FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             July 11, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                      No. 18-8014, 18-8015
                                                   (D.C. No. 1:17-CR-00167-ABJ-1)
 SAVON GERMAIN CARTER and                          (D.C. No. 1:17-CR-00167-ABJ-2)
 CHRISTINA MARIE EICHLER,                                      (D. Wyo.)

       Defendants - Appellants.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BACHARACH, BALDOCK, and PHILLIPS, Circuit Judges.
                 _________________________________

      A federal jury convicted Savon Carter and Christina Eichler of the sole count

charged against them—conspiracy to distribute 500 grams or more of a mixture or

substance containing a detectible amount of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(l), (b)(1)(A), and 846. Carter and Eichler have individually

appealed, challenging their respective convictions and sentences.1 Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.



      *
         This order and judgment is not binding precedent, except under the doctrines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.
      1
         Carter and Eichler filed separate appeals. Because of the substantial overlap
in the issues, we have consolidated their appeals in this order.
                                  BACKGROUND

      The defendants, Christina Eichler and Savon Carter, both hail from Utah.

Eichler lived in Wyoming from May to July 2016, after which she returned to Utah,

where she and Carter cohabitated as a couple in Midvale, Utah, a suburb south of Salt

Lake City. Eichler returned to Wyoming every week or two to visit her two teenage

sons, who were living there in youth homes. But Eichler also traveled to Wyoming

for a second reason: to sell methamphetamine.

      On September 18, 2016, during one of these trips to Wyoming, a Utah state

trooper stopped Eichler for speeding in her Chrysler PT Cruiser near Park City, Utah.

Eichler was on her way to sell “a couple ounces” of methamphetamine and “some

marijuana” to a Wyoming resident named Darrell Gilson at a Walmart in Evanston,

Wyoming. Carter’s ROA vol. 3 at 299:12. The state trooper smelled raw and burnt

marijuana wafting from Eichler’s car, so he searched the car and her purse. He found

about an ounce of marijuana and an ounce of methamphetamine. He arrested Eichler

and booked her into the Summit County, Utah jail. While detained, Eichler

repeatedly called Carter from the jail system’s recorded line. Among other things,

Carter and Eichler discussed obtaining money from their associates for Eichler’s

bond. Carter and Eichler also discussed the need for Carter to sell something to

Gilson while Eichler was detained. Eichler told Carter, “Tell [Gilson], like, I can

handle what Christina handled for you.” Govt. Exhibit 14A. Carter related to Eichler

his conversation with Gilson, in which Carter told Gilson that he should chip in to

help post Eichler’s bond because “she got pulled over going to meet you.” 

to Gilson, Carter later told Gilson that he could sell him

methamphetamine at the same price Eichler was selling.

      While in jail in Summit County, Eichler met a woman named Sadie McKenna,

a methamphetamine user since childhood. Because Eichler’s driver’s license was

suspended after her arrest, she began paying McKenna $50 to give her rides to

Wyoming, telling McKenna that she was traveling to Wyoming to see her children.

McKenna drove Eichler to Wyoming three times. During these trips, McKenna never

saw Eichler use methamphetamine.2

      For their first trip, Eichler and McKenna traveled to Green River, Wyoming in

Eichler’s PT Cruiser to visit George Maestas, who had pitched in $250 for Eichler’s

bail. After arriving, Eichler met with Maestas alone in a room in his trailer for a

while. McKenna didn’t know what they were doing, but according to Maestas,

Eichler was selling him methamphetamine. Afterward, Eichler visited her children,

while Maestas and McKenna smoked methamphetamine together. While there,

McKenna saw several people coming and going from the house: knocking on the

door, coming inside to talk to Maestas, and staying for only five or ten minutes. After

Eichler returned from visiting her children, she and McKenna returned to Utah.

      For the second trip, McKenna drove Eichler back to Green River, this time to

sell Eichler’s PT Cruiser to Maestas. Maestas paid $1,000 for the car. After selling

the car, Eichler and McKenna left to gamble and later returned to stay the night at


      2
      McKenna testified that she obtained methamphetamine from Eichler only one
time—about $10 worth—and that Eichler did not charge her for it.

                                           3
Maestas’s house. Again, people were coming and going from the house all night and

smoking methamphetamine. One of these people was Gilson. With the PT Cruiser

sold, Eichler and McKenna needed another car to get back to Utah, so Eichler

reached out to Gilson, who agreed to sell Eichler a Chrysler 300. Because the car

needed some repairs before it was drivable, Gilson drove Eichler and McKenna back

to Utah. Gilson later drove to Utah in the purchased car (that he had supposedly

repaired) to deliver it to Eichler.

