                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 14a0066p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                 X
                            Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      Nos. 11-6489/ 6490/ 6491/
            v.
                                                  ,
                                                      6495
                                                   >
                                                  -
                                                  -
 HARRY ALLEN PRITCHETT (11-6489), JESSIE
                                                  -
 H. JOHNSON (11-6490), EDDIE ROLLINS (11-
                                                  -
 6491), and MIKE COFFELT (11-6495),
                         Plaintiffs-Appellants. N
                    Appeal from the United States District Court
               for the Eastern District of Tennessee of Chattanooga.
                No. 1:09-cr-181—Curtis L. Collier, District Judge.
                                Argued: November 20, 2013
                             Decided and Filed: April 9, 2014
Before: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; BELL, District Judge*

                                    _________________

                                          COUNSEL
ARGUED: James Woolard, MILLER CANFIELD, Detroit, Michigan, for Appellant in
11-6495. Scott A. Winne, UNITED STATES ATTORNEY’S OFFICE, Chattanooga,
Tennessee, for Appellee. ON BRIEF: James Woolard, UNIVERSITY OF MICHIGAN
LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor,
Michigan, Melissa M. Salina, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Toledo, Ohio, Dennis G. Terez, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant in 11-6495. Michael J. Stengel, Memphis, Tennessee,
for Appellant in 11-6489. Charles P. Dupree, Chattanooga, Tennessee, for Appellant in
11-6490. T. Clifton Harviel, Memphis, Tennessee, for Appellant in 11-6491. Scott A.
Winne, UNITED STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for
Appellee.




        *
        The Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.


                                                1
Nos. 11-6489/ 6490/ 6491/ 6495           United States v. Pritchett, et al.                       Page 2


                                        _________________

                                              OPINION
                                        _________________

         BELL, District Judge.               Four defendants who were convicted of a
methamphetamine conspiracy have raised multiple challenges to their convictions and
sentences. For the reasons that follow, we affirm.

                                        I. BACKGROUND

         In January 2007, members of the Marion County sheriff’s department found a
number of individuals in possession of “ice” methamphetamine during traffic stops. An
investigation was initiated which included controlled purchases of methamphetamine by
a confidential informant. The investigation led to a series of indictments charging
39 individuals with a methamphetamine conspiracy and associated drug and firearms
offenses.

         Four defendants, Appellants Harry Pritchett, Jessie Johnson, Eddie Rollins and
Mike Coffelt, went to trial. After a fourteen-day jury trial, all four were found guilty of
conspiracy to manufacture and distribute methamphetamine (Count 1) and conspiracy
to possess a listed chemical – pseudoephedrine and iodine – with knowledge that the
chemical would be used to manufacture methamphetamine (Count 2). Pritchett, Rollins
and Coffelt were additionally found guilty of associated offenses.1 With respect to
Pritchett and Coffelt, the jury found that the conspiracy charged in Count 1 involved 50
grams or more of methamphetamine (actual) or 500 grams or more of a mixture
containing methamphetamine. With respect to Rollins and Johnson, the jury found that

         1
           Pritchett was additionally found guilty of manufacturing methamphetamine in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), possessing firearms as a convicted felon in violation of 18 U.S.C.
§ 922(g)(1), possessing methamphetamine laboratory equipment and chemicals in violation of 21 U.S.C.
§ 843(a)(6), and using and maintaining drug premises, in violation of 21 U.S.C. § 856(a)(1). (Counts 3,
4, 5, 6, 7, 8, and 10). Rollins was additionally found guilty of manufacturing methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and possessing methamphetamine laboratory
chemicals and equipment in violation of 21 U.S.C. § 843(a)(6) (Counts 11 and 12 ). Coffelt was
additionally found guilty of manufacturing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C), possessing methamphetamine laboratory equipment and chemicals in violation of 21 U.S.C.
§ 843(a)(6), using and maintaining drug premises in violation of 21 U.S.C. § 856(a)(1), and possessing
firearms as an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3).
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.                Page 3


the conspiracy involved 5 grams of methamphetamine (actual) or 50 grams of a mixture
containing methamphetamine. Pritchett was sentenced to 240 months in prison; Rollins
was sentenced to 360 months in prison; Johnson was sentenced to 97 months in prison;
and Coffelt was sentenced to 240 months in prison.

                                   II. DISCUSSION

A. Prior Drug Conviction

        Coffelt appeals the trial court’s enhancement of his sentence pursuant to
21 U.S.C. § 841(b)(1)(A) for a drug conviction from 2006. The sentence enhancement
was based on Coffelt’s March 2006 guilty plea to one count of felony possession of
methamphetamine. He received a four-year term of probation under Tennessee’s
judicial diversion statute, Tenn. Code Ann. § 40-35-313.                Although Coffelt
acknowledges that he pled guilty in 2006 to a drug offense, Coffelt successfully
completed his term of probation on March 15, 2010, and an Order of Expungement and
Dismissal was entered on August 18, 2010. Coffelt contends that his plea should not
have been used to enhance his sentence because it was entered pursuant to the Tennessee
judicial diversion statute, which provides that upon successful completion of probation,
the charges are dismissed and the defendant is discharged without adjudication of guilt,
and specifically provides that the discharge is not a conviction. Tenn. Code Ann. § 40-
35-313(a)(2).

        The issue for our consideration is whether a plea that was dismissed and
expunged under a state judicial diversion program, with no adjudication of guilt and no
entry of judgment, is a qualifying conviction for purposes of a sentence enhancement
under 21 U.S.C. § 841(b)(1)(A). “This court reviews de novo the legal conclusion that
a prior conviction is a qualifying offense under 21 U.S.C. § 841(b)(1)(A).” United
States v. Corona, 493 F. App’x 645, 653 (6th Cir. 2012), cert. denied, 133 S. Ct. 1268
(2013) (citing United States v. McGrattan, 504 F.3d 608, 610 (6th Cir. 2007)).

