               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0178n.06

                                    Case Nos. 13-5101/5119

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Mar 06, 2014
UNITED STATES OF AMERICA,                            )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE WESTERN
ALFREDO CARRILLO-ALVARDO (13-                        )        DISTRICT OF KENTUCKY
5101) and JUAN LANDEROS-SANDOVAL                     )
(13-5119),                                           )
                                                     )
       Defendants-Appellants.                        )                            OPINION


BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

       McKEAGUE, Circuit Judge. Juan Landeros-Sandoval and Alfredo Carrillo-Alvardo

were found guilty of conspiring to possess with the intent to distribute 1,000 kilograms or more

of a mixture or substance containing a detectable amount of marijuana and of aiding and abetting

such a conspiracy. They raise multiple arguments on appeal regarding whether the police had

reasonable suspicion to stop their vehicles, whether the evidence establishing their guilt was

sufficient, whether Landeros-Sandoval’s prior felony drug conviction needed to be pleaded in the

indictment and proven to the jury beyond a reasonable doubt, and whether the district court erred

by not providing Carrillo-Alvardo a minor role adjustment when it imposed his sentence. For the

following reasons, we AFFIRM the district court.
Case Nos. 13-5101/5119
United States v. Carrillo-Alvardo, et al.

                                            I.     Facts

       At approximately 7 p.m. on December 15, 2010, Officer Culver (“Culver”) of the

Louisville Metro Police Department received a tip from an informant that a tractor–trailer,

carrying a large load of marijuana, would be delivered at an auto repair shop in Louisville,

Kentucky. This was not the first time that Culver had worked with the informant. The informant

had previously assisted another investigation. The auto shop was also known to the police, and

had been under continuous investigation since 2009 as a suspected “chop shop” and a

distribution point for drugs.

       Upon receiving the informant’s tip, Culver requested assistance.          Detective Keller

(“Keller”), Sergeant O’Toole (“O’Toole”), Detective James (“James”), Detective Morgan

(“Morgan”), and other officers responded. Keller, O’Toole, James, and Morgan each have over

10 years of law enforcement experience and significant experience in narcotics investigations.

At local staging areas, the officers were briefed on the investigation—many had been previously

briefed on the investigation as part of their regular duties—and on the informant’s tip. Culver

also informed the officers that two other detectives had already set up surveillance and had

confirmed that a tractor-trailer matching the informant’s description was on the property.

       Following the briefings, Culver left to have the search warrant for the property signed,

and Keller and O’Toole took up a surveillance position near the auto shop. They could see the

road leading to the property, and any vehicles that might be entering or leaving the property. As

it was relatively late and after business hours, all of the other shops along the road were closed.

The weather was bitterly cold and alternated between rain and sleet.

       While Keller and O’Toole monitored the road, another officer, Detective Lee (“Lee”),

took up surveillance on foot with binoculars near the property and reported what he saw by radio


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United States v. Carrillo-Alvardo, et al.

to the other officers. Lee observed containers being unloaded from the tractor-trailer with a

forklift, though he could not tell precisely what was in the containers or whether the other

vehicles on the property were being loaded.

       Approximately an hour after Keller and O’Toole had taken up their position, Lee reported

several vans leaving through the gate of the auto shop. No other vehicles had been observed on

the road in the previous hour. Shortly after Lee’s warning, Keller and O’Toole observed two

white cargo vans, two minivans, and a sedan traveling from the auto shop. The vans split into

two groups. The first group, which included a white cargo van and minivan, departed together.

The police followed, and after observing the vehicles driving together over the course of several

miles, signaled for them to pull over. The officers reported over the radio that the vehicles were

slow to stop. When they finally did, the police smelled the odor of marijuana from outside of the

cargo van, and promptly discovered that it was packed with marijuana.

       The second group of vehicles, including another white cargo van, driven by Juan

Landeros-Sandoval (“Landeros-Sandoval”), and followed closely by a gray Honda Odyssey

minivan, driven by Alfredo Carrillo-Alvardo (“Carrillo-Alvardo”), proceeded to a local freeway.

