                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS                     August 8, 2017
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-3238
                                              (D.C. No. 5:13-CR-40060-DDC-5)
 JOHNNY LEE IVORY III,                                    (D. Kan.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit
Judges. **




                                 I. Introduction

      This appeal arose from an investigation into a drug-trafficking operation in

the Geary County, Kansas area. Appellant Johnny Lee Ivory was arrested and

charged with one count of conspiracy to distribute more than 280 grams of



      *
         This order and judgment is not binding precedent except under the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.
      **
        Per the court’s February 14, 2017 Order, the panel granted Ivory’s
unopposed motion to submit this appeal on the briefs.
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a); one count of

possession with intent to distribute at least 28 grams of cocaine base, in violation

of 21 U.S.C. § 841(a)(1); and one count of unlawful possession of ammunition, in

violation of 18 U.S.C. § 922(g)(1).

         Before trial, Ivory moved to dismiss the indictment for Speedy Trial Act

violations. The district court overruled the motion, finding the court had

previously granted an ends-of-justice continuance that tolled the speedy-trial

clock. Also before trial, the district court admitted cell-service location

information (CSLI) the government obtained without a warrant as part of the

process for determining whether certain intercepted phone calls were admissible

at trial. The court also denied Ivory’s motion to suppress evidence obtained from

a search of his residence, finding the search warrant was supported by probable

cause.

         Ivory was tried along with several co-defendants, including Martye

Madkins, Anthony Carlyle Thompson, and Albert Dewayne Banks, who are

appellants in related appeals. At trial, the government introduced evidence found

during the search of Ivory’s residence. Ivory and his co-defendants were

convicted on all counts. The court imposed a mandatory minimum sentence of

twenty years’ imprisonment, followed by ten years of supervised release.

         Ivory now appeals his convictions and sentence, incorporating by reference

some of the arguments made by his co-defendants Madkins, Thompson, and

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Banks in their related appeals. 1 In particular, Ivory contends the district court

erred in (1) denying his motion to dismiss for Speedy Trial Act violations; (2)

admitting CSLI obtained by the government without a warrant; (3) denying his

motion to suppress evidence obtained from the search of his residence; and (4)

delivering an unconstitutional reasonable doubt instruction to the jury.

      Ivory also appeals his sentence, arguing the district court plainly erred in

(1) imposing a mandatory minimum sentence of twenty years in prison without a

jury finding that Ivory was accountable for the actions of his co-conspirators; and

(2) failing to make particularized findings about the drug quantity attributable to

Ivory as relevant conduct.

      Based on our holdings in the related appeals United States v. Madkins, No.

15-3299 (10th Cir. 2017), and United States v. Thompson, No. 15-3313 (10th Cir.

2017), we affirm the court’s admission of the CSLI, as well as its denial of

Ivory’s motion to suppress and motion to dismiss. We also find no constitutional

deficiency in the court’s reasonable doubt instruction. But we vacate Ivory’s

sentence and remand for resentencing.




      1
         We consolidated these four appeals for all procedural purposes. The
government thus submitted one consolidated response brief. Ivory’s appeal was
submitted on the briefs, but we heard oral argument in the other three appeals,
consolidated cases 15-3299 (Madkins), 15-3313 (Thompson), and 15-3324
(Banks).

                                          -3-
                                   II. Analysis

      We address Ivory’s challenges to his convictions and sentence in turn.

      A. Speedy Trial Act Violations

      Ivory first argues the district court violated his right to a speedy trial, and

therefore his convictions should be vacated. Pursuant to Federal Rule of

Appellate Procedure 28(j), Ivory joins in and adopts by reference the Speedy Trial

Act arguments made by his co-defendant Madkins.

      In United States v. Madkins, No. 15-3299 (10th Cir. 2017), we explain the

relevant factual background, which is materially indistinguishable for purposes of

Ivory’s appeal. Pertinently, Ivory joined his co-defendant Thompson’s motion to

dismiss for Speedy Trial Act violations. It is the district court’s denial of that

motion that Ivory now appeals.

      In Madkins, we hold that the district court complied with the requirements

of the Speedy Trial Act in granting an ends-of-justice continuance, because the

record contains sufficient findings supporting the court’s continuance. For the

same reasons, we conclude the district court did not violate Ivory’s right to a

speedy trial. Accordingly, we affirm Ivory’s convictions.