       For the third trip, Eichler and McKenna drove Gilson back to Wyoming after

he delivered the Chrysler 300. On the way, the car would “just start chugging and

stop.” Carter’s ROA vol. 3 at 400:18. Gilson was able to temporarily fix the issue,

but it was a continuous problem during the drive. Because of the car’s ongoing

mechanical problems, Eichler and Gilson began haggling over the price. According

to Gilson, Eichler ultimately gave him three ounces of methamphetamine, a quarter

pound of marijuana, and cash in exchange for the Chrysler 300.

       Later, Gilson began purchasing methamphetamine from Eichler and Carter at

their house in Midvale. Initially, Gilson would buy from Eichler, but then began

buying from Carter, although Eichler was present at the house for those transactions.

At some point, Gilson stopped buying from Eichler and Carter and started buying

from McKenna, because she could obtain methamphetamine at a better price.

       When he couldn’t get in touch with McKenna, Gilson would buy from Michael

Flores (the third person charged in the conspiracy), who would obtain

methamphetamine from Carter and Eichler. Flores had met Eichler sometime near


                                          4
September 2016. Like Gilson, Flores had first bought methamphetamine from

Eichler, but later began buying it from Carter instead (though Eichler was sometimes

at the house). On one occasion, Gilson was in the room when Carter delivered the

methamphetamine to Flores, and Carter became angry with Gilson because he had

been buying from McKenna instead of from him.

      Around September 2016, agents of the Wyoming Division of Criminal

Investigation (DCI) began investigating Flores and Gilson for distribution of

methamphetamine. After about nine months of surveillance, DCI agents arrested

Flores in Green River on May 10, 2017, and in Flores’s backpack they found several

bags of marijuana and about four ounces of methamphetamine. Flores agreed to

cooperate in DCI’s investigation and told the agents that his suppliers were Eichler

and Carter. Gilson was later arrested on June 6, 2017.

      At that point, DCI agents asked Flores to facilitate a controlled purchase with

Eichler and Carter, and Flores agreed. Flores called Carter from his cell phone. In the

calls, which the DCI agents recorded, Flores told Carter that he was “stranded” in

Evanston and asked if Carter could “come see” him. Govt. Exhibit 15A. Flores told

Carter to “bring whatever he c[ould]” because he had “a little bit of bread” to “play

around with.”3 Govt. Exhibit 15A. Flores asked, “you know what I mean?”, to which

Carter responded, “Yeah, OK, I’ll call you right back.” 

explained at trial that “bread” referred to money. ROA vol. 3 at 502:4–
6.

                                            5
      In addition to making calls, Flores allowed DCI agents to send text messages

from his phone to Carter. From Flores’s phone, DCI agents texted Carter that Flores

was staying at a certain room in an Evanston motel. Carter responded that Eichler

was on her way to meet Flores there. The next morning, May 12, 2017, Eichler

arrived at the motel room, where DCI agents questioned and searched her. Despite

finding nothing illegal on her person or in her vehicle, DCI agents arrested Eichler

and booked her into Uinta County Detention Center.4

      After Eichler’s arrest, DCI agents continued sending text messages to Carter

from Flores’s phone:

      Flores: Christina said she has no dinner for me . . . she said she had to go
      to off track betting and then would come back to my room . . . what’s
      going on
      Carter: What??? She[’s] gambling??? She doesn’t have any money
      Flores: What’s going on I thought she was bringing me up some dinner
      Carter: Huh?? No she was just picking u up
      Flores: Ooooo u got dinner at home?
      Carter: Kan get some . . . are we talking salad??
      Flores: . . . salad for dinner and snow if the weather is bad tonight
      Carter: Same order
      Flores: Usual
      Carter: Koo . . . no 5000$
      Flores: 3000 $ ? [I] have to keep a little in pocket
      Carter: Ooooh
      Flores: But could do the 5 if it works better for both of us
      Carter: Sounds good

Govt Exhibit 21.



      4
        Though the DCI agents testified that they executed a probable-cause
affidavit, the record does not indicate the basis for probable cause. Presumably, they
asserted probable cause to believe Eichler was selling methamphetamine, based on
her driving to meet Flores and the preceding text exchange.

                                           6
      While in custody at Uinta County Detention Center, Eichler placed a recorded

call to Carter. During the call, Carter asked Eichler, “Oh my god, what happened?”