Keller and O’Toole followed in an unmarked vehicle and requested assistance from other

officers. James and Morgan responded and also began to follow. Over the course of a few

miles, Carrillo-Alvardo’s minivan maintained a close distance behind Landeros-Sandoval’s

cargo van, executed lane changes jointly, and made multiple turns together. Officers testified at

the suppression hearing and at trial that it is common for drug traffickers to have a “chase car”

shadow another car to provide protection and to ensure the delivery of the drugs. This is

commonly referred to as driving in “tandem.”




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United States v. Carrillo-Alvardo, et al.

       Although neither officer had witnessed criminal activity or a traffic violation, Keller and

O’Toole signaled for the cargo van to pull over, which it promptly did. Carrillo-Alvardo’s

minivan continued along the road followed by James and Morgan.              Keller and O’Toole

approached Landeros-Sandoval’s cargo van, and upon nearing it, the officers smelled a strong

odor of marijuana. The interior of the cargo van was subdivided with the cargo compartment

separated from the driver’s compartment by wire mesh. From the front of the vehicle, through

the mesh, the officers observed large bundles commonly used to store marijuana stacked from

the floor to the roof. The total amount of marijuana is estimated to have weighed over a ton.

       Following the stop of Landeros-Sandoval’s vehicle, Morgan turned on his lights and siren

and signaled for Carrillo-Alvardo to pull over. At this point, Carrillo-Alvardo had not committed

any traffic infractions, nor had anyone witnessed him engaging in criminal activity. Carrillo-

Alvardo continued driving for a quarter of a mile before stopping. He voluntarily exited the

vehicle, but appeared nervous to the officers. Approximately a minute later, after James and

Morgan learned by radio about the marijuana in Landeros-Sandoval’s cargo van, they arrested

Carrillo-Alvardo.

       James subsequently searched Carrillo-Alvardo’s minivan. Police recovered from it a pen

used to detect counterfeit money and a piece of paper with the name “Sergio Landeros-

Sandoval” written on it. Although James did not smell marijuana from outside of the minivan,

nor was marijuana found within the minivan or on Carrillo-Alvardo’s person, James indicated

that he smelled a strong odor of marijuana and diesel fuel while searching the minivan and that

he smelled the same odors on Carrillo-Alvardo. Officers also testified at the suppression hearing

and trial that diesel fuel or petroleum is often used to mask the odor of marijuana. Between the




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United States v. Carrillo-Alvardo, et al.

two cargo vans, the total amount of marijuana seized was approximately 2,546 kilograms and

had an estimated value of $5.6 million dollars.

       Following their arrests, Landeros-Sandoval and Carrillo-Alvardo were indicted on

January 19, 2011, along with several others, and charged in Count 1 with knowingly and

intentionally conspiring to possess with the intent to distribute 1,000 kilograms of marijuana in

violation of 21 U.S.C. § 841 (b)(1)(A)(vii) and 21 U.S.C. § 846, and in Count 3 with aiding and

abetting by knowingly and intentionally possessing with the intent to distribute 1,000 kilograms

of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii), and 18 U.S.C. § 2. They

both pled not guilty and filed motions to suppress the evidence acquired at the stops. After an

evidentiary hearing and briefing, the magistrate issued a report recommending the motion be

denied. The district court, adopting the magistrate’s report, denied the motion. Following a

three-day trial, a jury found Landeros-Sandoval and Carrillo-Alvardo guilty on both Counts 1

and 3. The defendants brought motions for acquittal at the close of the United States’ and the

defendants’ arguments. The district court denied the motions and sentenced Carrillo-Alvardo to

a concurrent term of 121 months as to Counts 1 and 3 and Landeros-Sandoval to a concurrent

term of 240 months as to Counts 1 and 3. Landeros-Sandoval and Carrillo-Alvardo appeal their

convictions.

                               II.    Denial of Motion to Suppress

   1. Legal Standard

       When reviewing a ruling on motion to suppress, we review factual determinations for

clear error and legal determinations de novo. United States v. Galloway, 316 F.3d 624, 628 (6th

Cir. 2003). If the district court has denied the motion to suppress, as is the case here, we “must

consider the evidence in the light most favorable to the government.” United States v. Garza, 10


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United States v. Carrillo-Alvardo, et al.

