                                                                               FILED
                                                                   United States Court of Appeals
                                      PUBLISH                              Tenth Circuit

                     UNITED STATES COURT OF APPEALS                       April 12, 2013

                                                                       Elisabeth A. Shumaker
                               TENTH CIRCUIT                               Clerk of Court
                      ___________________________________

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
v.                                                          No. 11-3337
THEODORE McDOWELL, a/k/a
“Cush,”

      Defendant-Appellant.
                  ___________________________________

     APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                       DISTRICT OF KANSAS
                   (D.C. No. 2:09-CR-20133-JWL-8)
                ____________________________________

Branden A. Bell, Bell Folsom, P.A., Olathe, Kansas, for Defendant-Appellant.

Leon Patton, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Kansas City, Kansas, for Plaintiff-Appellee.
                     ____________________________________

Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.
                ____________________________________

BALDOCK, Circuit Judge.
                  ____________________________________

      A jury convicted Defendant Theodore McDowell of one count of conspiracy to

possess with intent to distribute more than 1,000 kilograms of marijuana, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Prior to trial, Defendant unsuccessfully sought

to suppress evidence seized in the house where he was arrested. He now appeals the
denial of his motion to suppress as well as two sentencing issues. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

                                            I.

      The facts relating to the larger marijuana trafficking conspiracy involved in this

case are set forth more fully in United States v. Stephen Blackburn, --- F. App’x ---, No.

11-3294 (10th Cir. 2013) (unpublished). The facts relevant to this appeal are as follows.

At around 11:00 p.m. on May 1, 2007, Avondale (Arizona) Police Officer Reginald

Sayles was dispatched to a house on West Hubbell Street to attempt to locate a woman

under investigation for assault in Surprise, Arizona. He parked two houses down from

the residence and approached on foot. In order to reach the sidewalk leading to the front

door, he had to cross the driveway. As he walked diagonally across the driveway, he

“smelled a strong odor of fresh or unburned marijuana” that appeared to come from the

garage. Record on Appeal (“ROA”), vol. II at 243. At the front door, he “still smelled

the odor of strong, unburned marijuana,” although the odor was strongest in front of the

garage. Id. He then stepped off the sidewalk and tried to look through the window

beside the door but could see nothing through the closed blinds.

      Officer Sayles called for backup, and the next officer to arrive also smelled “the

overpowering odor of fresh marijuana” as he walked into the driveway. Id. at 325.

Sayles’s sergeant then arrived on the scene and also smelled marijuana. The officers

requested a canine. Upon arrival, the dog alerted to the house and specifically to a vent

above the garage.    A police detective, Detective Martin, arrived on the scene and

conferred with the officers. While Detective Martin returned to the police station and

                                           -2-
prepared a search warrant application, officers kept an eye on the house from a distance.

At around 4:00 a.m., a van left the garage of the house, and headed toward Officer

Sayles’s location with only its parking lights on. Officer Sayles stopped the van, which

was driven by Curtis Pitter (who produced an identity under the false name Trevor

Martin). When Pitter rolled down the van window, Sayles and another backup officer

both smelled unburned marijuana. A search of the van yielded several garbage bags

containing “Saran Wrap-type material that still had what appeared . . . to be the marijuana

leaves still stuck to the wrapping,” as well as axle grease, packing peanuts, and wood

chips. ROA vol. II, at 252.

       The officers on the scene telephoned the details of this stop to Detective Martin,

and he added them to the search warrant affidavit. A commissioner issued the search

warrant, and officers executed it on the morning of May 2. The officers found five men

inside the house, including Defendant, Sheldon McIntosh, Samora McIntosh, Ibrahima

Kane, and Dwight Rhone. Defendant had grease stains on his clothing. Officers also

found a second vehicle in the garage that contained approximately 630 pounds of

marijuana in thirty boxes. The marijuana was wrapped in plastic and grease. The inside

of the house contained drug packing materials and $223,000 in cash hidden in a suitcase

and a spare tire.

       After Defendant’s arrest, he was convicted in Arizona state court on drug charges.

