United States of America v. Kinzey Shaw, also known as Kinzey Basic

United States Court of Appeals
For the Eighth Circuit
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No. 19-2109
___________________________
United States of America
Plaintiff - Appellee
v.
Kinzey Shaw, also known as Kinzey Basic
Defendant - Appellant
___________________________
No. 19-2165
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United States of America
Plaintiff - Appellee
v.
Elvis Basic
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: June 16, 2020
Filed: July 20, 2020
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Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges.
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GRUENDER, Circuit Judge.
Kinzey Shaw and Elvis Basic were found jointly guilty of one count of
conspiracy to distribute and possess with intent to distribute a controlled substance
and one count of distribution of a controlled substance, in violation of 21 U.S.C.
§§ 846, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. Shaw and Basic were also found
guilty of one count each of distribution of a controlled substance, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. Basic appeals his conspiracy
conviction and the district court’s1 drug-quantity determination. Shaw appeals the
drug-quantity determination and an obstruction-of-justice enhancement applied to
her sentence. We affirm.
The evidence presented at trial included testimony that Shaw began selling a
fentanyl solution to Tawna Iron Shield in June 2018, while Iron Shield was living in
a halfway house in North Dakota. On the first occasion, Shaw parked outside a
Walmart and asked Iron Shield if she wanted to try some nasal spray. Iron Shield
said yes and sprayed the solution two or three times into her nose, which made her
feel “energetic.” Iron Shield later bought a bottle of nasal spray from Shaw, agreeing
to a price of one hundred dollars. On a separate occasion, Iron Shield obtained
another bottle of nasal spray from Shaw at Shaw’s mother’s apartment for forty
dollars. She returned to Shaw’s mother’s apartment two or three times to refill the
nasal spray bottle. Iron Shield told another resident in the halfway house, Jennifer
Red Shirt, about her nasal spray bottle and offered to let Red Shirt try it. Red Shirt
said that after she did “two squirts” of the solution she felt “high” and “sick.”
1 The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

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Iron Shield and Red Shirt both failed routine urinalysis tests for drugs later
that month and were arrested and jailed. A staff member at the halfway house
confiscated Iron Shield’s spray bottle and turned it over to law enforcement. An
analysis revealed that the spray bottle held 11.69 grams of a liquid solution that
contained cyclopropyl fentanyl.2 Iron Shield was interviewed by a police detective
and told him about Shaw’s role in supplying the nasal spray.
After learning of Shaw’s role in the drug transactions, North Dakota Bureau
of Criminal Investigation Special Agent Alex Droske began surveillance of Basic’s
apartment building because he knew from “previous experience” that Shaw and
Basic were associated. During this surveillance, Droske observed a man park next
to Basic’s vehicle in the apartment building parking lot, look inside Basic’s vehicle,
then enter the building. The man returned to the lot ten minutes later carrying a
round, cylindrical object. Droske followed the man’s car as he drove away and saw
him shaking a nasal spray bottle in his hand as he drove. Droske initiated a traffic
stop after observing the man’s erratic driving and learned the man’s name was
Joseph Otremba. Otremba admitted that he had a nasal spray bottle in his car. This
bottle was seized and later revealed to contain a solution that included cyclopropyl
fentanyl.
Otremba later testified that he received nasal spray from Basic and Shaw on
multiple occasions. When Otremba first used the substance, Basic sprayed it into
Otremba’s nose. Otremba testified that, at Basic’s direction, he paid for a bottle of
nasal spray by sending forty dollars to Shaw’s PayPal account. He also testified that,
during a trip to Fargo with Basic and Shaw, he used the substance multiple times.
Shaw would remove the bottle from her purse and use the spray, then pass it to Basic
to use, and then to Otremba.
2 The parties do not dispute that cyclopropyl fentanyl is a fentanyl analogue.
“A controlled substance analogue is a substance that is ‘substantially similar’ to a
controlled substance in schedule I or II with respect to either its chemical structure
or its ‘stimulant, depressant, or hallucinogenic effect.’” United States v. Wolfe, 781
F. App’x 566, 568 (8th Cir. 2019) (per curiam) (citing 21 U.S.C. § 802(32)(A)).