        The trial court determined that it was bound by Sixth Circuit precedent,
specifically United States v. Miller, 434 F.3d 820 (6th Cir. 2006), to find that Coffelt had
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.                Page 4


a qualifying prior drug conviction. (Dkt. No. 1484, Sent. Tr. at 33-35.) In Miller we
observed that “alternative sentencing such as that utilized by Georgia in its first-offender
provision does not prevent the underlying offense from being treated as a prior
conviction for purposes of federal sentencing statutes.” Id. at 824. See also United
States v. Graham, 622 F.3d 445, 460 n.15 (6th Cir. 2010) (noting that this circuit has
“rejected the argument that a first-offender status adjudication resulting in a sentence of
probation is not a ‘prior conviction for a felony drug offense [that] has become final’ for
§ 841 purposes” (citing Miller, 434 F.3d at 824)). Although Miller appears to suggest
that we have determined that a deferred adjudication is a “prior conviction” under § 841,
the issue of whether the plea under the Georgia first-offender statute was a prior
conviction was not before us in Miller. Miller conceded that his deferred adjudication
of guilt was a prior conviction, so the only issue before the court was whether the
conviction ever became “final.” Id. at 822, 823. Accordingly, Miller is not controlling
on whether Coffelt’s plea is a prior conviction. See BDT Prods., Inc. v. Lexmark Int’l,
Inc., 602 F.3d 742, 750 (6th Cir. 2010) (“[O]ne panel of [the Sixth Circuit] is not bound
by dicta in a previously published panel opinion.” quoting United States v. Burroughs,
5 F.3d 192, 194 (6th Cir.1993)). The issue of whether a plea under a state alternative
sentencing statute is a prior conviction under § 841 is an open issue that we must address
for purposes of this appeal.

        Section 841(b)(1)(A) provides that, for purposes of a conviction involving
50 grams or more of methamphetamine, or 500 grams or more of a mixture containing
methamphetamine, “if any person commits such a violation after a prior conviction for
a felony drug offense has become final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years . . . .” 21 U.S.C. § 841(b)(1)(A).
“When a term is undefined, we give it its ordinary meaning.” Id. (quoting United States
v. Santos, 553 U.S. 507, 511 (2008)). “‘As in all cases of statutory construction, our task
is to interpret the words of [the statute] in light of the purposes Congress sought to
serve.’” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 118 (1983) (quoting
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979)). In Graham, after
Nos. 11-6489/ 6490/ 6491/ 6495      United States v. Pritchett, et al.                 Page 5


noting that § 841 does not define “prior conviction,” we looked to the following
definitions as an aid to understanding the ordinary meaning of the term “conviction”:

        Black’s Law Dictionary (9th ed. 2009) defines “conviction” in part as
        “[t]he act or process of judicially finding someone guilty of a crime; the
        state of having been proved guilty,” and as “[t]he judgment (as by a jury
        verdict) that a person is guilty of a crime.” Webster’s Third International
        Dictionary (1986) defines “conviction” in part as “the act of proving,
        finding, or adjudging a person guilty of an offense or crime . . . ; specif:
        the proceeding of record by which a person is legally found guilty of any
        crime esp. by a jury and on which the judgment is based.”

Graham, 622 F.3d at 458.

        Coffelt contends that because the Tennessee statute specifically provides that
there has been no adjudication of guilt, his plea does not meet the ordinary meaning of
“conviction.”

        Whether something is a prior conviction for purposes of § 841 is governed by
federal law rather than state law. See United States v. Ortega, 150 F.3d 937, 948
(8th Cir. 1998) (joining the Third, Fourth, Fifth, Seventh and Eleventh Circuits in
holding that federal law governs the definition of a prior conviction under § 841). As
noted by the Fifth Circuit, “state law could be looked to ‘for informational purposes, but
we are not bound by its treatment of a felony conviction when we apply the federal
sentence-enhancement provisions.’” United States v. Cisneros, 112 F.3d 1272, 1280
(5th Cir. 1997) (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir.1988)). In
determining the meaning of “conviction” under federal law, courts look to the substance
of what occurred, rather than to the specific provisions contained in the state statute. In
discussing the term “conviction” under the gun control act, the Supreme Court has noted
that in some circumstances, “a guilty plea alone [is] enough to constitute a ‘conviction.’”
Dickerson, 460 U.S. at 112. “‘A plea of guilty differs in purpose and effect from a mere
admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury
it is conclusive. More is not required; the court has nothing to do but give judgment and
sentence.’” Id. at 112-13 (quoting Kercheval v. United States, 274 U.S. 220, 223
(1927)). The Supreme Court held that it was “plain that one cannot be placed on
Nos. 11-6489/ 6490/ 6491/ 6495            United States v. Pritchett, et al.                       Page 6


probation if the court does not deem him to be guilty of a crime.” Id. at 113-14
(equating a plea of guilty and its notation by the state court, followed by a sentence of
probation, with being “convicted” under 18 U.S.C. § 922(g) & (h)).

         Although the Tennessee statute expressly provides that there is no adjudication
of guilt, a person qualifies for a deferred sentence under the statute only if he “[i]s found
guilty of or pleads guilty or nolo contendere to the offense for which deferral of further
proceedings is sought.” Tenn. Code. Ann. § 40-35-313(B)(i)(a). Coffelt stood before
a state judge and pleaded guilty to a felony drug offense and thereafter submitted to a
period of probation, living under the threat of revocation and imprisonment were he
found noncompliant. In other words, Coffelt did everything necessary to prove his guilt
and to support a conviction, and the court treated him as though he were guilty and had
been convicted by placing him on probation. Coffelt could have no doubt that his plea
constituted sufficient proof as to his guilt and a finding thereof by a judge.2 Based on
the language of Dickerson and the ramifications of a guilty plea under a state first-
offender diversionary statute, other federal circuit courts have found a conviction for
purposes of § 841 despite the lack of a formal entry of judgment. See, e.g., Cisneros,
112 F.3d at 1280 (finding a prior conviction under § 841 despite provisions of Texas
statute deferring proceedings after a plea without an adjudication of guilt); United States
v. Gomez, 24 F.3d 924, 930 (7th Cir. 1994) (noting that the defendant had “plainly” been
convicted because the state treated his plea and sentence as a “conviction” during the
duration of his probation).

         In determining what federal law is, at least one court has looked to the
Sentencing Guidelines for guidance.                  The Sentencing Guidelines provide for
consideration of diversionary dispositions as follows:




         2
          The Tennessee statute itself describes the diversion proceedings as a “conviction”: “[T]he
nonpublic records retained by the court, as provided in subsection (a), shall constitute the official record
of conviction and are subject to the subpoena power of the courts of civil jurisdiction.” Tenn. Code Ann.
§ 40-35-313(b)(2) (emphasis added). Furthermore, even under Tennessee law, criminal acts for which a
defendant received diversion can be considered as prior criminal behavior to elevate a defendant’s range
of punishment. Tennessee v. Kelley, 34 S.W.3d 471, 481 (Tenn. Crim. App. 2000).
Nos. 11-6489/ 6490/ 6491/ 6495           United States v. Pritchett, et al.                       Page 7


          Diversion from the judicial process without a finding of guilt (e.g.,
          deferred prosecution) is not counted. A diversionary disposition
          resulting from a finding or admission of guilt, or a plea of nolo
          contendere, in a judicial proceeding is counted as a sentence under
          § 4A1.1(c) even if a conviction is not formally entered , except that
          diversion from juvenile court is not counted.