Later, a federal grand jury in the United States District Court for the District of Kansas

indicted him and nineteen other people on a number of drug trafficking and money

laundering charges. The superseding indictment charged Defendant with conspiracy to

                                           -3-
possess with intent to distribute more than 1,000 kilograms of marijuana. Defendant and

the other men arrested with him moved to suppress the evidence found in both the van

and the house, but the district court denied their motions. When the case went to trial, the

jury heard evidence linking Defendant and the Avondale house with a larger drug

trafficking conspiracy headed by Curtis Pitter and involving Defendant’s father,

Gladstone McDowell. The evidence showed that the conspirators would regularly drive

from Kansas City, Missouri, to Phoenix, Arizona, carrying cash. They would then

purchase marijuana, package it so as to reduce the smell, and ship it by UPS ground to

Kansas City and sometimes other destinations. They would then fly back to Kansas City

and repeat the process. The jury convicted Defendant of the charged conspiracy. The

district court then sentenced him to 97 months’ imprisonment after reducing his sentence

from 151 months to reflect the 54 months he had served in Arizona based on the same

conduct. See U.S.S.G. § 5G1.3(b)(1).

       Defendant now appeals, raising three arguments. First, he argues the evidence

found at the Avondale house should have been suppressed because the police violated the

house’s curtilage. Second, he argues the district court erred in calculating his sentence

because it erroneously determined the duration of his participation in the conspiracy.

Third, he argues the district court, when imposing sentence, improperly calculated the

quantity of marijuana trafficked during Defendant’s participation.

                                            II.

       Defendant argues the officers searching the Avondale property violated the

house’s curtilage while gathering the facts that supported the search warrant, thereby

                                           -4-
rendering the warrant invalid. The Fourth Amendment protects a house’s curtilage, that

is, the “area immediately surrounding the home.” Oliver v. United States, 466 U.S. 170,

178 (1984). The Supreme Court has articulated four factors to determine whether an area

is within the curtilage: (1) the proximity of the area to the house; (2) whether the area is

included within an enclosure surrounding the home; (3) the nature of the use to which the

area is put; and (4) the steps taken by the resident to protect the area from observation.

United States v. Dunn, 480 U.S. 294, 301 (1987). The central inquiry is “whether the

area in question is so intimately tied to the home itself that it should be placed under the

home’s ‘umbrella’ of Fourth Amendment protection.” Id. We review the district court’s

legal rulings on a motion to suppress de novo, viewing the evidence in the light most

favorable to the government, and we review the court’s factual findings for clear error.

United States v. Vazquez, 555 F.3d 923, 927 (10th Cir. 2009).

       Defendant all but concedes the last three factors of United States v. Dunn do not

support his argument, but says “[t]he first factor falls so heavily in Mr. McDowell’s favor

that it outweighs the latter three combined.” Appellant’s Br. at 18. He argues that when

officers approach within very close proximity to a house, an area he dubs the home’s

“nimbus,” they violate the home’s curtilage.1 While this case was pending, the Supreme

Court decided Florida v. Jardines, --- S. Ct. --- 2013 WL 1196577 at *4 (2013), in which

it held that a front porch falls within the curtilage because it “is the classic exemplar of an

area adjacent to the home and ‘to which the activity of home life extends.’” So the


       1
        Neither this circuit nor any other federal court has used the term “nimbus” in the
Fourth Amendment context.
                                             -5-
Court’s holding lends some support to Defendant’s argument that the area immediately in

front of his home falls within the curtilage.

       But even if Officer Sayles did invade the curtilage, this invasion did not render the

warrant invalid. The Court in Jardines observed that “a police officer not armed with a

warrant may approach a home and knock, precisely because that is ‘no more than any

private citizen might do.’” Id. (quoting Kentucky v. King, 131 S. Ct. 1849, 1862 (2011)).

Likewise, our circuit has consistently held that “knock and talk” investigations do not

“contravene the Fourth Amendment, even absent reasonable suspicion.” United States v.

Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006). See also United States v. Hatfield,

333 F.3d 1189, 1194 (10th Cir. 2003). As Professor LaFave puts it, “In expectation of

privacy terms . . . it is not objectionable that an officer has come upon the land in the

same way that any member of the public could be expected to do, as by taking the normal

route of access along a walkway or driveway or onto a porch.” 2 Wayne R. LaFave,

Criminal Procedure, § 3(c) (3d ed. 2007). So, whether or not the driveway and front

sidewalk were curtilage, Officer Sayles did not violate the Fourth Amendment by

traversing them on his way to the front door. Thus, the smell of marijuana that reached

him while he was in the driveway was not fruit of an unlawful search.

