United States of America v. CHRISTOPHER TATE and SANDRA KELLOGG

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 22-2060 & 22-2124
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER TATE and S ANDRA K ELLOGG,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:20-cr-00096 — Tanya Walton Pratt, Chief Judge.
____________________
A RGUED F EBRUARY 22, 2024 — DECIDED A PRIL 3, 2024
____________________
Before SYKES , Chief Judge, and R IPPLE and S T. EVE, Circuit
Judges.
R IPPLE, Circuit Judge. The Government charged twelve
people with conspiracy to distribute illegal drugs and other
drug offenses. Ten of them pleaded guilty; Christopher Tate
and Sandra Kellogg elected to go to trial. They were tried
jointly, and the jury convicted them on all counts with which
they were charged. The district court imposed substantial, yet
below-guidelines, prison sentences. On appeal, Mr. Tate and

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2 Nos. 22-2060 & 22-2124
Ms. Kellogg each raise a challenge to the sufficiency of the ev-
idence on one of the counts of their convictions. They each
also raise a challenge to one of the enhancements used to de-
termine their guidelines sentencing ranges. For the reasons
stated in this opinion, we affirm the convictions and sentences
of both defendants.
I
BACKGROUND
A. Facts
Between the summer of 2019 and early 2020, Mr. Tate and
Ms. Kellogg were part of a methamphetamine and heroin dis-
tribution cell based in Indianapolis. Darrell Stennis and Rob-
ert Hinton were the main suppliers. Mr. Tate bought from
Stennis and Hinton and sold drugs to a variety of customers.
Ms. Kellogg was one such customer. She bought metham-
phetamine from Mr. Tate and sold it to her own customers, all
with the help of her boyfriend, Dwyatt Harris.
The Government presented evidence at trial of several of
Mr. Tate’s sales to Ms. Kellogg. In most of those sales, Ms. Kel-
logg coordinated the details with Mr. Tate and sent Harris to
pick up the methamphetamine from Jovan Stewart, Mr. Tate’s
runner. Sometimes, however, Ms. Kellogg went to pick the
drugs up herself. On January 16, 2020, for example, Ms. Kel-
logg and Harris went together to pick up an ounce of meth
from Aaron Brown, who handed them the meth on Mr. Tate’s
behalf.1 Ms. Kellogg and Harris then drove that ounce to a
1 According to DEA surveillance of this transaction, Aaron Brown went
into Harris’s car, which was occupied by Ms. Kellogg and Harris, to drop
off the ounce of meth. After Brown left Harris’s car, Ms. Kellogg called
Mr. Tate and asked if Brown was “the person that I left the phone in the

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Nos. 22-2060 & 22-2124 3
customer whose contact was saved in Ms. Kellogg’s phone as
“J.” On February 7, 2020, Ms. Kellogg went alone to pick up
the meth from Mr. Tate and spoke with Harris about deliver-
ing the meth to a person whose contact was saved in her
phone as “Trish.”
The larger drug distribution scheme started to unravel
when, on February 20, 2020, Stennis was murdered. Before he
was murdered, Stennis had been storing fifteen one-pound
packages of meth at the house of his girlfriend, Tia Dimmett.
Dimmett called Mr. Tate and asked for help selling the meth.
Mr. Tate went over to Dimmett’s house, took eight of the meth
packages, and sold those eight packages. Meanwhile, Dim-
mett drove the seven other packages to her grandmother’s
house and put them in her grandmother’s garage. Dimmett
and Mr. Tate met up again at Dimmett’s house, and the two
of them, along with Stewart, drove back to Dimmett’s grand-
mother’s house. Mr. Tate met with a customer in front of the
house and sold the customer two packages of meth.
Mr. Tate planned to sell the five remaining packages to
two of his regular customers. Dimmett went into her grand-
mother’s garage and retrieved a pillowcase containing the
packages of meth and a gun. She then took the pillowcase out
to the car and gave it to Mr. Tate. Mr. Tate removed the gun
from the pillowcase and gave it to Dimmett, who stowed it
under the driver’s seat. Mr. Tate placed the pillowcase (which
still contained the packages of meth) under the front passen-
ger seat, where he was sitting. The three of them then drove
car that time.” Trial Tr. V at 952; R.981-4 at 1. The Government suggested
at trial that Ms. Kellogg’s question indicated that she had previously in-
teracted with Brown.

