                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              MAY 29 2002
                               FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 00-6367
                                                       (D.C. No. 00-CR-25-R)
 EDWARD HOWARD KELL,                                     (W. D. Oklahoma)

       Defendant - Appellant.
                         _____________________________

                             ORDER AND JUDGMENT*
                          ______________________________

Before KELLY and McWILLIAMS, Circuit Judges; STAGG, District Judge**
                    ______________________________



      After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.




      *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
              The Honorable Tom Stagg, United States District Judge for the Western
District of Louisiana, sitting by designation.
       Defendant Edward Howard Kell (“Kell”) was one of thirteen members of a large

drug conspiracy indicted in a lengthy seventy-seven count indictment. He entered a

“straight-up” guilty plea (i.e., no plea bargain) to 5 counts, including the principal

conspiracy counts, and was sentenced to 210 months in prison. In his appeal, Kell argues

that he pled guilty to an offense involving powder cocaine and the district court

erroneously applied sentencing guidelines applicable to crack cocaine. Kell contends that

his correct sentence level, with acceptance of responsibility, should be a level 29 rather

than level 32. The difference for this Category III defendant ranges from 108 to 135

months versus 210 to 262 months. For the reasons hereinafter set forth, we AFFIRM.

                                    I. BACKGROUND

       On December 30, 1999, Kell was arrested en route to deliver one kilogram of

powder cocaine to Ellis Stanton (“Stanton”), the head of an organization that

manufactured and trafficked a variety of drugs including cocaine powder, cocaine base,

and PCP. Beginning in the spring of 1998, Stanton periodically purchased single

kilograms of cocaine powder from Kell and converted either some or all of it to cocaine

base. Over the course of their business relationship, Kell sold Stanton a total of

approximately five kilograms of cocaine powder. Kell has freely admitted to being a

supplier of cocaine powder to Stanton.

       As a result, Kell was charged with one count of conspiracy to possess with intent

to distribute cocaine powder, cocaine base, and PCP in violation of 21 U.S.C. § 846; two


                                              -2-
counts of using a telephone to facilitate the distribution of cocaine in violation of 21

U.S.C. § 843(b); one count of possession with intent to distribute and the distribution of

approximately one kilogram of cocaine powder in violation of 21 U.S.C. § 841(a)(1); and

one count of possession with intent to distribute and the distribution of approximately

nine ounces of cocaine powder in violation of 21 U.S.C. § 841(a)(1). Accepting

responsibility for his role as a supplier, Kell entered a plea of guilty, without the benefit

of a plea agreement, to all counts of the indictment.1 Subsequently, the court ordered that

a presentence investigation report be prepared. The report calculated Kell’s sentence

range based on both the distribution of 6.95 kilograms of cocaine base as well as one

kilogram of cocaine powder. Accordingly, Kell’s offense level, following an adjustment

for acceptance of responsibility, was set at 35 with a criminal history category of III. Kell

       1
               In accordance with the practice in the Western District of Oklahoma, Kell
filed a “Petition To Plead Guilty,” a form with numerous fill-in-the-blanks evincing his
understanding of the charges and the effect of his plea. For instance, question 47 asks:

       What act or acts did you do to commit the offense or offenses to which you
       are now pleading guilty?

His response was:

        During the time period alleged in the Indictment I possessed cocaine with
       the intent to distribute. Specifically I acted with Ellis Stanton in a criminal
       enterprise to distribute cocaine. During that same time period, specifically
       Dec. 30, 1999 and Jan. 7, 2000, I possessed cocaine powder with the intent
       to distribute. Also during that same period of time, specifically Dec. 29th
       and 30th 1999, I used the telephone to distribute cocaine powder. Said acts
       were done in the Western District of Oklahoma.



                                              -3-
filed written objections contending that cocaine base should not have been factored into

the calculation of his guideline range, and argued to that effect at his sentencing hearing.

       In his objection to the presentence investigation report and at the sentencing

hearing, Kell admitted his guilt on all counts in relation to conspiracy and distribution of

powder cocaine. However, Kell denied any involvement with either cocaine base or PCP

and argued that the court should not apply the guideline range for crimes involving those

drugs. Although the government did not assert that Kell had physically assisted Stanton

in the manufacture of cocaine base, the government did insist that Kell was involved with

Stanton in a conspiracy to manufacture cocaine base. The government based this

assertion largely on testimony from Stanton and intercepted phone calls between Kell and

Stanton. Specifically, Stanton testified that “cooking” a kilogram of Kell’s powder

cocaine would only yield between 750-800 grams of crack cocaine. Stanton further

testified that he contacted Kell each time after “cooking” to discuss this problem. The

government also introduced an intercepted call between Stanton and Kell that supported

Stanton’s testimony. This conversation dealt with the sale of a kilogram of powder

cocaine which Stanton planned to convert into cocaine base. During the call, Kell stated,

“if you step into it and it’s not what you want, let me know before you go too far.”

