1. Introduction

In United States v. Poterbin (10th Cir. Dec. 31, 2025), the Tenth Circuit affirmed James Michael Poterbin’s convictions and 480-month sentence for: (1) conspiracy to distribute and possess with intent to distribute methamphetamine, (2) kidnapping, and (3) using/brandishing/discharging a firearm in furtherance of a drug-trafficking crime. The appeal primarily challenged the admission of “other acts” evidence under Fed. R. Evid. 404(b)—text-message evidence suggesting two methamphetamine sales occurring months after the charged conspiracy ended—and raised additional pro se claims including insufficiency of the evidence, sentencing error, and ineffective assistance of counsel.

The court’s central move was procedural and doctrinal: it declined to decide whether the Rule 404(b) evidence was admissible, holding instead that any error in admitting it was harmless given the trial record, limited use of the evidence, and curative instructions. It also reaffirmed the Tenth Circuit’s strong preference to defer ineffective-assistance claims to collateral review, and it rejected sentencing challenges under plain-error review where “double counting” issues were not clearly settled.

2. Summary of the Opinion

• Rule 404(b) issue: Even assuming the district court abused its discretion in admitting evidence of two later methamphetamine sales, the error was harmless because the evidence played only a minor role, was not argued in closing, the government presented substantial other conspiracy proof, and the jury received limiting instructions.
• Sufficiency of evidence: The court held the evidence was sufficient for the meth conspiracy, kidnapping (including use of a cellphone as an instrumentality of interstate commerce), and the firearm count (including collecting a drug debt as “in furtherance”).
• Ineffective assistance: Dismissed without prejudice as presumptively unsuitable for direct appeal.
• Sentencing: Under plain-error review, the defendant failed to show that the ransom enhancement and alleged double-counting of injury/weapon enhancements were clearly erroneous under well-settled law; the court also held the judge— not a jury—could find guideline enhancements because they did not raise the statutory maximum/minimum.
• Disposition: Convictions and sentence AFFIRMED; ineffective assistance claims DISMISSED WITHOUT PREJUDICE.

3. Analysis

A. Precedents Cited

The opinion is heavily precedent-driven, using established doctrinal frameworks to (i) cabin appellate review, (ii) avoid unnecessary merits rulings, and (iii) resolve issues through standards like harmless error and plain error.

• United States v. Chapman: Used for the basic appellate posture on sufficiency-related fact review: evidence is viewed in the light most favorable to the verdict.
• United States v. Davis: Supplies the Tenth Circuit’s elements for drug conspiracy (agreement, knowledge, voluntary participation, interdependence, measurable quantity), anchoring the court’s conclusion that the government’s proof was ample even without the challenged Rule 404(b) evidence.
• United States v. Ibarra-Diaz: Provides the aiding-and-abetting framework. It supports the court’s alternative holdings on kidnapping facilitation via the cellphone calls and on the firearm count if Carr discharged the weapon and Poterbin knowingly assisted.
• United States v. Little (quoting Huddleston v. United States): States the four-part admissibility structure for Rule 404(b) evidence (proper purpose, relevance, Rule 403 balancing, limiting instruction). The court recites this test but resolves the appeal at harmlessness rather than admissibility.
• United States v. Martinez (quoting United States v. Henthorn) and United States v. Veneno: Reinforce that Rule 404(b) admissibility is “case-specific” and reviewed for abuse of discretion, setting the stage for the court’s assumption-of-error approach.
• United States v. Kupfer (quoting United States v. Hanzlicek): Provides the harmless-error standard for evidentiary errors: no reversal unless the error had a substantial influence on the outcome or creates grave doubt, assessed by reviewing the entire record and comparing the challenged evidence to properly admitted evidence. This is the controlling lens for the key evidentiary dispute.
• United States v. Summers and United States v. Olivo: Used to demonstrate that when other evidence of guilt is strong/overwhelming, even erroneous Rule 404(b) admission is harmless.
• United States v. Merritt (quoting United States v. Caldwell): Emphasizes the compounding significance of limiting instructions in rendering any 404(b) error harmless where evidence of guilt is overwhelming.
• United States v. Orozco: Supports abuse-of-discretion review of denial of a Rule 33 new-trial motion, which the court rejects for the same harmlessness reasons.
• Haines v. Kerner and United States v. Edwards: Support liberal construction of pro se filings, framing the court’s willingness to consider Poterbin’s supplemental arguments.
• United States v. McBride, United States v. Bradley, and United States v. Brooks: Support the court’s discretionary choice to overlook certain briefing deficiencies and independently review the appellate record, especially where the government addressed the merits.
• United States v. Gordon, United States v. Griffith, and United States v. Earls (quoting United States v. Stepp): Together provide the sufficiency-of-the-evidence standard (de novo review, view evidence favorably to the government, do not weigh credibility, reverse only if no rational juror could find guilt beyond a reasonable doubt).
• United States v. Hamilton: Critical to the firearm count: collecting drug debts can support a drug conspiracy conviction and, by extension, use of a firearm to enforce a drug debt can be “in furtherance of” the conspiracy.
• United States v. Sjodin and United States v. Galloway: Reaffirm the Tenth Circuit’s strong rule that ineffective-assistance claims are “presumptively dismissible” on direct appeal and are best suited to collateral proceedings where a factual record can be developed.
• Brady v. Maryland and United States v. Dermen: Used to clarify that Brady obligations bind the government; Poterbin’s complaint about counsel not sharing discovery is reframed as ineffective assistance rather than a Brady violation.
• United States v. Harbin, United States v. Pena: Control the plain-error framework for unpreserved sentencing challenges and define “plain” as clear/obvious under well-settled law.
• United States v. Acevedo and United States v. Vizcarra: Cited as persuasive authority from other circuits rejecting double-counting attacks on the ransom enhancement; used to show that any alleged error is not “plain” in the Tenth Circuit.
• United States v. Campus and United States v. Reyes Pena: Referenced to highlight the lack of controlling authority establishing impermissible double counting in the particular enhancement pairing.
• United States v. Walker and Erlinger v. United States: Frame the constitutional boundary between judge-found guideline facts and jury-found facts that raise statutory maxima/minima. The court distinguishes Erlinger and relies on Walker to hold guideline enhancements may be found by the sentencing judge when they only alter the advisory range within an unchanged statutory maximum.