F.3d 1241, 1245 (6th Cir. 1993). The ultimate determination regarding the legality of the stop is

treated as a conclusion of law and reviewed de novo. Galloway, 316 F.3d at 628.

       The Fourth Amendment requires probable cause for a search or seizure to be lawful. One

narrow exception to this requirement is for investigatory detentions, otherwise termed Terry

stops. To assess the legality of an investigatory stop, we apply a two-pronged test. We first

assess “whether there was a proper basis for the stop, which is determined by examining whether

the law enforcement officials were aware of specific and articulable facts which gave rise to a

reasonable suspicion” that the person is committing or has committed an offense. Garza, 10

F.3d at 1245 (internal citation omitted). Second, we review “whether the degree of intrusion into

the suspect’s personal security was reasonably related in scope to the situation at hand, which is

judged by examining the reasonableness of the officials’ conduct given their suspicions and the

surrounding circumstances.” Id.

       Reasonable suspicion determinations are reviewed using a totality of the circumstances

analysis. United States v. Galaviz, 645 F.3d 347, 352 (6th Cir. 2011). Under this process,

“individual factors, taken as a whole, [may] give rise to reasonable suspicion, even if each

individual factor is entirely consistent with innocent behavior when examined separately.”

United States v. Smith, 263 F.3d 571, 588 (6th Cir. 2001). Police officers are permitted “to draw

on their own experience and specialized training to make inferences from and deductions about

the cumulative information available to them that might well elude an untrained person.” United

States v. Arvizu, 534 U.S. 266, 273 (2002) (internal citation and quotation omitted). An officer’s

reasonable suspicion can arise from a myriad of direct and indirect sources, including personal

observations, informant tips, dispatch information, information from other officers, and more

generalized factors, such as the nature of the area, the weather conditions, and the time of day.


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See Illinois v. Wardlow, 528 U.S. 119, 129–30 (2000); Dorsey v. Barber, 517 F.3d 389, 395 (6th

Cir. 2008); United States v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008). Additionally, under the

“collective knowledge rule,” “an officer may conduct a stop based on information obtained by

fellow officers . . . even when the evidence demonstrates that the responding officer was wholly

unaware of the specific facts that established reasonable suspicion for the stop.” United States v.

Lyons, 687 F.3d 754, 765–66 (6th Cir. 2012). While reliance on a mere “‘hunch’ is insufficient

to justify a stop, the likelihood of criminal activity need not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the evidence standard.”

Arvizu, 534 U.S. at 274 (internal citation omitted).

   2. Application

       Landeros-Sandoval and Carrillo-Alvardo both contend that the police lacked a

particularized basis to believe that they had committed or were going to commit a criminal

offense, and, therefore, that their stops violated the Fourth Amendment. We disagree. The

information available to the police, when viewed under the totality of the circumstances, satisfied

the reasonable suspicion requirement.

       We begin with the tip. The defendants assert that the tip should be analyzed as an

“anonymous” tip because no information was provided at the suppression hearing regarding

whether the tip came from a reliable confidential informant or an unknown individual. See

Florida v. J.L., 529 U.S. 266, 270 (2000).         To the contrary, the record indicates that the

informant was known and had assisted prior investigations. See id. (indicating that a known

informant is one whose reputation can be assessed and who can be held responsible if her

allegations turn out to be fabricated). As the district court indicated, “[t]he informant in this case

had proven reliable” and “had provided information to Detective Culver in the past which


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resulted in the identification of a number of individuals in another investigation.” R. 246, Mem.