                                         -4-
      B. Admission of CSLI

      Ivory next challenges the constitutionality of § 2703(d) of the Stored

Communications Act, which allows the government to obtain historical CSLI

upon a showing of reasonable suspicion. Pursuant to Federal Rule of Appellate

Procedure 28(j), Ivory joins in and adopts by reference the arguments made by his

co-defendant Thompson.

      In United States v. Thompson, No. 15-3313 (10th Cir. 2017), we detail the

relevant factual background for Ivory’s claims. Ivory joined Thompson’s motion

to suppress the intercepted calls, as well as his opposition to the government’s

§ 2703(d) application. Ivory also filed his own suppression motion, seeking to

exclude evidence obtained from the search of his residence. Ivory now appeals

the district court’s rulings on these motions.

      In Thompson, we hold that § 2703(d)’s reasonable suspicion standard does

not violate the Constitution, because cell-phone users lack a reasonable

expectation of privacy in their historical CSLI. Users voluntarily convey CSLI to

third parties who in turn create records of that information for their own business

purposes. And because the government’s request for CSLI is not a search within

the meaning of the Fourth Amendment, we conclude § 2703(d) is not

unconstitutional.

      For the same reasons described in Thompson, we conclude the court did not

err in granting the government’s application for orders requesting Ivory’s

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historical CSLI under § 2703(d) or in admitting some of that CSLI at a pretrial

proceeding.

      C. Denial of Motion to Suppress

      Ivory also argues the district court erred in denying his motion to suppress

evidence obtained from the search of his home. Pursuant to Federal Rule of

Appellate Procedure 28(j), Ivory joins in and adopts by reference the suppression

arguments raised by Thompson.

      We reject all of Thompson’s arguments in that appeal, concluding the

affidavits supporting the search warrant for his residence sufficiently alleged

probable cause, and the court did not err in requiring the government to prove the

provenance of the intercepted phone calls by a preponderance of the evidence.

For the same reasons, we affirm the district court’s denial of Ivory’s motion to

suppress.

      D. Reasonable Doubt Instruction

      Ivory next challenges the constitutionality of the district court’s reasonable

doubt instruction. Ivory first encountered this instruction shortly before trial,

when the district court held a jury instructions conference. Although Ivory’s co-

defendant Banks objected to the court’s reasonable doubt instruction, Ivory did

not object at the time. The court denied Banks’s objection, because the

instruction tracked the Tenth Circuit’s pattern jury instruction. At trial, the court

thus delivered the following instruction to the jury:

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             The government has the burden of proving a defendant
             guilty beyond a reasonable doubt. The law does not
             require a defendant to prove his innocence or produce any
             evidence at all. The government has the burden of proving
             a defendant guilty beyond a reasonable doubt, and if it
             fails to do so, you must find that defendant not guilty.

             Proof beyond a reasonable doubt is proof that leaves you
             firmly convinced of the defendant’s guilt. There are few
             things in this world that we know with absolute certainty,
             and in criminal cases the law does not require proof that
             overcomes every possible doubt. It only requires that the
             government’s proof exclude any “reasonable doubt” about
             the defendant’s guilt. A reasonable doubt is a doubt based
             on reason and common sense after careful and impartial
             consideration of all the evidence in the case. If, based on
             your consideration of the evidence, you are firmly
             convinced that a defendant is guilty of the crime charged,
             you must find that defendant guilty. If on the other hand,
             you think there is a real possibility that a defendant is not
             guilty, you must give that defendant the benefit of the
             doubt and return a verdict of not guilty.

R., Vol. IV at 268. The jury ultimately convicted Ivory on all counts charged.

      On appeal, Ivory argues the reasonable doubt instruction is unconstitutional

for three reasons: (1) the use of the phrase “firmly convinced” impermissibly

diminished the government’s burden of proof; (2) the use of the word “only”

suggested a lesser standard of proof than reasonable doubt; and (3) the instruction

did not inform the jury that reasonable doubt could also be found from the lack of

evidence presented.

      Because Ivory did not object below, we review his challenge to the

sufficiency of the court’s instruction for plain error. See United States v.