Additionally, Stanton testified that with the exception of the first kilogram for which he

paid $17,500, the poor quality of Kell’s cocaine resulted in his requiring Kell to front

powder cocaine to him for payment later and that Kell would accept payment for the


                                             -4-
quantity that was successfully cooked instead of for the full amount. The series of

telephone calls shows beyond any doubt that Kell knew that his cocaine was being

converted into crack.

       After reviewing the presentence investigation report and considering the testimony

and arguments presented by the parties, the district court made specific findings and

implemented the calculations found in the presentence investigation report which set

Kell’s total offense level at 35, criminal history category III, for a range of 210-262

months. The court then sentenced Kell to 210 months on count 1, conspiracy to possess

with intent to distribute cocaine powder, cocaine base and PCP; 48 months on counts 60

and 61, use of a communication device to facilitate the acquisition and distribution of

cocaine; 60 months on count 62, distribution of approximately one kilogram of cocaine

powder; and, 210 months on count 65, distribution of approximately nine ounces of

cocaine powder, all sentences to run concurrently. The court also imposed a supervised

release term of 3 years on counts 1 and 65, 1 year on counts 60 and 61, and 4 years on

count 62, all to run concurrently.

       In his appeal, Kell challenges the application of the sentencing guidelines for

cocaine base and raises two main issues for this court to consider. First, Kell contends

that count 1 was duplicitous in that it charged Kell with a conspiracy to distribute three

different drugs: cocaine powder, cocaine base, and PCP. Second, Kell argues that the

court applied the wrong legal standard in analyzing the facts of his case.


                                             -5-
                                II. LAW AND ANALYSIS

       We review the district court’s application of the sentencing guidelines de novo.

See United States v. Asch, 207 F.3d 1238, 1242 (10th Cir. 2000). Accordingly, if the

district court has chosen among several offense guidelines, the Tenth Circuit reviews the

district court’s choice de novo. See United States v. Fortier, 180 F.3d 1217, 1225 (10th

Cir. 1999). However, factual findings underlying the district court’s application of the

guidelines are reviewed for clear error. See United States v. Roederer, 11 F.3d 973, 977

(10th Cir. 1993). The sentencing court’s decision is clearly erroneous only if it is not

plausible or permissible in light of the entire record. See United States v. Morales, 108

F.3d 1213, 1225 (10th Cir. 1997).

       Kell’s first ground for challenging his sentence is that his conspiracy charge was

duplicitous. Count 1 charged Kell with conspiracy to possess with intent to distribute and

to distribute three separate drugs: cocaine powder, cocaine base, and PCP. Kell contends

that this language alleged three separate conspiracies in one count and afforded the

government the opportunity to unfairly “bootstrap” his involvement with cocaine powder

to conspiracies involving crack cocaine and PCP.

       This argument is not available to Kell. “When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is charged, he

may not thereafter raise independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S.


                                             -6-
258, 267, 93 S.Ct. 1602 (1973). Thus, by entering a plea of guilty, Kell waived all

potential non-jurisdictional defenses, including any defective indictment claims. See

United States v. Browning, 61 F.3d 752, 753 (10th Cir. 1995) (citing United States v.

Davis, 900 F.2d 1524, 1525-26 (10th Cir. 1990)).

        Regardless, if given the opportunity to consider the merits of Kell’s argument, we

would disagree with Kell’s characterization of the conspiracy charge as duplicitous.

Listing three different drugs, or three different crimes, in a single count of conspiracy is

not necessarily duplicitous. A charge of conspiracy is an allegation that an agreement

occurred to commit one or more crimes. In other words, it is the agreement which

constitutes the conspiracy, not the individual drug crimes that are the objects of the

conspiracy. See Braverman v. United States, 317 U.S. 49, 53-54, 63 S.Ct. 99, 101-02

(1942); United States v. Broce, 488 U.S. 563, 570-71, 109 S.Ct. 757, 763 (1989) (“a

single agreement to commit several crimes constitutes one conspiracy”); Timberlake v.

United States, 767 F.2d 1479, 1483 (10th Cir. 1985). We find it abundantly clear that

Kell’s indictment charged him with entering into a single conspiracy to sell each of the

drugs listed.

       Nevertheless, the court must administer the conspiracy doctrine with vigilance. As

we have previously recognized, “the government frequently uses conspiracy to cast a

wide net that captures many players. Thus we must be careful to guard against guilt by

association, to ‘scrupulously safeguard each defendant individually, as far as possible,


                                             -7-
from loss of identity in the mass.’” United States v. Evans, 970 F.2d 633, 668 (10th Cir.