B. Legal Reasoning

1. The Rule 404(b) dispute resolved through harmless error

Poterbin’s main counseled claim targeted the admission of post-conspiracy meth sales (via texts with “G David”) to show knowledge and intent. Rather than deciding whether the evidence satisfied the Rule 404(b) and Rule 403 requirements, the court assumed arguendo that admission was erroneous and proceeded directly to harmlessness under United States v. Kupfer.

The harmlessness analysis is fact-intensive and turned on four interlocking considerations the court treated as decisive:

1. Limited role at trial: the challenged evidence was a minor component of the government’s case.
2. No emphasis in closing: the prosecutor did not reference the Rule 404(b) sales in closing argument, reducing the risk the jury relied on propensity reasoning.
3. Substantial alternative proof: multiple witnesses and events linked Poterbin to the conspiracy, including supply relationships, an in-person procurement trip, violent enforcement of drug debts, calls about missing proceeds, and participation in the coercive effort to recover allegedly stolen drug money.
4. Limiting instructions: the district court twice instructed jurors on the narrow permitted uses (intent/knowledge) and expressly forbade using the evidence to decide whether Poterbin committed the charged crimes.

In effect, the opinion exemplifies an appellate “error-avoidance” posture: even potentially troubling other-acts evidence will not yield reversal absent a plausible causal link to the verdict, especially where the record contains robust independent evidence of guilt.

2. Sufficiency review: deference to juror inferences, not witness reweighing

Applying the United States v. Earls (and related) sufficiency standards, the court rejected Poterbin’s challenge to all counts. Notably, it treated certain arguments as impermissible attempts to reweigh facts or credibility (e.g., attacks on Vieni and D.B. as liars), which appellate courts do not do on sufficiency review.

3. Kidnapping: continued confinement and cellphone facilitation

On kidnapping, Poterbin argued he could not have “confined” D.B. because D.B. was already being held when he arrived. The court responded with a straightforward theory: even if others began the restraint, a rational jury could find Poterbin continued it (blocking exits, binding arms, duct-taping, and maintaining coercive control).

The “instrumentality of interstate commerce” element was satisfied through cellphone use: even if Carr placed the calls, the calls were made on speakerphone in Poterbin’s presence to intensify coercion, supporting either principal liability (“used”) or aiding-and-abetting liability.

4. Firearm “in furtherance”: enforcing a drug debt as advancement of the conspiracy

The court rejected the notion that the firearm must be proximate to drugs or cash at the moment of use. Drawing on United States v. Hamilton, it accepted a “drug-debt enforcement” theory: using/brandishing/discharging a firearm to recover proceeds believed stolen from drug sales can be “in furtherance” of a drug-trafficking conspiracy.

The opinion also addresses the jury’s deliberation question on aiding and abetting, finding no reversible confusion after the court referred jurors back to the full instruction and noting that both sides approved the response.

