                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 27, 2016
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee/Cross-
           Appellant,
 v.                                                    No. 15-7018 & 15-7030
 CHRISTOPHER A. BROWN,                            (D.C. No. 6:13-CR-00017-RAW-2)
                                                             (E. D. Okla.)
      Defendant-Appellant/Cross-
       Appellee.
 _________________________________
 UNITED STATES OF AMERICA,

           Plaintiff-Appellee/Cross-
           Appellant,
 v.                                                    No. 15-7020 & 15-7029
 RAYMOND A. BARNES,                               (D.C. No. 6:13-CR-00017-RAW-1)
                                                             (E. D. Okla.)
           Defendant-Appellant/Cross-
           Appellee.



                                ORDER AND JUDGMENT*


Before BRISCOE, LUCERO and McHUGH, Circuit Judges.




       *
        This order and judgment is not binding precedent, except under the doctrines of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.
       Raymond Barnes, former Jail Superintendent of the Muskogee County Jail (MCJ),

appeals his conviction of conspiring to deprive inmates of the “free exercise and

enjoyment of rights and privileges secured to them by the Constitution of the United

States,” in violation of 18 U.S.C. § 241, and also willfully depriving inmates of their

“right, protected and secured by the Constitution and laws of the United States, not to be

subjected to cruel and unusual punishment,” in violation of 18 U.S.C. § 242. ROA Vol. I

at 32, 35. Christopher Brown, former Assistant Jail Superintendent, was convicted of the

same crimes, as well as making a false statement to a federal agent in violation of 18

U.S.C. § 1001. Defendants appeal their convictions, challenging the admissibility of

certain evidence, the sufficiency of the evidence, and certain jury instructions. On cross-

appeal, the government challenges the procedural and substantive reasonableness of

Defendants’ sentences. We affirm Defendants’ convictions, vacate their sentences for

procedural unreasonableness, and remand for resentencing.

                                              I

                                        Background

       After an investigation into allegations that inmates were being physically abused at

MCJ, Defendants were charged in a four count indictment. Count 1 charged both

Defendants with conspiring to specifically deprive inmates of their right to due process

and to be free from cruel and unusual punishment, in violation of 18 U.S.C. § 241. The

indictment alleged that Defendants directly assaulted inmates, ordered subordinates to

assault inmates, threatened to fire subordinates who reported abuse, required subordinates

                                             2
to falsify use-of-force reports, and generally cultivated an abusive environment at MCJ.

The indictment further described seven overt acts taken in furtherance of the conspiracy:

four “Meet and Greets” orchestrated by Defendants at MCJ, wherein inmates transferred

from other counties were thrown to the ground while in restraints, although the inmates

posed no physical threat, as well as three other incidents of Defendants directly abusing

inmates. Counts 2 and 3 charged both Defendants with depriving two inmates, Jace Rice

and Gary Torix, of their right to be free from cruel and unusual punishment by

orchestrating violent “Meet and Greets” when they were transferred to MCJ, in violation

of 18 U.S.C. § 242. Count 4 charged Brown with making a false statement to an FBI

agent, in violation of 18 U.S.C. § 1001, by stating that inmates were “gently placed” on

the ground during “Meet and Greets.”

       A.     “Meet and Greets”

       During Defendants’ week-long joint trial, the government called nineteen

witnesses, and Defendants called none. The testimony focused primarily on the four

“Meet and Greets” alleged in the indictment. Evidence of the first two “Meet and Greets”

support the substantive counts; all four support the conspiracy counts.

              1.     Jace Rice (Counts 1 and 2)

       Prior to the arrival of Jace Rice, Barnes instructed two jailers to pull Rice out of

the van and ensure that “the first thing that touched the ground [was] his head.” ROA

Vol. II at 1442. After the van arrived at MCJ, Rice was described as “calm” and had a

belly chain around his waist, which went through his handcuffs and connected to shackles

                                              3
on his ankles. Id. at 1360, 1443. Rice was forcibly removed from the van and, unable to

brace himself due to the restraints, landed head-first on the concrete after falling roughly

five feet. Two jailers testified that when Rice’s head hit the concrete “[i]t sounded like a

watermelon hitting the ground.” Id. at 1361, 1748. Three to ten officers then piled on top

of Rice. They began “pulling and twisting” him allegedly for the purpose of removing

the restraints which belonged to the transferring facility, and replacing them with MCJ

restraints. Id. at 1364, 1446, 1749. Once the restraints were switched out, Rice was

“picked up and carried into the jail,” “[p]arallel to the floor, like a ladder, face down, feet

first.” Id. at 1367, 1448, 1750. Barnes then welcomed Rice to MCJ and warned Rice that

if he acts up, “what just happened to [him] will happen to [him] again or even worse.” Id.

at 1369. Rice had a “knot,” a “cut” and/or a “red bump” on his head after the “Meet and

Greet.” Id. at 1369, 1451, 1750. Brown was present at this “Meet and Greet.”

              2.      Gary Torix (Counts 1 and 3)

        Prior to the arrival of Gary Torix, Barnes gathered several jail employees to tell

them “they had an inmate coming in from Cherokee County” who was “one of the bad

boys,” that “they were going to show him how things were run in Muskogee County,”

and that the inmate had staples in his head from a prior injury. Id. at 1870. Torix was

“calm” and in shackles and handcuffs when he arrived. Id. at 1373, 1536. It is unclear

whether Torix stepped out of the vehicle by himself or if he was removed from it, but he

was ultimately forced face-first to the ground, which was part concrete and part gravel.

After hitting the ground, Torix’s head was bleeding, and he was “screaming” and


                                               4
“thrashing around.” Id. at 1537, 2080. As many as fifteen people piled on top of him to

switch out his restraints. Torix was then carried “face-down” into the jail, where Barnes

introduced himself and informed Torix that he (Barnes) “run[s] this jail” and that “[i]f

[Torix] gives [MCJ officers] any problems, what just happened will happen or possibly

even worse.” Id. at 1376, 1876. An hour after booking Torix, medical staff went to

check on him: he was still bleeding from his prior larceration, which had reopened, his

glasses were scuffed, and he had “road rash on his forehead.” Id. at 2081.

              3.     Herbert Potts and Riley Starr (Count 1)

       In support of the conspiracy charge, witnesses testified that “Meet and Greets” of

two other inmates, Herbert Potts and Riley Starr, followed the same general pattern as

those experienced by Rice and Torix. Starr’s “Meet and Greet” was unique in one way:

his head also hit the door as he was being carried into the jail. Brown was not only

present at both “Meet and Greets,” but one witness testified that Brown personally

grabbed Potts and pulled him to the concrete face-first.

