               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0556n.06

                                     Nos. 15-3618/15-3643                             FILED
                                                                                 Oct 03, 2016
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                   )
                                            )
       Plaintiff-Appellee,                  )
                                            )        ON APPEAL FROM THE
v.                                          )        UNITED STATES DISTRICT
                                            )        COURT FOR THE NORTHERN
RASHID L. CARTER;                           )        DISTRICT OF OHIO
CHANDA E. WILSON,                           )
                                            )
       Defendants-Appellants.               )        OPINION
                                            )

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

       ALAN E. NORRIS, Circuit Judge. This is a heroin conspiracy case that included

multiple defendants. Defendant Rashid Carter appeals the district court’s denial of his pre-trial

motion to suppress evidence. Defendant Chanda Wilson appeals her 37-month within Guideline

sentence. We affirm the judgment in Carter’s case. We vacate Wilson’s sentence and remand for

resentencing under amended U.S.S.G. § 3B1.2.

                                                I.

A.     Background

       The Federal Bureau of Investigation (“FBI”) investigated defendants and thirteen others

for a suspected drug trafficking conspiracy in the Akron, Ohio, area that spanned from August

2013 through July 2014. (R. 181, PageID# 713; R. 392, PageID# 2578, 2585.) As part of the

investigation, the FBI obtained court authorization to monitor calls and GPS location data for

Mr. Carter’s cell phone. (R. 392, PageID# 2578.) Based on certain phone calls, the FBI
                                                                  United States v. Carter, 15-3618
                                                                  United States v. Wilson, 15-3643


concluded that Mr. Carter intended to travel from Akron, Ohio, to Chicago, Illinois, to purchase

a new supply of heroin. (Id., PageID# 2579.)

        Mr. Carter and Ms. Wilson are cousins. Some of the intercepted calls included

conversations between Mr. Carter and Ms. Wilson in mid-May 2014. (R. 295, PageID# 1705-

07.) The calls revealed that Ms. Wilson acted as a broker between Mr. Carter and a drug dealer

whom she knew. During one conversation, Mr. Carter and Ms. Wilson discussed when Mr.

Carter would arrive in Chicago for this trip. Ms. Wilson said, “Okay, I got you. For the same

thing [the same amount of heroin as previous purchase]?” (Id.) Mr. Carter responded, “Uh, uh, a

little more.” (Id.)

B.      Suppression Hearing

        On January 9, 2015, the district court held a suppression hearing. (R. 392, PageID#

2572.) The following factual background comes from testimony given at that hearing.

        In response to the conversations between Mr. Carter and Ms. Wilson, the FBI initiated

physical surveillance of Mr. Carter. (Id., PageID# 2579-80.) On May 14, 2014, FBI Special

Agent Timothy Edquist saw Mr. Carter leave the Akron area in a black Dodge Avenger, and

GPS data for Mr. Carter’s cell phone confirmed that he was travelling to Chicago. (Id., PageID#

2580.) After learning that Mr. Carter was returning to Ohio, Edquist contacted Sergeant Neil

Laughlin of the Ohio State Highway Patrol (“OSHP”) and requested assistance with a potential

traffic stop involving drug trafficking. (Id., PageID# 2581-2.)

        Laughlin responded with his partner, Trooper Kaitlyn Griffith. (Id., PageID# 2597-99.)

Laughlin testified that he used an LT 20-20 laser to determine that Mr. Carter’s car was traveling

at fifty-seven miles per hour, seven miles per hour over the posted speed limit in a construction



                                               -2-
                                                                         United States v. Carter, 15-3618
                                                                         United States v. Wilson, 15-3643


zone. (Id., PageID# 2629-32.) Then Laughlin pulled onto the highway and began pacing1 the

Avenger. (Id., PageID# 2632.)