                                          -7-
Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016). Accordingly, we may reverse

Ivory’s conviction “only if (1) an error occurred; (2) the error was plain; (3) the

error affected [Ivory’s] substantial rights; and (4) the error ‘seriously affected the

fairness, integrity, or public reputation of a judicial proceeding.’” See id.

(quoting United States v. Makkar, 810 F.3d 1139, 1144 (10th Cir. 2015)).

      Our recent decision in United States v. Petty, 856 F.3d 1306 (10th Cir.

2017) forecloses all of Ivory’s arguments. In Petty, we upheld on de novo review

a reasonable doubt instruction materially identical to the one Ivory challenges

here. In doing so, we recognized the longstanding rule that “the Constitution does

not require that any particular form of words be used in advising the jury of the

government’s burden of proof.” Id. at 1309 (quoting Victor v. Nebraska, 511 U.S.

1, 5 (1994)). And we explained that the proper test for evaluating the

constitutionality of a reasonable doubt instruction is “whether a ‘reasonable

likelihood’ exists that the jury ‘understood the instructions to allow conviction

based on proof insufficient to meet the [reasonable doubt] standard.’” Petty, 856

F.3d at 1309 (quoting Victor, 511 U.S. at 6).

      Applying this test, we held that such a reasonable likelihood did not exist.

In so holding, we reiterated our longstanding rule that “the ‘firmly convinced’

language, juxtaposed with the insistence that a jury must acquit in the presence of

‘a real possibility’ that the defendant is not guilty, is a correct and

comprehensible statement of the reasonable doubt standard.” Petty, 856 F.3d at

                                          -8-
1310 (quoting United States v. Conway, 73 F.3d 975 (10th Cir. 1995)). We also

explained that viewed in the context of the entire instruction, the use of the word

“only” did not diminish the government’s burden of proof, but rather served to

“contrast[] the reasonable doubt standard with the notion of absolute certainty.”

Petty, 856 F.3d at 1311. And finally, we concluded the instruction made it clear

to jurors “that a failure to present evidence sufficient to meet [the government’s]

burden must result in Defendant’s acquittal.” Id.

      For the same reasons we articulated in Petty, Ivory’s challenges to the

court’s reasonable doubt instruction must fail. We therefore affirm his

convictions.

      E. Challenges to Ivory’s Sentence

      Finally, Ivory attacks his sentence on two grounds, arguing the district

court erred in (1) imposing a mandatory minimum sentence of twenty years in

prison without a jury finding that Ivory was accountable for the distribution of at

least 280 grams of cocaine base; and (2) failing to make particularized findings

about the drug quantity attributable to Ivory.

      Before sentencing, the probation officer prepared the presentence

investigation report (PSR). The PSR stated Ivory was subject to a mandatory

minimum sentence of twenty years’ imprisonment on his first count of conviction,

the conspiracy charge. It also calculated an advisory guidelines range of 188–235

months’ imprisonment for the conspiracy conviction, a range mostly based on the

                                         -9-
probation officer’s conclusion that Ivory was responsible for 2.47 kilograms of

crack cocaine. The PSR stated Ivory’s conviction for possession with intent to

distribute carried a mandatory minimum sentence of ten years, and his conviction

for unlawful possession of ammunition carried a maximum term of ten years.

Ivory did not object to the PSR at the time. At sentencing, the district court

adopted the relevant conduct findings in the PSR. The court also found the

guidelines range was correctly calculated. But the court agreed that the twenty-

year mandatory minimum sentence applied and thus sentenced Ivory to twenty

years’ imprisonment, followed by ten years of supervised release.

      Because Ivory did not object below to his sentence or guidelines sentencing

range, we review his challenges for plain error. See United States v. Sharp, 749

F.3d 1267, 1291 (10th Cir. 2014). To establish plain error, Ivory must show the

district court erred; the error was plain; the error affected his substantial rights;

and the error “seriously affect[ed] the fairness, integrity, or public reputation” of

the sentencing proceedings. See id. (quoting United States v. Romero, 491 F.3d

1173, 1178 (10th Cir. 2007)).