       B.     Other Instances of Abuse (Count 1)

       On one occasion when several inmates were lined up outside the medical office,

Barnes was asked to come to the area. The jailer who asked that Barnes be called did not

testify at trial, but it appears that he believed an inmate was being too loud. When Barnes

entered the area, with Brown right behind him, he was visibly upset: “He was bowed up a

little and his fists were clenched.” Id. at 2069. Without asking who was causing the

reported disruption, he immediately approached Jeremy Armstead, who had done nothing


                                             5
wrong. Barnes grabbed Armstead by his shirt collar and either pushed him against a wall

or shoved his head down under his arm. Defendants then restrained Armstead and took

him to a cell where they placed a helmet on him and made him sit for almost two hours.

Armstead suffered a shoulder injury as a result.

       On a different occasion, an inmate named Alton Murphy got “mouthy”—but not

combative—when Barnes told him to “lock down.” Id. at 1453. When Murphy refused

to “lock down,” things got physical. According to one witness’s testimony, Barnes snuck

up behind Murphy “and put [Barnes’s] arms through [Murphy’s] arms and around his

head, like a full nelson.” Id. at 1454. They fell backward with Murphy landing on top of

Barnes, Brown jumped on top of Murphy, and another guard “sprayed everybody with

pepperspray.” Id. at 1454. According to a different witness, Barnes and Brown both

approached Murphy and “hit him simultaneously[: Barnes] hit him on top, [Brown] went

and hit him under the legs, and he went to the ground.” Id. at 1806.1

       C.     Attempts to Cover Up the Abuse (Count 1)

       Several former and current employees of MCJ testified that they were afraid that

Barnes and Brown would retaliate against them if they reported the inmate abuse. One



       1
          The final incident alleged in the indictment as an overt act taken in furtherance
of the conspiracy involved Barnes and Brown “[striking] and beat[ing] an unidentified
inmate who was restrained in a cell in the detox area and not posing a physical threat to
anyone.” ROA Vol. I at 34. A former jailer, Ashley Mullen, testified about this incident
at trial. Finding that Mullen’s testimony regarding this incident “was so amorphous that
its—its probative value is substantially outweighed [by] the unfair prejudice that it could
have on the jury,” ROA Vol. II at 2258, the district court instructed the jury to disregard
her testimony concerning this unidentified inmate.

                                             6
jailer testified that Barnes made her “fix reports” that used language that was too vivid in

describing the force used, id. at 1804, while several others testified that they reported

incidents with such mild language that they felt the reports were inaccurate. Another

jailer testified that her shift was twice changed within two days of submitting accurate

(but damning) reports. The shift changes were problematic for her because the revised

schedules disrupted her child care arrangements. Barnes changed her shift the first time,

Brown did so the second time.

       D.     Brown’s Interview with the FBI (Count 4)

       Brown was also charged with making a false statement to FBI Agent Jennifer

Chapman. Agent Chapman testified that she asked Brown about “Meet and Greets,”

which he described as

       when there was an inmate that was out of control at another facility that was
       going to come and stay at Muskogee County for a period of time. The
       inmate would come in . . . a police car . . . , pull into the sally port. They
       were asked to . . . step out of the vehicle first. And once the inmate stepped
       out, they’d be asked to get on the ground.

ROA Vol. II at 1996–97. She further testified that Brown told her that “if the inmate

didn’t comply, [MCJ officers] would gently place the inmate onto the ground.” Id. at

1997. When she questioned Brown about his use of the phrase “gently placed,” he stood

by his description.

       E.     Procedural History

       At the close of the government’s case, Barnes moved for a judgment of acquittal,

which the district court denied. The jury returned a verdict finding both defendants guilty


                                              7
of Count 1 (conspiracy), and Count 2 (Jace Rice’s “Meet and Greet”). The jury also

found Barnes guilty of Count 3 (Gary Torix’s “Meet and Greet”), and found Brown guilty

of Count 4 (false statement). Both Defendants subsequently filed motions for judgment

of acquittal and motions for new trial, which the district court also denied. At sentencing,

both Defendants sought a downward variance, and specifically requested only supervised

release. The court granted downward variances, though not to the extent requested.

Although the applicable Guidelines range for each Defendant was 70–87 months, the

court sentenced Barnes to twelve months’ imprisonment, followed by two years of

supervised release, and Brown to six months’ imprisonment, followed by three years of

supervised release. Defendants appeal their convictions. The government cross-appeals,

challenging the reasonableness of Defendants’ sentences.

                                             II

                        Defendants’ Appeals of Their Convictions

       Defendants challenge the admissibility of certain evidence, the sufficiency of the

evidence as a whole, and specific jury instructions. We address each challenge in turn,

ultimately concluding that Defendants’ convictions should be affirmed.

       A.     Admissibility of Testimony Regarding Use-of-Force Training

       Defendants challenge various testimony involving use-of-force training provided

to jailers at MCJ. Both argue that although George Roberson, a captain with the

Muskogee County Sheriff’s Department, testified as an expert, the heightened

requirements for expert testimony under Federal Rule of Evidence 702 were ignored.


                                             8
Brown challenges not only Roberson’s testimony on this ground, but also the testimony

of various jailers. Brown further argues that the jailers’ testimony should have been

excluded under Rule 403. We review the district court’s evidentiary rulings for an abuse

of discretion, but review the district court’s interpretation of the Federal Rules of

Evidence de novo. United States v. Orr, 692 F.3d 1079, 1088 (10th Cir. 2012). Applying

this standard, we conclude the district court did not err in admitting the testimony

regarding use-of-force training.

              1.     Rule 702 Challenges

       Federal Rule of Evidence 701 sets the boundaries for lay-witness testimony: it

must be “(a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701. Expert

testimony must meet the heightened requirements of Rule 702. See Fed. R. Evid. 701,

702. Expert testimony must be “based on sufficient facts or data” and “the product of

reliable principles and methods,” and “the expert [must have] reliably applied the

principles and methods to the facts of the case.” Fed. R. Evid. 702.

       We consider four factors in determining whether the testimony at issue is lay

witness testimony or is, in fact, expert testimony offered as lay testimony. First, we

consider whether the testimony meets the requirements of Rule 701 set forth above.

James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011).

Second, we consider whether the testimony was based on professional experience. Id. at


                                              9
1215. Lay witness testimony can rely on “a limited amount of expertise,” so long as the

“opinions or inferences . . . could be reached by any ordinary person.” Id. at 1214

(quoting United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995), and then quoting

LifeWise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004)). A witness

who possesses “scientific, technical or other specialized knowledge” can testify as a lay

witness so long as the testimony is not based on such knowledge. See, e.g., Ryan Dev.