Op. and Order at 6–7, Page ID # 1116–17.1 Thus, when the informant indicated that a certain

color tractor-trailer with specific markings would drop off a large shipment of marijuana at the

auto shop in the evening of December 15, 2010, the police rightfully believed they had received

“credible information that a large quantity of narcotics was going to be delivered at that location

that evening.” R. 154, Supp. Hrg. Tr., Keller, Page ID # 434. Although the police had not

observed marijuana prior to the stops, the other information provided by the informant was fully

corroborated. The police observed a tractor-trailer of the correct color and with the correct

markings at the anticipated destination at the correct time.2

       It should also be recalled that the officers did not rely solely on the tip, anonymous or

otherwise. They had their investigative history and their observations from the evening of

December 15, 2010. Over the course of two years, the police had developed information that the

auto shop was being used as a “chop shop” and drug distribution point. This information was

known by the arresting officers. The police had also witnessed the unloading of the tractor-

trailer at night after business hours during winter weather. An officer further testified that in his


1
  Sergeant Thomas Schardein testified as to why he considered Culver’s informant reliable in the
suppression motion for the related prosecution of Luis Salcido-Guzman. R. 197, Supp. Hrg. Tr.,
Guzman, Page ID # 745. The district court denied Salcido-Guzman’s motion to suppress in the
same order denying Landeros-Sandoval and Carrillo-Alvardo’s motion to suppress. While
Schardein was not one of the officers who pulled over either Landeros-Sandoval or Carrillo-
Alvardo, he was part of the group of officers involved in stopping the first group of vehicles and
also familiar with the informant’s prior reliability. Additionally, O’Toole, who stopped
Landeros-Sandoval, received weekly briefs on the investigation as Culver’s supervisor and was
presumably familiar with the informant’s reliability. R. 154, Supp. Hrg. Tr., O’Toole, Page ID #
446. Thus, the police officers, through the collective knowledge rule, knew that the informant
was not in fact anonymous and had previously provided information that had been corroborated.
2
  Regarding precisely when the tractor-trailer arrived, there is some ambiguity, but at the
suppression hearing, Keller testified that “I’m fairly confident that that tractor-trailer arrived that
evening just shortly after [Detective Culver] got the information that that tractor-trailer was
coming.” Id. at Page ID # 414 (emphasis added).
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experience, it is common for large loads of narcotics to be divided into smaller loads at

distribution points.

       The manner in which the vehicles traveled together further supported reasonable

suspicion. Shortly after the tractor-trailer was unloaded, the police witnessed a convoy of

vehicles depart from the auto shop. This convoy divided into two groups of vans which headed

in different directions.   The officers never observed any traffic violations; however, they

expressed their belief, after observing the vans change lanes in unison, drive at the same speed,

and make multiple turns together over the course of a few miles, that the vehicles were driving in

tandem, and indicated that in their experience this was a common practice among drug

traffickers. See United States v. French, 974 F.2d 687, 692 (6th Cir. 1992) (holding that police

had reasonable suspicion to stop a car that was acting as a chase car and slightly speeding);

United States v. Allen, 705 F.3d 367, 368 (8th Cir. 2013) (similar); United States v. Rodriguez-

Rodriguez, 550 F.3d 1223, 1228 (10th Cir. 2008) (similar); United States v. Soto, 591 F.2d 1091,

1098–99 (5th Cir. 1979) (similar). Unlike other cases, in which tandem driving was found to be

an insufficient basis for asserting reasonable suspicion, tandem driving was not the primary or

only basis for the stops in this case. See United States v. Espino-Urvan, No. 12 Cr. 337 (LTS),

2013 WL 2255953, *7 (S.D.N.Y. May 21, 2013). Finally, the officers were aware from the radio

transmissions that the first group of cars had failed to stop immediately, which raised concerns

that the suspects might attempt to flee or be a danger to the officers.

       Taken altogether, especially in light of the collective knowledge rule, the combination of

(1) the informant’s tip, which was corroborated by the presence and description of the tractor-

trailer; (2) the prior two-year investigative history, which was briefed to the officers; (3) the

activity witnessed by Lee, specifically the unloading of the tractor-trailer at night during


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inclement weather at a suspected drug distribution location after business hours; (4) the officers’

observations that, shortly after unloading vehicles, two sets of vehicles left the location and

drove in tandem on a wintry night when few cars were on the road; and (5) the officers’ training

and experience investigating drug trafficking, more than fulfill the reasonable suspicion

requirement.