        Laughlin testified that he observed that the Avenger “was still traveling above the speed

limit, between 76 and 80 – 82 miles per hour” in a seventy mile per hour zone. (Id., PageID#

2632.) Laughlin also testified that he noticed that “the rear license plate on the vehicle was

missing its county and registration sticker.” (Id.) Griffith testified that she observed the Avenger

travelling between seventy-six and seventy-seven miles an hour. (Id., PageID# 2600.)

        Laughlin initiated a traffic stop. (Id., PageID# 2600, 2632.) Mr. Carter was driving the

car, and a woman named Jasmine Sanders was in the passenger seat. Griffith approached the

passenger side of the car and told the occupants that they had been seen speeding in a fifty mile

per hour zone. (Id., PageID# 2600-01.) Mr. Carter responded that he thought he was going fifty-

five miles per hour. Griffith testified that Ms. Sanders’ hands were shaking, she was breathing

heavily, and she appeared more nervous than someone would in a routine traffic stop. (Id.,

PageID# 2601-02.) Griffith also reported that she “smelled the immediate odor of raw marijuana

coming from within the vehicle.” (Id.) After smelling the marijuana, Griffith asked Mr. Carter

and Ms. Sanders to get out of the car.

        Laughlin testified that he also smelled “the distinct odor of raw marijuana” when Mr.

Carter exited the vehicle. (Id., PageID# 2633.) Laughlin testified that he had been a trooper for

fourteen years and encountered the smell of marijuana thousands of times. (Id., PageID# 2633.)




1
 Pacing occurs when law enforcement follows and maintains a constant distance from a target vehicle in order to
determine its speed.

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                                                                 United States v. Carter, 15-3618
                                                                 United States v. Wilson, 15-3643


       Griffith asked Ms. Sanders if she could perform a pat-down of her and Ms. Sanders

consented. (Id., PageID# 2604.) Griffith found a small baggie of marijuana in her shirt pocket.

(Id., PageID# 2604, 2619-20.)

       During that time, Trooper Shane Morrow arrived at the scene. Laughlin then searched the

car with Morrow and found “a shiny revolver pistol” in plain view, “a marijuana rolled cigar,”

and a “large amount of heroin” in Ms. Sanders’s purse. (Id., PageID# 2636-37.)

       The traffic stop and search were recorded on an OSHP cruiser camera.

C.     Procedural History

       On July 22, 2014, a federal grand jury in the Northern District of Ohio returned a forty-

count superseding indictment charging Mr. Carter, Ms. Wilson, and thirteen other persons with

conspiring to possess with the intent to distribute heroin, using a communications facility to

facilitate a drug conspiracy, and traveling in interstate commerce to facilitate a drug conspiracy,

in violation of 21 U.S.C. §§ 846 and 843(b), and 18 U.S.C. § 1952, respectively. (R. 16, PageID#

93-95, 98.) Mr. Carter was also charged with distributing heroin, possessing a firearm in

furtherance of a drug-trafficking crime, and being a convicted felon in possession of firearms, in

violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. §§ 924(c) and 922(g)(1), respectively. (R. 16,

PageID 96-97, 98, 99.)

       Mr. Carter moved to suppress physical evidence seized during the traffic stop. (R. 126,

PageID# 441.) The district court denied Mr. Carter’s motion, concluding that probable cause

supported the traffic stop and search. (R. 181, PageID# 713.) Mr. Carter subsequently pleaded

guilty to Conspiracy to Distribute 100 Grams or More of a Substance Containing Heroin in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i), and Possessing a Firearm in Furtherance of a

Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced

                                               -4-
                                                                  United States v. Carter, 15-3618
                                                                  United States v. Wilson, 15-3643


Mr. Carter to consecutive terms of 120 and 60 months of imprisonment respectively. (R. 360,

PageID 2421.)

       As part of his plea agreement, Mr. Carter expressly reserved the right to challenge the

district court’s denial of his motion to suppress evidence. (R. 295, PageID# 1679.)