Co. v. Ind. Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1170 (10th Cir. 2013) (permitting

accountants, who “often testify as expert witnesses,” to testify as lay witnesses where

their testimony involved only basic arithmetic and was based on their personal experience

providing services to defendant); Orr, 692 F.3d at 1089–90 (permitting scientists,

previously hired by defendant, to testify as lay witnesses regarding the parameters of their

duties and what they reported to defendant, avoiding technical evaluation of the project).

Third, we consider whether the expert relied on “a technical report by an outside expert.”

James River, 658 F.3d at 1215. Finally, we consider how the Federal Rules of Evidence

generally classify the testimony at issue. Id.

                     a.     Roberson’s Testimony

       Roberson testified that he taught “use of force at jail school,” which was

“sometimes” attended by Defendants. ROA Vol. II at 2153. He testified that he taught

jailers that they could use force “if an inmate was a threat to them [or] aggressive toward

them,” and that the “overall goal” in using force was “[t]o control the situation, de-

escalate it,” thus reducing the odds that “someone is going to get hurt.” Id. at 2154. He


                                             10
also testified about a conversation he had with Barnes. According to Roberson’s

testimony, Barnes “told the employees or the detention officers that if an inmate is in their

. . . personal space, . . . they can strike the inmate.” Id. at 2155. Roberson then informed

Barnes that force would not be necessary or helpful in that situation and would only cause

the situation to escalate. Barnes responded by shrugging his shoulders and walking away.

Roberson then informed Barnes that “if [use of force] was taught that way, . . . that man

in the black suit was going to come knocking on your door. And I don’t mean the

preacher, I’m talking about the FBI.” Id. at 2156.

       Defendants did not object to this testimony at trial. The only objection they made

was to the use of “hypothetical questions” during Roberson’s testimony. Id. at 750.

When “[t]he specific ground for reversal of [the] evidentiary ruling on appeal” is not “the

same as that raised at trial,” we review this challenge only for plain error. United States

v. Ramirez, 348 F.3d 1175, 1181 (10th Cir. 2003) (emphasis added) (quoting United

States v. Norman T., 129 F.3d 1099, 1106 (10th Cir. 1997)). “Plain error occurs when

there is (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.”

United States v. Hill, 749 F.3d 1250, 1257–58 (10th Cir. 2014).

       Applying the only relevant James River factors discussed supra,2 we conclude that

the district court did not err, or at least did not plainly err. First, the testimony meets the


       2
        The last two factors are not helpful in deciding this case: Roberson did not rely
on an outside expert report and there is no standard classification in the Federal Rules of
Evidence for this type of testimony. Cf. James River, 658 F.3d at 1215.

                                               11
requirements of Rule 701: (1) Roberson had personal knowledge of his training of jailers

regarding their use of force, and specifically of his conversation with Barnes; (2) his

testimony was helpful in determining whether Defendants acted willfully, see United

States v. Rodella, 804 F.3d 1317, 1338 (10th Cir. 2015) (concluding that evidence of the

official training the defendant received was relevant to show willfulness), petition for

cert. filed, Rodella v. United States, No. 15-1158 (Mar. 16, 2016), and willfulness was an

element of Counts 2 and 3 alleging violation of 18 U.S.C. § 242; and (3) his testimony

was not based on scientific, technical, or other specialized knowledge.

       Second, although Roberson’s testimony addressed facts known to him as a result

of his work experience, it nonetheless was not based on technical or scientific knowledge.

Although Roberson, as a captain in the Muskogee County Sheriff’s Department, arguably

had specialized knowledge regarding the appropriate use of force, he did not offer an

opinion based on that knowledge. Instead, he simply related to the jury two experiences

he had while working as a captain in the Muskogee County Sheriff’s Department. His

testimony was not admitted to establish what level of force is constitutionally permissible

(as Defendants contend); it was admitted to show Defendants’ willfulness. Cf. Orr, 692

F.3d at 1090 (considering the purpose of testimony in determining whether witness

testimony was based on specialized training and experience). The fact that Defendants

were present during some of Roberson’s training sessions, and that Barnes and Roberson

had the conversation detailed above, shows that Defendants were aware that official

protocol limited the use of force to instances when an inmate was acting in a threatening


                                             12
manner. That Defendants disregarded their training on the appropriate use of force is

admissible to show that Defendants acted willfully. See Rodella, 804 F.3d at 1338.

                       b.     Jailer Testimony

       The government also called several current and former MCJ jailers to testify. The

gist of their testimony was that (1) they attended the Council on Law Enforcement

Education and Training (CLEET), a 90-day police training course that discussed the use

of force; (2) CLEET taught them to use force only if an inmate poses a threat to safety,

and that inmates in restraints pose no such threat; (3) the inmates involved in the “Meet

and Greets” at issue in this case were in restraints; and accordingly (4) these “Meet and

Greets” were contrary to their training.

       Brown argues that the jailers’ testimony constituted expert testimony, but did not

comply with the heightened requirements of Federal Rule of Evidence 702. Brown has

failed in his obligation to “cite the precise reference in the record where the issue was

raised and ruled on.” See 10th Cir. R. 28.2(C)(2). Our independent search of the record

uncovered only objections made by Barnes, and seemingly not joined by Brown.3 “[A]n

objection by one defendant is not sufficient to preserve the issue for appeal for another

defendant, at least when (as is the case here) there is no agreement among the defendants

that an objection by one defendant will count as an objection by all defendants.” United

States v. Zapata, 546 F.3d 1179, 1190 (10th Cir. 2008). Accordingly, we consider




       3
           Barnes does not assert this issue on appeal.

                                               13
Brown’s challenge to the admissibility of the jailers’ testimony as lay testimony only for

plain error. See id.

       The plain error standard is not met here because the testimony meets the

requirements of Rule 701: (1) each jailer had personal knowledge of what they were

taught and of the “Meet and Greets” they described; (2) their testimony was helpful to the

jury in understanding whether Brown acted willfully, see Rodella, 804 F.3d at 1338, a

required element of Counts 2 and 3 alleging violation of 18 U.S.C. § 242; and (3) as

Defendants noted during trial, a 90-day police training class is hardly the type of

“scientific, technical, or other specialized knowledge” contemplated by Rule 702.