       As to the argument that the police had predetermined that all vehicles leaving the auto

shop would be stopped, we evaluate “whether reasonable suspicion existed at the point of

seizure, not at the point of attempted seizure.” United States v. Jones, 562 F.3d 768, 773 (6th

Cir. 2009). During the suppression hearing, the officers described the information discussed

above, which arose before and after the initial briefings and prior to the actual seizure of the

vehicles.   Thus, at the moment when the officers made the traffic stops, the officers had

sufficient evidence to find reasonable suspicion.       This determination that the police had

reasonable suspicion is consistent with other similar cases. See, e.g., United States v. Flores, 571

F.3d 541, 544–45 (6th Cir. 2009) (finding reasonable suspicion based on intercepted

conversations indicating that a drug delivery was about to take place at a suspected stash house

and the presence of an unfamiliar vehicle at the location at the time of delivery); United States v.

Davis, 514 F.3d 596, 600–01 (6th Cir. 2008) (finding reasonable suspicion on the basis of an

informant’s indication that the defendant would be “posted-up” at a specific location in a high

crime area, the presence of the defendant at the location, and the fact that the defendant did not

appear to have a license on file though he was driving); Garza, 10 F.3d at 1246 (finding

reasonable suspicion to stop a truck where the defendant made phone calls with a suspected drug

distributor, where the defendant paid “close attention” to a truck that a police drug dog had

alerted was carrying marijuana, and where two trucks traveled in tandem). The officers therefore


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satisfied the “minimal level of objective justification for making the stop.” United States v.

Sokolow, 490 U.S. 1, 7 (1989).

       Having assessed the validity of the initial stop, we now review the officers’ subsequent

conduct. Once the police initiated the stops, it was only a matter of minutes before they

discovered the bales of marijuana and arrested Landeros-Sandoval and Carrillo-Alvardo. The

defendants were not arrested, nor were their vehicles searched, until the police had smelled and

viewed the marijuana in the cargo area. Under these circumstances, the degree of intrusion into

the suspect’s personal security was reasonably related in scope and that the police had probable

cause to arrest the suspects. See Davis, 514 F.3d at 610 (finding probable cause to arrest where

marijuana was in plain view in a vehicle); Garza, 10 F.3d at 1246 (finding probable cause to

search a vehicle where an officer smelled marijuana). Accordingly, we AFFIRM the denial of

the motion to suppress for both Landeros-Sandoval and Carrillo-Alvardo.

                               III.    Sufficiency of the Evidence

       1. Legal Standard

       Landeros-Sandoval and Carrillo-Alvardo next argue that the evidence to support their

convictions is insufficient. We review such claims de novo. United States v. Gunter, 551 F.3d

472, 482 (6th Cir. 2009). To sustain a conviction, we must assess “whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v. Wallace, 597

F.3d 794, 800 (6th Cir. 2010) (quotation marks and internal citations omitted). Direct and

circumstantial evidence can be used to satisfy the government’s burden. Gunter, 551 F.3d at

482. Further, “[t]he government may meet its burden through circumstantial evidence alone, and




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such evidence need not exclude every possible hypothesis except that of guilt.” United States v.

Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995).

       2. Sufficiency of the Evidence to Support the Conspiracy Convictions

       “To sustain a conviction for conspiracy under 21 U.S.C. § 846, the government must

have proved: (1) an agreement to violate drug laws, in this case 21 U.S.C. § 841; (2) knowledge

and intent to join the conspiracy; and (3) participation in the conspiracy.” United States v. Sliwo,

620 F.3d 630, 633 (6th Cir. 2010) (internal quotation marks and citation omitted).              The

defendants argue that the government has failed to satisfy the first and second prongs—that they

entered in an agreement with their co-conspirators or that they knew the object of the conspiracy.

