 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 13, 2019                  Decided June 11, 2019

                        No. 17-3070

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                      ALICIA NORMAN,
                        APPELLANT


            Consolidated with 17-3073, 17-3074


        Appeals from the United States District Court
                for the District of Columbia
                (No. 1:16-cr-00144-TSC-3)
                (No. 1:16-cr-00144-TSC-2)
                (No. 1:16-cr-00144-TSC-1)


    Deborah A. Persico, appointed by the court, argued the
cause for appellant Brantley. Stephen C. Leckar, appointed by
the court, argued the cause for appellant Rowe. Charles J.
Soschin, pro bono, argued the cause for appellant Norman.
With them on the briefs was Joseph R. Conte, appointed by the
court.

    James Pearce, Attorney, U.S. Department of Justice,
argued the cause for appellee. On the brief was Molly Gaston,
                               2

Trial Attorney. Elizabeth Trosman, Assistant U.S. Attorney,
entered an appearance.

   Before: HENDERSON and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court filed Senior Circuit Judge SENTELLE.

   Opinion concurring in the judgment filed by Circuit Judge
HENDERSON.

     SENTELLE, Senior Circuit Judge: Appellants Alicia
Norman, Kendra Brantley, and Deenvaughn Rowe appeal from
judgments of conviction on multiple counts of conspiracy to
commit bribery, bribery, and conspiracy to distribute and
possess marijuana with the intent to distribute. Rowe and
Brantley were convicted on all charges, and Norman on the
charges of bribery and conspiracy to commit bribery.
Appellants seek reversal of all judgments of conviction on a
variety of allegations of error. We hold that none of the
allegations of error have merit and affirm the judgments of the
district court. Rowe also raises a colorable claim of ineffective
assistance of counsel. Obedient to our circuit practice, we are
remanding the claim for further proceedings.

                       BACKGROUND

     During the time of the commission of the alleged crimes, all
appellants were employees of the United States Postal Service
(USPS). Rowe was the acting station manager at the River
Terrace Post Office in Northeast Washington, D.C. Brantley
and Norman were letter carriers at the Lamond-Riggs Post
Office. Prior to entering his position as acting manager at the
River Terrace Office, Rowe had worked with his co-defendants
at the Lamond-Riggs station.
                               3

     According to the evidence at trial, Rowe knew of packages
being sent through the USPS from California to addresses in the
Lamond-Riggs area. Some of the packages had incomplete
addresses, others had nonexistent addresses. Rowe used his
USPS computer to track the packages from the west coast to the
Lamond-Riggs Post Office. When one of the packages he was
tracking arrived, Rowe would notify Brantley or Norman. The
notified carriers would then deliver the package to individuals
on the street rather than to the delivery addresses on the
packages.

     Federal investigators surveilled the activity of the three
postal employees. The evidence at trial, including surveillance
tapes, revealed that Rowe would scan the packages, determine
that they were the ones in which he was interested, and that the
co-defendants would receive cash from the driver of a white
Range Rover in exchange for the packages. The evidence also
revealed texts between Rowe and the co-defendants providing
him with real-time knowledge of their whereabouts and actions.

     Between September of 2015 and August of 2016, USPS
investigators tracked 131 suspicious packages, all of which
originated from California, were tracked from Rowe’s computer,
and shared similar characteristics. All were similar size and
weight and had similar handwriting and addresses. Investigators
opened eight of the packages and determined that they contained
bulk marijuana. Investigators marked six other packages with
markings that would be visible to agents conducting surveillance
the following day. Brantley delivered the six marked packages
to a man on the street and scanned them as delivered.

    Further evidence revealed that during the period of the
conspiracy, Rowe obtained considerable otherwise unexplained
wealth.    For example, he made approximately twelve
unexplained cash deposits totaling $47,960 and another $7,000
                                4

in unexplained cash equivalent deposits. In addition, at the time
of the arrest, the agents found $3,600 in cash in Rowe’s
Mercedes and $6,000 in cash in the inner pocket of a jacket in
his closet. Rowe also owned a Porsche Panamera sports car and
took three vacations to the Caribbean during the time of the
conspiracy. His USPS take-home pay, after various deductions
and child support, was $16,000 per year.