Govt. Exhibit 29A. Eichler responded, “E-dub.” 

asked, “Who!?” 

“Mike [Flores].” 

said, “My charge is conspiracy

to deliver.” 

“You didn’t have anything!” 

indictment filed on July 20, 2017, a federal grand jury charged Carter,

Eichler, and Flores with conspiracy to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(l), and (b)(1)(A). Flores

pleaded guilty and agreed to continue cooperating. Eichler and Carter opted to

proceed to trial. Meanwhile, Gilson and McKenna were charged in a separate drug-

conspiracy indictment. Like Flores, they each agreed to plead guilty and testify

against Carter and Eichler in exchange for a favorable sentencing recommendation

from the government.

      Consistent with Rule 404(b) of the Federal Rules of Evidence, the government

notified Eichler and Carter of its intent to offer evidence of other crimes and wrongs

that they had committed but were not charged with, including distributing marijuana.

The government did not concede that the marijuana evidence was governed by Rule

404(b), but rather argued that it was inextricably intertwined with the

methamphetamine charge. Eichler and Carter filed written objections to the possible

Rule 404(b) evidence. Relevant here, the district court said the following at a pretrial

hearing on the proposed evidence:




                                           7
      I have thought about the marijuana thing. I just don’t see a way that in
      terms of telling the story of this case that it can be avoided. You would
      like everything to be totally sanitary, but that isn’t the way human beings
      work. Perhaps, it can be handled by way of some sort of instruction later
      on that reminds the jury that all we are considering is the charge in this
      case. . . . I think I have one that is included that is pretty close to doing
      that in the instruction package at this point.

Carter’s ROA vol. 3 at 190:1–10.

      Trial began on November 28, 2017 and lasted four days. Gilson, Maestas,

Flores, and McKenna all testified for the government, as did several DCI agents

involved with the investigation.

      Eichler and Carter each testified at trial. During her testimony, Eichler

admitted having consumed methamphetamine with Gilson, Flores, and Maestas while

she was in Wyoming to visit her sons, but she denied ever selling it. Carter also

denied selling methamphetamine. Both Carter and Eichler struggled to explain what

they meant during their recorded phone and text conversations. For example, Carter

struggled to explain how he knew that Eichler “didn’t have anything” when she was

arrested in Evanston. ROA vol. 3 at 660:8–16. And when asked what “E-dub” means,

Carter and Eichler explained that it refers to a “foul person,” 

or a

“person of questionable moral character,” 

But they struggled to

explain why there was no need to elaborate on how or why Flores was “E-dub.”5 

686:16–687:11. Similarly, Carter struggled to explain his text-


      5
        For example, the government asked Eichler, “So when you tell Mr. Carter
that Mike is, ‘E-Dub. Leave it there,’ why are you telling him that?” Eichler
responded that “I didn’t want to discuss it further. I didn’t understand what was going
on. I was very upset.” Carter’s ROA vol. 3 at 687:6–9.

                                            8
message conversation with Flores. One of the DCI agents testified that “salad” is

slang for “marijuana,” 

but Carter insisted that he was referring to

food, and that salad is “one of [Flores’s] favorite dishes,” 

As for

Flores’s asking about “snow,” Carter testified that he thought it was a typo and didn’t

think anything of it. 

666:7–667:4. But the DCI agent who sent

the messages from Flores’s phone testified that “snow” is slang for

“methamphetamine.” 

When asked what he meant by “same order,”

Carter testified that he was referring to “[t]he same order of operations,” as in “salad,

dinner, . . . ribs, [video games], TV.” 

And when asked what he was

referring to when he texted, “Koo, . . . no “$5,000?,” Carter maintained that he was

referring to money that Flores was purportedly going to pay Carter to help him fix his

car. 

      All told, the jury heard evidence that Eichler and Carter sold more than a

kilogram of methamphetamine.6 First, Maestas testified that he had bought three

ounces and 19 grams7 of methamphetamine from Eichler, usually paying around $600

for an ounce. Second, Flores testified that Eichler had sold him methamphetamine

three times—19 grams for $300 the first time, 20 grams for $350 the second time,

and 16 grams for $300 the third time—for a total of 55 grams. Flores also testified



      6
          There are 28.35 grams in an ounce.
      7
        Maestas testified that he intended to buy an ounce, but that Eichler was
“short” and provided only 19 grams, so he paid only $300. Carter’s ROA vol. 3 at
421:10–17.

