Sentencing; Procedural reasonableness; Alleged district court speculation about a defendant’s criminal history; Application of a two-level “drug house” enhancement (USSG § 2D1.1(b)(12)); Substantive reasonableness; Within-Guidelines sentence; Denial of a mitigating-role reduction (§ 3B1.2); Consecutive sentences; Guidelines range calculation; Two-level reduction to base offense level under § 2D1.1(a)(5); Sufficiency of the evidence – 21 USC § 843(b) (knowing or intentional use of a communication facility in committing, causing, or facilitating a felony); District court’s questioning of a defendant; FRE 605; Substantial-rights harmlessness analysis; Right to a fair trial; Sufficiency of the evidence – aiding & abetting a drug transaction (18 USC § 2)

The court held that there was sufficient evidence to support defendant-Khari Smith’s convictions of using a phone to facilitate a drug offense and aiding and abetting drug distribution, and defendant-Saruba Smith’s conviction of the latter offense. It rejected Khari’s sentencing challenges and those raised by defendant-Logan. But it vacated Saruba’s sentence because the district court erred in failing to reduce her offense level under § 2D1.1(a)(5) after granting her a role reduction under § 3B1.2. On appeal, Logan only challenged her sentence, first arguing that “the district court procedurally erred by citing her ‘extensive criminal history.’” But the court found that, given the “evidence, the district court’s observations were not materially false or unreliable.” The court also rejected her challenge to application of the two-level “drug house” enhancement and her arguments that her sentence was substantively unreasonable. As to Khari’s sufficiency of the evidence claim, he did not “dispute that he intentionally used his phone to give Logan the phone number of a purported drug buyer, but he contends that he didn’t knowingly facilitate the drug deal.” The court was “not convinced.” It also rejected his claim that he should have been granted a mitigating-role sentence reduction, concluding that he brokered and participated in a drug deal. He did not show “that he’s ‘substantially less culpable’ than the average participant.” His challenge based on the sum of his consecutive sentences also failed “because the district court adequately explained its imposition of a consecutive sentence.” As to Saruba’s challenges to her conviction, for the first time, the court applied a substantial-rights harmlessness analysis to a Rule 605 error in a published decision. It concluded the district court’s clarifying questions to Saruba “ran afoul of Rule 605.” But it found that the error was harmless because the “questioning didn’t affect [her] substantial rights” in light of the evidence and a curative jury instruction. And it did not violate her right to a fair trial. But she was entitled to have her sentence vacated and to resentencing because the district court plainly erred in not applying the § 2D1.1(a)(5) reduction. Affirmed in part, vacated in part, and remanded for Saruba’s resentencing.