U.S.S.G. § 4A1.2(f).3 Because a diversionary disposition resulting from a plea would
count as a prior conviction under the career offender provisions of the sentencing
guidelines,4 it makes sense to also treat it as a prior conviction under § 841, because
interpreting the term “conviction” differently for purposes of § 841 and the sentencing
guidelines “would disrupt uniformity in federal sentencing and frustrate the purpose of
sentence enhancement under section 841(b)(1)(B) – to punish and deter recidivism.”
United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (per curiam).

          Treating a plea under a first-offender statute as a conviction for purposes of § 841
is also consistent with the policy behind first-offender provisions. As we noted in
Miller:

          the policy behind state first-offender provisions and similar alternative
          sentencing statutes is “to allow first offenders, who are often youthful,
          an opportunity to straighten themselves out on the road of life without the
          baggage of a drug conviction on their record” and is meant “as an
          incentive to learn a lesson . . . [but] is clearly not meant to provide them
          with a technical legal advantage if, not having learned a lesson, they
          continue their criminal conduct.”

          3
           Coffelt suggests that a better comparison is found in the federal prejudgment probation and
expungement statute, 18 U.S.C. § 3607(a)(2), which, like the Tennessee judicial diversion statute provides
that “A disposition under subsection (a), or a conviction that is the subject of an expungement order under
subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability
imposed by law upon conviction of a crime, or for any other purpose.” 18 U.S.C. § 3607(b). Coffelt
contends that if a federal drug offense discharged through prejudgment probation cannot count as a “prior
conviction” under § 841, Congress undoubtedly intended to treat a state offense discharged through an
identical process in the same manner. The flaw in Coffelt’s argument is that he has provided no authority
to suggest that federal courts would not use a federal offense discharged through prejudgment probation
as a prior conviction under § 841.
          4
           The sentencing guidelines instruct that the provisions of §4A1.2 (Definitions and Instructions
for Computing Criminal History) are applicable to the determination of whether a defendant has “two prior
felony convictions” for purposes of career offender status under § 4B1.1. U.S.S.G. § 4B1.2 Application
Notes. Section 4A1.2 provides that for purposes of computing a defendant’s criminal history, “[a]
diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a
judicial proceeding is counted as a sentence under §4A1.1(c) even if a conviction is not formally entered,
except that diversion from juvenile court is not counted.” U.S.S.G. § 4A1.2(f).
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.              Page 8


434 F.3d at 824 (quoting United States v. Petros, 747 F.Supp. 368, 376 (E.D. Mich.
1990)). Although a determination of whether a plea under the Tennessee judicial
diversion statute was a “prior conviction” for purposes of § 841 was not necessary to the
determination in Miller, the policy analysis is persuasive. See BDT Prods., 602 F.3d at
750 (“Although dictum is unnecessary to the decision, it may nevertheless be followed
if ‘sufficiently persuasive.’” (quoting PDV Midwest Ref., L.L.C. v. Armada Oil & Gas
Co., 305 F.3d 498, 510 (6th Cir. 2002)).

       Coffelt’s successful completion of his probationary sentence and the
expungement of his record does not amount to a determination that the crime never
occurred or that he was in fact innocent. As noted by the D.C. Circuit, for purposes of
sentences imposed under § 841, “Congress has not exempted from the ‘prior
convictions’ that must be counted those convictions removed from a criminal record for
policy reasons unrelated to innocence or an error of law.” United States v. Law, 528
F.3d 888, 911 (D.C. Cir. 2008); see also United States v. Norbury, 492 F.3d 1012, 1015
(9th Cir. 2007) (“An expunged or dismissed state conviction qualifies as a prior
conviction if the expungement or dismissal does not alter the legality of the conviction
or does not represent that the defendant was actually innocent of the crime.”).

       Every other circuit that has considered the issue of alternative or diversionary
sentences for first offenders has held that a deferred, expunged or dismissed state
conviction qualifies as a prior conviction under § 841. See, e.g., United States v.
Craddock, 593 F.3d 699, 701 (8th Cir. 2010); United States v. Law, 528 F.3d 888,
910-11 (D.C. Cir. 2008); United States v. Norbury, 492 F.3d 1012, 1015 (9th Cir. 2007);
United States v. Cisneros, 112 F.3d 1272, 1281 (5th Cir. 1997); United States v. Mejias,
47 F.3d 401, 404 (11th Cir. 1995) (per curiam); United States v. Gomez, 24 F.3d 924,
927-28 (7th Cir. 1994); United States v. Meraz, 998 F.2d 182, 184-85 (3d Cir.1993);
United States v. Campbell, 980 F.2d 245, 249-51 (4th Cir.1992). Based on the language
of § 841, the manner in which diversionary dispositions are treated under the sentencing
guidelines, and the policies behind diversionary programs, we join with the other circuits
Nos. 11-6489/ 6490/ 6491/ 6495      United States v. Pritchett, et al.                Page 9


in concluding that a guilty plea under a state first-offender diversionary program
qualifies as a prior conviction for purposes of a sentence enhancement under § 841.

        This conclusion does not violate the rule of lenity. The rule of lenity “ensures
fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct
clearly covered.” United States v. Lanier, 520 U.S. 259, 266 (1997). “If the statute
remains ambiguous after consideration of its plain meaning, structure and legislative
history, the rule of lenity is applied in favor of criminal defendants.” United States v.
Boucha, 236 F.3d 768, 774 (6th Cir. 2001). “The ‘policy of lenity means that the Court
will not interpret a federal statute so as to increase the penalty it places on an individual
when such an interpretation can be no more than a guess as to what Congress intended.’”
Id. at 774-75 (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)). Based on the
analysis above, the federal statute is not ambiguous. The term “conviction” as used in
§ 841 is broad enough to include guilty pleas followed by a term of probation. Coffelt
was on fair notice that a plea and resulting sentence of probation could be used to
enhance his sentence if he continued to engage in felony drug offenses.