       Moreover, although the jailers testified about experiences they encountered in their

professional capacities, their testimony was not “based on professional experience” as

contemplated by Rule 702. James River, 658 F.3d at 1215. The jailers simply testified

about what they were taught and what they subsequently witnessed: they were taught not

to use force when an inmate poses no threat, but they later witnessed force being used on

calm inmates who were in restraints and who posed no threat. Admittedly, some

witnesses did go one step further to state that what they observed was inconsistent with

what they had been taught. But even this conclusion “could be reached by an ordinary

person” who attended these classes and then later observed the “Meet and Greets.” See

LifeWise, 374 F.3d at 929.4 The Fourth Circuit reached a similar conclusion in United

       4
          As with Roberson’s testimony, neither of the final two James River factors are
helpful in deciding this issue. The jailers did not rely on an outside expert report, nor is
there a standard classification in the Federal Rules of Evidence for this type of testimony.

                                             14
States v. Perkins, 470 F.3d 150, 156 (4th Cir. 2006) (permitting police officers who

observed a fellow officer’s use of force to testify that the force was unreasonable in light

of their experience, concluding that their testimony was “common enough and required

such a limited amount of expertise”).

                2.     Rule 403 Objection

       Brown also argues that the jailers’ testimony was “extremely prejudicial because

whether the use of force . . . was consistent with the training he or she received at

CLEET, misled the jury concerning the standard to be applied.” Brown Opening Br. at

49. Brown argues that “[i]nstead of making a decision based upon a finding of wanton

and sadistic conduct, the jury appears to have made a decision based upon violation of

CLEET standards.” Id. Brown did not contemporaneously object to this testimony on

Rule 403 grounds. Although Barnes objected on this basis, Brown does not appear to

have joined that objection.5 So once again, we review Brown’s challenge only for plain

error. See Zapata, 546 F.3d at 1190.

       The plain error standard is not met here. Federal Rule of Evidence 403 permits a

district court to “exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. Brown argues that the probative value of this

testimony is substantially outweighed by the danger that the jury would substitute the


       5
           Barnes does not assert this issue on appeal.

                                              15
Eighth Amendment’s “wanton and sadistic” standard with what was taught in the CLEET

training. We conclude that the value of this testimony—to establish the required element

of willfulness—is not substantially outweighed by any harm it would cause. Even if the

court’s admission of their testimony was error, it likely did not affect the outcome of the

trial because the court instructed the jury that CLEET training “does not define the

constitutional boundaries by which treatment of inmates is to be judged.” ROA Vol. I at

479. Brown has failed to show that the court’s admission of this testimony was an error

that affected his substantial rights.

       B.      Challenges to the Sufficiency of the Evidence

       Defendants make separate challenges to the sufficiency of the evidence. Barnes

argues that the government was required, but failed, to prove that the inmates involved in

the “Meet and Greets” had Eighth Amendment rights. Brown argues that the evidence

offered at trial, and not subsequently limited by instruction, is insufficient to show that (1)

his statement to Agent Chapman was false, (2) he physically assaulted anyone, (3) he was

part of a conspiracy, (4) there was any link between himself and Jace Rice, (5) he acted

with the necessary state of mind, and (6) his actions were improper when the deference

afforded jailers is considered. We begin by addressing Barnes’s challenge to the

evidence.

               1.     Barnes’s Challenge: Sufficiency of Evidence that Inmates had Eighth
                      Amendment Rights

       Counts 2 and 3 of the indictment allege that Defendants willfully deprived Jace



                                              16
Rice and Gary Torix of their right “not to be subjected to cruel and unusual punishment.”

ROA Vol. I at 35. The jury instructions also refers to “cruel and unusual punishment” in

setting forth the elements of Counts 2 and 3. Id. at 470–71. Barnes argues that these

references required the government to also prove that Rice and Torix were convicted

inmates who had Eighth Amendment rights, as opposed to pretrial detainees.6 The

government concedes that it did not establish that these inmates had been convicted, but

the government also argues that its failure to do so does not warrant reversal of these

counts. We agree.

       Barnes argued in his appellate brief that the jury instructions, by defining the rights

at issue in Eighth Amendment terms, required that the government prove Rice and Torix

were convicted inmates. After briefing was complete in this case but before oral

arguments, the Supreme Court released Musacchio v. United States, which held “that,

when a jury instruction sets forth all the elements of the charged crime but incorrectly

adds one more element, a sufficiency challenge should be assessed against the elements


       6
          Barnes is correct in noting that because pretrial detainees have not yet been
convicted, they “cannot be punished at all,” let alone in a cruel and unusual manner.
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015). Accordingly, their Eighth
Amendment rights are not implicated. Id. That does not, however, mean that the
conditions of a pretrial detainee’s confinement are not constitutionally protected; that
protection derives instead from the Due Process Clause of the Fourteenth (or Fifth)
Amendment. See Estate of Booker v. Gomez, 745 F.3d 405, 418–19 (10th Cir. 2014).
Although the constitutional sources of these protections are different, the legal standards
are similar. See Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (“Although the Due
Process Clause governs a pretrial detainee’s claim of unconstitutional conditions of
confinement, the Eighth Amendment standard provides the benchmark for such claims.”
(citation omitted)). For our purposes here, we need not flesh out the extent to which the
two standards differ.

                                             17
of the charged crime, not against the erroneously heightened command in the jury

instruction.” 136 S. Ct. 709, 715 (2016). At oral argument, Barnes modified his

argument, relying on the indictment’s reference to “cruel and unusual punishment” (as

opposed to the jury instruction) to require the government to prove Rice and Torix were

convicted inmates, a possibility that the Supreme Court left open in Musacchio. Id. at

715 n.2 (“[W]e express no view on the question whether sufficiency of the evidence at

trial must be judged by reference to the elements charged in the indictment, even if the

indictment charges one or more elements not required by statute.”). Barnes concedes that

because he did not raise this argument before the district court, it is subject only to plain

error review. He nonetheless fails to offer any current, well-settled law that renders the

government’s failure of proof a “plain error.” See United States v. DeChristopher, 695

F.3d 1082, 1091 (10th Cir. 2012) (“An error is plain if it is clear or obvious under current,

well-settled law.”). The fact that the Supreme Court has not foreclosed the possibility

that inclusion of an additional element in an indictment may heighten the government’s

burden does not establish that it does. Accordingly, we reject Barnes’s sufficiency

challenge.

              2.     Brown’s Challenges

       As noted above, Brown contends the evidence presented was insufficient to prove

that (1) his statement was false, (2) he physically assaulted anyone, (3) he was a part of a

conspiracy, (4) there was any link between himself and Jace Rice, (5) he acted with the

required state of mind, and (6) his alleged actions are not within the deference afforded


                                              18
jailers. All of these challenges were raised in both his motion for a judgment of acquittal,

as well as his motion for new trial. The latter motion suggested the jury’s verdict could

only be supported if it considered the testimony of jailer Ashley Mullen, which the

district court excluded from the jury’s consideration. We review each sufficiency

challenge in turn, then reconsider each sufficiency challenge after excluding Mullen’s

testimony.