     The grand jury returned an indictment charging all
appellants with conspiracy to commit bribery in violation of 18
U.S.C. § 371; bribery in violation of 18 U.S.C. § 201(b)(2); and
conspiracy to distribute, dispense, and possess with the intent to
distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846.
The indictment also alleged that Rowe’s conduct as a member
of the conspiracy involved a quantity of 100 kilograms or more
of marijuana.

     Before trial, Brantley expressed an intention to plead guilty,
but eventually pleaded not guilty and proceeded to trial with the
other defendants. After a six-day trial, the jury found Rowe and
Brantley guilty on all counts, and Norman guilty of bribery and
conspiracy to commit bribery. Norman was found not guilty of
the distribution and conspiracy charges.

    Appellants raise various challenges to their convictions.
We find five of the challenges worthy of discussion. As to the
other allegations of error, we have given the arguments due
consideration and find them without merit.

    A. Brantley’s Plea

    Brantley argues the district court impermissibly interfered
with plea negotiations in violation of Rule 11 of the Federal
Rules of Criminal Procedure. We disagree.
                                5

     Before trial, Brantley had expressed an intention to plead
guilty in a bargained plea. The court scheduled a hearing to
conduct the Rule 11 proceedings, which eventually led to a total
of three hearings on that subject. In the first hearing on July 6,
2017, during the plea colloquy, the trial judge asked Brantley if
she had read the factual statement associated with her plea
agreement. Brantley said she had but asked to review the
statement again with her attorney. While they were reviewing
the document, the judge heard Brantley say, “I did not,” in
reference to the factual statement.

     Based on the concern raised by that statement, the judge
conducted further questioning of the defendant and determined
that there had not been a meeting of the minds between the
prosecution and the defense on the terms of the factual statement
to be introduced as part of the proceedings on the bargained
plea. There was, apparently, disagreement over whether
Brantley was admitting that she knew that the packages she
delivered contained marijuana. After Brantley’s attorney
confirmed that the parties could not agree on the wording of the
factual statement, the judge advised that she was willing to
consider “anything that the parties [could] agree to” and
proposed to schedule a hearing for the next day to allow time for
the parties to sort out their differences.

     The next day, July 7, the district judge referred the question
to a magistrate judge for further proceedings. At that hearing,
the magistrate judge asked whether Brantley had discussed with
her attorney that by accepting the plea bargain, she would be
waiving her right to bring collateral attacks on her sentence.
The government advised that the term “collateral attack” was
not included in the plea agreement but took the position that the
concept was encompassed by the waiver provision contained in
the agreement. Again, the court was unable to determine that
Brantley was voluntarily agreeing to the bargained plea and, at
                                6

the request of the parties, directed that the matter be heard again
at a later date.

     As planned, a third hearing took place on July 12 before the
district judge. At the third hearing, Brantley expressed her
intent to plead guilty to two of the counts without the benefit of
a plea agreement and go to trial on the third. The judge advised
Brantley that she was free to go to trial on all charges or plead
guilty to some and go to trial on others. The court further
advised Brantley of the risks and benefits associated with trial
and with a guilty plea. Brantley elected to go to trial on all
counts. Before this court Brantley argues that “the district court
. . . interfered in plea negotiations.”      Appellants’ Br. 11
(capitalization edited from the original).

     At the beginning of our review, we note that Brantley did
not raise the current objection before the trial court. We review
allegations of error in Rule 11 proceedings raised for the first
time on appeal for plain error. United States v. Davila, 569 U.S.
597, 608 (2013). Under this standard, “[t]here must be an
‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’”
United States v. Olano, 507 U.S. 725, 732 (1993). The “error
must be clear or obvious, rather than subject to reasonable
dispute,” United States v. Murray, 897 F.3d 298, 304 (D.C. Cir.
2018), and must “seriously affect the fairness, integrity or public
reputation of judicial proceedings,” Olano, 507 U.S. at 736–37
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).