                                            9
that he bought methamphetamine from Carter eight times, usually obtaining between

one and two ounces each time. But on two of these eight occasions, Flores and Gilson

pooled their money to buy four ounces from Carter, for a total of eight ounces.8

Third, Gilson testified that Eichler had sold him between eight and eleven ounces of

methamphetamine: one ounce two or three times at Maestas’s house, one to two

ounces on two occasions at his (Gilson’s) house, three ounces for the Chrysler 300,

and one ounce at a hotel in Wyoming. Gilson also testified that he had bought

methamphetamine from both Eichler and Carter at their house in Midvale “[o]nce a

week for at least a couple months” and bought “at least a couple ounces” on every

trip, “sometimes four or five ounces.”9 

Gilson paid $600 per

ounce.

         After the close of evidence, the court held a jury-instruction conference.

Relevant here, Eichler and Carter proposed that the court instruct the jury on the

“buyer-seller” defense. This defense, as provided for in the Seventh Circuit’s pattern

jury instructions, provides:

         A conspiracy requires more than just a buyer-seller relationship between
         the defendant and another person. In addition, a buyer and seller of [a
         drug] do not enter into a conspiracy to [] distribute [the drug] . . . simply
         because the buyer resells the [drug] to others, even if the seller knows

         8
         Gilson’s testimony differed slightly from Flores’s on this point. Gilson
testified that he and Flores pitched in and obtained eight ounces of methamphetamine
from Carter on one occasion, rather than four ounces on two separate occasions.
         9
         The jury also heard evidence that Eichler intended to sell another one to two
ounces of methamphetamine to Gilson, because Eichler was on her way to meet
Gilson when she was stopped with an ounce of methamphetamine (though Gilson
recalled the transaction as being for two ounces).

                                              10
      that the buyer intends to resell the [drug]. The government must prove
      that the buyer and seller had the joint criminal objective of further
      distributing [the drug] to others.

Seventh Circuit Criminal Pattern Jury Instructions, No. 5.10(A) (2012). The court

denied the request for the instruction. Despite their pretrial objection, neither Eichler

nor Carter proposed a limiting instruction regarding references to the marijuana.

      After deliberation, the jury found both Eichler and Carter guilty of one count

of conspiracy to distribute methamphetamine. The jury instructions referenced the

specific quantity set forth in the indictment—500 grams or more of

methamphetamine—but did not inform the jury that it must find that quantity beyond

a reasonable doubt. But if the jury found the defendants guilty of the charged

conspiracy, a special interrogatory to the verdict form gave the jury three choices on

the methamphetamine weight—500 grams or more, 50 grams or more, or less than 50

grams. The special interrogatory required the jury to find the given methamphetamine

weight beyond a reasonable doubt. Here, the jury marked its finding that Carter and

Eichler had conspired to distribute at least 500 grams of a mixture or substance

containing a detectible about of methamphetamine.

      On February 12, 2018, the district court sentenced Carter. Carter’s presentence

investigation report (PSR) assigned a base offense level of 30, under U.S.S.G. §

2D1.1(c)(3) (applying when the offense involves at least 500 grams but less than 1.5

kilograms of methamphetamine). Based on Carter’s and Eichler’s alleged threats

against McKenna before trial, the PSR applied the two-level enhancement under §

3C1.1 for obstruction of justice. Carter objected to the PSR on various grounds,


                                           11
including that his advisory guidelines range of 151 to 188 months was too severe

when considering the sentencing factors listed at 18 U.S.C. § 3553(a). Ultimately, the

court varied downward from the advisory guideline range, sentencing Carter to 135

months’ imprisonment.

      Eichler was sentenced the same day as Carter. Eichler’s PSR tracked Carter’s

on the drug weight and obstruction of justice, again providing a total offense level of

32. Relevant here, Eichler objected to the obstruction enhancement, arguing that

there was no evidence that she threatened McKenna. In response, the government

argued that “independent of any witness intimidation, Ms. Eichler should receive the

enhancement for committing perjury at trial.” Eichler ROA vol. 3 at 117. At

sentencing, the government did not call McKenna to testify about the alleged

intimidation, relying instead on Eichler’s alleged perjury.10 Eichler objected, arguing

that the jury’s verdict simply indicated it “believed [the government’s] witnesses

over her.” 

Ultimately, the district court applied the enhancement

and sentenced Eichler to 121 months’ imprisonment (one month more than the

mandatory-minimum 120 months arising solely on the methamphetamine-conspiracy

conviction).11 Carter and Eichler both timely appealed.


