NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0178n.06
Case Nos. 13-5101/5119
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 06, 2014
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
ALFREDO CARRILLO-ALVARDO (13- ) DISTRICT OF KENTUCKY
5101) and JUAN LANDEROS-SANDOVAL )
(13-5119), )
)
Defendants-Appellants. ) OPINION
BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.
McKEAGUE, Circuit Judge. Juan Landeros-Sandoval and Alfredo Carrillo-Alvardo
were found guilty of conspiring to possess with the intent to distribute 1,000 kilograms or more
of a mixture or substance containing a detectable amount of marijuana and of aiding and abetting
such a conspiracy. They raise multiple arguments on appeal regarding whether the police had
reasonable suspicion to stop their vehicles, whether the evidence establishing their guilt was
sufficient, whether Landeros-Sandoval’s prior felony drug conviction needed to be pleaded in the
indictment and proven to the jury beyond a reasonable doubt, and whether the district court erred
by not providing Carrillo-Alvardo a minor role adjustment when it imposed his sentence. For the
following reasons, we AFFIRM the district court.
Case Nos. 13-5101/5119
United States v. Carrillo-Alvardo, et al.
I. Facts
At approximately 7 p.m. on December 15, 2010, Officer Culver (“Culver”) of the
Louisville Metro Police Department received a tip from an informant that a tractor–trailer,
carrying a large load of marijuana, would be delivered at an auto repair shop in Louisville,
Kentucky. This was not the first time that Culver had worked with the informant. The informant
had previously assisted another investigation. The auto shop was also known to the police, and
had been under continuous investigation since 2009 as a suspected “chop shop” and a
distribution point for drugs.
Upon receiving the informant’s tip, Culver requested assistance. Detective Keller
(“Keller”), Sergeant O’Toole (“O’Toole”), Detective James (“James”), Detective Morgan
(“Morgan”), and other officers responded. Keller, O’Toole, James, and Morgan each have over
10 years of law enforcement experience and significant experience in narcotics investigations.
At local staging areas, the officers were briefed on the investigation—many had been previously
briefed on the investigation as part of their regular duties—and on the informant’s tip. Culver
also informed the officers that two other detectives had already set up surveillance and had
confirmed that a tractor-trailer matching the informant’s description was on the property.
Following the briefings, Culver left to have the search warrant for the property signed,
and Keller and O’Toole took up a surveillance position near the auto shop. They could see the
road leading to the property, and any vehicles that might be entering or leaving the property. As
it was relatively late and after business hours, all of the other shops along the road were closed.
The weather was bitterly cold and alternated between rain and sleet.
While Keller and O’Toole monitored the road, another officer, Detective Lee (“Lee”),
took up surveillance on foot with binoculars near the property and reported what he saw by radio
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to the other officers. Lee observed containers being unloaded from the tractor-trailer with a
forklift, though he could not tell precisely what was in the containers or whether the other
vehicles on the property were being loaded.
Approximately an hour after Keller and O’Toole had taken up their position, Lee reported
several vans leaving through the gate of the auto shop. No other vehicles had been observed on
the road in the previous hour. Shortly after Lee’s warning, Keller and O’Toole observed two
white cargo vans, two minivans, and a sedan traveling from the auto shop. The vans split into
two groups. The first group, which included a white cargo van and minivan, departed together.
The police followed, and after observing the vehicles driving together over the course of several
miles, signaled for them to pull over. The officers reported over the radio that the vehicles were
slow to stop. When they finally did, the police smelled the odor of marijuana from outside of the
cargo van, and promptly discovered that it was packed with marijuana.
The second group of vehicles, including another white cargo van, driven by Juan
Landeros-Sandoval (“Landeros-Sandoval”), and followed closely by a gray Honda Odyssey
minivan, driven by Alfredo Carrillo-Alvardo (“Carrillo-Alvardo”), proceeded to a local freeway.