       On February 5, 2015, Ms. Wilson pleaded guilty to all three counts with which she was

charged. (R. 301, PageID# 1750.) She did not enter into a plea agreement.

       A sentencing hearing was held on May 28, 2015. At the hearing, Ms. Wilson challenged

the district court’s decision to sentence her based on a drug quantity of between 400 and 700

grams of heroin, because Mr. Carter was caught with roughly 250 grams of heroin. (R. 351,

PageID# 2313). Ms. Wilson also argued that she should be afforded a base offense level

reduction pursuant to U.S.S.G. § 3B1.2 because she was only a minor participant in the

conspiracy. (Id.) The district court disagreed on both points, finding that a preponderance of the

evidence established the drug quantity (R. 394, PageID# 2725) and that Ms. Wilson was not a

minor player. (R. 394, PageID# 2729). The district court sentenced Ms. Wilson to concurrent

prison terms of thirty-seven months on each count, followed by three years of supervised release.

(R. 394, PageID# 2748.)

                                                 II.

       On appeal, Mr. Carter challenges the district court’s order denying his motion to

suppress. For her part, Ms. Wilson appeals her sentence. Specifically she challenges (1) the

district court’s finding that she was not a minor participant; (2) the drug quantity calculation; and

(3) the reasonableness of her sentence.

       When considering the denial of a motion to suppress evidence, we review the district

court’s findings of fact for clear error and its conclusions of law de novo. United States v. Gross,

                                                -5-
                                                                  United States v. Carter, 15-3618
                                                                  United States v. Wilson, 15-3643


550 F.3d 578, 582 (6th Cir. 2008). A factual finding is clearly erroneous when the reviewing

court is left with a definite and firm conviction that a mistake has been committed. United States

v. Smith, 594 F.3d 530, 535 (6th Cir. 2010). “In reviewing the district court’s findings of fact, we

consider evidence in the light most favorable to the government.” United States v. Hill, 195 F.3d

258, 264 (6th Cir. 1999).

        We review a district court’s sentencing guideline calculation de novo, United States v.

Wendlandt, 714 F.3d 388, 393 (6th Cir. 2013), and the reasonableness of a sentence for abuse of

discretion, Gall v. United States, 552 U.S. 38, 51 (2007).

A.      Suppression of Evidence

        1.      The Initial Traffic Stop

        The district court concluded that “[b]ased on Laughlin’s observation of the laser device’s

reading and both officers’ observations of the speed at which they paced [Mr.] Carter’s vehicle,

probable cause existed for Griffith and Laughlin to stop [Mr.] Carter.” (R. 181, PageID# 718.)

The district court also relied on Mr. Carter’s admission to speeding. (Id., PageID# 720.) Mr.

Carter challenges each of these findings, arguing that the district court improperly found

probable cause existed to conduct the traffic stop based on the fact he was speeding. We disagree

and affirm the district court.

        All of the issues presented by Mr. Carter “are issues of fact, which will be overruled only

if the district court’s findings were clearly erroneous.” United States v. Ivy, 165 F.3d 397, 401

(6th Cir. 1998) (citing United States v. Rose, 889 F.2d 1490, 1494 (6th Cir. 1989)). “[S]o long as

the officer has probable cause to believe that a traffic violation has occurred or was occurring,

the resulting stop is not unlawful.” United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000)

(quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993)). Driving over the speed

                                               -6-
                                                                  United States v. Carter, 15-3618
                                                                  United States v. Wilson, 15-3643


limit is a traffic violation and provides an officer with probable cause to stop a vehicle. See

United States v. Wellman, 185 F.3d 651, 655–56 (6th Cir. 1999).

       First, Mr. Carter challenges the reliability of the laser because Griffith did not remember

the exact date that the laser had been calibrated before the traffic stop. But, as the district court

noted, Ohio courts have recognized the reliability of readings taken from the LTI 20-20. See,

e.g., State v. Starks, 964 N.E.2d 1058, 1060 (Ohio Ct. App. 2011) (“This court has previously

recognized that a trial court may take judicial notice of the scientific reliability of the LTI 20-20

laser device.”); City of Columbus v. Dawson, No. 99AP-589, 2000 WL 271766, at *2 (Ohio Ct.