1992) (quoting Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252

(1946)). However, we believe that the requirements of reasonable foreseeability and

scope, discussed infra, allay the concerns that we articulated in Evans.



       Kell next asserts that the district court used the incorrect legal standard in applying

the sentencing guidelines to the conspiracy charge. Specifically, Kell argues that the

court failed to inquire as to the scope of the agreement between Stanton and Kell. For

sentencing purposes in a drug conspiracy case, a defendant is accountable for the quantity

of drugs that was both within the scope of his agreement and reasonably foreseeable to

him. See United States v. Johnston, 146 F.3d 785, 795 (10th Cir.1998); United States v.

Arias-Santos, 39 F.3d 1070, 1078 (10th Cir.1994). The district court clearly found that

the conversion of cocaine powder into cocaine base was reasonably foreseeable to Kell.

In his ruling at the sentencing hearing, Judge Russell found,

       . . . (United States Sentencing Guidelines section 1B1.3) just couldn’t be

       clearer that in the case of jointly undertaken criminal activity, which is what

       Mr. Kell pled to, conspiracy, all reasonably foreseeable acts – well, that’s a

       reasonably foreseeable act. Not just reasonably foreseeable, it happened,

       and he knew it happened, and that was that it was being made into crack.

       However, “reasonable foreseeability is not by itself sufficient to establish liability


                                             -8-
for the acts of co-conspirators. To be considered as relevant conduct, such acts also must

be in furtherance of ‘jointly undertaken criminal activity.’” United States v. Melton, 131

F.3d 1400, 1405 (10th Cir. 1997) (quoting United States v. McDuffy, 90 F.3d 233, 236 (7th

Cir.1996)). We have explained that for a defendant to be guilty of conspiracy, the

government must establish that the defendant “agreed to violate the law, that [he] knew at

least the essential objectives of the conspiracy, and that he knowingly and voluntarily

became part of the conspiracy.” United States v. Green, 175 F.3d 822, 832 (10th Cir.

1999) (quoting United States v. Williams, 923 F.2d 1397, 1402 (10th Cir.1990)).

Additionally, we have given effect to application note two of United States Sentencing

Guidelines section 1B1.3 which states that

       [b]ecause a count may be worded broadly and include the conduct of many

       participants over a period of time, the scope of the criminal activity jointly

       undertaken by the defendant (the ‘jointly undertaken criminal activity’) is

       not necessarily the same as the scope of the entire conspiracy, and hence

       relevant conduct is not necessarily the same for every participant.

See Green, 175 F.3d at 837; United States v. Tran, 281 F.3d 1183, 1187 (10th Cir. 2002).

As a result, we recognize that in certain circumstances, a defendant can be convicted of

conspiracy but not punished for all acts that foreseeably correlate to his own crimes

because the scope of his particular agreement is not necessarily equivalent to the scope of

the entire conspiracy. Still, the government need not prove that the defendant expressly


                                             -9-
agreed to the criminal object of the conspiracy; tacit agreement is sufficient. See Green,

175 F.3d at 832 (quoting United States v. Hartsfield, 976 F.2d 1349, 1354 (10th

Cir.1992)).

       When determining the offense level for conspiracy crimes, “[p]roper attribution at

sentencing requires the district court to analyze, and make ‘particularized findings’ about,

the scope of the specific agreement the individual defendant joined in relation to the

conspiracy as a whole.” Melton, 131 F.3d at 1404 (citing United States v. Thomas, 114

F.3d 228, 234 (D.C. Cir. 1997)). However, “Even a ‘brief’ finding can be sufficient if,

when viewed in context, it is more than simply a generalized or conclusory finding that

[the defendant] was involved in the conspiracy.” Thomas, 114 F.3d at 255.

       Although, from the outset, it appears that Judge Russell failed to discuss the scope

of the agreement between Stanton and Kell, any such omission is, at the very worst,

harmless error. Judge Russell stated that the conversion of Kell’s cocaine powder into

cocaine base was “not just reasonably foreseeable, it happened, and (Kell) knew it

happened, and that was that it was being made into crack.” This pronouncement is clearly

more than a conclusory finding that Kell was involved in the conspiracy. Furthermore, in

light of the evidence presented at the sentencing hearing, we cannot find that the district

court committed clear error in its assessment of the facts. As noted supra, Stanton

testified that after he cooked cocaine sold to him by Kell, he would phone Kell to inform

him that he could only yield 750-800 grams from the individual kilograms that Kell sold


                                            -10-
him. The government introduced an intercepted phone conversation to support this.

During this conversation, Kell stated, “if you step into it and it’s not what you want, let

me know before you go too far.” In light of this evidence, the district court’s findings of

foreseeability and scope were not clearly erroneous.

       AFFIRMED

                                                          Entered for the Court



                                                          Tom Stagg
                                                          District Judge




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