Keller and O’Toole followed in an unmarked vehicle and requested assistance from other
officers. James and Morgan responded and also began to follow. Over the course of a few
miles, Carrillo-Alvardo’s minivan maintained a close distance behind Landeros-Sandoval’s
cargo van, executed lane changes jointly, and made multiple turns together. Officers testified at
the suppression hearing and at trial that it is common for drug traffickers to have a “chase car”
shadow another car to provide protection and to ensure the delivery of the drugs. This is
commonly referred to as driving in “tandem.”
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Although neither officer had witnessed criminal activity or a traffic violation, Keller and
O’Toole signaled for the cargo van to pull over, which it promptly did. Carrillo-Alvardo’s
minivan continued along the road followed by James and Morgan. Keller and O’Toole
approached Landeros-Sandoval’s cargo van, and upon nearing it, the officers smelled a strong
odor of marijuana. The interior of the cargo van was subdivided with the cargo compartment
separated from the driver’s compartment by wire mesh. From the front of the vehicle, through
the mesh, the officers observed large bundles commonly used to store marijuana stacked from
the floor to the roof. The total amount of marijuana is estimated to have weighed over a ton.
Following the stop of Landeros-Sandoval’s vehicle, Morgan turned on his lights and siren
and signaled for Carrillo-Alvardo to pull over. At this point, Carrillo-Alvardo had not committed
any traffic infractions, nor had anyone witnessed him engaging in criminal activity. Carrillo-
Alvardo continued driving for a quarter of a mile before stopping. He voluntarily exited the
vehicle, but appeared nervous to the officers. Approximately a minute later, after James and
Morgan learned by radio about the marijuana in Landeros-Sandoval’s cargo van, they arrested
Carrillo-Alvardo.
James subsequently searched Carrillo-Alvardo’s minivan. Police recovered from it a pen
used to detect counterfeit money and a piece of paper with the name “Sergio Landeros-
Sandoval” written on it. Although James did not smell marijuana from outside of the minivan,
nor was marijuana found within the minivan or on Carrillo-Alvardo’s person, James indicated
that he smelled a strong odor of marijuana and diesel fuel while searching the minivan and that
he smelled the same odors on Carrillo-Alvardo. Officers also testified at the suppression hearing
and trial that diesel fuel or petroleum is often used to mask the odor of marijuana. Between the
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two cargo vans, the total amount of marijuana seized was approximately 2,546 kilograms and
had an estimated value of $5.6 million dollars.
Following their arrests, Landeros-Sandoval and Carrillo-Alvardo were indicted on
January 19, 2011, along with several others, and charged in Count 1 with knowingly and
intentionally conspiring to possess with the intent to distribute 1,000 kilograms of marijuana in
violation of 21 U.S.C. § 841 (b)(1)(A)(vii) and 21 U.S.C. § 846, and in Count 3 with aiding and
abetting by knowingly and intentionally possessing with the intent to distribute 1,000 kilograms
of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii), and 18 U.S.C. § 2. They
both pled not guilty and filed motions to suppress the evidence acquired at the stops. After an
evidentiary hearing and briefing, the magistrate issued a report recommending the motion be
denied. The district court, adopting the magistrate’s report, denied the motion. Following a
three-day trial, a jury found Landeros-Sandoval and Carrillo-Alvardo guilty on both Counts 1
and 3. The defendants brought motions for acquittal at the close of the United States’ and the
defendants’ arguments. The district court denied the motions and sentenced Carrillo-Alvardo to
a concurrent term of 121 months as to Counts 1 and 3 and Landeros-Sandoval to a concurrent
term of 240 months as to Counts 1 and 3. Landeros-Sandoval and Carrillo-Alvardo appeal their
convictions.