App. Mar. 14, 2000) (observing that the LTI 20-20 has been recognized as scientifically reliable

in other Ohio appellate courts, but declining to take judicial notice of those decisions because

“the fact that a court has taken judicial notice in one jurisdiction cannot serve as the basis for

taking judicial notice in another jurisdiction”); State v. Dawson, No. CA98-04-021, 1998 WL

883802, at *3 (Ohio Ct. App. Dec. 21, 1998) (“[W]e find that the trial court did not err by taking

judicial notice as to the accuracy and dependability of the LTI 20-20 laser device . . . .”).

The district court also relied on Laughlin’s testimony to find that the laser was used and working

properly. Thus, we do not have a definite and firm conviction that a mistake was committed

when the district court relied on the laser.

       Next, Mr. Carter challenges the district court’s reliance on the testimony of Griffith and

Laughlin to determine that they paced the car and observed it speeding. Mr. Carter argues that

the camera footage reveals that the officers never paced the car and definitely did not pace the

car for one quarter of a mile. But, the camera footage is not as clear as Mr. Carter alleges. It was

raining on the day of the traffic stop and it is uncertain, based on the video, how long the officers

could actually see the car. Mr. Carter argues that the officers never paced, or traveled at the same

                                                -7-
                                                                  United States v. Carter, 15-3618
                                                                  United States v. Wilson, 15-3643


speed, as his car. But the footage reveals what appears to be at least some pacing. The district

court did not commit clear error in determining that the officers paced Mr. Carter’s car.

       Mr. Carter lastly contends that he did not admit to speeding because he only said that he

“thought” he was speeding. But the traffic camera video reveals that Griffith asked Mr. Carter if

he knew he was speeding, and he responded, “Yeah . . . I thought, I was going 55.” Based on the

camera footage, the district court did not clearly err in finding that Mr. Carter admitted to

speeding.

       2.      The Vehicle Search

       Mr. Carter challenges the district court’s finding that probable cause existed to search the

vehicle based on the smell of marijuana. Mr. Carter does not challenge any conclusions of law,

but instead questions the district court’s finding that the officers actually smelled marijuana. Mr.

Carter notes that Griffith smelled raw marijuana, tobacco smoke, and air fresheners, while

Laughlin only smelled raw marijuana. Mr. Carter contends that this inconsistency leads to the

conclusion that the raw marijuana smell was fabricated. Mr. Carter further asserts that because

the officers never affirmatively mention the marijuana smell on the traffic camera video, that

they fabricated the smell.

       The district court, however, disagreed with Mr. Carter and found the officers’ testimony

credible. (R. 181 PageID# 721-22.) “The district court’s credibility finding carries considerable

weight.” Ivy, 165 F.3d at 401-02. “Findings of fact anchored in credibility assessment are

generally not subject to reversal upon appellate review.” United States v. Taylor, 956 F.2d 572,

576 (6th Cir. 1992). Indeed, ‘“[w]here there are two permissible views of the evidence, the fact

finder’s choice between them cannot be clearly erroneous.”’ Id. (quoting United States v. Rose,

889 F.2d 1490, 1494 (6th Cir. 1989) (emphasis in original)).

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                                                                             United States v. Carter, 15-3618
                                                                             United States v. Wilson, 15-3643


        Here, the district court found credible the officers’ testimony that they smelled marijuana.

The district court had the advantage of observing and assessing the officers as they testified at

the suppression hearing. The district court based its credibility determination, in part, on the fact

that the officers had significant experience with the smell of marijuana. Based on the record the

district court’s determination was not clearly erroneous.2

        When viewed in the light most favorable to the government, this testimony demonstrates

the district court did not err in finding the existence of probable cause for the stop and the

subsequent search.