       In United States v. Sliwo, this court overturned a conviction for conspiracy to distribute

marijuana where the defendant transported an empty van and served as a lookout when the drugs

were loaded, but failed to actually see the drugs being loaded. Id. As this court concluded, “[n]o

evidence was presented that demonstrated Defendant’s knowledge that the purpose of the

scheme was the acquisition of marijuana.” Id. at 638. The court caveated its determination that

there was insufficient evidence by acknowledging, “[i]f Defendant had entered the truck yard,

his conviction may have been affirmed even though nobody directly saw him loading marijuana

into the van. In addition, if Defendant had entered the van after the marijuana was loaded, even

though the boxes were all closed, the conviction may have been affirmed.” Id. at 637 n.5.

       While “participation in a scheme whose ultimate purpose a defendant does not know is

insufficient to sustain a conspiracy,” id. at 633, this is clearly not such a circumstance. Unlike

Sliwo, direct and circumstantial evidence presented to the jury linked Landeros-Sandoval and

Carrillo-Alvardo to the essential object of the conspiracy: the possession with the intent to

distribute marijuana. Id. The following evidence was presented at trial. An informant had told


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the police that a large shipment of marijuana was going to be delivered by a tractor-trailer at the

auto shop. The auto shop had been under investigation for two years for involvement in stolen

auto parts and narcotics. The police observed a tractor-trailer, which matched the informant’s

description, being unloaded with a fork lift during inclement weather and after business hours,

making it less likely that the defendants were unlucky bystanders or customers. Moreover, given

the size of the shipment, the jury could reasonably have inferred that several individuals were

involved in the unloading of the trailer and the reloading of the drugs into the vans.3 After the

trailer was unloaded, a caravan of vehicles, including two white cargo vans completely loaded

with marijuana, left the auto shop. Each cargo van was followed by a minivan, and the vans

proceeded to drive in tandem.

       Focusing for a moment on Landeros-Sandoval, he was discovered by police transporting

a cargo van carrying over a ton of marijuana. This was not a case where he was merely present

at the scene of the crime or driving a vehicle where the drugs were hidden in the gas tank or

transporting a closed box filled with odorless drugs. See United States v. Craig, 522 F.2d 29, 31

(6th Cir. 1975); United States v. Coppin, 1 F. App’x 283 (6th Cir. 2009); United States v.

Morrison, 220 F. App’x 389 (6th Cir. 2007). The marijuana, which was located in the rear of the

cargo van, could easily be seen from where Landeros-Sandoval was driving, and the marijuana

was packaged into bundles commonly used to transport the drug. Finally, the officers testified

that the smell of marijuana and diesel was so strong that they could smell it from outside of the

vehicle. “The smell of marijuana is certainly relevant evidence, and courts have pointed to the

smell as evidence that the presence of marijuana was obvious.” United States v. Wright, 12 F.3d

3
  O’Toole testified that it took seven to ten officers a couple hours to unload the marijuana from
the cargo vans, and that the marijuana bales smelled of diesel fuel. He also indicated that after
going home his clothing smelled strongly of marijuana. R. 397, Tr. Tran., O’Toole Testimony,
Page ID # 2050–51.
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215, 1993 WL 465164, *4 (6th Cir. 1993) (unpub.) (citing multiple cases in which the smell of

marijuana was used as evidence). Under these circumstances, it belies belief that Landeros-

Sandoval did not know that he was transporting marijuana or engaging in a conspiracy to

distribute marijuana.

       While the sufficiency of the evidence with relation to Carrillo-Alvardo is a closer call,

enough evidence has been presented to support his conviction for conspiracy. We will not repeat

the evidence discussed above. Suffice to say, Carrillo-Alvardo was also present at the auto shop,

which was suspected to be a “big distribution point for marijuana,” R. 397, Tr. Tran., James

Testimony, Page ID # 2093, on the evening that a large shipment of drugs was allegedly

unloaded. He drove a chase car mimicking the movement of Landeros-Sandoval’s drug-laden

cargo van. Police discovered a pen used to detect counterfeit bills and a handwritten note in

Carrillo-Alvardo’s minivan with the name “Landeros-Sandoval” written on it, further tying him

to the drug van. Also, critically, the jury heard testimony that Carrillo-Alvardo reeked of a

combination of marijuana and diesel, and his car smelled strongly of the same odor.4 This smell

suggests that Carrillo-Alvardo assisted with the loading or was present at the loading or at a

minimum knew about the marijuana, which was the essential object of the conspiracy. See

Sliwo, 620 F.3d at 638.