        Coffelt contends that even if his 2006 guilty plea can be considered a conviction,
the conviction was not final for purposes of § 841 because it was not subject to appeal.
This argument lacks merit. Federal law governs whether a prior conviction is final
within the meaning of § 841. Adams v. United States, 622 F.3d 608, 612 (6th Cir.2010).
“A conviction becomes final for the purpose of [federal] sentencing when the time for
taking a direct appeal from the judgment of conviction has expired.” Miller, 434 F.3d
at 823 (6th Cir. 2006) (citing United States v. Walker, 160 F.3d 1078, 1093
(6th Cir.1998)). In Miller, the prior conviction became final 30 days after sentencing
when Miller’s time to appeal expired. 434 F.3d at 824. Unlike the Georgia statute
considered in Miller, Tennessee’s judicial diversion statute does not provide for direct
appeal. See Tennessee v. Norris, 47 S.W.3d 457, 461-63 (Tenn. Crim. App. 2000)
(holding that defendant placed on probation under judicial diversion statute had no
appeal as of right and no basis for discretionary appeal). Coffelt suggests that because
he had no right to appeal, his conviction never became final. Coffelt’s argument is not
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.             Page 10


persuasive. The purpose of the finality requirement is to prevent sentence enhancement
based on a prior conviction that remains subject to direct attack on appeal. See United
States v. Meraz, 998 F.2d 182, 184 (3d Cir. 1993); United States v. Lippner, 676 F.2d
456 (11th Cir.1982); Williams v. United States, 651 F.2d 648 (9th Cir.1981). This is a
recognition that it would not be appropriate to enhance a sentence based on a conviction
that is later removed from a criminal record based on innocence or legal error. See Law,
528 F.3d at 911. Contrary to Coffelt’s argument, his inability to appeal his judicial
diversion does not negate a finding of finality. Instead, it supports a finding of finality
because his conviction is not subject to reversal.

B. Constructive Amendment or Prejudicial Variance

       Three of the appellants, Coffelt, Pritchett and Johnson, argue that the district
court’s correction of the jury instruction as to Count 2 in response to a jury question
resulted in a constructive amendment and/or a prejudicial variance.

       We review de novo the legal question of whether an indictment has been
constructively amended by the evidence or the jury instructions. United States v. Budd,
496 F.3d 517, 521 (6th Cir. 2007). “‘A constructive amendment results when the terms
of an indictment are in effect altered by the presentation of evidence and jury
instructions which so modify essential elements of the offense charged that there is a
substantial likelihood that the defendant may have been convicted of an offense other
than the one charged in the indictment.’” Id. (quoting United States v. Smith, 320 F.3d
647, 656 (6th Cir.2003)). “[C]onstructive amendments are considered per se prejudicial
and are reversible error.” Id.

       We also review de novo the question of whether a variance has occurred. United
States v. Adams, 722 F.3d 788, 805 (6th Cir. 2013). A variance occurs when the
evidence at trial proves facts materially different from those alleged in the indictment.
Budd, 496 F.3d at 521. Variances, are not per se prejudicial. Id. We will reverse the
conviction if (1) a variance occurred and (2) the variance affected the defendant’s
substantial rights. Adams, 722 F.3d at 805.
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.             Page 11


       Count 2 of the indictment charged the defendants with conspiracy to possess and
distribute “pseudoephedrine, a list I chemical, and iodine, a list II chemical, knowing and
having reasonable cause to believe that the chemical would be used to manufacture
methamphetamine” in violation of 21 U.S.C. § 841(c)(2). The trial court initially
instructed the jury that to find a defendant guilty of the conspiracy charge in Count 2,
the government must prove a conspiracy “to commit the crime of possessing or
distributing pseudoephedrine and iodine knowing or have reasonable cause to believe
the pseudoephedrine and iodine would be used to manufacture methamphetamine.” In
response to a jury note asking whether they were required to find both pseudoephedrine
and iodine for a guilty verdict on Count 2, the Court stated that it was only necessary for
the government to prove “either pseudoephedrine or iodine was the purpose.” The Court
provided the jury with an amended instruction on Count 2 as follows: “First, that two
or more persons conspired or agreed to commit the crime of possessing or distributing
pseudoephedrine or iodine knowing or with reasonable cause to believe that the
pseudoephedrine or iodine would be used to manufacture methamphetamine.”

       Section 841(c)(2) provides that it is a violation of federal law to knowingly or
intentionally possess or distribute “a listed chemical knowing, or having reasonable
cause to believe, that the listed chemical will be used to manufacture a controlled
substance.” 21 U.S.C. § 841(c)(2). Section 841(c)(2) refers to “a listed chemical.” It
does not require possession or distribution of more than one listed chemical. See, e.g.,
United States v. Hettinger, 242 F. App’x 287, 298-99 (6th Cir. 2007) (affirming
conviction of defendant under § 841(c)(2) based on possession of only one listed
chemical, pseudoephdrine).      “‘It is settled law that an offense may be charged
conjunctively in an indictment where a statute denounces the offense disjunctively.’”
United States v. McAuliffe, 490 F.3d 526, 534 (6th Cir. 2007) (quoting United States v.
Murph, 707 F.2d 895, 896 (6th Cir. 1983)). At trial, the government may prove and the
trial judge may instruct in the disjunctive form used in the statute. Id.

       The government’s right to charge in the conjunctive and prove in the
       disjunctive reflects the necessary discrepancies between indictments and
       jury instructions. Indictments must be phrased in the conjunctive so that
Nos. 11-6489/ 6490/ 6491/ 6495        United States v. Pritchett, et al.             Page 12


        society can be confident that the grand jury has found probable cause for
        all of the alternative theories that go forward. Juries, on the other hand,
        may convict a defendant on any theory contained in the indictment. As
        a result, judges read jury instructions in the disjunctive.

United States v. LaPointe, 690 F.3d 434, 440 (6th Cir. 2012).

        Count 2 of the indictment properly charged in the conjunctive (pseudoephedrine
and iodine). The amended instruction on Count 2, which instructed the jury in the
disjunctive (pseudoephedrine or iodine) did not result in a constructive amendment or
a variance. It did not create a possibility that defendants would be convicted of an
offense other than the one alleged in the indictment nor did it invite the jury to find guilt
on facts materially different from those alleged in the indictment. The only possible
wrinkle in this case is the fact that the jury was initially instructed in the conjunctive and
later instructed in the disjunctive. However, none of the defendants has suggested that
he tailored his arguments or proofs based on the proposed original instructions, or that
he was otherwise prejudiced by the amendment of the instructions. There is nothing in
this record to suggest that the amendment of the jury instructions affected the
defendants’ rights to a fair trial.

C. Agent Frizzell’s Opinion Testimony

        Appellant Pritchett contends that the district court abused its discretion by
allowing Agent Frizzell to testify as both a fact and an expert witness without giving the
jury a cautionary instruction regarding his dual role.

