                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       August 8, 2017
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-3324
                                              (D.C. No. 5:13-CR-40060-DDC-1)
 ALBERT DEWAYNE BANKS,                                    (D. Kan.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


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


                                 I. Introduction

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

the Geary County, Kansas area. Appellant Albert Dewayne Banks was arrested

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

cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a), and multiple counts of

distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1).



      *
         This order and judgment is not binding precedent except under the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.
         Before trial, Banks moved to dismiss the indictment for Speedy Trial Act

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

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

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

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

process for determining whether certain intercepted phone calls were admissible

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

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

cause.

         Banks was tried along with several co-defendants, including Johnny Lee

Ivory, Martye Madkins, and Anthony Carlyle Thompson, who are now appellants

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

search of Banks’s residence. Banks and his co-defendants were convicted on all

counts. The presentence investigation report (PSR) calculated the quantity of

drugs attributable to Banks and the corresponding guidelines sentencing range,

but it also determined Banks faced a mandatory minimum sentence of life in

prison on the conspiracy conviction. Banks filed written objections to the PSR,

disputing the drug-quantity calculation and the mandatory minimum sentence.

Banks also objected to the imposition of a four-level leader-organizer

enhancement.




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      At sentencing, the court rejected Banks’s objections and imposed a

mandatory minimum sentence of life in prison. Later, the court acknowledged it

erred in imposing a mandatory life sentence, because the jury did not find that

Banks was personally responsible for 280 or more grams of cocaine base. The

court therefore vacated its previous sentence and adopted from the original

sentencing hearing its finding that Banks was responsible for 8.477 kilograms of

cocaine base. The court calculated Banks’s total offense level—which included

the four-level leadership enhancement—and imposed a sentence of 360 months’

imprisonment.

      Banks now appeals his convictions and sentence, incorporating by reference

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

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

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

CSLI obtained without a warrant; (3) denying his motion to suppress evidence

obtained from the search of his residence; and (4) delivering an unconstitutional

reasonable doubt instruction to the jury.

      Banks also appeals his sentence, arguing the district court erred in (1)

failing to make particularized findings about the drug quantity attributable to him

      1
         We consolidated these four appeals for all procedural purposes, including
briefing and oral argument. The government thus submitted one consolidated
response brief, and we heard oral argument in Banks’s appeal along with
consolidated cases 15-3299 (Madkins) and 15-3313 (Thompson). Consolidated
case 15-3238 (Ivory) was submitted on the briefs.

                                          -3-
as relevant conduct; and (2) imposing the four-level leader-organizer

enhancement, because none of the evidence presented at trial established Banks

served as a leader or organizer in the conspiracy.

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

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

2017); and United States v. Ivory, No. 15-3238 (10th Cir. 2017), we affirm (1) the

denial of Banks’s motion to dismiss; (2) the admission of the CSLI and denial of

Banks’s motion to suppress evidence; and (3) the reasonable doubt instruction

delivered to the jury. But we vacate Banks’s sentence and remand for the court to

make particularized drug-quantity findings, make findings on Banks’s role (if

any) as a leader or organizer in the conspiracy, and resentence him accordingly.

                                   II. Analysis

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

      A. Speedy Trial Action Violations

      Banks first argues the district court violated his right to a speedy trial.

Pursuant to Federal Rule of Appellate Procedure 28(j), Banks joins in and adopts

by reference the Speedy Trial Act arguments made by his co-defendant Madkins.

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

relevant factual background, and the facts for Banks’s appeal are materially

identical. Pertinently, Banks filed two demands for a speedy trial and, like



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Madkins, filed a motion to dismiss the indictment for Speedy Trial Act violations.

It is the district court’s denial of that motion to dismiss that Banks now appeals.

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

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

record contains sufficient ends-of-justice findings. For the same reasons, we

conclude the district court did not violate Banks’s right to a speedy trial.

Accordingly, we affirm Banks’s convictions.

      B. Admission of CSLI

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

Communications Act, which allows the government to obtain historical CSLI

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

Procedure 28(j), Banks joins in and adopts by reference the arguments regarding

the constitutionality of § 2703(d) advanced by his co-defendant Thompson.

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

relevant factual background for Banks’s claims. Banks joined Thompson’s

opposition to the government’s § 2703(d) application and filed his own

suppression motion, seeking to exclude evidence obtained from the search of his

residence. Banks now appeals the district court’s rulings on these motions.

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

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

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

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

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

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

unconstitutional.

      For the same reasons outlined in Thompson, we hold the district court did

not err in granting the government’s application for orders requesting historical

CSLI or in admitting the CSLI at a pretrial proceeding.

      C. Denial of Motion to Suppress

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

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

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

arguments raised by his co-defendant Thompson.

      In Thompson, we conclude the affidavits supporting the search warrant for

Thompson’s residence sufficiently alleged probable cause, and the court did not

err in requiring the government to prove the provenance of the intercepted phone

calls by a preponderance of the evidence. For the same reasons, we affirm the

district court’s denial of Banks’s motion to suppress.

      D. Reasonable Doubt Instruction

      Banks next contends the district court’s reasonable doubt instruction was

constitutionally deficient. Pursuant to Federal Rule of Appellate Procedure 28(j),




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Banks joins in and adopts by reference the arguments regarding the district

court’s reasonable doubt instruction raised by his co-defendant Ivory.

      The factual background is the same as that described in United States v.

Ivory, No. 15-3238 (10th Cir. 2017), with one distinction: unlike Ivory, Banks

objected to the court’s instruction at the instructions conference. Therefore, we

review his challenge to the sufficiency of the instruction de novo. See Tillman v.

Cook, 215 F.3d 1116, 1123 (10th Cir. 2000).