       Defendant makes much of the fact that Officer Sayles stepped off the sidewalk

into the yard when he tried to look through the front window.2 But Officer Sayles’


       2
        He claims the district court clearly erred when it “determined that Sayles didn’t
leave the walkway.” In fact, the court made no such finding. The court simply did not
discuss Sayles’ deviation from the sidewalk, likely because it correctly considered the
deviation to be irrelevant.
                                                -6-
excursion off the sidewalk is irrelevant here because it did not lead to the discovery of

any evidence included in the warrant application. So even if Sayles violated the Fourth

Amendment by stepping off the sidewalk, his doing so did not render the search warrant

invalid. The district court properly denied the motion to suppress.3

                                            III.

       We turn now to Defendant’s first challenge to his sentence. The district court

sentenced Defendant under U.S. Sentencing Guideline § 2D1.1(c)(3), which establishes a

base offense level of 34 for possession with intent to distribute more than 3,000

kilograms but less than 10,000 kilograms of marijuana. The district court arrived at this

marijuana amount based on its acceptance of the Presentence Report’s calculations. The

Presentence Report concluded Defendant was actively involved in the conspiracy from

May 2006 until May 2007 and that the marijuana trafficked during that time was

attributable to him as “relevant conduct” under Guideline § 1B1.3. Defendant objected to

the Presentence Report, arguing no evidence showed he was involved in the conspiracy

until his May 2007 arrest. The district court overruled this objection and adopted the


       3
         In Jardines, the Supreme Court held that using a drug-sniffing dog on a
homeowner’s front porch was a search within the meaning of the Fourth Amendment.
Jardines, 2013 WL 1196577 at *7 (2013). But Jardines does not affect the outcome here
because Officer Sayles smelled marijuana in this case before officers even called out the
drug dog. According to the Jardines concurrence, “If officers can smell drugs coming
from a house, they can use that information; a human sniff is not a search, we can all
agree.” Id. at *8 n.2 (Kagan, J., concurring). The search warrant application also
informed the magistrate that a vehicle carrying packaging material covered with bits of
marijuana had left the attached garage. So the warrant was supported by probable cause
apart from the dog sniff. See United States v. Sims, 428 F.3d 945, 954 (10th Cir. 2005)
(“When a warrant is tainted by some unconstitutionally obtained information, we
nonetheless uphold the warrant if there was probable cause absent that information.”).
                                           -7-
Presentence Report’s conclusion that Defendant’s involvement in the conspiracy began in

May 2006. We review the district court’s factual findings for clear error, United States v.

Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012), and the Government must prove drug

quantity by a preponderance of the evidence. United States v. Foy, 641 F.3d 455, 469

(10th Cir. 2011).

       The district court heard the following evidence regarding Defendant’s

participation in the conspiracy. First, Devon Thomas, a member of the conspiracy who

was then in Florida, testified that “Cush” was one of the “guys who were there working

for us” in Arizona. ROA, vol. 2 at 1418. He explained that “Cush” was Gladstone

McDowell’s son, and other testimony confirmed that Defendant was known as “Cush.”

Second, Southwest Airlines records showed that Defendant flew from Phoenix to Kansas

City six times in 2006, five of those times in company with other members of the

conspiracy. He made flights on May 24 (apparently alone, but followed six days later by

Pitter and Michael Williams), June 27 (with Pitter, Rhone, and Williams), July 18 (with

Rhone), October 18 (with Sheldon McIntosh and Rhone), November 2 (with Pitter,

Sheldon McIntosh, Rhone, and Williams), and November 11 (with Pitter, Sheldon

McIntosh, and Williams). Defendant also flew from Las Vegas, Nevada, to Kansas City

six times with other conspirators, beginning in August 2006. Devon Thomas testified the

conspirators would frequently fly through Las Vegas because “it’s easier to take large

quantities of money through Las Vegas because of gambling.” ROA, vol. II at 1437–38.

These flight patterns matched up with Devon Thomas’s testimony that the conspirators

were shipping marijuana from Phoenix to Kansas City every two weeks. The one-way

                                           -8-
nature of the flights also corresponds with the testimony that the conspirators would drive

or take a bus from Kansas City to Phoenix and then return by flying.

       Defendant argues this evidence only shows his association with conspirators,

which is not enough to prove participation in a conspiracy. See United States v. Wardell,

591 F.3d 1279, 1288 (10th Cir. 2009). But the evidence here showed more than mere

association.   By the time of his May 2007 arrest, Defendant was undisputedly

participating in the conspiracy. The only question is when that participation began.