        Because Pritchett did not request a cautionary instruction or object to the lack of
such an instruction at trial, we review the lack of a cautionary instruction for plain error.
United States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir. 2006) (citing Johnson v.
United States, 520 U.S. 461, 466 (1997)). “A defendant can demonstrate plain error by
showing (1) an error, (2) that is plain, and (3) that affects his fundamental rights.”
United States v. Vasquez, 560 F.3d 461, 470 (6th Cir. 2009). “If the defendant satisfies
these three conditions, we may exercise our discretion to correct the error only if the
error seriously affected the fairness, integrity, or public reputation of the judicial
Nos. 11-6489/ 6490/ 6491/ 6495      United States v. Pritchett, et al.              Page 13


proceedings.” Id. Pritchett contends that the failure to give a cautionary instruction was
plain error because Frizzell interspersed his factual testimony regarding the search of
Pritchett’s home with opinions regarding the indicia of methamphetamine
manufacturing.

        Agent Frizzell participated in the arrest of Pritchett and the search of Pritchett’s
residence. Frizzell testified about the items seized from Pritchett’s residence, including
coffee filters, plastic tubing, a zip-lock baggie, a coffee pot, and propane tanks. He
testified that the reason those items were seized was because of their suspected
association with the manufacture of methamphetamine. He also testified that the items
were photographed and then destroyed as hazardous materials before any testing was
conducted on them.

        Our circuit does not categorically prohibit an officer from testifying as both a fact
witness and an expert witness, but has noted that care should be taken “to assure that the
jury is informed of the dual roles of a law enforcement officer as a fact witness and an
expert witness, so that the jury can give proper weight to each type of testimony.”
United States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir. 2006) (quoting United States
v. Thomas, 74 F.3d 676, 683 (6th Cir. 1996)). “[P]lain error depends on the facts of the
particular case.” United States v. Martin, 520 F.3d 656, 659 (6th Cir. 2008) (quoting
Clark v. Maggio, 737 F.2d 471, 479 (5th Cir. 1984)). In Lopez-Medina, this court found
plain error where there was “no cautionary jury instruction regarding the agents’ dual
witness roles nor a clear demarcation between their fact testimony and expert opinion
testimony.” Id. at 745. In Vasquez, this Court held that the failure to give a cautionary
instruction regarding the detective’s dual role was erroneous, but that the error was
harmless because the defendant failed to establish that the error affected his substantial
rights. 560 F.3d at 470. See also Martin, 520 F.3d at 659-60 (holding that the lack of
a cautionary instruction for an officer’s dual testimony, although erroneous, did not
“seriously affect[ ] the fairness, integrity, or public reputation of the proceedings” in the
absence of other evidentiary errors).
Nos. 11-6489/ 6490/ 6491/ 6495       United States v. Pritchett, et al.               Page 14


        Frizzell’s opinion testimony necessarily included both fact and opinion
testimony. He could not explain his reasons for seizing, photographing, and destroying
normal household items without providing an explanation as to their association with the
manufacture of methamphetamine. Even if it was error not to give a cautionary
instruction regarding Frizzell’s dual testimony, Pritchett has not shown that the error
affected his substantial rights. The trial court gave the jurors the Sixth Circuit Standard
Jury Instruction on opinion evidence with respect to three of the government’s expert
witnesses, so the jurors had the tools for properly evaluating the opinions in Frizzell’s
testimony. Moreover, similar items were seized from co-defendant Coffelt’s residence,
and many of the opinions expressed by Frizzell, such as the role of red phosphorous and
coffee filters in the manufacture of methamphetamine, were discussed in more detail by
the government’s expert witnesses. In addition, during his cross-examination of Frizzell,
Pritchett’s counsel did not dispute the relationship of the items seized to the manufacture
of methamphetamine, focusing instead on the location of the items in areas that were
accessible to others. Under these facts, any error in failing to give a cautionary
instruction regarding Agent Frizzell’s dual role testimony did not seriously affect
Pritchett’s substantial rights or the fairness, integrity, or public reputation of the judicial
proceedings.

D. Sufficiency of the Evidence

        Appellant Johnson challenges the sufficiency of the proof to support a finding
that he was part of a conspiracy. He contends that the proofs supported nothing more
than that he was an occasional buyer of methamphetamine.

        “We review de novo a challenge to the sufficiency of the evidence supporting a
criminal conviction.” United States v. Carson, 560 F.3d 566, 579 (6th Cir. 2009). In
evaluating a sufficiency of the evidence claim, we must determine “whether, after
viewing 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “‘In undertaking
this analysis, this court neither independently weighs the evidence, nor judges the
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.             Page 15


credibility of witnesses who testified at trial.’” United States v. Howard, 621 F.3d 433,
459-60 (6th Cir. 2010) (quoting United States v. Talley, 164 F.3d 989, 996 (6th
Cir.1999)). “[T]he defendant bears a heavy burden when making a sufficiency of the
evidence challenge.” Carson, 560 F.3d at 580.

       To prove a conspiracy under 21 U.S.C. § 846, the government was required to
prove, beyond a reasonable doubt, “(1) an agreement to violate drug laws, (2) knowledge
and intent to join the conspiracy, and (3) participation in the conspiracy.” United States
v. Gibbs, 182 F.3d 408, 420 (6th Cir.1999). “An agreement to violate the drug laws need
not be express or formal. ‘A tacit or mutual understanding among the parties is
sufficient.’” United States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006) (quoting United
States v. Forrest, 17 F.3d 916, 918 (6th Cir.1994)). “The existence of a conspiracy may
be inferred from circumstantial evidence that can reasonably be interpreted as
participation in the common plan.” United States v. Martinez, 430 F.3d 317, 330
(6th Cir. 2005) (internal quotation omitted). “[O]nce the existence [of] a conspiracy is
shown, the evidence linking an individual defendant to that conspiracy need only be
slight.” Caver, 470 F.3d at 233. “[A] buyer-seller relationship is not alone sufficient to
tie a buyer to a conspiracy, for mere sales do not prove the existence of agreement that
must exist for there to be a conspiracy,” but “evidence of repeat purchases from a single
source and large volumes of narcotics creates an inference of conspiracy.” United States
v. MacLloyd, 526 F. App’x 434, 439 (6th Cir. 2013) (citations omitted), cert. denied,
134 S. Ct. 280 (2013).

       The government presented evidence that Johnson purchased 242.4 grams of
pseudoephedrine in 100 separate purchases from various pharmacies. Co-Defendant
Lynn Dempsey testified that in 2008 and 2009, every week or every other week, Johnson
would purchase his limit of pills and give them to Dempsey in exchange for
methamphetamine.         Johnson’s son testified that he had seen Johnson trade
pseudoephedrine for methamphetamine with Dempsey ten to twelve times.