       “We review a district court’s denial of a motion for a judgment of acquittal under a

de novo standard.” United States v. Dewberry, 790 F.3d 1022, 1028 (10th Cir. 2015).

We must determine “whether taking the evidence—both direct and circumstantial,

together with the reasonable inferences to be drawn therefrom—in the light most

favorable to the government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.” United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir. 2000)

(quoting United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999)). “We will

reverse only if no rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Dewberry, 790 F.3d at 1028 (quoting United States v.

Hale, 762 F.3d 1214, 1222 (10th Cir. 2014)). “We must not weigh conflicting evidence

or consider the credibility of the witnesses, but simply ‘determine whether [the] evidence,

if believed, would establish each element of the crime.’” United States v. Vallo, 238 F.3d

1242, 1247 (10th Cir. 2001) (alteration in original) (quoting United States v. Evans, 42

F.3d 586, 589 (10th Cir. 1994)).




                                             19
       “We ordinarily review the denial of a new trial for abuse of discretion.” United

States v. Herrera, 481 F.3d 1266, 1270 (10th Cir. 2007). In considering a motion for new

trial, the district court “considers the credibility of witnesses and weighs the evidence as a

thirteenth juror.” United States v. Lopez, 576 F.2d 840, 845 n.1 (10th Cir. 1978). The

district court “does not view the evidence in the light most favorable to the government as

[it] would in ruling on a Rule 29 acquittal motion.” Id. The motion should be granted

only “if the interest of justice so requires.” Fed. R. Crim. P. 33(a).

                      a.     Sufficiency of Evidence That Brown’s Statement to the FBI
                             Was False

       Brown argues that the evidence was insufficient for a reasonable jury to conclude

beyond a reasonable doubt that his response to Agent Chapman’s question was false. He

notes that Agent Chapman asked him to describe what happened at “Meet and Greets”

generally, not what happened at any specific “Meet and Greet.” We view evidence in the

light most favorable to the government, asking whether a reasonable jury could find

Brown guilty beyond a reasonable doubt. McKissick, 204 F.3d at 1289.

       The government cites to the testimony of Jodi Matthews, a former jail employee,

to show that the four “Meet and Greets” described at trial represent the “norm.” After

describing the “Meet and Greet” of Rice, Matthews was asked to describe the “Meet and

Greet” of Torix. She answered that “[i]t’s basically the same routine. The inmate is

taken out of the vehicle and slammed onto the ground, assuming that this inmate is going

to be combative because he was brought to our facility for that reason.” ROA Vol. II at



                                              20
1575. This testimony shows that the term “Meet and Greets” had become a term of art

used at MCJ to describe the specific treatment of inmates who were transferred to MCJ

because they were troublemakers. We conclude that the evidence, when viewed in the

light most favorable to the government, is sufficient to support the jury’s finding that

Brown’s response to the agent’s question was false.

                      b.     Sufficiency of Evidence That Brown Physically Assaulted
                             Anyone

       Brown argues that no credible witness testified that he physically assaulted an

inmate or instructed anyone else to do so. That is simply not true. Ashley Mullen, a

former jailer at MCJ, testified that during a “Meet and Greet,” Brown “grabbed [Herbert

Potts] by . . . the front of his jumpsuit and pulled him out on the ground . . . jerk[ing]

[Potts] out onto the concrete pretty much face first.” Id. at 1922. Although the district

court instructed the jury to disregard Mullen’s testimony “regarding alleged conduct

involving an unidentified inmate in the detox area,” he did not instruct the jury to

disregard her testimony regarding Potts. See ROA Vol. I at 468 (emphasis added). So

there is no basis for us to conclude that the jury could not have considered her testimony

regarding Pott’s “Meet and Greet.”7




       7
         Brown also argues that the portion of Mullen’s testimony that was admitted is so
inherently unreliable that it cannot support his convictions. But it was for the jury to
decide whether to believe Mullen. And even if the jury disregarded Mullen’s testimony
as unreliable, it could have believed Brandi Hoover’s account of the incident with Alton
Murphy.

                                              21
       Additionally, another jailer, Brandi Hoover, testified that Brown and Barnes “hit

[Alton Murphy] simultaneously[: Barnes] hit him on top, [Brown] went and hit him under

the legs, and he went to the ground.” ROA Vol. II at 1806. Brown argues that this

testimony is not credible because it differs from the testimony of a fellow jailer, Michael

Gray, who testified that Barnes grabbed Murphy “from behind and they went to the

floor,” with Murphy falling on top of Barnes, and then Brown “jumped on top of them.”

Id. at 1456. Although these descriptions are inconsistent, they both indicate that Brown

physically assaulted Murphy. Even if the distinction were material, it is not our role to

determine which witness the jury found more credible. See Vallo, 238 F.3d at 1247 (“We

must not weigh conflicting evidence or consider the credibility of the witnesses . . . .”).

       At bottom, the question becomes whether the evidence presented supports the

jury’s conclusion that Brown conspired to deprive MCJ inmates of their constitutional

rights (Count 1), and that the “Meet and Greet” of Jace Rice deprived Rice of his

constitutional rights (Count 2). Physical assault is not a necessary element of either

count. See United States v. Conatser, 514 F.3d 508, 519 (6th Cir. 2008) (“Conviction for

conspiracy did not require proof that [Defendant] assaulted a particular inmate without

justification, only that he joined in the conspiracy that had such assaults as one of its

objects.”); United States v. Serrata, 425 F.3d 886, 894–96 (10th Cir. 2005) (affirming a

conviction under 18 U.S.C. § 242 for failing to intervene, though not participating in, an

assault on an inmate). Accordingly, the government was not required to show beyond a




                                              22
reasonable doubt that Brown physically assaulted Potts, Murphy, Rice, or any other

inmate.

                      c.     Sufficiency of Evidence That Brown Was Part of the
                             Conspiracy

       Brown also argues that the government failed to offer evidence that he was part of

a conspiracy with Barnes. We disagree. “The government need not offer direct proof of

an express agreement on the part of the defendant. Instead, the agreement may be

informal and may be inferred entirely from circumstantial evidence.” United States v.

Whitney, 229 F.3d 1296, 1301 (10th Cir. 2000) (citation omitted). A reasonable jury can

infer agreement from “a variety of circumstances, such as, ‘sharing a common motive,

presence in a situation where one could assume participants would not allow bystanders,

repeated acts, mutual knowledge with joint action, and the giving out of misinformation

to cover up [the illegal activity].’” Id. (alteration in original) (quoting United States v.