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After Droske stopped Otremba, Droske notified other law enforcement agents
of the seizure of the nasal spray bottle. Ultimately, Shaw and Basic were arrested,
and Shaw was placed into the same holding cell as Iron Shield and Red Shirt. While
in that holding cell, Shaw told both Iron Shield and Red Shirt “not to tell on her.”
At Shaw’s sentencing hearing, the district court calculated a total offense level
of 30 and a criminal history category of III, resulting in an advisory sentencing
guidelines range of 121 to 151 months. Shaw’s offense level included a two-level
enhancement for Shaw’s attempt to obstruct justice by telling Iron Shield and Red
Shirt not to tell on her. The district court sentenced Shaw to 132 months’
imprisonment, followed by three years of supervised release.
At Basic’s sentencing hearing, the district court calculated a total offense level
of 28 and a criminal history category of III, resulting in an advisory sentencing
guidelines range of 97 to 121 months. It sentenced Basic to 120 months’
imprisonment. In calculating the sentences for both Shaw and Basic, the district
court relied on the drug-quantity determination of seventy-seven grams contained in
their presentence investigation reports.3
Shaw and Basic now appeal. Basic argues that there was insufficient evidence
to establish that a conspiracy existed between him and Shaw and argues that the
district court clearly erred in calculating a drug quantity of seventy-seven grams.
Shaw also contests the drug-quantity determination and argues additionally that the
3 Each presentence investigation report determined that there were seventy-
seven grams of cyclopropyl fentanyl involved in the offenses, or 770 kilograms of
converted drug weight. The sentencing guidelines provide that an amount ranging
between seventy and one hundred grams of a fentanyl analogue, such as a mixture
containing cyclopropyl fentanyl, equates to an amount between 700 and 1,000
kilograms of converted drug weight. U.S.S.G. § 2D1.1(c); § 2D1.1 cmt. n.8(D).
And this drug quantity results in a base offense level of 28. Id.

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two-level sentencing enhancement for obstruction was improper. We address each
argument in turn.
We begin with Basic’s sufficiency-of-the-evidence argument concerning his
conspiracy conviction. “We review de novo the sufficiency of the evidence,
examining the evidence in the light most favorable to the jury verdict and giving the
verdict the benefit of all reasonable inferences.” United States v. Blaylock, 421 F.3d
758, 772 (8th Cir. 2005). We will not disturb the jury’s verdict unless “no reasonable
construction of the evidence” will support it. United States v. Hickman, 764 F.3d
918, 924 (8th Cir. 2014).
To conclude that Basic was engaged in a conspiracy with Shaw, a jury must
find that (1) Shaw and Basic reached an agreement to distribute or possess with
intent to distribute a controlled substance, (2) Basic voluntarily and intentionally
joined the agreement, and (3) at the time he joined the agreement, Basic knew its
essential purpose. See United States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012).
“The government may prove an agreement wholly by circumstantial evidence or by
inference from the actions of the parties.” United States v. Jimenez-Villasenor, 270
F.3d 554, 558 (8th Cir. 2001). Granted, “proof of a buyer-seller relationship, without
more, is inadequate to tie the buyer to a larger conspiracy . . . .” United States v.
Conway, 754 F.3d 580, 591 (8th Cir. 2014). But a reasonable jury could find that
Basic had more than a buyer-seller relationship with Shaw “if the evidence supports
a finding that they shared a conspiratorial purpose to advance other transfers.” See
id. at 592.
The circumstantial evidence here is sufficient to establish that Basic
voluntarily and intentionally reached an agreement with Shaw to distribute a
controlled substance and, at the time of joining, knew the essential purpose of the
agreement. For example, Otremba testified that he overheard multiple conversations
between Shaw and Basic about their efforts to sell the fentanyl nasal spray. In
addition, Otremba testified that Basic directed him to collect water bottles containing
unidentified liquid from Shaw’s mother’s apartment and that Basic told him to send