       Johnson challenges the testimony of the pharmacists, because they were not
familiar with him and did not witness his purchases. He challenges the testimony of his
Nos. 11-6489/ 6490/ 6491/ 6495    United States v. Pritchett, et al.             Page 16


co-defendants because they were not credible. He points out that there was no evidence
that he was ever present during the manufacture of methamphetamine. According to
Johnson, the evidence, at best, shows that he used methamphetamine and had an
occasional buyer-seller relationship with Dempsey.

       In undertaking a sufficiency of the evidence analysis, “‘this court neither
independently weighs the evidence, nor judges the credibility of witnesses who testified
at trial.’” United States v. Howard, 621 F.3d 433, 459-60 (6th Cir. 2010) (quoting
United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999)). Viewing the evidence in the
light most favorable to the prosecution, the Court is satisfied that the evidence was
sufficient to support the jury’s finding that Johnson knowingly participated in the drug
conspiracy.

E. Testimony of Paul Knight

       Appellant Johnson argues that the trial court erred in allowing Paul Knight, a
confidential informant, to testify over Johnson’s objection that he had used
methamphetamine with Johnson three to five years before the conspiracy.

       At trial, the government asserted that Knight’s use of methamphetamine with
Johnson in the past provided the context for Knight’s initiation of a conversation with
Johnson in 2009 about methamphetamine. The government also asserted that Johnson’s
prior use of methamphetamine was relevant to show his participation in the conspiracy.
The trial court, citing United States v. Hardy, 228 F.3d 745 (6th Cir. 2000), determined
that the testimony was admissible as evidence to demonstrate relationships. Johnson
contends that the evidence was not proper background evidence because his relationship
with Knight was not at issue.

       We review evidentiary rulings for an abuse of discretion. United States v.
Ganier, 468 F.3d 920, 925 (6th Cir. 2006). Admissible background evidence “consists
of those other acts that are inextricably intertwined with the charged offense or those
acts, the telling of which is necessary to complete the story of the charged offense.”
Hardy, 228 F.3d at 748. It has “a causal, temporal or spatial connection with the charged
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.              Page 17


offense.” Id. “Typically, such evidence is a prelude to the charged offense, is directly
probative of the charged offense, arises from the same events as the charged offense,
forms an integral part of a witness’s testimony, or completes the story of the charged
offense.” Id. In Hardy, this court held that a confidential informant’s testimony
regarding his drug transactions with the defendant six years prior to the conspiracy was
not proper background evidence or 404(b) evidence. The court noted that there was not
an identity of parties involved in the transactions, the testimony was not necessary to
explain the charged offense, to complete the story of the confidential informant’s
testimony, or to establish the charged conspiracy itself. Id. at 749-50. The Hardy court
nevertheless determined that the admission of the testimony was harmless. Id. at 751
(“In light of other compelling evidence against Rouse, we can say with ‘fair assurance’
that the jury’s verdict ‘was not substantially swayed’ by any improperly received
evidence of other crimes committed by the defendant.”). In United States v. Toro,
133 F. App’x 181 (6th Cir. 2005), we held that the limited testimony regarding drug
transactions between Wright and Castillo-Mejia prior to the beginning of the conspiracy
was proper background evidence because it “was necessary to show how Wright came
to be acquainted with Castillo-Mejia and how their heroin-dealing relationship began.”
Id. at 187.

        The testimony regarding Johnson’s prior use was brief and was related to the
criminal conduct for which Johnson was on trial. Nevertheless, it was not about conduct
close in time to the charged conspiracy, and the government has not suggested that
Knight’s and Johnson’s prior relationship had anything to do with the inception of the
conspiracy. Moreover, while Knight’s relationship to Johnson may have been important
to Knight’s ability to initiate a conversation with Johnson about methamphetamine, it
is not clear that it was necessary to explain to the jury the nature of their prior
relationship.

        Even if it was error to admit this testimony, its admission does not warrant
reversal. The Federal Rules of Criminal Procedure provide that “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights must be disregarded.” Fed.
Nos. 11-6489/ 6490/ 6491/ 6495    United States v. Pritchett, et al.             Page 18


R. Crim. P. 52(a). Harmless error analysis focuses not on whether the defendant could
have been convicted without the evidence erroneously admitted, but on “‘whether there
is a reasonable possibility that the evidence complained of might have contributed to the
conviction.’” United States v. Clay, 667 F.3d 689, 700 (6th Cir. 2012) (quoting United
States v. DeSantis, 134 F.3d 760, 769 (6th Cir.1998)). Error is “‘harmless unless it is
more probable than not that the error materially affected the verdict.’” Id. (quoting
United States v. Childs, 539 F.3d 552, 569 (6th Cir. 2008)). “Admission of other-acts
evidence constitutes ‘harmless error’ if the other record evidence of guilt is
overwhelming, eliminating any fair assurance that the conviction was substantially
swayed by the error.” United States v. Hardy, 643 F.3d 143, 153 (6th Cir. 2011), cert.
denied, 132 S. Ct. 762 (2011).

       There is no reasonable possibility that the evidence complained of might have
contributed to Johnson’s conviction. The testimony was brief, use was not an element
of the crime Johnson was charged with, and the jury would have readily inferred that
Johnson was a user based on evidence that he routinely exchanged pseudoephedrine for
methamphetamine.

F. Sentencing

       The jury convicted Johnson of the lesser-included offense of conspiracy to
manufacture and distribute more than 5 grams of actual methamphetamine or 50 grams
of methamphetamine mixture, rather than the charged 50 grams of actual
methamphetamine or 500 grams of methamphetamine mixture. At sentencing, the court
held Johnson responsible for the quantity of pseudoephedrine he purchased, i.e.,
196 grams, even though the jury found that Johnson purchased less than 100 grams of
pseudoephedrine when it convicted Johnson of conspiracy to manufacture and distribute
at least 5 grams of actual methamphetamine but fewer than 50 grams of actual
methamphetamine (using the 2:1 ratio of pseudoephedrine to actual methamphetamine
presented by the government). Johnson contends that the district court improperly
sentenced him based on a greater quantity of drugs than found by the jury.
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.             Page 19


