d at 1153. The government used historical cell-service

location information (“CSLI”) to satisfy that evidentiary burden. Id. Based on

expert testimony regarding CSLI evidence and additional circumstantial evidence,

the district court found, specifically utilizing the preponderance-of-the-evidence

standard, that the subject phones were in the state court’s jurisdiction when the

relevant conversations were recorded. Id.

      Johnson asserts the district court erred in using a preponderance standard in

determining whether wiretapped calls were initiated in the territorial jurisdiction

of the state court. Although it does not appear Johnson preserved this issue for

appellate review, this court need not resolve that question because her claim of

error fails even upon de novo review. In Thompson, this court specifically held

that the district court did not err in employing the preponderance-of-the-evidence

standard in analyzing whether the government proved the relevant calls were

                                         -13-
initiated in the state court’s jurisdiction. Id. at 1160 (“We also reject Thompson’s

contention that the district court should not have admitted any of the intercepted

calls at trial, because the court erred in requiring the government to prove the

phones were in Kansas’s Eighth Judicial District by a preponderance of the

evidence, rather than clear and convincing evidence. This argument lacks

merit.”). Thus, Thompson specifically forecloses Johnson’s claim of error.

                                III. CONCLUSION

      For those reasons set out above, Johnson’s conviction for violating

21 U.S.C. §§ 841(a) and 846 is hereby affirmed. The district court’s imposition

of the mandatory minimum sentence set out in § 841(b)(1)(A) is reversed and the

matter is remanded to the district court to vacate Johnson’s sentence and to

resentence her without regard to the provisions of § 841(b)(1)(A).




                                         -14-