     Federal Rule of Criminal Procedure 11(c)(1) provides that
“[t]he court must not participate in [plea agreement]
discussions.” Brantley argues that the district court improperly
interfered with the plea process during each of her three plea
hearings. We disagree. Rule 11 requires a district court to
“address the defendant personally in open court . . . and
determine that the defendant understands [her rights],”
                                7

“determine that the plea is voluntary,” and “determine that there
is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(1)–(3).
The trial judge appropriately questioned Brantley’s
disagreement with the factual statement in the July 6th hearing.
Upon hearing Brantley state “I did not,” while discussing the
factual statement, the district court had a duty to investigate
further.

     In the July 7th hearing, the judge appropriately questioned
Brantley as to whether she understood she was waiving her right
to collaterally attack her sentence. Rule 11 requires a judge,
prior to accepting a guilty plea, to “address the defendant
personally in open court” and “inform the defendant of, and
determine that the defendant understands . . . the terms of any
plea-agreement provision waiving the right to appeal or to
collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1). The
judge’s line of inquiry directly fulfilled this requirement.

     Finally, in the July 12th hearing, much of the discussion
that took place during the plea hearing centered on whether it
was permissible for Brantley to plead only to the specific acts
described by statute, rather than to the acts alleged in the
indictment. Despite the trial judge’s initial hesitation, she
clarified that she would accept whatever plea the parties agreed
to, and that it was entirely up to Brantley whether she pled guilty
or went to trial. Brantley argues the trial judge went too far in
describing the benefits and risks associated with going to trial
and with a guilty plea, but such a discussion falls squarely
within the trial judge’s responsibility to ensure any plea is
knowing, voluntary, and has factual basis. See Fed. R. Crim. P.
11(b)(1)–(3). No statements made in any of the three hearings
meet the plain error standard required here for Brantley’s
argument to succeed.

    Accordingly, we find no error.
                                 8

    B. The Calculation of Guidelines

     All defendants allege error in the district court’s calculation
of guidelines. Appellant Norman claims that the district court
erred by applying the drug trafficking guideline instead of the
bribery guideline, even though Norman was acquitted of all drug
charges by the jury.

     Throughout her six-day trial, Norman maintained that she
was unaware that the packages she was being bribed to
misdeliver contained drugs. She was acquitted of all drug
charges by the jury. During sentencing, however, the district
court said that Norman “looked like she knew what she was
doing” in surveillance video of the transactions, and concluded
that her relationship with an uncharged co-conspirator meant
that she must have “known what was up.”

      Under the Sentencing Guidelines, the base offense level for
a bribery offense is fourteen. U.S.S.G. § 2C1.1. However,
because the sentencing court found that the bribery was part of
a conspiracy to distribute marijuana, the court applied the drug
trafficking guidelines for Norman’s bribery offense, resulting in
a base offense level of twenty-four. U.S.S.G. §§ 2D1.1, 2C1.1.
The court found that Norman was a minimal participant in the
criminal activity and that she had accepted responsibility for her
act, and therefore was entitled to a six-point deduction, resulting
in an overall offense level of eighteen and a recommended
Guidelines sentence of twenty-seven to thirty-three months
imprisonment.        Citing Norman’s “significant family
obligations,” the court elected to depart downward from that
range, sentencing Norman to eighteen months.

    Had the district court started from the base offense level
from the bribery guidelines and applied the same deductions,
Norman would have had an overall offense level of eight,
                                9

resulting in a suggested Guidelines sentence of zero to six
months. U.S.S.G. ch. 5, pt. A (sentencing table). In theory, the
court could have varied upwards and sentenced Norman to
eighteen months regardless. See Gall v. United States, 552 U.S.
38, 49 (2007). But because the court actually varied downward
from the Guidelines range, it is difficult to imagine that the use
of acquitted conduct and the associated twenty-seven month
change to her recommended sentence did not have a significant
impact on the amount of time Norman will spend in prison.

     This Court has recognized that “long-standing precedents
of the Supreme Court and this Court establish that a sentencing
judge may consider uncharged or even acquitted conduct in
calculating an appropriate sentence.” See United States v.
Settles, 530 F.3d 920, 923 (D.C. Cir. 2008). In choosing to
sentence Norman under the drug trafficking guideline, the
district court has acted within the bounds provided by precedent.