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4 Nos. 22-2060 & 22-2124
away from Dimmett’s grandmother’s house, planning to drop
off Dimmett and sell the drugs to Mr. Tate’s customers. Before
they could do either, however, local police stopped their car.
The officers found the gun and the meth in the car. They also
found mail addressed to Mr. Tate and a vehicle order agree-
ment for the car, with Mr. Tate’s name on it.
Law enforcement later conducted searches of both
Mr. Tate’s and Ms. Kellogg’s houses. At Mr. Tate’s house, the
DEA seized $3,000 in cash from the master bedroom and a
loaded handgun from underneath the mattress of the guest
room. At Ms. Kellogg’s house, the DEA seized a handgun, a
digital scale, Ms. Kellogg’s cellphone, and about 11 ounces of
meth, packaged in one-ounce bags. In a post-arrest interview,
Ms. Kellogg said that the 11 ounces of meth in her home came
from a pound of meth she had purchased within the past
week.
B. Prior Proceedings
In March 2020, the Government filed an indictment charg-
ing Mr. Tate, Ms. Kellogg, Harris, and nine others with vari-
ous drug offenses. Seven of these co-defendants then pleaded
guilty. In the operative superseding indictment, filed in Janu-
ary 2021, the Government charged Mr. Tate, Ms. Kellogg,
Harris, Stewart, and Hinton. Harris, Stewart, and Hinton
pleaded guilty soon after that indictment was filed. Mr. Tate
was charged with one count of conspiracy to distribute meth-
amphetamine and heroin, in violation of 21 U.S.C. § 846; two
counts of distribution of methamphetamine, in violation of 21
U.S.C. § 841(a)(1); and one count of possession of metham-
phetamine with intent to distribute it, in violation of 21 U.S.C.
§ 841(a)(1). Ms. Kellogg was charged with one count of con-
spiracy to distribute methamphetamine, in violation of 21

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Nos. 22-2060 & 22-2124 5
U.S.C. § 846, and one count of possession of methampheta-
mine with intent to distribute it, in violation of 21 U.S.C.
§ 841(a)(1).
The district court tried Mr. Tate and Ms. Kellogg jointly.
At the trial, the Government relied on cell-site location infor-
mation, text messages and recordings of phone calls inter-
cepted in wiretaps, the testimony of former co-conspirators,
the testimony of agents who conducted surveillance and exe-
cuted searches of the defendants’ houses, and other evidence.
Neither Mr. Tate nor Ms. Kellogg presented evidence. After
the Government rested, Mr. Tate moved for a judgment of ac-
quittal on all counts, and Ms. Kellogg moved for a judgment
of acquittal on the conspiracy count. In support of Ms. Kel-
logg’s motion for judgment of acquittal, counsel for Ms. Kel-
logg stated: “There may very well be a separate conspiracy
involving Ms. Kellogg and Mr. Harris, but that’s not what
Count 1 is. Count 1 is a conspiracy with Tate.”2 The district
court denied both motions. After deliberations, the jury found
both Mr. Tate and Ms. Kellogg guilty on all of the counts with
which they were charged.
The district court sentenced Mr. Tate a few months later.
It determined his base offense level (38) based on offense con-
duct involving 4.5 kilograms or more of actual methamphet-
amine. It applied U.S.S.G. § 2D1.1(b)(1)’s 2-level firearm pos-
session enhancement, in part because “there was a firearm lo-
cated in his residence during the search … , which was in the
close proximity to large sums of cash.”3 It also applied both a
4-level enhancement for Mr. Tate’s role as an organizer or
2 Trial Tr. VI at 1238.
3 Tate Sent. Tr. at 11.