Davis, 810 F.2d 474, 477 (5th Cir. 1987)).

       Viewing the evidence in the light most favorable to the government, a reasonable

jury could conclude beyond a reasonable doubt that Brown entered into an agreement

with Barnes to interfere with the constitutional rights of inmates. There is testimony to

support a finding that Brown was present during at least three of the four “Meet and

Greets” at issue in this case. There is also evidence that he directly participated in the

“Meet and Greet” of Potts, as well as the assault on Murphy. And there is evidence from

which a reasonable jury could infer that Brown tried to cover up inmate abuse, including



                                               23
changing the shift of Tonia Hardy, a former jail employee, after she reported a deputy’s

aggressiveness toward an inmate. The record demonstrates that Barnes engaged in very

similar behavior, which suggests that Brown and Barnes shared a common motive and

mutual knowledge. From this evidence, a reasonable jury could conclude that Defendants

had joined in an agreement to deprive inmates of their right to be free from cruel and

unusual punishment.

                      d.     Sufficiency of Evidence Tying Brown to Rice’s Assault

       Brown also argues that the evidence was insufficient to support a conviction as to

Count 2 because there was no evidence that Brown “ever laid a hand on Jace Rice” or

“instructed any other jail employee” to do so. Brown Opening Br. at 36. This argument

lacks merit. “[E]vidence of direct participation in a substantive offense is not necessary

for criminal liability under the principles holding conspirators liable for the substantive

crimes of the conspiracy.” United States v. Cherry, 217 F.3d 811, 816 (10th Cir. 2000)

(citing Pinkerton v. United States, 328 U.S. 640, 647 (1946)). “[S]o long as the

partnership in crime continues, the partners act for each other in carrying it forward.”

Pinkerton, 328 U.S. at 646. Thus, because the jury found Brown to be guilty of

conspiracy, it need only make the additional findings that (1) a co-conspirator committed

the acts alleged in Count 2 during the time Brown was a member of the conspiracy, and

(2) the acts were “committed to achieve an objective of or [were] a foreseeable

consequence of that conspiracy.” See Tenth Circuit Criminal Pattern Jury Instruction

2.21 (2015) (citing Pinkerton, 328 U.S. at 645–47).


                                             24
       There was sufficient evidence for the jury to make these findings. As indicated

supra, evidence presented at trial supported a finding that Barnes and Brown had joined in

an agreement and acted in concert with others to interfere with the constitutional rights of

inmates entrusted to their care and custody. Michael Gray, a jailer at MCJ, testified that

Barnes instructed him and another jailer to remove Rice from the vehicle so that his head

was “the first thing that touched the ground,” and that they followed that order even

though Rice was calm and shackled at the time. ROA Vol. II at 1442. From this

testimony, a reasonable jury could infer that Gray joined the Brown-Barnes conspiracy, at

least during Rice’s “Meet and Greet,” and that his actions were taken in furtherance of the

conspiracy. Thus, there is sufficient evidence to support Brown’s conviction on Count 2.

                     e.      Sufficiency of Evidence of the Necessary Mental Elements

       The statute underlying Counts 2 and 3, 18 U.S.C. § 242, requires proof of

willfulness, which is “specific intent . . . to deprive a person of a right which has been

made specific either by the express terms of the Constitution or laws of the United States

or by decisions interpreting them,” see Screws v. United States, 325 U.S. 91, 104 (1945).

Willfulness can be inferred from “plainly” wrongful conduct, id. at 106, inconsistency

between actions and training, Rodella, 804 F.3d at 1338, and efforts to prevent detection

of wrongful behavior, United States v. House, 684 F.3d 1173, 1202 (11th Cir. 2012). All

three inferences are supported here. First, the record indicates that all inmates involved in

the “Meet and Greets” were in restraints and calm when they arrived, but nonetheless

were pulled from the vehicle, and forced to the ground. Several officers then piled on top


                                              25
of each inmate while restraints were switched out, and then each inmate was carried into

the jail. These actions, in which Defendants participated, provided a reasonable jury with

the basis to conclude that the conduct was “plainly” excessive. Second, CLEET training

and jail school taught jailers (and presumably Brown) that inmates in restraints do not

pose a sufficient threat to justify throwing them to the ground or striking them. Third, as

indicated supra, Brown took efforts to conceal his behavior by retaliating against those

jail employees who honestly reported incidents involving use of force. We conclude this

evidence is sufficient to show Brown’s willfulness.

       To convict Brown of violation of an inmate’s Eighth Amendment right requires

proof of an additional mental element: malicious, sadistic intent. Hudson v. McMillian,

503 U.S. 1, 6 (1992). “We can infer malicious, sadistic intent from the conduct itself

where ‘there can be no legitimate purpose’ for the officers’ conduct.’” Serna v. Colo.

Dep’t of Corr., 455 F.3d 1146, 1152 (10th Cir. 2006) (quoting Smith v. Cochran, 339

F.3d 1205, 1213 (10th Cir. 2003)). Numerous witnesses testified that the inmates

involved in the “Meet and Greets” were calm and in restraints, thus posing no threat. The

only proffered justification for the force used against these inmates was to discourage

future repetition of their alleged past bad behavior. Such punitive treatment does not

serve a legitimate penological purpose. See Hope v. Pelzer, 536 U.S. 730, 738 (2002)

(concluding that handcuffing an inmate to a hitching post after “[a]ny safety concerns had

long since abated” constituted “punitive treatment,” which “amounts to gratuitous

infliction of ‘wanton and unnecessary’ pain”). This evidence suggests there was no


                                             26
legitimate purpose for Brown’s conduct, which in turn suggests that he acted with

malicious, sadistic intent.

                      f.      Sufficiency of Evidence to Overcome Jailer Deference

       “Prison administrators . . . should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their judgment are needed to

preserve internal order and discipline and to maintain institutional security.” Whitley v.

Albers, 475 U.S. 312, 321–22 (1986) (omission in original) (quoting Bell v. Wolfish, 441

U.S 520, 547 (1979)). In light of this deference, juries may not

       freely substitute their judgment for that of officials who have made a
       considered choice. Accordingly, in ruling on a motion for a directed verdict
       in a case such as this, courts must determine whether the evidence goes
       beyond a mere dispute over the reasonableness of a particular use of force
       or the existence of arguably superior alternatives. Unless it appears that the
       evidence, viewed in the light most favorable to the [government], will
       support a reliable inference of wantonness in the infliction of pain under the
       standard we have described, the case should not go to the jury.