II. Denial of Motion to Suppress
1. Legal Standard
When reviewing a ruling on motion to suppress, we review factual determinations for
clear error and legal determinations de novo. United States v. Galloway, 316 F.3d 624, 628 (6th
Cir. 2003). If the district court has denied the motion to suppress, as is the case here, we “must
consider the evidence in the light most favorable to the government.” United States v. Garza, 10
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F.3d 1241, 1245 (6th Cir. 1993). The ultimate determination regarding the legality of the stop is
treated as a conclusion of law and reviewed de novo. Galloway, 316 F.3d at 628.
The Fourth Amendment requires probable cause for a search or seizure to be lawful. One
narrow exception to this requirement is for investigatory detentions, otherwise termed Terry
stops. To assess the legality of an investigatory stop, we apply a two-pronged test. We first
assess “whether there was a proper basis for the stop, which is determined by examining whether
the law enforcement officials were aware of specific and articulable facts which gave rise to a
reasonable suspicion” that the person is committing or has committed an offense. Garza, 10
F.3d at 1245 (internal citation omitted). Second, we review “whether the degree of intrusion into
the suspect’s personal security was reasonably related in scope to the situation at hand, which is
judged by examining the reasonableness of the officials’ conduct given their suspicions and the
surrounding circumstances.” Id.
Reasonable suspicion determinations are reviewed using a totality of the circumstances
analysis. United States v. Galaviz, 645 F.3d 347, 352 (6th Cir. 2011). Under this process,
“individual factors, taken as a whole, [may] give rise to reasonable suspicion, even if each
individual factor is entirely consistent with innocent behavior when examined separately.”
United States v. Smith, 263 F.3d 571, 588 (6th Cir. 2001). Police officers are permitted “to draw
on their own experience and specialized training to make inferences from and deductions about
the cumulative information available to them that might well elude an untrained person.” United
States v. Arvizu, 534 U.S. 266, 273 (2002) (internal citation and quotation omitted). An officer’s
reasonable suspicion can arise from a myriad of direct and indirect sources, including personal
observations, informant tips, dispatch information, information from other officers, and more
generalized factors, such as the nature of the area, the weather conditions, and the time of day.
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See Illinois v. Wardlow, 528 U.S. 119, 129–30 (2000); Dorsey v. Barber, 517 F.3d 389, 395 (6th
Cir. 2008); United States v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008). Additionally, under the
“collective knowledge rule,” “an officer may conduct a stop based on information obtained by
fellow officers . . . even when the evidence demonstrates that the responding officer was wholly
unaware of the specific facts that established reasonable suspicion for the stop.” United States v.
Lyons, 687 F.3d 754, 765–66 (6th Cir. 2012). While reliance on a mere “‘hunch’ is insufficient
to justify a stop, the likelihood of criminal activity need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the evidence standard.”
Arvizu, 534 U.S. at 274 (internal citation omitted).
2. Application
Landeros-Sandoval and Carrillo-Alvardo both contend that the police lacked a
particularized basis to believe that they had committed or were going to commit a criminal
offense, and, therefore, that their stops violated the Fourth Amendment. We disagree. The
information available to the police, when viewed under the totality of the circumstances, satisfied
the reasonable suspicion requirement.
We begin with the tip. The defendants assert that the tip should be analyzed as an
“anonymous” tip because no information was provided at the suppression hearing regarding
whether the tip came from a reliable confidential informant or an unknown individual. See
Florida v. J.L., 529 U.S. 266, 270 (2000). To the contrary, the record indicates that the
informant was known and had assisted prior investigations. See id. (indicating that a known
informant is one whose reputation can be assessed and who can be held responsible if her
allegations turn out to be fabricated). As the district court indicated, “[t]he informant in this case
had proven reliable” and “had provided information to Detective Culver in the past which
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resulted in the identification of a number of individuals in another investigation.” R. 246, Mem.