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6 Nos. 22-2060 & 22-2124
leader of criminal activity that involved five or more partici-
pants and a 3-level enhancement for obstruction of justice.
The district court then explained that, although the sum of
Mr. Tate’s base offense level and enhancements was 47, his
total offense level could be no higher than 43, the maximum
under the Guidelines. Because Mr. Tate’s offense level was the
maximum under the Guidelines, the Guidelines recom-
mended life imprisonment. The district court sentenced him
to 400 months’ imprisonment, to be followed by 10 years of
supervised release.
The district court sentenced Ms. Kellogg on the same day
that it sentenced Mr. Tate. It determined Ms. Kellogg’s base
offense level (34) based on offense conduct involving 500
grams but less than 1.5 kilograms of actual methampheta-
mine. The district court applied U.S.S.G. § 2D1.1(b)(1)’s 2-
level firearm-possession enhancement. It also applied
§ 3B1.1(b)’s 3-level enhancement for Ms. Kellogg’s role as a
manager or supervisor of criminal activity that involved five
or more participants. Based on Ms. Kellogg’s total offense
level (39) and her criminal history (category III), the district
court calculated her guidelines range as 324 to 405 months.
The district court sentenced her to 288 months’ imprisonment,
to be followed by 5 years of supervised release.
Mr. Tate and Ms. Kellogg appealed.
II
DISCUSSION
A. Evidentiary Challenges to Convictions
Each of the defendants raises a sufficiency of the evidence
challenge to one of the counts on which they were convicted.
We will overturn a conviction for insufficient evidence only

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Nos. 22-2060 & 22-2124 7
if, viewing the evidence in the light most favorable to the gov-
ernment, “no rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.” United
States v. O’Leary, 957 F.3d 731, 733 (7th Cir. 2020); see Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
1.
Mr. Tate challenges the sufficiency of the evidence sup-
porting his conviction on the possession with intent to distrib-
ute count. The Government based its charge on that count on
the five pounds of methamphetamine that the police discov-
ered during the traffic stop. Those five pounds of meth were
part of the fifteen pounds that Mr. Tate was helping Dimmett
sell after Stennis’s murder.
Mr. Tate contends that the Government did not prove be-
yond a reasonable doubt that he had possession of the drugs.
Because possession can be sole or joint, United States v. Law-
rence, 788 F.3d 234, 240 (7th Cir. 2015), the Government could
have established its case by proving that Mr. Tate solely pos-
sessed the drugs or that he possessed them jointly with Dim-
mett. To possess drugs, one must have either “direct physical
control,” which establishes actual possession, or the “power
and intention to exercise dominion and control,” which estab-
lishes constructive possession. United States v. Walls, 225 F.3d
858, 864, 867 (7th Cir. 2000). Control in this context means “the
perceived right among the criminals with whom he is inter-
acting to deal, use, transport, or otherwise control what hap-
pens to the drugs.” United States v. Matthews, 520 F.3d 806, 808
(7th Cir. 2008) (quoting United States v. Lane, 267 F.3d 715, 718
(7th Cir. 2001)).

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8 Nos. 22-2060 & 22-2124
The jury rationally could have found that Mr. Tate at least
jointly possessed the methamphetamine found in his car. Be-
fore the stop, Dimmett had entrusted Mr. Tate to sell the
meth, and Mr. Tate had arranged to sell the meth to two of his
customers. He physically held a pillowcase that contained the
meth, and the pillowcase was under his seat when the police
stopped him in a car that he owned. Mr. Tate’s conviction on
the possession with intent to distribute count was supported
by legally sufficient evidence.
2.
Ms. Kellogg challenges her conviction on the conspiracy
count. In that count, the operative indictment charged that
Ms. Kellogg, Mr. Tate, Harris, and two others “conspire[d] to-
gether and with other persons … to distribute controlled sub-
stances, in violation of [21 U.S.C.] § 841(a)(1).”4
Ms. Kellogg concedes that the Government proved that
she conspired with Harris to distribute methamphetamine.
But she contends that it was not sufficient to prove that she
conspired with Harris. In her view, for the Government to
sustain its conviction on the conspiracy count, it must have
proved that she conspired as well with Mr. Tate. The reason,
she submits, is that Mr. Tate, as the conspiracy’s “hub,” was
her and Harris’s only “link to … the larger conspiracy.”5 Ac-
cording to Ms. Kellogg, if the Government did not prove that
she conspired with Mr. Tate, it “did not bring [her and Harris]
4 R.514 at 1. The initial indictment had charged that Ms. Kellogg, Mr. Tate,
Harris, and nine others so conspired.
5 Kellogg Reply Br. 8.