      But Banks’s challenge fares no better than Ivory’s. As we explain in Ivory,

our recent decision in United States v. Petty, 856 F.3d 1306 (10th Cir. 2017),

forecloses all of the appellants’ arguments about the constitutionality of the

instruction. In Petty, we reviewed de novo the constitutionality of a materially

identical reasonable doubt instruction and squarely rejected the precise challenges

Ivory and Banks assert on appeal. For the same reasons articulated in Ivory, we

reject Banks’s challenges to the constitutionality of the instruction.

      E. Challenges to Banks’s Sentence

      Finally, Banks attacks his sentence in two ways, arguing the district court

erred in (1) failing to make particularized findings about the drug quantity

attributable to him as relevant conduct; and (2) imposing a four-level leadership

enhancement without any support in the record.

      Before sentencing, the probation officer prepared the presentence

investigation report (PSR). The PSR found Banks responsible for 8.477

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kilograms of cocaine base and applied a two-level enhancement for possession of

a firearm and a four-level enhancement for being a leader or organizer of a

criminal activity involving five or more participants. This yielded a total offense

level of 42, with a corresponding advisory guidelines range of 360 months to life

in prison. But the PSR also determined Banks was subject to a mandatory

minimum sentence of life in prison on the conspiracy conviction, thus rendering

moot any otherwise applicable guidelines calculations.

      Banks filed written objections to the PSR, disputing the drug-quantity

calculation and the facts on which it was based, as well as the determination that

he faced a mandatory life sentence. Banks also objected to the four-level

leadership enhancement, arguing there was no evidence presented at trial of any

of the factors identified in the Guidelines that would establish Banks as a leader

or organizer.

      At sentencing, the court rejected Banks’s objections, finding that because

Banks was found guilty of a conspiracy involving more than 280 grams of crack

cocaine, the mandatory minimum applied—even without a jury finding that Banks

was individually responsible for that amount. The court also found Banks served

in a leadership role and applied the four-level enhancement. With a total offense

level of 40 and a criminal history category of IV, Banks’s corresponding

guidelines range was 360 months to life in prison. But the court imposed what it

believed was a mandatory minimum sentence of life in prison.

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      The court later realized it erred in imposing a mandatory life sentence,

because the jury did not find Banks was personally responsible for 280 or more

grams of cocaine base. Accordingly, the court vacated Banks’s sentence and all

of its previous findings. The court then adopted from the previous sentencing

hearing its finding that Banks was responsible for 8.477 kilograms of cocaine

base. Based on this finding, the court calculated a total offense level of

40—which included the four-level leadership enhancement—and a criminal

history category of IV. The court sentenced Banks to 360 months’ imprisonment.

               1. Particularized Drug-Quantity Findings

      Banks first argues that in finding him accountable for 8.477 kilograms of

crack cocaine, the district court failed to make particularized findings about the

drug quantity attributable to him as relevant conduct.

      We review for clear error a district court’s determination of the drug

quantity attributable to a defendant, including the scope of jointly undertaken

criminal activity. United States v. Sells, 541 F.3d 1227, 1235 (10th Cir. 2008).

Here, the government concedes the district court clearly erred in failing to make

particularized findings and joins Banks’s request for vacatur of his sentence on

that basis. We accept the government’s concession, vacate Banks’s sentence, and

remand for the district court to make the requisite findings and resentence Banks

accordingly.




                                         -9-
             2. Four-Level Leadership Enhancement

      Banks next argues the court erred in imposing the four-level leadership

enhancement, even though no evidence in the record supports application of the

enhancement.

      We review challenges to the imposition of guidelines enhancements for

clear error as to findings of fact and de novo as to questions of law. United States

v. Irvin, 682 F.3d 1254, 1276–77 (10th Cir. 2012).

      Section 3B1.1(a) of the Sentencing Guidelines provides for a four-level

increase in a defendant’s total offense level “[i]f the defendant was an organizer

or leader of a criminal activity that involved five or more participants or was

otherwise extensive.” The application notes explain,

             Factors the court should consider include the exercise of
             decision making 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.

USSG § 3B1.1 cmt. n.4.

      We have previously stated, “[i]n considering these factors, the sentencing

court should remain conscious of the fact that the gravamen of this enhancement

is control, organization, and responsibility for the actions of other individuals

because § 3B1.1(a) ‘is an enhancement for organizers or leaders, not for


                                         -10-
important or essential figures.’” United States v. Torres, 53 F.3d 1129, 1142

(10th Cir. 1995) (quoting United States v. Roberts, 14 F.3d 502, 523 (10th Cir.

1993)). And we have clarified that “[t]his is not a particularly onerous showing:

‘The Guideline requires only a conclusion that the defendant supervised at least

one such participant; it does not require the court to identify specific examples.’”

United States v. Gallant, 537 F.3d 1202, 1241 (10th Cir. 2008) (quoting United

States v. Aptt, 354 F.3d 1269, 1287 (10th Cir. 2004)).

      The problem here, however, is there were no findings upon which the

district court could have relied in imposing the enhancement. Although the court

discussed the § 3B1.1 factors and made factual findings during the initial

sentencing hearing, at resentencing the court vacated all of its previous findings

except those regarding drug quantity. The court did not make any new findings

on Banks’s role as a leader or organizer in the conspiracy, nor did it adopt its

findings from the previous sentencing hearing.

      Accordingly, on remand the district court should make factual findings on

Banks’s role (if any) as a leader or organizer based on the 3B1.1 factors and

resentence him accordingly.




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                            III. Conclusion

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

his sentence and REMAND for resentencing.

                                          ENTERED FOR THE COURT

                                          Timothy M. Tymkovich
                                          Chief Judge




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