Id. at 322.

       However, this deference “does not insulate from review actions taken in bad faith

or for no legitimate purpose.” Id. As indicated supra, the evidence presented in this case

suggests that there were no legitimate purposes underlying Brown’s actions. This

evidence “goes beyond a mere dispute over the reasonableness of . . . force” and

“supports a reliable inference of wantonness,” and was therefore sufficient to overcome

the deference owed to jailers when acting to maintain the internal order, discipline, or

security of the prison. See Whitley, 475 U.S. at 322.



                                             27
                       g.     Sufficiency of Evidence Absent Ashley Mullen’s Testimony

         In his motion for new trial, Brown essentially reasserts all of the sufficiency

arguments discussed above, noting that a district court may weigh evidence and evaluate

credibility in considering this motion. The only new argument raised in the motion for

new trial is that the jury inappropriately considered—despite being instructed to the

contrary—Ashley Mullen’s graphic testimony describing a brutal attack upon on an

unidentified inmate. Even though Mullen testified to what is perhaps, as the district court

described it, “the most extreme incident,” ROA Vo. I at 620, when we review the

evidence as a whole after excluding Mullen’s testimony regarding this attack, there is

sufficient remaining evidence to support convictions on Counts 1 and 2. Thus, we also

conclude the district court did not abuse its discretion in denying Brown’s motion for new

trial.

         C.     Challenges to Jury Instructions

         Barnes also challenges the Eighth Amendment standards set forth in the jury

instructions. First, he argues that the district court incorrectly instructed the jury that

force is “unnecessary or wanton” if Defendants acted “maliciously or sadistically,” when

in fact the standard is “maliciously and sadistically.” Second, he argues that the

instructions did not properly instruct the jury that the deference given to jailers “extends

. . . to prophylactic or preventive measures intended to reduce the incidence” of violent

breaches of order. Barnes Opening Br. at 41 (quoting Whitley, 475 U.S. at 322). We




                                               28
conclude the district court’s instructions were supported and were a correct statement of

the law.

              1.      Instruction on Eighth Amendment Standard

       As regards Barnes’s three counts of conviction (Counts 1, 2, and 3), the court

instructed the jury that “[w]hether a use of force against a jail inmate is unnecessary or

wanton depends on whether force was applied in a good faith effort to maintain or restore

discipline, or whether it was done maliciously or sadistically for the purpose of causing

harm.” ROA Vol. I at 467, 474. Barnes challenges the use of the disjunctive “or,”

arguing that the proper standard requires a showing that Defendants acted both

maliciously and sadistically, rather than simply showing one or the other.

       The parties’ proposed jury instructions used the conjunctive “and” in describing

the required mental state. The disjunctive “or” was first introduced by the instructions

prepared by the district court. Despite having adequate time to review the court’s

proposed instructions and to make objections prior to submitting the instructions to the

jury, Barnes “failed to put the district court ‘clearly on notice as to the asserted

inadequacy’ of the jury instruction. Therefore, we review for plain error.” United States

v. Fabiano, 169 F.3d 1299, 1303 (10th Cir. 1999) (quoting United States v. Duran, 133

F.3d 1324, 1330 (10th Cir. 1998)). Barnes has not identified any authority

considering—let alone resolving—this issue. Thus, even if the use of “or” instead of

“and” does constitute error, it was not an “obvious or clear” error “contrary to well-settled

law.” See United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003) (quoting Duran,


                                              29
133 F.3d at 1330). Because the plain error standard is not met here, there is no basis to

reverse Barnes’s convictions on this ground.

              2.      Instruction on Deference to Jailers

       Barnes also argues that the jury instructions failed to inform the jury that the

deference owed to jailers “extends ‘to prophylactic or preventive measures intended to

reduce’ breaches of jail discipline.” Barnes Opening Br. at 42 (quoting proposed jury

instruction). Barnes raised this issue during the instruction conference, therefore we

apply an abuse-of-discretion standard of review. See United States v. Faust, 795 F.3d

1243, 1251 (10th Cir. 2015). “A district court properly exercises its discretion if the jury

instructions as a whole ‘correctly state the governing law and provide an ample

understanding of the issues and the applicable standards.’” United States v. Turner, 553

F.3d 1337, 1347 (10th Cir. 2009) (quoting United States v. Gonzales, 535 F.3d 1174,

1179 (10th Cir. 2008)). “We reverse only if prejudice results from a court’s refusal to

give a requested instruction.” Id.

       The district court did not abuse its discretion in rejecting Barnes’s proposed

instruction and instructing the jury as it did. Barnes has not provided, nor could we find,

any authority suggesting that the instruction language he proposed was required. All that

matters is that the jury instructions which were given adequately convey the legal

principle set forth in the proposed instruction: that jailers are entitled to deference in

acting to prevent breaches of jail discipline. That was done here. The jury was instructed

to “give deference to prison officials in the adoption and execution of policies and


                                              30
practices that in their judgment are needed to preserve discipline and to maintain internal

security in a jail.” ROA Vol. I at 467, 474 (emphasis added). We see no material

difference between the language Barnes insists is required and the language included by

the district court. None of the cases Barnes cites suggests that anything more was

required. See ROA Vol. I at 280 (citing Hudson, 503 U.S. at 6; Whitley, 475 U.S. at

321–22; Bell, 441 U.S. at 547; Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981);

Green v. Branson, 108 F.3d 1296, 1300–01 (10th Cir. 1997)). Nor does he explain why

the language included in the instructions was not sufficient. Accordingly, we conclude

the district court did not abuse its discretion when it rejected Barnes’s proposed

instruction.

                                             III

                         Government’s Cross-Appeal of Sentences

       The district court found, and the parties do not dispute, that Defendants’ total

offense level was 27 and their criminal history categories were I, resulting in a suggested

Guideline range of 70 to 87 months’ imprisonment. The district court sentenced Barnes

to twelve months and one day of incarceration, followed by two years of supervised

release; it sentenced Brown to six months’ imprisonment, followed by three years of

supervised release The government appeals these sentences, arguing that they are both

procedurally and substantively unreasonable.

       We review sentences “for reasonableness under a deferential abuse-of-discretion

standard.” United States v. Sharp, 749 F.3d 1267, 1291 (10th Cir. 2014). “A district


                                             31
court abuses its discretion when it renders a judgment that is arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Alvarez-Bernabe, 626 F.3d

1161, 1165 (10th Cir. 2010) (quoting United States v. Beltran, 571 F.3d 1013, 1018 (10th

Cir. 2009)). “Reasonableness review is a two-step process comprising a procedural and a

substantive component.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.