       Johnson’s argument lacks merit. Johnson’s sentence of 97 months did not exceed
the statutory maximum for conspiracy to manufacture and distribute more than 5 grams
of actual methamphetamine or 50 grams of methamphetamine mixture. See 21 U.S.C.
§ 841(b)(1)(B) (providing for a sentence of 5-40 years for 5 grams or more of
methamphetamine). So long as the sentence falls within the statutory range prescribed
for the jury conviction, a district court may sentence a defendant based on acquitted
conduct because the standard of proof at sentencing is the lower preponderance of the
evidence standard. United States v. White, 551 F.3d 381, 386 (6th Cir.2008) (en banc).
As noted in United States v. Johnson, 732 F.3d 577 (6th Cir. 2013), the Supreme Court’s
recent decision in Alleyne v. United States, ––– U.S. ––––, 133 S. Ct. 2151(2013), “did
not extend Apprendi to facts that do not increase the prescribed statutory penalties.” Id.
at 584. See also United States v. Jones, 533 F. App’x 562, 573-74 (6th Cir. 2013)
(rejecting contention that amount of drugs attributable should have been capped by the
jury verdict finding him only responsible for between 5 grams and 50 grams of meth
because the sentence fell within the statutory range). Johnson’s 97-month sentence was
below the 40-year statutory maximum, and he was sentenced pursuant to the 5-year
mandatory minimum triggered by the jury’s findings, instead of the 10-year mandatory
minimum triggered by the sentencing judge’s findings. Thus, the district court did not
violate Alleyne because neither Johnson’s statutory maximum sentence nor his
mandatory minimum sentence was increased by judge-found facts. Accordingly,
Johnson’s challenge to his sentence lacks merit.

       Pritchett and Rollins filed supplements to their appeals with citations to Alleyne,
arguing that their sentences were unconstitutionally enhanced based on the filing of a
notice of prior convictions. They contend that based on the reasoning of Alleyne, their
sentences should be vacated and remanded for resentencing.

       Neither Pritchett nor Rollins raised any challenge to his sentence in his initial
brief on appeal. We have held that an issue is waived when it is not raised in the
appellant’s opening brief. Miller v. Admin. Office of Courts, 448 F.3d 887, 893 (6th Cir.
2006); see Fed. R. App. P. 28(a) (requiring the appellant’s brief to contain a statement
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.             Page 20


of the issues presented for review and an argument on each issue presented). However,
we have noted that the waiver may be subject to exceptions, such as when the argument
is based on intervening authority. United States v. Huntington Nat’l Bank, 574 F.3d 329,
331 (6th Cir. 2009) (“No doubt exceptions abound – when intervening authority arises
or when the litigant otherwise offers a legitimate explanation.”); DSC Communications
Corp. v. Next Level Communications, 107 F.3d 322, 326 n.2 (6th Cir. 1997) (“[W]e have
yet to address our procedure when a party wishes to file a supplemental brief on an issue
because of an intervening change in law”). Alleyne was issued after the appellants’
initial briefs were due. Assuming they properly presented their sentencing challenges
based on the intervening authority of Alleyne, we nevertheless find that their challenges
lack merit.

       Since Almendarez-Torres v. United States, 523 U.S. 224 (1998), it has been well-
settled that “a judge is permitted to find, based on the preponderance of the evidence, the
fact of a prior conviction.” United States v. Martin, 526 F.3d 926, 941 (6th Cir. 2008).
In Alleyne the Supreme Court held that “any fact that increases the mandatory minimum
is an ‘element’ that must be submitted to the jury.” 133 S. Ct. at 2155. However, the
Supreme Court specifically declined to disturb the narrow exception for the fact of a
prior conviction established by Almendarez-Torres. Alleyne, 133 S. Ct. at 2160 n.1.
“Because the parties do not contest that decision’s vitality, we do not revisit it for
purposes of our decision today.” Id. As we noted in United States v. Mack, 729 F.3d
594, 609 (6th Cir. 2013), “[a]lthough Almendarez-Torres may stand on shifting sands,
the case presently remains good law and we must follow it until the Supreme Court
expressly overrules it.” See also United States v. Wynn, 531 F. App’x 596, 597 (6th Cir.)
(per curiam), cert. denied, 134 S. Ct. 347 (2013) (holding that Alleyne did not
undermine the rule set forth in Almendarez-Torres); United States v. Keglar, No.
13-5133, — F. App’x —, 2013 WL 5509103, at *1 (6th Cir. Oct. 7, 2013) (rejecting
argument that Alleyne requires prior convictions to be alleged in the indictment and
found as facts by the jury at trial). Because Alleyne did not disturb the holding in
Almendarez-Torres, Pritchett and Rollins’ challenges to their sentences are denied for
lack of merit.
Nos. 11-6489/ 6490/ 6491/ 6495           United States v. Pritchett, et al.                    Page 21


G. Motion to Suppress

         Finally, we evaluate Appellant Rollins’ contention that the district court erred in
denying his motion to suppress evidence seized from his car following two separate
traffic stops, one on September 15, 2008, in Grundy County, and one on June 25, 2009,
in Tracy City. Rollins’ motion was based on his contention that the searches were
improper searches incident to arrest under Arizona v. Gant, 556 U.S. 332 (2009),5 and
that all evidence found in his vehicles should have been suppressed.

         The Magistrate Judge held an evidentiary hearing on the motions and made
findings of fact which are not contested on appeal. On September 15, 2008, Deputy Jon
Bell stopped Rollins for passing in a no-passing zone. Deputy Bell determined that
Rollins’ license had been revoked and advised Rollins that he was going to jail. Deputy
Bell procured a tow slip, called for a tow truck, and began to conduct an inventory
search of the vehicle. Deputy Bell testified that when he arrests a driver during a traffic
stop and there is no passenger to drive the vehicle, it is his practice to have the vehicle
towed. He further testified that it is the Grundy County Sheriff’s Department’s policy
to inventory all vehicles that are towed. After Deputy Bell found the incriminating
evidence in Rollins’ vehicle, Grundy County Sheriff Myers arrived at the scene. Sheriff
Myers drafted the affidavits of complaint against Rollins, and stated in those affidavits
that Deputy Bell conducted the search “incident to the arrest.” Despite the Sheriff’s
statement, the Magistrate judge found Deputy Bell’s testimony that he conducted an
inventory search to be credible.

         On June 25, 2009, Officer Hawes of the Tracy City Police Department stopped
Rollins for speeding. Rollins was unable to produce his license, registration, or proof
of insurance, but gave Hawes his birth date and social security number. Based on this
information, Hawes ascertained that Rollins’ license had been revoked. At this point
Hawes decided he would arrest Rollins. Grundy County Deputy Bell heard the exchange


         5
          In Gant the Supreme Court held that the search of a vehicle incident to the arrest of a recent
occupant is justified only if the arrestee was unrestrained and within reaching distance of the passenger
compartment at the time of the search, or if it was reasonable for the arresting officers to believe that
evidence relevant to the crime of arrest might be found in the vehicle. Id. at 35.
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.              Page 22


over the police radio and recognized Rollins’ name. He called Officer Hawes and
informed him that Rollins might have methamphetamine on him. Officers Hawes waited
for Deputy Bell to arrive, then put Rollins under arrest, and began an inventory search
in anticipation of having the vehicle towed. Officer Hawes testified that if he arrests the
driver, the vehicle is towed unless there is someone present who can drive the vehicle
away. He further testified that it was the policy of the Tracy City Police Department to
inventory all vehicles that are to be towed.