      10
          At the sentencing hearing, the court noted that McKenna had “clammed up”
during her trial testimony but acknowledged that the government was relying solely
on Eichler’s alleged perjury for the obstruction-of-justice enhancement. Eichler ROA
vol. 3 at 801:23.
      11
         Carter also received an obstruction-of-justice sentence enhancement based
on his alleged perjury at trial, but Carter is not challenging that enhancement on
appeal.

                                          12
                                     DISCUSSION

      Eichler and Carter raise a total of six issues. First, both Eichler and Carter

argue that the district court erred by refusing to instruct the jury on their “buyer-

seller” defense. Second, Carter and Eichler contend that the evidence was insufficient

to sustain their respective convictions. Third, Eichler argues that the district court

abused its discretion by failing to provide instructions limiting the jury’s

consideration of testimony about marijuana. Fourth, Eichler contends that the court

erred in imposing the obstruction-of-justice sentence enhancement. Fifth, Carter

argues that the district court erred by failing to instruct the jury that the government

needed to prove—beyond a reasonable doubt—that the conspiracy involved at least

500 grams of methamphetamine. Finally, Carter challenges his sentence, arguing that

the district court failed to make specific findings as to the amount of

methamphetamine involved in the conspiracy and that the evidence was insufficient

to sustain a finding that he sold 500 grams or more of methamphetamine. We

consider each issue in turn.

I.    The district court did not err by refusing to give the proposed “buyer-
      seller” instruction.

      Carter and Eichler argue that the district court erred by refusing to give their

proposed “buyer-seller” instruction. As noted, this instruction would have required

the government to prove that Carter and Eichler had maintained a “joint criminal

objective of further distributing [drug] to others.” Seventh Circuit Criminal Pattern

Jury Instructions, No. 5.10(A) (2012); see also United States v. Turner, 

,



                                            13
285–86 (7th Cir. 1996). We review jury instructions de novo to determine whether

they “adequately apprised the jury of the issues and the governing law.” United

States v. Wolny, 

, 765 (10th Cir. 1998).

      “To obtain a conspiracy conviction, the government must prove: (1) an agreement

by two or more persons to violate the law; (2) knowledge of the objectives of the

conspiracy; (3) knowing and voluntary involvement in the conspiracy; and

(4) interdependence among co-conspirators.” United States v. Foy, 

, 465

(10th Cir. 2011). “Interdependence is present when ‘each alleged coconspirator depends

on the operation of each link in the chain to achieve the common goal.’” United States v.

Evans, 

, 670 (10th Cir. 1992) (brackets and citation omitted). Each element

must be proved beyond a reasonable doubt. 

“[t]he jury may infer an

agreement constituting a conspiracy from the acts of the parties and other circumstantial

evidence indicating concert of action for the accomplishment of a common purpose.”

United States v. Johnston, 

, 789 (10th Cir. 1998) (citation and internal

quotation marks omitted). And “conspirators are responsible for crimes committed

‘within the scope of the unlawful project’ and thus ‘reasonably foreseen as a necessary or

natural consequence of the unlawful agreement.’” United States v. Russell, 

, 1322 (10th Cir. 1992) (quoting Pinkerton v. United States, 

, 647–48

(1946)).

      The government’s theory at trial was that Carter, Eichler, and Flores were each

voluntary and interdependent members in an agreement to distribute 500 grams or more

of methamphetamine. See 

. But Carter and Eichler argue that the


                                            14
government, under the Seventh Circuit’s buyer-seller rule, needed also to prove that

their drug customers in turn sold those drugs to others and then returned some of the

profits to Carter and Eichler. But our circuit has explicitly rejected the Seventh

Circuit’s interpretation of the buyer-seller rule. See United States v. Gallegos, 

, 1360 (10th Cir. 2015) (“[The Seventh Circuit’s] interpretation of the buyer-seller

rule is contrary to this court’s precedent.”). Instead, our court recognizes that “the

purpose of the buyer-seller rule is to separate consumers, who do not plan to

redistribute drugs for profit, from street-level, mid-level, and other distributors, who

do intend to redistribute drugs for profit, thereby furthering the objective of the

conspiracy.”12 United States v. Ivy, 

, 1285–86 (10th Cir. 1996). We

therefore conclude that the district court did not err by refusing to instruct as Carter

and Eichler requested.