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Nos. 22-2060 & 22-2124 9
within the larger conspiracy.”6 This failure to prove that she
joined the larger conspiracy, she contends, requires that her
conspiracy conviction be vacated.
Berger v. United States, 295 U.S. 78 (1935), is a good starting
point for our evaluation of this contention. In that case, the
indictment charged the defendant and three others with con-
spiring to pass counterfeit bank notes. Id. at 79–80. The evi-
dence at trial, however, established not one overarching con-
spiracy, as was charged, but two distinct conspiracies. Id. at
80. The defendant conceded that he joined one of those
smaller conspiracies but nonetheless moved for acquittal on
the ground that “the evidence was insufficient to support the
charge.” Id. The Court explained that, “if the indictment
charges a single conspiracy, and the effect of the proof is to
split the conspiracy into two, the variance is fatal” only if it
“substantially injured the defendant.” Id. “The true inquiry,”
it continued, “is not whether there has been a variance in
proof, but whether there has been such a variance as to ‘affect
the substantial rights’ of the accused.” Id. at 82. The Court con-
cluded that there was nothing in the record indicating that the
defendant was prejudiced by the variance and accordingly
declined to vacate his conviction on that ground. Id. at 83–84.
Later Supreme Court cases embrace the same approach. In
Kotteakos v. United States, 328 U.S. 750 (1946), the Government
charged one overarching conspiracy in the indictment but, at
trial, it proved only a series of smaller sub-conspiracies. The
Court recognized that, after Berger, this lack of proof of an
overarching conspiracy was not dispositive. “The only ques-
tion,” the Court explained, was whether the defendants
6 Kellogg Opening Br. 9.

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10 Nos. 22-2060 & 22-2124
“ha[d] suffered substantial prejudice from being convicted of
a single general conspiracy by evidence which … proved not
one conspiracy but some eight or more different ones.” Id. at
752. The Court concluded that prejudice was “highly proba-
ble,” in part because of the number of defendants (32) and dis-
tinct conspiracies involved (8 or more). Id. at 776. In United
States v. Miller, 471 U.S. 130 (1985), the Government alleged in
the indictment a certain scheme to commit mail fraud, but the
proof at trial showed only a narrower and more limited,
though included, scheme. Id. at 131. Relying on Berger, Kottea-
kos, and other cases, the Court affirmed the defendant’s con-
viction, despite a “variance between the broad allegations in
the indictment and the narrower proof at trial,” because the
defendant had not established prejudice resulting from the
variance. Id. at 137.
In keeping with those cases, we have rejected the proposi-
tion that a conspiracy conviction must be vacated whenever
the Government charges one overarching conspiracy in an in-
dictment but does not prove such a conspiracy at trial. The
Government, we have held, generally “may elect to proceed
on a subset of the allegations in the indictment, proving a con-
spiracy smaller than the one alleged.” United States v. Cruse,
805 F.3d 795, 804 (7th Cir. 2015) (quoting United States v. Busta-
mante, 493 F.3d 879, 885 (7th Cir. 2007)). Such a variance be-
tween a larger alleged conspiracy and a smaller proven con-
spiracy, we have explained, “only calls a guilty plea or verdict
into question if it prejudiced the defendant.” Id. In United
States v. Townsend, 924 F.2d 1385 (7th Cir. 1991), the Govern-
ment proved that four of the defendants joined smaller con-
spiracies to distribute drugs, but it failed to “establish that
[those defendants] agreed to join the single, ongoing conspir-
acy … charged in the indictment.” Id. at 1410. The court

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Nos. 22-2060 & 22-2124 11
nonetheless affirmed those four defendants’ convictions be-
cause they had not established prejudice from the variance.
Id. at 1416. Similarly, in United States v. Hopper, 934 F.3d 740
(7th Cir. 2019), the defendant sought vacatur of his conviction
on account of a “variance between the indictment (alleging a
single, overarching conspiracy) and the proof at trial (show-
ing, at most, smaller sub-conspiracies).” Id. at 758. We con-
cluded that, even if the defendant had established such a var-
iance, his claim failed because he had not established preju-
dice. Id. at 759.
Ms. Kellogg’s argument mirrors the arguments advanced
in cases like Berger, Kotteakos, Townsend, and Hopper. She con-
cedes that she joined a conspiracy but seeks reversal because,
in her view, the Government failed to prove that she joined
the larger conspiracy alleged in the indictment. Although she
does not use the word “variance” in her briefing, her griev-
ance is with a supposed variance between the larger conspir-
acy charged in the indictment and the smaller conspiracy
proven at trial. See United States v. Duff, 76 F.3d 122, 126 (7th
Cir. 1996) (“A defendant who maintains that the evidence
shows a conspiracy different from the one charged in the in-
dictment is arguing that there is a variance between pleading
and proof.”). Like the defendants in Berger, Kotteakos, Town-
send, and Hopper, then, she must establish not only that no ra-
tional juror could have found an overarching conspiracy but
also that she suffered prejudice from the supposed variance.
We need not determine whether a rational juror could
have found one conspiracy connecting Ms. Kellogg, Harris,
Mr. Tate, and the others, because even if a juror could not
have found such a conspiracy, Ms. Kellogg has not estab-
lished prejudice. She does not contend, for instance, that the