B.      Ms. Wilson’s Sentence

        1.       Mitigating Role in the Offense

        Ms. Wilson argues that the court erred by failing to apply U.S.S.G. § 3B1.2 to her

sentence, an application that would have reduced her base offense level by at least two levels due

to her role as a minor participant in the conspiracy. She asserts that her role in the conspiracy

was substantially less than others because she made no profit for her participation, had no prior

involvement in drugs, and only tried to help her cousin, Mr. Carter, by making phone calls,

which she now acknowledges was a poor decision.

        The Guidelines provide the following framework for analyzing whether a defendant is

entitled to a reduction to her sentence based upon a reduced role in the offense:

        Based on the defendant’s role in the offense, decrease the offense level as follows:
        (a) If the defendant was a minimal participant in any criminal activity, decrease
        by 4 levels.

2
  Mr. Carter also argues that Ms. Sanders did not consent to the pat-down performed by Griffith. But, the video
reveals that Ms. Sanders did in fact consent. Moreover, Griffith had the right to pat down Ms. Sanders under Terry v.
Ohio, 392 U.S. 1 (1968), after smelling the marijuana. Most importantly, however, this pat-down has nothing to do
with the search of the car because Laughlin testified to searching the car because of the marijuana smell not because
of the baggie of marijuana Griffith recovered.

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                                                                  United States v. Carter, 15-3618
                                                                  United States v. Wilson, 15-3643


       (b) If the defendant was a minor participant in any criminal activity, decrease
        by 2 levels.

       In cases falling between (a) and (b), decrease by 3 levels.

U.S.S.G. § 3B1.2.

       In the context of mitigating role adjustments, “a district court’s factual findings are

reviewed for clear error while its legal conclusions are reviewed de novo.” United States v.

Roberts, 223 F.3d 377, 380 (6th Cir. 2000). The defendant “bears the burden of proving a

mitigating role in the offense by a preponderance of the evidence.” Id. at 379.

       A district court may apply U.S.S.G. § 3B1.2 to reduce a defendant’s base offense level if

the defendant’s role in the offense was “substantially less” than other perpetrators. § 3B1.2 cmt.

N.3(A). “In determining whether to award the defendant a reduction for a mitigating role in the

offense, the district court must consider the portion of the relevant conduct of the conspiracy that

was attributable to the defendant for purposes of determining his base offense level.” United

States v. Nunnally, 5 F. App’x 438, 440 (6th Cir. 2001).

       In Ms. Wilson’s case, the district court found that she did not qualify for a reduction in

her offense level based upon her role in the conspiracy. Among other reasons, the court noted

that Ms. Wilson’s participation was not limited to a single event. Rather, she was involved in

multiple purchases from beginning to end. In the court’s view “but for [Ms. Wilson] and [her]

Chicago connection, this poison that traveled from Cook County to the Northern District of Ohio

may never have resided here.” (R. 394, PageID# 2729.) The district court further described Ms.

Wilson’s role as “integral” and “essential.” (Id.)

       However, after the district court sentenced Ms. Wilson, Amendment 794 added the

following language to Application Note 3(C) to U.S.S.G. § 3B1.2:


                                               - 10 -
                                                                   United States v. Carter, 15-3618
                                                                   United States v. Wilson, 15-3643


       In determining whether to apply subsection (a) or (b), or an intermediate
       adjustment, the court should consider the following non-exhaustive list of factors:
               (i) the degree to which the defendant understood the scope and structure of
                the criminal activity;
               (ii) the degree to which the defendant participated in planning or
               organizing the criminal activity;
               (iii) the degree to which the defendant exercised decision-making
               authority or influenced the exercise of decision-making authority;
               (iv) the nature and extent of the defendant’s participation in the
               commission of the criminal activity, including the acts the defendant
               performed and the responsibility and discretion the defendant had in
               performing those acts;

               (v) the degree to which the defendant stood to benefit from the criminal activity.