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money to Shaw’s PayPal account in exchange for the fentanyl solution.
Furthermore, Shaw and Basic jointly distributed fentanyl spray to Otremba multiple
times. Once, while all three were shopping together, Otremba asked Basic for some
nasal spray, Basic then asked Shaw for the spray, and Shaw retrieved it from her
purse and handed it to Basic to give to Otremba. In view of this testimony, sufficient
evidence supported the finding that Shaw and Basic were engaged in a conspiracy
to distribute cyclopropyl fentanyl. See United States v. Cooke, 853 F.3d 464, 475
(8th Cir. 2017) (determining that circumstantial evidence established a conspiracy
based on, inter alia, communications between two people about selling
methamphetamine and payments between those people for controlled substances).
Next, Basic and Shaw both argue that the district court clearly erred in
calculating a drug quantity of seventy-seven grams of fentanyl analogue. “The
district court’s drug quantity and identity determinations are factual findings, which
we review for clear error, applying the preponderance-of-the-evidence standard.”
Walker, 688 F.3d at 420 (internal quotation marks omitted). We “will overturn a
finding of drug quantity only if the entire record definitively and firmly convinces
us that a mistake has been made.” United States v. Quintana, 340 F.3d 700, 702 (8th
Cir. 2003) (internal quotation marks omitted).
Before attributing to one defendant a quantity of drugs sold by a co-
conspirator, a district court must “find by a preponderance of the evidence” that the
transaction was (1) “in furtherance of the conspiracy” and (2) either known to the
defendant “or reasonably foreseeable to him.” United States v. Alexander, 408 F.3d
1003, 1009-10 (8th Cir. 2005); see U.S.S.G. § 1B1.3(a)(1)(B). In calculating this
quantity, “the factfinder may consider drug amounts from transactions” that the
defendant was not directly involved in, so long as those transactions were “part of
the same course of conduct or scheme.” Id. at 1010.
Basic argues that the quantities sold by Shaw to Iron Shield cannot be
attributable to him because they were not reasonably foreseeable by him, were not
within the scope of the conspiracy, and were not in furtherance of the conspiracy.

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But Otremba testified that he heard multiple conversations between Basic and Shaw
about selling the fentanyl nasal spray. Specifically, he heard Shaw tell Basic that
she needed to “make money off of” selling the drug. Therefore, it would have been
reasonably foreseeable to Basic that Shaw would attempt to increase sales by
distributing the drug to others, even if Basic did not personally know Iron Shield or
Red Shirt. See United States v. Flores, 73 F.3d 826, 834 (8th Cir. 1996) (finding
that a codefendant was responsible for other drug quantities distributed by co-
conspirators when there was no evidence to suggest that his “initial agreement to
join, and subsequent involvement in, the joint criminal conduct was clearly
defined . . . as limited to the specific criminal act(s)” in which the codefendant
personally participated). Thus, the district court did not clearly err in holding that a
preponderance of the evidence supported finding that Shaw’s fentanyl nasal spray
transactions with Iron Shield were attributable to Basic.
In addition, turning to the drug quantity calculated, the trial evidence was
sufficient for the district court to “approximate [a] quantity” that amounted to at least
seventy-seven grams of fentanyl analogue. See Walker, 688 F.3d at 421. To
determine properly the applicable drug quantity in a conspiracy, a sentencing court
“shall approximate the quantity of the controlled substance[s]” for sentencing
purposes if the amount of drugs seized does not reflect the scale of the offense. Id.
In so doing, “[t]he court may make a specific numeric determination of quantity
based on imprecise evidence” and without regard to the admissibility of the
evidence. United States v. Roach, 164 F.3d 403, 413-14 (8th Cir. 1998). In making
these determinations, the sentencing court has wide discretion as to the kind of
information it may consider or its source, including trial evidence. United States v.
Lawrence, 854 F.3d 462, 467 (8th Cir. 2017).
The nasal spray bottle confiscated from Iron Shield at the halfway house was
found to contain 11.69 grams of a solution containing cyclopropyl fentanyl. Because
testimony established that several of Shaw’s and Basic’s other transactions involved
nasal spray bottles, it was reasonable for the district court to “approximate the
quantity” of those other nasal spray bottles as 11.69 grams. See Walker, 688 F.3d at