5. Ineffective assistance: deferred to collateral review

Applying United States v. Galloway and United States v. Sjodin, the court dismissed ineffective-assistance claims without prejudice. The rationale is institutional: ineffective-assistance allegations commonly depend on facts not in the trial record (strategy, advice during plea negotiations, counsel’s reasons for accepting or rejecting jury instructions), best developed via 28 U.S.C. § 2255 proceedings.

6. Sentencing: plain error, unsettled “double counting,” and judge-found guideline facts

Because the sentencing objections were not preserved, the court applied plain-error review under United States v. Pena. That standard is especially difficult to satisfy in “double counting” disputes where there is no controlling circuit or Supreme Court authority.

Two key holdings emerged:

• No plain error on ransom enhancement: even if one could argue double counting (ransom as an element of the kidnapping theory and as a guideline enhancement), the absence of Tenth Circuit/Supreme Court authority—and the existence of contrary reasoning in United States v. Acevedo and United States v. Vizcarra—meant any error was not “clear or obvious.”
• No plain error on injury + weapon enhancements: similarly, the defendant could not show well-settled law forbidding simultaneous application of the serious-injury and dangerous-weapon enhancements in kidnapping sentencing.

Finally, the court rejected the claim that a jury must find guideline enhancements, distinguishing Erlinger v. United States and relying on United States v. Walker: Erlinger concerns facts that change statutory exposure (mandatory minimum/maximum), whereas guideline findings merely influence the advisory range within an unchanged statutory maximum (here, kidnapping carried a statutory maximum of life).

C. Impact

• Rule 404(b) appellate strategy: The opinion reinforces that defendants challenging other-acts evidence often must show more than arguable inadmissibility; they must demonstrate outcome significance. Where other proof is substantial, prosecutors barely reference the evidence, and limiting instructions are given, harmless error will be a formidable barrier to reversal.
• Drug-debt enforcement theory: By re-emphasizing United States v. Hamilton, the decision strengthens prosecutorial arguments that violence and firearms used to collect drug debts can qualify as acts “in furtherance” of trafficking conspiracies, even absent contemporaneous drugs/cash at the scene.
• Plain-error limits on guideline “double counting” challenges: The court signals that, absent controlling precedent, “double counting” arguments are difficult to win on appeal when not preserved. Litigants should raise enhancement-stacking objections at sentencing to avoid the “plainness” obstacle.
• Post-Erlinger clarity (within the Tenth Circuit’s approach): The opinion underscores that Erlinger does not constitutionalize jury findings for guideline enhancements that do not alter statutory maxima/minima—preserving substantial judicial factfinding at sentencing.
• Ineffective assistance claims: The decision continues the Tenth Circuit’s near-categorical preference to route such claims to § 2255, shaping defense counsel’s record-building incentives and defendants’ expectations on direct appeal.

4. Complex Concepts Simplified

Rule 404(b) (Other-Acts Evidence)

Rule 404(b) generally bars evidence offered to prove “bad character” (e.g., “he sold drugs before, so he did it here”), but permits other-acts evidence for limited purposes like intent or knowledge. Courts then weigh whether its probative value is substantially outweighed by unfair prejudice.

Harmless Error

Even if the trial judge made a mistake admitting evidence, an appellate court will not reverse if the mistake likely did not affect the verdict. Here, the court said: assume the evidence was admitted wrongly—there was still so much other evidence of guilt, and the jury was instructed to use the other-acts evidence narrowly, that the result would be the same.

Aiding and Abetting

A person can be guilty not only for directly committing a crime, but also for intentionally assisting it—knowing the plan and acting to make it succeed. That theory mattered where Carr arguably made the ransom calls or fired shots, but Poterbin was alleged to participate and facilitate the overall conduct.

Plain Error

If an argument wasn’t properly raised in the district court, the defendant must show an obvious legal error that likely changed the outcome and seriously undermined the fairness of proceedings. Unsettled legal questions are rarely “plain.”

Guidelines Enhancements vs. Statutory Maximum/Minimum (Erlinger)

A jury must find facts that increase the statutory maximum or mandatory minimum. But a judge may find facts that merely change the advisory guideline range as long as the statutory sentencing range is unchanged. That is why Erlinger did not help Poterbin on guideline enhancements.

5. Conclusion

United States v. Poterbin is a textbook Tenth Circuit affirmance built on appellate standards of review. Its most salient contribution is practical: it demonstrates how the court can avoid deciding a close Rule 404(b) admissibility issue by affirming on harmless-error grounds when the contested evidence is minimally emphasized, limiting instructions are given, and independent proof is strong. The decision also reinforces that unpreserved guideline “double counting” arguments will often fail plain-error review in the absence of controlling precedent, and it clarifies that Erlinger v. United States does not require jury findings for guideline enhancements that do not alter statutory sentencing exposure.