2009) (quoting United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008)).

“Procedural reasonableness involves using the proper method to calculate the sentence,”

while “[s]ubstantive reasonableness involves whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007). The

government challenges both the procedural and substantive reasonableness of

Defendants’ sentences. We conclude that the verbal pronouncement of Defendants’

sentences was procedurally unreasonable, which requires that we remand for

resentencing. Given our remand for resentencing on the procedural unreasonableness

claim, we need not address the government’s remaining challenges.

       “A district court commits procedural sentencing error when it ‘fail[s] to adequately

explain the chosen sentence—including an explanation for any deviation from the

Guidelines range.’” United States v. Mendoza, 543 F.3d 1186, 1191 (10th Cir. 2008)

(alteration in original) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). When a

district court imposes a sentence outside the applicable Guideline range, it must “state in

open court . . . the specific reason for the imposition of a sentence different from” the


                                              32
recommended range. 18 U.S.C. § 3553(c)(2)). “To satisfy the verbalization requirement

of § 3553(c)(2), a district court must describe the salient facts of the individual case,

including particular features of the defendant or of his crime, and must explain for the

record how these facts relate to the § 3553(a) factors.” Mendoza, 543 F.3d at 1192. Such

an explanation is required in order to “provide the context required by an appellate court

reviewing the sentence for substantive reasonableness.” Id.

       During separate sentencing hearings, both Defendants moved for downward

variances, asking for a term of supervised release and no incarceration. Both sides had an

opportunity to argue for the sentences each thought was appropriate in these cases. The

district court granted Defendants’ motions, but not to the extent requested. The court

offered the following explanation in support of granting Barnes’s motion:

       In establishing an appropriate sentence for this defendant, the Court has
       considered the totality of the circumstances regarding the offenses of
       conviction, including the defendant’s role in the offenses. Additionally, the
       Court has considered the defendant’s personal and family responsibilities,
       employment history, lack of prior criminal history, low risk of recidivism,
       and the need to avoid unwarranted sentencing disparities.

                                             ***

       Taking into consideration the defendant’s history and characteristics, his
       unlikelihood of recidivism, as well as the offense conduct, need for just
       punishment, deterrence, and protection of the public, the Court finds that a
       variance based on the sentencing factors cited in 18 United States Code,
       Section 3553(a) is appropriate in this case. Therefore, . . . the motion for
       variance is granted. Not necessarily what’s being asked.

                                             ***




                                              33
       In formulating the sentence imposed, this Court has considered the nature
       and circumstances of the offense, as well as the characteristics and criminal
       history of the defendant. The Court has further taken into consideration the
       sentencing guideline calculations contained within the presentence report,
       in addition to any objections, clarifications, additions, or deletions to those
       guideline calculations identified in the addendum to the report or announced
       in open court today. While the Court recognizes that it is not bound by the
       sentencing guideline calculations, the Court has considered them and finds
       them to be advisory in nature. The sentence prescribed by this Court reflects
       the seriousness of the offense, promotes respect for the law, and provides
       just punishment for the offense. This sentence affords adequate deterrence
       to criminal conduct, protects the public from further crimes of this
       defendant, and provides correctional treatment for the defendant in the most
       effective manner.

ROA Vol. II at 1089–94. The district court’s justification of Brown’s sentence was

nearly identical to that it gave for Barnes’s sentence. Compare id. with id. at 1160–65.

The only meaningful difference between the two colloquies is that the court did not

mention “employment history” in sentencing Brown, which presumably reflects Brown’s

struggle to maintain stable employment after being indicted.

       The government argues that the district court did not sufficiently tie the rationale

for the sentences it imposed to the § 3553(a) factors. Defendants suggest that the district

court’s reasons can be ascertained from a review of the record as a whole. Defendants

rely primarily on questions asked and comments made by the district court during the

parties’ arguments. Admittedly, the district court was very active during the sentencing

hearing. See, e.g., id. at 1073 (questioning the government about Barnes’s “probability of

recidivism”), 1077 (asking the government whether “a culture of fear and intimation is

probably necessary to keep control in a jail”), 1079–80 (disagreeing with the government



                                             34
regarding the frequency with which inmates’ head would strike surrounding objects while

they were carried into the MCJ), 1137 (asking whether the government would “agree that

the level of danger to a law enforcement officer in prison is greater than that of any other

person”), 1144 (asking the government whether any correctional treatment would benefit

Brown). Defendants suggest that these and similar comments or questions demonstrate

that the district court varied downward because (1) the inmates had violent pasts, (2) the

court did not think the resulting injuries were particularly serious, (3) incarceration would

be more difficult for Defendants because they had served as jail administrators for several

years, (4) the investigation leading to Defendants’ arrests was triggered by Barnes

reporting a jailer for abusing an inmate, (5) Defendants’ lack of criminal history, (6) low

likelihood of recidivism, and (7) personal and family responsibilities.

       We are not convinced. Although the record indicates that the district judge was

aware of and had questions about these facts, it is not clear which (if any) of these or

other facts the district judge actually relied on in varying downward, or how these facts

relate to the § 3553(a) factors. We cannot meaningfully review the district court’s

decision based on the record before us. We therefore conclude that the sentencing was

procedurally unreasonable.

       We must next determine whether the procedural error is harmless. See Fed. R.

Crim. P. 33. “Harmlessness must be proven by a preponderance of the evidence, and the

burden of making this showing falls on the beneficiary of the error,” the Defendants.

United States v. Lente, 647 F.3d 1021, 1037 (10th Cir. 2011) (quoting United States v.


                                             35
Cerno, 529 F.3d 926, 939 (10th Cir. 2008)). “A harmless error ‘is that which did not

affect the district court’s selection of the sentence imposed.’” Id. at 1037–38 (quoting

United States v. Kaufman, 546 F.3d 1242, 1270 (10th Cir. 2008)). Defendants argue that

the district court’s active engagement during the parties’ discussion of the § 3553(a)

factors demonstrates that had the court employed greater specificity when providing its

reasons in support of the sentences imposed, the resulting sentences would not have

increased. We have rejected this type of bare-bones argument before. See id. Without a

more thorough consideration of the § 3553(a) factors, we are left with the firm conviction

that the direct effect of the procedural error was the district court’s imposition of

unusually lenient sentences, falling far below the applicable Guidelines range. We

therefore vacate Defendants’ sentences and remand for resentencing.

                                              IV

                                         Conclusion

       For the reasons set forth above, we AFFIRM Defendants’ convictions, VACATE

their sentences as procedurally unreasonable, and REMAND for resentencing.



                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




                                              36