     Judges have expressed concern about basing sentencing on
acquitted conduct. See United States v. Jones, 744 F.3d 1362,
1369 (D.C. Cir. 2014). “Allowing judges to rely on acquitted or
uncharged conduct to impose higher sentences than they
otherwise would impose seems a dubious infringement of the
rights to due process and to a jury trial.” United States v. Bell,
808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring).
Justice Scalia wrote, in a dissent from denial of certiorari joined
by Justices Thomas and Ginsburg, that “‘[t]his has gone on long
enough,” and that the Supreme Court should take up the issue
“to put an end to the unbroken string of cases disregarding the
Sixth Amendment—or to eliminate the Sixth Amendment
difficulty by acknowledging that all sentences below the
statutory maximum are substantively reasonable.” Jones v.
United States, ––– U.S. ––––, 135 S. Ct. 8, 9, 190 L. Ed. 2d 279
(2014) (Scalia, J., dissenting).
                                10

     The Supreme Court has not yet done what Justice Scalia
suggested. Therefore, we continue to recognize that “[w]hatever
the merits of Justice Scalia’s argument, it is not the law.” Jones,
744 F.3d at 1369. This Court, and other courts of appeals, have
reached the conclusion that sentencing based on acquitted
conduct is constitutional. See id. (collecting cases). We cannot
find legal error.

     Brantley argues that the district court erred in calculating
the quantity of drugs attributed to her. As we have held, the
district court makes findings of drug quantities under a
preponderance of the evidence standard, and we review those
factual findings only for clear error. See United States v.
Burnett, 827 F.3d 1108, 1120 (D.C. Cir. 2016). The evidence
before the district court connected Brantley’s acts to the
transportation of a significant quantity of marijuana. After
applying a conservative method of calculation, the district court
determined that 100 kilograms or more of marijuana was
attributable to Brantley. “A base offense level . . . is derived
from a defendant’s ‘relevant conduct.’ For drug offenses,
‘relevant conduct’ includes the quantity of drugs involved in the
offense.” Id. (internal citations omitted). The district court
followed this correct understanding of the law in calculating the
offense herein.

     Rowe contends the district court erred in imposing a four-
point organizer-manager enhancement in sentencing him rather
than a three-point supervisor’s role. This court reviews a
“district court’s fact-specific determination that a defendant was
an ‘organizer or leader’ or a ‘manager or supervisor’” under a
due deference standard. United States v. Olejiya, 754 F.3d 986,
990 (D.C. Cir. 2014) (internal citations omitted). Due deference
is “somewhere between de novo and ‘clearly erroneous.’”
United States v. Tann, 532 F.3d 868, 874 (D.C. Cir. 2008)
(internal citations omitted).
                                11

     The Sentencing Guidelines provide that a four-level
increase to a defendant’s offense level is appropriate “[i]f the
defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). In determining whether a four-level
increase for an organizer or leader, or a three-level increase for
management or supervision is appropriate, the court should
consider such factors as “the exercise of decisionmaking
authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and scope of
the illegal activity, and the degree of control and authority
exercised over others.” See U.S.S.G. § 3B1.1(b); U.S.S.G.
§ 3B1.1 cmt.4.

     The district court did precisely what the Guidelines
contemplate. The scheme was extensive, involved at least four
persons in the east coast and an unknown number of persons
involved in the mailing. Rowe recruited, managed-supervised,
and took a large share of proceeds. Under the applicable
standard of review, or probably any other standard, the district
court did not err.

    C. Claims of Ineffective Assistance of Counsel

     Both Brantley and Rowe allege that their counsel were
ineffective at trial. Brantley advances no colorable claim. Each
of the arguments she makes for the first time on appeal concerns
the failure of her counsel to make some objection as to some
alleged error of the court, which we have already dispensed with
in the above analysis.

    As to Rowe, however, the government concedes that a
remand for further inquiry is necessary. Rowe contends, inter
                                12

alia, that he did not have the opportunity to review discovery or
call witnesses who wanted to testify at trial. Under Strickland
v. Washington, 466 U.S. 668, 687, 694 (1984), ineffective
assistance occurs when an attorney makes errors that (1) are “so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” and (2) that
deficient performance was prejudicial, i.e., “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Without opining on the validity of Rowe’s claims, we do
determine that he has at least made a colorable proffer.