               For example, a defendant who does not have a proprietary interest in the
               criminal activity and who is simply being paid to perform certain tasks
               should be considered for an adjustment under this guideline.
               The fact that a defendant performs an essential or indispensable role in the
               criminal activity is not determinative. Such a defendant may receive an
               adjustment under this guideline if he or she is substantially less culpable
               than the average participant in the criminal activity.
U.S.S.G. § 3B1.2 cmt. n.3(C) (2015).

       Amendment 794 took effect on November 1, 2015, after defendant was sentenced and

after the principal briefs were filed in this appeal. Counsel for defendant called it to our attention

in a supplementary authority letter filed July 24, 2016.

       We must first determine whether Amendment 794 applies retroactively. “[C]larifications

of the guidelines have retroactive application while substantive changes do not.” United States v.

Monus, 356 F.3d 714, 718 (6th Cir. 2004) (citing United States v. Williams, 940 F.2d 176, 182

n.4 (6th Cir. 1991)). When deciding whether an amendment is clarifying or substantive, we

consider these factors: “(1) how the Sentencing Commission characterized the amendment;



                                                - 11 -
                                                                  United States v. Carter, 15-3618
                                                                  United States v. Wilson, 15-3643


(2) whether the amendment changes the language of the guideline itself or changes only the

commentary for the guideline; and (3) whether the amendment resolves an ambiguity in the

original wording of the guideline.” Id. (quoting United States v. Hartz, 296 F.3d 595, 599 (7th

Cir. 2002)).

       Regarding the second factor, the language of U.S.S.G. § 3B1.2 did not change; only the

commentary changed. The remaining two factors are also met: the Sentencing Commision

characterized Amendment 794 as providing “additional guidance to sentencing courts” and

addressed a circuit conflict. U.S.S.G. App. C. Amend. 794. The Ninth Circuit has concluded that

Amendment 794 is clarifying and therefore retroactive. United States v. Quintero-Layva,

823 F.3d 519, 523 (9th Cir. 2016). We agree with that decision and adopt its reasoning.

       Because the district court did not have the benefit of amended U.S.S.G. § 3B1.2 at

sentencing, we vacate Ms. Wilson’s sentence and remand for resentencing in light of

Amendment 794.

       2.      Calculation of the Drug Quantity

       Ms. Wilson challenges the district court’s decision to sentence her based on a drug

quantity of between 400 and 700 grams of heroin because Mr. Carter was only caught with

roughly 250 grams of heroin.

       The argument is not well taken. A district court’s factual finding of drug quantity is

reviewed for clear error. United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008).

       The district court did not err because its drug-quantity calculation was based on a

preponderance of the evidence. Where the exact amount of drugs cannot be determined, “an

estimate will suffice, but . . . a preponderance of the evidence must support the estimate.” Jeross,

521 F.3d at 570 (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)). In

                                               - 12 -
                                                                   United States v. Carter, 15-3618
                                                                   United States v. Wilson, 15-3643


making its estimate, the court must “conclude that the defendant is more likely than not actually

responsible for a quantity greater than or equal to the quantity for which the defendant is being

held responsible.” Id. Here, the district court found that telephone calls between Ms. Wilson and

Mr. Carter indicated that Mr. Carter intended to purchase the same amount of heroin as he did

last time—roughly 250 grams. Indeed, in the conversations discussing those two trips, Ms.

Wilson herself explicitly referenced “250.” (R. 394, PageID# 2724.) From this information, the

district court found that Ms. Wilson was involved in trafficking between 400 and 700 grams of

heroin. Accordingly, the district court did not err in calculating the drug quantity.

                                                 III.

       For the reasons stated above, we affirm the judgment of the district court with respect to

Mr. Carter. We vacate Ms. Wilson’s sentence and remand for the district court to resentence her

with the benefit of amended U.S.S.G. § 3B1.2.




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