Defendant’s frequent one-way flights from Phoenix and Las Vegas in company with

other conspirators support the reasonable inference that he was participating in the

conspiracy. Based on this evidence, the district court did not clearly err in concluding by

a preponderance of the evidence that Defendant joined the conspiracy in May 2006.

                                               IV.

       Defendant’s second sentencing argument is closely related to his first. He argues

the district court clearly erred in finding that the conspiracy trafficked more than 3,000

kilograms of marijuana during Defendant’s participation from May 2006 to May 2007.

The drug quantity determination “may be an approximation and the government’s burden

is only the preponderance of the evidence.” United States v. Higgins, 282 F.3d 1261,

1280 (10th Cir. 2002). The Presentence Report attributed to Defendant 3,189 kilograms

of marijuana based on the following calculations. Devon Thomas testified that the

organization shipped 400 to 500 pounds twice a month from Arizona to Kansas City

during 2006, but he did not testify regarding the amounts trafficked during the first part

of 2007. The Probation Office assumed eight 400-pound shipments for the four months

                                           -9-
from May through August of 2006, yielding 3,200 pounds. In the eight months from

September 2006 to May 1, 2007, airline records showed sixteen flights by conspirators

from Phoenix to Kansas City, or two flights per month. Although Devon Thomas’s

testimony suggests that each trip should be associated with 400 to 500 pounds at least

through December 2006, the Probation Office only attributed 200 pounds to each trip,

yielding another 3,200 pounds. On top of the 6,400 pounds it attributed to May 2006

through May 2007, the Probation Office added the 630 pounds sized in the Avondale

stash house. This yielded 7,030 pounds, or 3,189 kilograms.

      Defendant argues the Probation Office’s assumption of 200 pounds per flight is

created from thin air. We agree this number is somewhat puzzling. The only mention of

200-pound shipments is Devon Thomas’s testimony that the organization shipped 200 to

300 pounds twice a month once it resumed trafficking marijuana in August 2007. But

this was months after Defendant’s arrest. Ultimately, the Probation Office’s strange

calculations are not important, because more straightforward arithmetic supported the

district court’s finding. Based on Devon Thomas’s testimony, we know the organization

shipped 400 to 500 pounds twice a month during 2006. If we conservatively assume 400-

pound shipments twice a month from June through December 2006, we arrive at 5,600

pounds. Giving Defendant credit for one shipment in May 2006 brings us to 6,000

pounds.4 Add in the 630 pounds seized at Defendant’s arrest and we have 6,630 pounds

or 3,007 kilograms. Of course, this is assuming the conspiracy trafficked no marijuana

      4
        The Probation Office attributed to Defendant two shipments in May 2006, but
because his first recorded flight from Phoenix to Kansas City took place on May 24, we
assume he was only involved in packaging one shipment in May 2006.
                                         - 10 -
between January 1 and May 1, 2007, which hardly seems likely. This is especially true

considering two or more members of the conspiracy flew from Las Vegas or Phoenix to

Kansas City on January 24, February 13, March 9, March 27, and April 10, 2007. See

ROA, vol. II at 2766–67. So even very conservative calculations supports the district

court’s finding.

       Defendant argues this case is similar to United States v. Shonubi, 998 F.2d 84 (2d

Cir. 1993). There, a U.S. Customs officer detained a man arriving at JFK International

Airport from Nigeria on suspicion the man had swallowed packaged drugs. Id. at 86.

The man eventually passed 103 balloons containing 427.4 grams of heroin. Id. At

sentencing, the district court found the man had made eight trips to Nigeria in the fifteen

months before he was apprehended. Id. at 87. The court therefore multiplied eight trips

times 427.4 grams and concluded the defendant had imported a total of 3419.2 grams of

heroin. Id. The Second Circuit concluded this was error because the calculation was

necessarily speculative. Id. at 90. The court said the drug quantity calculation required

“specific evidence” such as “drug records, admissions, or live testimony.” Id. at 89.

       This case is unlike Shonubi. The district court based its calculations on Devon

Thomas’s testimony regarding the amount of marijuana trafficked each month. The only

period his testimony did not cover was January through May of 2007. The frequent

flights during that time and the quantity of cash found in the Avondale house suggest the

organization was still shipping large amounts of marijuana during those months. Even

without attributing any marijuana to those months, the court could easily have reached a

number over 3,000 kilograms. So the district court did not clearly err.

                                          - 11 -
AFFIRMED.




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