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12 Nos. 22-2060 & 22-2124
supposed variance caused “prejudice to [her] ability to de-
fend [herself] at trial, to the general fairness of the trial, or to
the indictment’s sufficiency to bar subsequent prosecutions.”
Miller, 471 U.S. at 138 n.5. The only way in which Ms. Kellogg
contends the variance prejudiced her was through the count-
ing of Mr. Tate and others as participants for purposes of
U.S.S.G. § 3B1.1(b)’s manager-supervisor enhancement. Any
issue with the district court’s application of that enhance-
ment, however, would at most require resentencing, rather
than vacatur of her conviction on the conspiracy count. See
Bustamante, 493 F.3d at 888, 893 (affirming conviction but re-
manding for resentencing where a variance between a larger
charged conspiracy and smaller proven conspiracy affected
only the defendant’s sentence). Ms. Kellogg’s conviction on
the conspiracy count, like Mr. Tate’s conviction on the posses-
sion with intent to distribute count, must be affirmed.
B. Challenges to Sentencing Enhancements
Mr. Tate and Ms. Kellogg each also raise a challenge to a
sentencing enhancement that the district court used in deter-
mining their guidelines ranges. “To determine whether a
Guidelines enhancement was correctly imposed, we review
the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Ihediwa, 66 F.4th 1079,
1082 (7th Cir. 2023).
1.
Mr. Tate challenges the district court’s use of U.S.S.G.
§ 2D1.1(b)(1)’s 2-level firearm-possession enhancement,
which applies if “a dangerous weapon (including a firearm)
was possessed” during a drug trafficking offense. As the dis-
trict court noted, the DEA found a gun under a mattress in

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Nos. 22-2060 & 22-2124 13
Mr. Tate’s house, near $3,000 in cash. That alone was suffi-
cient to support a finding of constructive possession. See, e.g.,
United States v. Webster, 775 F.3d 897, 906 (7th Cir. 2015) (not-
ing that evidence of a residence’s connection to a drug busi-
ness can help to support a finding that the defendant con-
structively possessed a gun found there); United States v. Rich-
ardson, 208 F.3d 626, 632 (7th Cir. 2000) (concluding that evi-
dence that the defendant exercised control over a bedroom
where a gun and drugs were found was sufficient to establish
constructive possession of the gun).
Moreover, even if the district court had erred in employ-
ing the enhancement, the error would have been harmless.
With or without the enhancement, Mr. Tate’s total offense
level would have been 43, the maximum under the Guide-
lines. See U.S.S.G. ch. 5, pt. A (sentencing table); id. cmt. n.2
(“An offense level of more than 43 is to be treated as an offense
level of 43.”). The enhancement therefore had no impact on
Mr. Tate’s guidelines range or on his substantial rights. See
United States v. Farmer, 38 F.4th 591, 606 (7th Cir. 2022) (con-
cluding that any error in the application of an enhancement
was harmless because the defendant’s offense level would
have been 43 with or without the enhancement); United States
v. Thomas, 897 F.3d 807, 817 (7th Cir. 2018) (same).
2.
Ms. Kellogg challenges the district court’s use of
§ 3B1.1(b)’s 3-level enhancement. That enhancement applies
if the defendant was a “manager or supervisor” of one or
more participants in criminal activity and “the criminal activ-
ity involved five or more participants or was otherwise exten-
sive.” U.S.S.G. § 3B1.1(b).