II.    The evidence at trial was sufficient to support Carter’s and Eichler’s
       convictions.

       Carter and Eichler each argue that the evidence at trial was insufficient to establish

that they were guilty of a conspiracy to sell 500 grams or more of methamphetamine. We

review de novo any challenges to the sufficiency of evidence. United States v. Ramos-

Arenas, 

, 786 (10th Cir. 2010). In doing so, we review “the evidence and its

reasonable inferences in the light most favorable to the government.” 

reverse

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



       12
         The government argued at trial that Carter, Eichler, and Flores were each
distributors—not consumers—who agreed among each other to sell to consumers.

                                             15
beyond a reasonable doubt.” 

States v. Brown, 

, 1247

(10th Cir. 2005)). Carter and Eichler raise several arguments to support their respective

sufficiency challenges.

       First, Carter argues that the only evidence supporting the government’s conspiracy

charge was (1) that Carter was in a relationship with Eichler, (2) that Carter entered into a

series of buy-sell agreements with Flores, and (3) that Carter was aware that Eichler sold

drugs to Flores. We disagree. Carter’s “participation in or connection to the conspiracy

need[ed] only be slight, so long as sufficient evidence exists to establish [his]

participation beyond a reasonable doubt.” See 

. And a rational

trier of fact could conclude that, beyond mere “slight” involvement, Carter worked

closely with Eichler in selling methamphetamine. See 

during Eichler’s

phone call from Summit County jail, Eichler and Carter agreed that Carter would

continue selling to Gilson whatever Eichler had been selling him. Because Eichler had

been pulled over with methamphetamine and because Gilson testified that Eichler was on

her way to sell him methamphetamine, a rational trier of fact could conclude that Carter

was going to continue Eichler’s methamphetamine sales to Gilson. Likewise, because

Carter sent Eichler to pick up Flores at the motel in Evanston in response to Flores’s texts

requesting “snow,” a rational jury could conclude that Eichler and Carter were working in

tandem to sell methamphetamine to Flores.

       Second, Eichler argues that the government failed to prove beyond a reasonable

doubt that 500 grams or more were “directly attributable” or reasonably foreseeable to

her. Eichler Opening Br. at 23. Speaking to her own methamphetamine distribution,


                                             16
Eichler says that “[a]t most, the evidence is that Ms. Eichler sold or gave away a

maximum of 243 grams of methamphetamine to people she knew and hung out with in

Wyoming.” 

She argues that the testimony supporting her conviction is “highly

suspect,” because the individuals who testified against her were all drug addicts who

struggled from memory loss. 

But as the government correctly notes, Eichler

presented this argument to the jury, and we cannot second-guess the jury’s credibility

determinations. United States v. Yoakam, 

, 1349 (10th Cir. 1997). These

matters are properly in the jury’s province, and Eichler offers nothing to upset that rule.

Instead, “we must accept the jury’s resolution of the evidence as long as it is within the

bounds of reason.” 

internal quotation marks omitted).

       In short, viewing the evidence in the light most favorable to the government, a

rational trier of fact could conclude that Eichler and Carter (1) agreed to distribute more

than 500 grams of a mixture or substance containing a detectible amount of

methamphetamine, in violation of federal law, (2) knew the objectives of the agreement,

(3) voluntarily joined the conspiracy, and (4) acted interdependently. See 

; 

.

III.   The district court did not abuse its discretion in admitting testimony
       about marijuana without a limiting instruction.

       Eichler argues that the district court should have excluded all testimony about

marijuana or at least given a limiting instruction to minimize its prejudicial impact.

When a defendant objects to the admission of evidence at trial, we review the trial

court’s decision to overrule the objection for abuse of discretion; otherwise, we



                                             17
review for plain error. Nat’l Envtl. Serv. Co. v. Ronan Eng’g Co., 

, 1001

(10th Cir. 2001). Here, Eichler objected before trial to testimony about marijuana, but

the trial court made no “definitive” ruling. See 

did not request a

limiting instruction during trial or even at the jury-instruction conference. But

because both Eichler and the government agree that abuse-of-discretion review

should apply here, we need not decide whether Eichler preserved the issue. See

McKissick v. Yuen, 

, 1189 (10th Cir. 2010) (“A party cannot count on

us to pick out, argue for, and apply a standard of review for it on our own initiative,

without the benefit of the adversarial process, and without any opportunity for the

adversely affected party to be heard on the question.”). We will therefore review

Eichler’s claim for an abuse of discretion. Under this standard, we will not reverse

“unless we find that the district court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” United States v. Nicholson, 

, 1298 (10th Cir. 1994) (citation and internal quotation marks omitted).