       Finally, the jury heard testimony that approximately 2,546 kilograms of marijuana with

an estimated street value of $5.6 million dollars was confiscated. A reasonable jury could infer

that “it would be highly unlikely for drug dealers to hire [an innocent third party] to move

4
  As James described the smell, “[f]rom outside [Carrillo-Alvardo’s] vehicle once the window
was down, the odor was overwhelming from that vehicle to a point that I actually thought, with
my training and experience, that there would be several bales of marijuana in this vehicle. It was
a marijuana odor with a masking odor of diesel or kerosene fuel. And it was overwhelming and
it was also on his person . . . .” R. 397, Tr. Tran., James Testimony, Page ID # 2091 (emphasis
added).
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millions of dollars of marijuana that had a pungent odor and was wrapped in clear plastic.”

United States v. Bonas, 434 F. App’x 422, 431 (6th Cir. 2011); see also United States v.

Gbemisola, 225 F.3d 753, 760 (D.C. Cir. 2000) (similar); United States v. Quilca-Carpio,

118 F.3d 719, 722 (11th Cir. 1997) (similar). While this evidence is not of the smoking-gun

variety, “[i]nferential proof may be controlling where the offense charged is so inherently

secretive in nature as to permit the marshalling of only circumstantial evidence. This is the norm

in drug conspiracy prosecutions . . . .” United States v. Pelfrey, 822 F.2d 628, 632 (6th Cir.

1987).

         Accordingly, a reasonable jury could have determined that the defendants knew of the

conspiracy and agreed to join it. As the defendants have not satisfied the “very heavy burden”

necessary to overturn their convictions, United States v. Jackson, 473 F.3d 660, 669 (6th Cir.

2007), we AFFIRM their convictions on the conspiracy charge.

         3. Sufficiency of the Evidence to Support the Aiding and Abetting Convictions

         Landeros-Sandoval and Carrillo-Alvardo next argue that the government has presented

insufficient evidence to satisfy the charge for aiding and abetting. Just as a reasonable jury could

have determined that the defendants knew about and participated in a conspiracy to distribute the

marijuana, for the same reasons there is sufficient evidence for a jury to have convicted them of

aiding and abetting. The defendants were participants who assisted in the transportation of the

drugs and the commission of a crime, not merely hapless and unwitting spectators. See United

States v. Pena, 983 F.3d 71, 73 (6th Cir. 1993) (finding insufficient evidence for aiding and

abetting where the government only showed the defendant’s presence as a passenger in a car

carrying cocaine). A reasonable jury could conclude based upon the presence of the defendants

at the location where the drugs were unloaded, their coordinated activities to transport a large


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United States v. Carrillo-Alvardo, et al.

quantity of drugs, the smell of marijuana and diesel fuel in their vehicles and on Carrillo-

Alvardo’s person, and in the instance of Landeros-Sandoval, the presence of marijuana in his

vehicle, that they had knowledge of the “general scope and nature of the illegal [activity] and

awareness of the general facts concerning the venture.” Sliwo, 620 F.3d at 638 (internal citation

omitted). We, therefore, AFFIRM the defendants’ convictions for aiding and abetting.

                IV.    Sufficiency of the Indictment and the Alleyne Challenge

       Landeros-Sandoval argues that his conviction should be reversed because his prior drug

conviction, which increased the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A),

was not submitted to the jury and because the indictment failed to list the prior felony drug

conviction as an element of the offense. This argument is predicated on the recent Supreme

Court case in Alleyne v. United States, 133 S. Ct. 2151 (2013). There, the Court held any fact

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

found beyond a reasonable doubt . . . [and therefore, the] mandatory minimum is an ‘element’

that must be submitted to the jury.” Id. (internal citation omitted). The Alleyne Court, however,

expressly refused to address whether the traditional exception under Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which establishes that prior convictions need not be

presented to a jury or included in an indictment, still applied. Alleyne, 133 S. Ct. at 2160 n.1.