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14 Nos. 22-2060 & 22-2124
Ms. Kellogg first contends that she was not a “manager or
supervisor.” In support, she states that she was not “ordering
around Harris” and suggests that her requests that Harris
pick up or deliver drugs constituted no more than one-off re-
quests between equals.7 Although “some hierarchy among
those involved in the criminal activity must exist” for the en-
hancement to apply, United States v. Weaver, 716 F.3d 439, 444
(7th Cir. 2013), the Government need not show that the de-
fendant was “ordering around” another participant to estab-
lish this hierarchy. Instead, in certain cases we have found it
sufficient that the defendant was “[o]rchestrating or coordi-
nating activities performed by others,” United States v. Mar-
tinez, 520 F.3d 749, 752 (7th Cir. 2008), or “delegat[ing] deliv-
ery or payment tasks” in connection with drug transactions.
United States v. Sainz-Preciado, 566 F.3d 708, 714 (7th Cir. 2009).
Further, Ms. Kellogg’s characterization of her requests
that Harris pick up and drop off drugs as one-off requests be-
tween equals is at odds with the evidence from trial. At trial,
the Government showed that Ms. Kellogg sent Harris text
messages such as: “Just call me when you’re ready, they wait-
ing on you”; “You ready to meet my people or no?”; “He
know you on your way”; “Trish just called. … Bring three just
in case.”8 Sometimes, Ms. Kellogg sent Harris an address,
without more. The district court was permitted to infer from
those messages that Ms. Kellogg was in charge and that Har-
ris was, as both the Government and counsel for Ms. Kellogg
put it at trial, Ms. Kellogg’s “runner.”9 There was no clear
7 Kellogg Opening Br. 10.
8 Trial Tr. V at 895, 938, 939, 997.
9 Trial Tr. I at 31; Trial Tr. VI at 1239.

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Nos. 22-2060 & 22-2124 15
error in the district court’s finding that Ms. Kellogg managed
or supervised Harris.
Ms. Kellogg next contends that the criminal activity did
not involve five or more participants. In Ms. Kellogg’s view,
Mr. Tate and the others cannot be “participants” because they
did not conspire with her and Harris. This court, however,
does not “require[] that a party be a co-conspirator to qualify
as a … participant under § 3B1.1(b) when the underlying of-
fense was conspiracy.” United States v. Hall, 101 F.3d 1174,
1178 (7th Cir. 1996). Instead, all that is required is that the
party be “criminally responsible for the commission of the of-
fense.” U.S.S.G. § 3B1.1, cmt. 1. This certainly includes parties
who could be held criminally responsible as principals (co-
conspirators and accomplices),10 but it also includes parties
10 We have held that the defendant also counts as a participant. United
States v. Haywood, 777 F.3d 430, 433 (7th Cir. 2015); United States v. Zara-
goza, 123 F.3d 472, 484 (7th Cir. 1997). The other circuits that have ad-
dressed this question have reached the same conclusion. See United States
v. George, 841 F.3d 55, 69 (1st Cir. 2016); United States v. Paccione, 202 F.3d
622, 625 (2d Cir. 2000); United States v. Colletti, 984 F.2d 1339, 1346 (3d Cir.
1992); United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir. 2011);
United States v. Dickerson, 909 F.3d 118, 127–28 (5th Cir. 2018); United States
v. Bennett, 291 F.3d 888, 897–98 (6th Cir. 2002); United States v. Morelos, 544
F.3d 916, 920 (8th Cir. 2008); United States v. Walter-Eze, 869 F.3d 891, 914
(9th Cir. 2017); United States v. Hardwell, 80 F.3d 1471, 1496 (10th Cir. 1996);
United States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994).
Several considerations support this conclusion. First, the language of
the Guideline “does not in any way distinguish the defendant subject to
the enhancement from the other individuals involved in the criminal
scheme.” Paccione, 202 F.3d at 625. Second, the defendant necessarily fits
within the commentary’s definition of a participant as “a person who is
criminally responsible for the commission of the offense.” § 3B1.1 cmt. 1.
Third, the commentary refers to a defendant’s actions with respect to
“other participants” or “another participant,” § 3B1.1 cmt. 2, which