      As a threshold matter, the parties disagree about whether the marijuana

evidence constitutes character evidence under Rule 404(b) of the Federal Rules of

Evidence, or rather whether it was intrinsic evidence because it was inextricably

intertwined with the charges. Evidence is admissible under Rule 404(b) only if (1)

the evidence is offered for a proper purpose, (2) the evidence is relevant, (3) the

evidence’s probative value is not substantially outweighed by its potential for unfair

prejudice; and (4) the district court, upon request, instructs the jury to consider the

evidence only for the purpose for which it was admitted. United States v. Becker, 230


                                            

, 1232 (10th Cir. 2000). But if the evidence is “inextricably intertwined”

with the charged offense, as the government argues, then it falls outside Rule

404(b)’s ambit. See United States v. Oles, 

, 1522 (10th Cir. 1993)

(“[A] 404(b) analysis does not apply to other acts which are so inextricably

intertwined with the crime charged that testimony concerning the charged act would

have been confusing and incomplete without mention of the prior act.”) (citation and

internal quotation marks omitted).

      We agree with the government that the marijuana evidence is inextricably

intertwined with the methamphetamine conspiracy “because it tended to elucidate the

relationships among the members of the conspiracy and tended to show their course

of dealings.” See United States v. Vasquez, 422 F. App’x 713, 717 (10th Cir. 2011).

For example, the jury would not have been able to understand the text message

communications between Carter and Flores involving “salad” and “snow” without

explaining what those words referred to. Similarly, the jury would not have received

the full picture about Eichler’s traffic stop in Utah without learning that the state

trooper searched her car because he smelled marijuana. Moreover, whatever

prejudice the marijuana evidence caused Eichler, it was slight. Accordingly, because

it acted within “the bounds of permissible choice in the circumstances,” the district

court did not abuse its discretion by admitting the marijuana evidence or failing to

give a limiting instruction. See 

.




                                           19
IV.   The district court did not err in enhancing Eichler’s sentence for
      obstruction of justice.

      Eichler argues that the district court erroneously enhanced her sentence under

U.S.S.G. § 3C1.1., which provides for a two-level increase in the offense level if:

      (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the defendant’s
      offense of conviction and any relevant conduct; or (B) a closely related
      offense.

U.S.S.G. § 3C1.1. “Applicability of a guideline is an issue of law that we review de

novo, while issues of fact are reviewed under the clearly erroneous standard.” United

States v. Massey, 

, 1572 (10th Cir. 1995).

      When, as here, the obstruction-of-justice enhancement is based on alleged

perjury, the government must establish that the defendant (1) made a false statement

under oath, (2) concerning a material matter, (3) with the willful intent to provide

false testimony. United States v. Hawthorne, 

, 1146 (10th Cir. 2003).

“Of course, not every accused who testifies at trial and is convicted will incur an

enhanced sentence under § 3C1.1 for committing perjury.” United States v.

Dunnigan, 

, 95 (1993). For example, “an accused may give inaccurate

testimony due to confusion, mistake, or faulty memory.” 

reason, the

Supreme Court requires that, when the defendant objects, “a district court must

review the evidence and make independent findings necessary to establish a willful

impediment to or obstruction of justice, or an attempt to do the same . . . .” 

Tenth Circuit’s standards are stricter than those expressed in Dunnigan.”


                                           20


. “We require that a district court be explicit about

which representations by the defendant constitute perjury.” 

require

that the court make explicit findings as to each element: falsity, materiality, and

willful intent to provide false testimony. United States v. Medina-Estrada, 

, 987 (10th Cir. 1996).

      Here, the district court made the following finding as to Eichler’s perjury:

      Ms. Eichler explained that she had traveled to Wyoming to visit her
      children, admitted to sharing methamphetamine with various people:
      Gilson, Flores and Flores’ sister, which directly contradicts Gilson’s
      testimony that Ms. Eichler became his source, because she could provide
      it about $300 per ounce cheaper than he was getting it from others. Mr.
      Flores was involved with Mr. Gilson initially. Really[,] Flores was the
      guy who was living as a couch surfer for several years, and eventually,
      was introduced by—through Ms. Eichler—just through circumstances—
      to Mr. Carter. Ms. McKenna testified about their acquaintance which
      began that fateful arrest that occurred on the highway outside of Park City
      in September of 2016. It went on from there, and really involved her being
      the driver—McKenna being the driver on several trips to Wyoming and
      what she saw there, which proved at trial not to be much. The testimony
      of Mr. Maestas concerning what was occurring and his acquisition of
      methamphetamine from Ms. Eichler which was brought from—brought
      with her. . . . I find that there is credible evidence of prevarication—of
      obstruction in this matter. That it did involve material evidence in this
      case as I have referred to the testimony of Gilson, Flores, Maestas, and
      even McKenna, as well as the recorded statements of Ms. Eichler that
      occurred after her arrest.