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421. Iron Shield testified that she received multiple nasal spray bottles from Shaw
and refilled them at Shaw’s apartment “two or three times,” amounting to roughly
four nasal-spray-bottle-sized amounts. Otremba also testified that the same day that
Droske stopped him, Basic had filled a spray bottle belonging to Otremba with a
fentanyl solution. On another occasion, Otremba paid forty dollars for a separate
quantity of fentanyl solution that Basic poured from a bottle belonging to Shaw into
Otremba’s spray bottle. In addition to these incidents involving nasal spray bottle-
sized quantities, Otremba testified that he retrieved a water bottle containing
approximately two inches of liquid from Shaw’s apartment. Otremba then brought
the bottle to Basic at his apartment, later testifying that Basic usually obtained the
fentanyl from Shaw and that he and Basic would refer to the nasal spray as “water
bottle” or “Dasani water” when they were talking in code. Furthermore, Iron Shield
and Otremba both testified to receiving several sprays of the fentanyl solution from
Shaw and Basic on multiple occasions. Therefore, there were likely at least six
nasal-spray-bottle quantities, two inches of solution in a water bottle, and various
individual sprays involved in Shaw and Basic’s transactions. In light of this
testimony, seventy-seven grams is a reasonable approximation of the drug quantity.
See United States v. Robertson, 883 F.3d 1080, 1083 (8th Cir. 2018) (noting that,
where not all the drugs have been seized, the district court’s measurements need not
be precise if the record reflects a basis for the court’s approximation). Thus, the
district court did not clearly err in calculating the drug quantity.
Lastly, Shaw argues that the district court’s decision to apply a two-level
sentencing enhancement for obstruction of justice was not supported by the trial
evidence. “The district court must find the predicate facts supporting an
enhancement for obstruction of justice by a preponderance of the evidence, and we
review those findings for clear error.” United States v. Yarrington, 634 F.3d 440,
452 (8th Cir. 2011). “We give great deference to a district court’s decision to impose
an obstruction of justice enhancement, reversing only when the district court’s
findings are insufficient.” Id.

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A district court may apply an obstruction-of-justice enhancement to a
defendant’s base offense level if “the defendant willfully obstructed . . . or attempted
to obstruct . . . the administration of justice” with respect to the investigation or
prosecution “of the instant offense of conviction” and the obstruction related to the
“defendant’s offense of conviction and any relevant conduct.” U.S.S.G. § 3C1.1.
The commentary to § 3C1.1 defines obstruction to include “unlawfully influencing”
a witness. Id. at cmt. n.4(A). Therefore, attempts to prevent others from
communicating evidence of wrongdoing to law enforcement officers can constitute
obstruction of justice. See United States v. Gaye, 902 F.3d 780, 788 (8th Cir. 2018)
(noting that attempts to discourage a witness from testifying implicate the federal
witness tampering statute, 18 U.S.C. § 1512(b)(1), which forbids persuading another
person with an intent to delay or prevent testimony, and therefore can amount to
obstruction for purposes of the enhancement).
The district court did not clearly err in finding by a preponderance of the
evidence that Shaw attempted to obstruct justice. Iron Shield and Red Shirt both
testified that Shaw told them “not to tell on her” while they were in a holding cell
together after drugs had been discovered at the halfway house. In a similar case, we
found that a defendant obstructed justice when he told a witness that her statements
relating to a domestic assault charge “need[ed] to go away.” United States v.
Sanders, 956 F.3d 534, 540-41 (8th Cir. 2020) (noting that the defendant’s argument
that the comment was “too ambiguous” to warrant an obstruction enhancement was
insufficient to overcome deference to the district court). Shaw’s comment to Iron
Shield and Red Shirt is distinguishable from cases where the enhancement was not
applied because a defendant’s statements were “somewhat ambiguous,” such as
when a defendant asked a witness to “stay strong” and “be quiet.” See United States
v. Emmert, 9 F.3d 699, 704-05 (8th Cir. 1993). Shaw’s statement is closer to that in
Sanders because it is a direct attempt to stifle incriminating testimony. See 956 F.3d
at 540-41. Thus, the district court did not clearly err in applying the obstruction-of-
justice enhancement to Shaw’s offense level.

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For the foregoing reasons, we affirm.4
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4 On March 26, 2020, Basic filed a pro se letter addressed to this court raising
various issues. “It is Eighth Circuit policy not to address issues raised by a defendant
in pro se filings with this Court when he is represented by counsel.” United States
v. Carr, 895 F.3d 1083, 1090 (8th Cir. 2018). We therefore decline to address
Basic’s pro se arguments.

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