             1. Mandatory Minimum Sentence

      Ivory first argues the district court plainly erred in imposing a mandatory

minimum sentence of twenty years’ imprisonment without a jury finding that at

least 280 grams of crack cocaine was within the scope of Ivory’s particular

agreement or reasonably foreseeable to him. The government concedes this issue,

                                          -10-
agreeing with Ivory that the court plainly erred in sentencing him. We accept the

government’s concession, vacate Ivory’s sentence, and remand for resentencing in

accordance with the applicable guidelines range.

             2. Particularized Drug-Quantity Findings

      Ivory next argues the district court plainly erred by adopting the

insufficiently particularized drug-quantity findings in the PSR, which attributed

2.47 kilograms of cocaine base to Ivory without citing to anything suggesting

certain quantities of cocaine were within the scope of Ivory’s agreement and

reasonably foreseeable to him.

      The quantity of drugs attributable to a defendant is determined under the

relevant-conduct Sentencing Guideline, which holds a defendant accountable for

his own acts that occurred during the commission of the offense. USSG §

1B1.3(a)(1)(A). But when the defendant’s crime involved a scheme undertaken

with other people, the defendant can also be held accountable for the actions of

those others—but only if their actions were “within the scope of the jointly

undertaken criminal activity,” “in furtherance of that criminal activity,” and

“reasonably foreseeable in connection with that activity.” USSG

§ 1B1.3(A)(1)(B). “Acts of others that were not within the scope of the

defendant’s agreement, even if those acts were known or reasonably foreseeable

to the defendant, are not relevant conduct under subsection (A)(1)(B).” USSG

§ 1B1.3 cmt. n.3(B).

                                        -11-
      Accordingly, we have previously held that a district court plainly errs when

it fails to make particularized findings regarding both jointly undertaken criminal

activity and the reasonably foreseeable acts of others in connection with that

criminal activity before determining the drug quantity attributable to a defendant.

See, e.g., United States v. Figueroa-Labrada, 720 F.3d 1258, 1265 (10th Cir.

2013). If a district court adopts the relevant-conduct findings of the PSR and

makes no findings of its own, we review the information in the PSR “as if it were

the findings of the district court.” Id. at 1266. When a PSR “has not made

particularized findings to support relevant conduct,” however, “sentencing courts

may not simply accept the drug quantity attributed in a PSR without making

particularized findings.” Id. at 1267.

      We agree the district court erred in failing to make particularized drug-

quantity findings, but we decline to resolve whether Ivory has met his burden of

establishing plain error. At sentencing, the district court adopted the findings in

the PSR, which attributed 2.47 kilograms of cocaine base to Ivory. The PSR

reached this figure in part by extrapolating from two sources: (1) intercepted

phone calls in which Ivory’s co-defendant Thompson discussed quantities of

cocaine; and (2) a transaction where Thompson purchased a certain quantity of

cocaine from one of his suppliers. But the PSR did not cite anything suggesting

those quantities were within the scope of Ivory’s agreement. The court thus erred




                                         -12-
in relying on these insufficiently particularized findings, and the error was plain

under our precedent.

      Ivory argues the court’s failure to make particularized drug-quantity

findings affected his substantial rights and seriously affected the fairness and

integrity of the proceedings. Without the extrapolation, Ivory claims the evidence

showed he was only responsible for 354.3 grams of cocaine base: an 88-gram bag

and a 128.3-gram bag Ivory discussed in an intercepted phone call, and 138 grams

of cocaine base seized from Ivory’s mother’s residence. This quantity of drugs

would bring Ivory’s base offense level down to 30 from 32, and his guidelines

range to 151–188 months from 188–235 months.

      Ivory’s argument that he would have received a shorter sentence is better

addressed at resentencing. As we explained above, the district court sentenced

Ivory to a mandatory minimum sentence. Ivory concedes in his brief that the

error regarding drug quantity was harmless, because the twenty-year mandatory

minimum drove the sentence. He adds, however, that the error could become

harmful without the mandatory minimum. On remand, therefore, the district court

must make the requisite drug-quantity findings and resentence Ivory accordingly.




                                         -13-
                            III. Conclusion

     For the foregoing reasons, we AFFIRM Ivory’s convictions but VACATE

his sentence and REMAND for resentencing.



                                          ENTERED FOR THE COURT

                                          Timothy M. Tymkovich
                                          Chief Judge




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