        Based upon these findings of fact, the Magistrate Judge recommended that
Rollins’ motion to suppress be denied because both searches were valid inventory
searches as opposed to impermissible searches incident to arrest. The trial court adopted
the Report and Recommendation and denied the motion to suppress.

        “When reviewing a district court’s decision on a motion to suppress, we use a
mixed standard of review: we review findings of fact for clear error and conclusions of
law de novo.” United States v. Cochrane, 702 F.3d 334, 340 (6th Cir. 2012) (quoting
United States v. See, 574 F.3d 309, 313 (6th Cir. 2009)). “‘When a district court has
denied a motion to suppress, this Court reviews the evidence in the light most likely to
support the district court's decision.’” Id. (quoting United States v. Adams, 583 F.3d
457, 463 (6th Cir. 2009)). A factual finding is clearly erroneous only where, considering
all of the evidence, the court “is left with the definite and firm conviction that a mistake
has been committed.” United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007).

        On appeal, Rollins argues that the fruits of the September 2008 Grundy County
search were subject to suppression because the search was an improper search incident
to arrest. Rollins asserts that the affidavits prepared by the sheriff that described the
search as being incident to arrest should have been given greater weight than the
contradictory testimony of the arresting officer. The Magistrate Judge was aware of the
affidavits, but found that Deputy Bell’s testimony that he searched the car as part of an
inventory search was credible. “This court accords deference to the district court’s
assessment of credibility.” United States v. Howard, 621 F.3d 433, 450 (6th Cir. 2010).
Rollins has not presented any basis for overturning the Magistrate Judge’s credibility
Nos. 11-6489/ 6490/ 6491/ 6495       United States v. Pritchett, et al.               Page 23


finding. He does not contest the finding that the traffic stop was valid, that he was
properly arrested for driving without a license, that he did not have a passenger with him
who could drive his car, that it was routine police procedure to tow cars when the driver
is arrested and there is no one present who can drive the vehicle away, or that Grundy
County has a policy requiring the inventorying of all vehicles that will be towed. It was
not clearly erroneous for the Magistrate Judge to accept Deputy Bell’s sworn testimony
over the sheriff’s affidavits in light of the fact that the sheriff did not conduct the search,
the sheriff was not present when Deputy Bell decided to search the car, and the sheriff
did not testify at the suppression hearing. Because the finding that the search was a valid
inventory search was not clearly erroneous, the trial court did not err in denying Rollins’
motion to suppress the fruits of the September 2008 Grundy County search.

        Rollins argues that the fruits of the June 2009 Tracy City search were subject to
suppression because the traffic stop was unreasonably extended beyond its original
purpose without “separate reasonable suspicion” when Officer Hawes elected to wait for
Deputy Bell to arrive. At the evidentiary hearing before the Magistrate Judge and in his
objections to the Report and Recommendation, Rollins only challenged the June 2009
search as being incident to arrest. Because he did not previously raise the argument that
the traffic stop was unreasonably prolonged, it has been waived. See United States v.
Lopez-Medina, 461 F.3d 724, 738-39 (6th Cir. 2006) (“Even when a party has brought
a pretrial suppression motion, . . . any new suppression arguments raised for the first
time on appeal that were not contained in the original suppression motion will be
deemed waived under Rule 12(e).”) Nevertheless, it may be reviewed for plain error.
Id. (“[W]e have applied Rule 52(b)’s plain error review to new suppression arguments
raised for the first time on appeal after a defendant’s original suppression arguments
proved unsuccessful at the trial court level.”). “An error is plain when it is obvious,
affects substantial rights, and seriously affects the fairness or integrity of judicial
proceedings.” Id. at 739 (citing Johnson v. United States, 520 U.S. 461, 466-67 (1997)).

        Officer Hawes waited approximately ten minutes for Bell to arrive before placing
Rollins under arrest and conducting the inventory search. During the inventory search
Nos. 11-6489/ 6490/ 6491/ 6495     United States v. Pritchett, et al.              Page 24


the officers found several 2-liter Coke bottles containing what appeared to be fuel, a can
of HEET, and a can of carburetor cleaner which Deputy Bell recognized as ingredients
used in the manufacture of methamphetamine. Rollins contends that Officer Hawes
improperly extended the traffic stop beyond its original purpose without reasonable
suspicion in violation of Rollins’ Fourth Amendment right to be free from unreasonable
seizures. See United States v. Davis, 430 F.3d 345, 353 (6th Cir. 2005) (“Once the
purpose of the initial traffic stop is completed, an officer cannot further detain the
vehicle or its occupants unless something happened during the stop to cause the officer
to have a ‘reasonable and articulable suspicion that criminal activity [is] afoot.’”).

       The ten minute delay was not unconstitutional because during the traffic stop
Officer Hawes developed probable cause to arrest Rollins for driving without a valid
driver’s license. Moreover, the discovery of the items in the trunk of Rollins’ vehicle
falls within the inevitable discovery exception to the exclusionary rule. The inevitable
discovery doctrine, “allows unlawfully obtained evidence to be admitted at trial if the
government can prove by a preponderance that the evidence inevitably would have been
acquired through lawful means.” United States v. Kennedy, 61 F.3d 494, 497 (6th Cir.
1995) (citing Nix v. Williams, 467 U.S. 431, 444 (1984)). “[T]he doctrine applies where
the facts indicate that the officers inevitably would have discovered and seized the
tainted evidence by following ‘routine procedures.’” United States v. Garcia, 496 F.3d
495, 506 (6th Cir. 2007) (quoting United States v. Vite–Espinoza, 342 F.3d 462, 466 (6th
Cir. 2003)). Even if Rollins had not heard from Deputy Bell or awaited his arrival, he
would still have arrested Rollins for lack of a valid drivers’ license, and he would still
have inventoried Rollins’ vehicle before having it towed. And even if Officer Hawes
would not have personally recognized the connection of these items to the manufacture
of methamphetamine, their significance would eventually have been recognized in light
of Rollins’ previous arrest for methamphetamine and the discovery of methamphetamine
in Rollins’ wallet when he was brought to the jail. Accordingly, there was no plain error
in denying Rollins’ motion to suppress the fruits of the June 2009 traffic stop.
Nos. 11-6489/ 6490/ 6491/ 6495    United States v. Pritchett, et al.            Page 25


                                 III. CONCLUSION

       For the reasons stated in this opinion, Defendants’ convictions and sentences are
AFFIRMED.