       Landeros-Sandoval claims that Alleyne’s holding that “any fact that increases the

mandatory minimum is an ‘element’ that must be submitted to the jury” indicates that the

Almendarez-Torres exception no longer has continued viability.             This court has already

addressed this question and determined that the Supreme Court’s decision in Almendarez-Torre

is still good law, even post-Alleyne. United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013);

United States v. Wynn, 531 F. App’x 596 (6th Cir. 2013) (per curiam). Consistent with this


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precedent, we reject Landeros-Sandoval’s argument that his prior conviction should have been

submitted to the jury or included in the indictment and AFFIRM his sentence.

                                   V.       Minor Role Reduction

       Finally, Carrillo-Alvardo contends that his sentence was procedurally and substantively

unreasonable because the district court failed to consider his minor role when calculating the

advisory guidelines range and when determining his actual sentence. Under U.S.S.G. § 3B1.2, a

defendant who is “substantially less culpable than the average participant” can receive a sentence

reduction. U.S.S.G. § 3B1.2, cmt. 3(A). Carrillo-Alvardo concedes that he did not raise an

objection before the district court regarding its failure to apply this minor role reduction.

Accordingly, we review the claim of procedural adequacy for plain error, which requires

Carrillo-Alvardo to show “(1) error (2) that was obvious or clear, (3) that affected defendant’s

substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (internal quotation

marks and citation omitted).

       Carrillo-Alvardo has not satisfied this burden. The only evidence presented at sentencing

of Carrillo-Alvardo’s minor role was the claim made by his attorney that Carrillo-Alvardo was a

“tag-along behind a mule driving a vehicle.” R. 396, Sent. Tr., Page ID # 1777. In his brief to

this court, Carrillo-Alvardo again makes a bare-bones assertion that his involvement with the

marijuana was limited and that he was not even a courier. He does not cite, however, the

sentencing transcript, nor does he indicate any additional mitigating evidence presented to the

district court to substantiate his claim of having a minor role or being substantially less culpable.

In explaining its sentence, the district court referred to the 18 U.S.C. § 3553 factors and

indicated, “I think that all things taken, including the seriousness of the offense and the


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characteristics of the offense, as well as [Carrillo-Alvardo’s] personal characteristics, and the

need to reflect and respect—to encourage respect for the law, militates in favor of the sentence

that I have imposed here . . . .” R. 395, Sentencing Tr., Page ID # 1780. As Carrillo-Alvardo has

not demonstrated that the trial court plainly failed to “analyze the relevant sentencing factors”

Vonner, 516 F.3d at 388 or was obviously in error, the district court’s sentence was procedurally

reasonable.

       Turning to the question of substantive reasonableness, “[a] sentence may be considered

substantively unreasonable when the district court selects a sentence arbitrarily, bases the

sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Conaster, 514 F.3d

508, 520 (6th Cir. 2008). Carrillo-Alvardo argues that the district court failed to consider a

relevant sentencing factor, namely his minor role in the offense. The evidence indicates that the

court was not only familiar with Carrillo-Alvardo’s role in the offense, but also that it considered

this precise point in selecting his sentence. While the government requested a mid-to-high

sentence within the guidelines range because of the quantity of marijuana involved, Carrillo-

Alvardo’s actual sentence of 121 months is at the very bottom of the guidelines range of 121 to

151 months, and only one month over the 120 mandatory minimum term of imprisonment. See

21 U.S.C. § 841(b)(1)(A)(vii). The court clearly attempted to balance what it viewed as a “very

bold crime involving quite a large amount of marijuana,” R. 395, Sentencing Tr., Page ID #

1780, with Carrillo-Alvardo’s modest criminal history and role. As there is a “presumption of

reasonableness for within-guidelines sentences,” Vonner, 516 F.3d at 389, Carrillo-Alvardo’s

sentence was also substantively reasonable, and, we therefore AFFIRM his sentence.




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                                        VI.   Conclusion

       For all of these reasons, we AFFIRM the judgment of the district court.




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