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16 Nos. 22-2060 & 22-2124
who could be held “criminally responsible under principles
of accessory liability.” Hall, 101 F.3d at 1178; see United States
v. Zuno, 731 F.3d 718, 723 (7th Cir. 2013) (noting that a person
counts as a participant if he or she “‘could have been charged,’
even if only as an accessory”) (emphasis removed). The Gov-
ernment, then, can establish that a person was a “participant”
in the same way it would establish that the person was an ac-
cessory: with evidence that the person gave “knowing aid in
some part of the enterprise.” United States v. Millet, 510 F.3d
668, 697 (7th Cir. 2007) (quoting Hall, 101 F.3d at 1178).11
There was sufficient evidence in the record to support the
district court’s finding that there were five or more partici-
pants, given that standard. Ms. Kellogg herself was a partici-
pant, see Haywood, 777 F.3d at 433, as was Harris, her co-con-
spirator. See Hall, 101 F.3d at 1178. Mr. Tate, Stewart, and
Brown all count as participants, too. Each of them helped to
provide Ms. Kellogg and Harris with distribution-level quan-
tities of drugs, which Ms. Kellogg and Harris then sold to oth-
ers. Mr. Tate arranged at least five sales of meth to Ms. Kel-
logg and Harris; Stewart acted as Mr. Tate’s runner for at least
three of those sales, and Brown acted as Mr. Tate’s runner for
at least one. Each of the three of them, then, provided
underscores that the defendant should be considered a participant. See
Paccione, 202 F.3d at 625. Fourth, a related Guideline calls for a reduction
in the defendant’s offense level if the defendant was a “minimal partici-
pant” or “minor participant,” § 3B1.2, which again underscores that the
defendant is to be considered a participant.
11 See United States v. Pabey, 664 F.3d 1084, 1097 (7th Cir. 2011) (stating that
workers were “likely” participants under U.S.S.G. § 3B1.1 because some
of the evidence indicated “they knew the work was illegal and they helped
advance the scheme anyway”).

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Nos. 22-2060 & 22-2124 17
knowing assistance to Ms. Kellogg and Harris’s conspiracy.
See United States v. Pearson, 113 F.3d 758, 762 (7th Cir. 1997)
(concluding that a defendant who delivered distribution-level
amounts of drugs to two others on numerous occasions could
be liable on a theory that he aided and abetted their conspir-
acy).
Ms. Kellogg finally contends that, even if the record evi-
dence could have supported the district court’s finding re-
garding the number of participants, the district court did not
adequately explain its finding. Ms. Kellogg is correct that the
district court’s finding was cursory: it simply stated that “the
criminal activity, the Tate conspiracy, involved five or more
participants.”12 The district court did not identify the individ-
uals it deemed to be participants.
The main problem with this contention is that Ms. Kellogg
did not raise it in the district court. A failure to raise an objec-
tion to a sentencing enhancement in the district court can be
fatal. See, e.g., United States v. Zarnes, 33 F.3d 1454, 1475 (7th
Cir. 1994). We have held that a challenge to the adequacy of a
district court’s sentencing findings might be preserved de-
spite a lack of contemporaneous objection “when a defendant
consistently disputes an issue, and the district court does not
specifically elicit objections to the adequacy of the findings.”
United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir. 2005).13
12 Kellogg Sent. Tr. 22.
13 See United States v. Patel, 131 F.3d 1195, 1201 (7th Cir. 1997) (objections
to adequacy of findings supporting enhancements were preserved despite
the defendant’s failure to object in the district court because the defendant
“consistently disputed” the underlying guidelines issues in a “lengthy
sentencing hearing”).

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18 Nos. 22-2060 & 22-2124
Here, however, Ms. Kellogg stated only very briefly in a writ-
ten objection to the presentence report that the conspiracy in-
volved less than five people. She did not mention the issue at
all at the sentencing hearing, although the parties and the
court discussed at length the related issue of whether she
managed or supervised Harris. Given the lack of discussion
of the number-of-participants issue, the district court under-
standably did not focus on that issue when stating its find-
ings.
In another case, we might treat this matter as merely for-
feited (thus reviewable for plain error), rather than waived
(not entitled to any review). See, e.g., Zarnes, 33 F.3d at 1475.
But Ms. Kellogg did not raise the argument in her briefing ei-
ther; instead, she raised it for the first time at oral argument,
which itself constitutes waiver. See United States v. Bell, 585
F.3d 1045, 1055 n.1 (7th Cir. 2009) (“[A]rguments raised for
the first time in oral argument … are waived.”). Ms. Kellogg’s
objection to the adequacy of the district court’s findings on
the number-of-participants issue is accordingly waived. The
district court’s employment of the manager-supervisor en-
hancement did not constitute reversible error.
Conclusion
For the reasons stated, the convictions and sentences of
both Mr. Tate and Ms. Kellogg are affirmed.
AFFIRMED

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