     We have held that when a defendant makes a colorable
claim of assistance for the first time on direct appeal, the proper
practice is to remand the claim for an evidentiary hearing unless
the record shows that the defendant is not entitled to relief. See
United States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir. 2003).
Therefore, we remand that single question to the district court
for further proceedings.

                        CONCLUSION

     Save for the single question of whether Rowe was
prejudiced by ineffective assistance of counsel, we affirm in full
the judgments of the district court. We remand that single
question for further proceedings.

                                                      So ordered.
     KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment: I write separately to note my reservations
regarding the majority’s discussion of the Rule 11 issue. Rule
11 requires the district court to ensure the voluntariness and
factual basis of a plea without participating in plea discussions.
See Fed. R. Crim. P. 11(b)(2) (“Before accepting a plea of
guilty . . ., the court must address the defendant personally in
open court and determine that the plea is voluntary and did not
result from force, threats, or promises (other than promises in
a plea agreement).”); id. 11(b)(3) (“Before entering judgment
on a guilty plea, the court must determine that there is a factual
basis for the plea.”); id. 11(c)(1) (“An attorney for the
government and the defendant’s attorney . . . may discuss and
reach a plea agreement. The court must not participate in these
discussions.”). A premise of the Rule is that our system works
best when each party plays its assigned role—judge and
counsel alike. In my view, the district court improperly
usurped the role of defense counsel on July 6th and July 12th.
On July 6th, the district court interrupted the defendant while
she was conferring with her counsel off the record. I disagree
with my colleagues’ view that the district court’s “duty” under
Rule 11 extends to interrupting an off the record conversation
between a defendant and defense counsel. Maj. Op. 7. Having
directed the defendant to discuss the plea with counsel, the
district court should have waited for the defendant or her
counsel to address the court on the record before inquiring
further. More troubling, on July 12th, the defendant could have
believed the district court was advising her not to plead guilty
to only one of the counts. Indeed, at one point the district court
said to defense counsel in the presence of the defendant: “I’m
really wondering what’s the benefit to your client in doing this
instead of just going to trial and putting the government to its
test where she may end up with the same thing . . . . I’m not
sure what she’s gaining.” I disagree with the majority’s view
that this statement “falls squarely within the trial judge’s
responsibility to ensure any plea is knowing, voluntary, and has
factual basis.” Id. 8. Although I understand and appreciate the
                                2
district court’s impulse to ensure the voluntariness and factual
basis of the plea, I believe that impulse led it astray on these
two dates. I do not believe the district court’s error was “plain,”
however, and therefore reach the same ultimate outcome as my
colleagues. See United States v. Davila, 569 U.S. 597, 608
(2013) (applying “plain error” standard of review to claim of
Rule 11 violation); United States v. Olano, 507 U.S. 725, 734
(1993) (“plain error” must be “clear” or “obvious”).

     I also distance myself from my colleagues’ rather reluctant
recognition of precedent upholding the sentencing judge’s
discretion to factor in acquitted conduct in imposing sentence.
Maj. Op. 9–10. I think the precedent is sound for many
reasons, including that the burdens of proof differ at trial and
sentencing and that the trial judge—who hears the same
evidence the jury hears—is permitted to find all manner of facts
by a preponderance of the evidence, facts that have not been
found by the jury beyond a reasonable doubt. See United States
v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008) (“[L]ong-
standing precedents of the Supreme Court and this Court
establish that a sentencing judge may consider uncharged or
even acquitted conduct in calculating an appropriate sentence,
so long as that conduct has been proved by a preponderance of
the evidence and the sentence does not exceed the statutory
maximum for the crime of conviction.”); id. (“[T]he Supreme
Court has ‘never doubted the authority of a judge to exercise
broad discretion in imposing a sentence within a statutory
range.’” (quoting United States v. Booker, 543 U.S. 220, 233
(2005))). I also believe that a sentencing judge exercising his
broad discretion may consider acquitted conduct in order to
address partial jury nullification in an appropriate case.