Eichler ROA vol. 3 at 802:2–803:11 (emphasis added).

      Eichler argues that the district court did not make findings as to willful intent,

and that the record does not support a finding of perjury. We agree that the district

court failed to make an express finding of willful intent. Indeed, the government

admits that “the district court did not explicitly address the willfulness element.”



                                           21
United States’ Combined Resp. Br. at 47. But we may “reject[] a requirement that the

district court make explicit findings on every element required under Section 3C1.1

where the district court’s ultimate conclusion is clear and the record unambiguously

supports its conclusion.” United States v. Cayatineto, 49 F. App’x 278, 284–85 (10th

Cir. 2002). Here, the court’s ultimate conclusion is clear, and the record supports a

finding of willfulness. Eichler does not contend that her testimony resulted from

“confusion, mistake, or faulty memory,” see 

, and the

district court had a sufficient basis to find that Eichler had acted with willful intent

when she denied selling methamphetamine in Wyoming. Because the record also

supports a finding that Eichler’s testimony was false and material, we conclude that

the district court did not err in imposing the obstruction-of-justice enhancement. See

.

V.     The district court did not err by not instructing the jury on the specific
       quantity of methamphetamine that Carter and Eichler allegedly conspired
       to distribute.

       A methamphetamine conspirator faces a ten-year mandatory minimum sentence

for an offense involving at least 500 grams, a five-year mandatory minimum sentence for

an offense involving at least 50 grams, and no mandatory minimum sentence otherwise.

See 21 U.S.C. §§ 841(b)(1)(A)(viii), (B)(vii), (C), and 846. But “[a]ny fact that, by law,

increases the penalty for a crime is an ‘element’ that must be submitted to the jury and

found beyond a reasonable doubt.” Alleyne v. United States, 

, 103 (2013)

(citation omitted). Therefore, under Alleyne, the mandatory minimum penalties under




                                            22
§ 841(b) apply only if the jury finds the relevant drug quantity beyond a reasonable

doubt. See 

argues that the jury instructions did not tell the jury to use the

beyond-a-reasonable-doubt standard in finding the quantity of methamphetamine

involved in the conspiracy. Carter contends that this violated Alleyne. Because Carter

failed to raise this claim below, we review for plain error. United States v. Powell,

, 1029 (10th Cir. 2014). This requires Carter to show “(1) an error,

(2) that is plain, which means clear or obvious under current law, and (3) that affects

substantial rights.” See 

“[i]f he satisfies these criteria, [we] may exercise

discretion to correct the error if [] it seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” See 

       Carter relies on United States v. Johnson, 

, 928 (10th Cir. 2017),

where we vacated a sentence because the district court had relied on a special

interrogatory that did not require the jury to find a specific quantity beyond a

reasonable doubt. But unlike Johnson, the special interrogatory contained in Carter’s

verdict form required the jury to “unanimously agree, by proof beyond a reasonable

doubt, that the quantity of methamphetamine that the Defendant, Savon Germain

Carter, conspired to distribute, including all reasonably foreseeable acts and

omissions of others in furtherance of the conspiracy” was less than 50 grams, at least

50 but less than 500 grams, or 500 grams or more. Carter’s ROA vol. 2 at 35

(emphasis added). We thus reject Carter’s jury-instruction challenge, because even




                                             23
assuming Carter could demonstrate an error that is plain, he has failed to establish

that the error affected his substantial rights. See 

.

VI.   The district court did not commit plain error in calculating Carter’s base
      offense level.

      Finally, Carter challenges his sentence. The district court imposed a base-

offense level of 30, based on the jury’s convicting him of a conspiracy to distribute

500 grams or more of methamphetamine—based on his own acts and reasonably

foreseeable acts of his co-conspirators. Accordingly, Carter’s argument that the

district court failed to make specific findings about the quantity Carter intended to

distribute is misplaced. We have already rejected his argument that the jury’s

findings lack sufficient evidence to support them.

                                    CONCLUSION

      For these reasons, we affirm.




                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




                                           24