Op. and Order at 6–7, Page ID # 1116–17.1 Thus, when the informant indicated that a certain
color tractor-trailer with specific markings would drop off a large shipment of marijuana at the
auto shop in the evening of December 15, 2010, the police rightfully believed they had received
“credible information that a large quantity of narcotics was going to be delivered at that location
that evening.” R. 154, Supp. Hrg. Tr., Keller, Page ID # 434. Although the police had not
observed marijuana prior to the stops, the other information provided by the informant was fully
corroborated. The police observed a tractor-trailer of the correct color and with the correct
markings at the anticipated destination at the correct time.2
It should also be recalled that the officers did not rely solely on the tip, anonymous or
otherwise. They had their investigative history and their observations from the evening of
December 15, 2010. Over the course of two years, the police had developed information that the
auto shop was being used as a “chop shop” and drug distribution point. This information was
known by the arresting officers. The police had also witnessed the unloading of the tractor-
trailer at night after business hours during winter weather. An officer further testified that in his
1
Sergeant Thomas Schardein testified as to why he considered Culver’s informant reliable in the
suppression motion for the related prosecution of Luis Salcido-Guzman. R. 197, Supp. Hrg. Tr.,
Guzman, Page ID # 745. The district court denied Salcido-Guzman’s motion to suppress in the
same order denying Landeros-Sandoval and Carrillo-Alvardo’s motion to suppress. While
Schardein was not one of the officers who pulled over either Landeros-Sandoval or Carrillo-
Alvardo, he was part of the group of officers involved in stopping the first group of vehicles and
also familiar with the informant’s prior reliability. Additionally, O’Toole, who stopped
Landeros-Sandoval, received weekly briefs on the investigation as Culver’s supervisor and was
presumably familiar with the informant’s reliability. R. 154, Supp. Hrg. Tr., O’Toole, Page ID #
446. Thus, the police officers, through the collective knowledge rule, knew that the informant
was not in fact anonymous and had previously provided information that had been corroborated.
2
Regarding precisely when the tractor-trailer arrived, there is some ambiguity, but at the
suppression hearing, Keller testified that “I’m fairly confident that that tractor-trailer arrived that
evening just shortly after [Detective Culver] got the information that that tractor-trailer was
coming.” Id. at Page ID # 414 (emphasis added).
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experience, it is common for large loads of narcotics to be divided into smaller loads at
distribution points.
The manner in which the vehicles traveled together further supported reasonable
suspicion. Shortly after the tractor-trailer was unloaded, the police witnessed a convoy of
vehicles depart from the auto shop. This convoy divided into two groups of vans which headed
in different directions. The officers never observed any traffic violations; however, they
expressed their belief, after observing the vans change lanes in unison, drive at the same speed,
and make multiple turns together over the course of a few miles, that the vehicles were driving in
tandem, and indicated that in their experience this was a common practice among drug
traffickers. See United States v. French, 974 F.2d 687, 692 (6th Cir. 1992) (holding that police
had reasonable suspicion to stop a car that was acting as a chase car and slightly speeding);
United States v. Allen, 705 F.3d 367, 368 (8th Cir. 2013) (similar); United States v. Rodriguez-
Rodriguez, 550 F.3d 1223, 1228 (10th Cir. 2008) (similar); United States v. Soto, 591 F.2d 1091,
1098–99 (5th Cir. 1979) (similar). Unlike other cases, in which tandem driving was found to be
an insufficient basis for asserting reasonable suspicion, tandem driving was not the primary or
only basis for the stops in this case. See United States v. Espino-Urvan, No. 12 Cr. 337 (LTS),
2013 WL 2255953, *7 (S.D.N.Y. May 21, 2013). Finally, the officers were aware from the radio
transmissions that the first group of cars had failed to stop immediately, which raised concerns
that the suspects might attempt to flee or be a danger to the officers.
Taken altogether, especially in light of the collective knowledge rule, the combination of
(1) the informant’s tip, which was corroborated by the presence and description of the tractor-
trailer; (2) the prior two-year investigative history, which was briefed to the officers; (3) the
activity witnessed by Lee, specifically the unloading of the tractor-trailer at night during
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inclement weather at a suspected drug distribution location after business hours; (4) the officers’
observations that, shortly after unloading vehicles, two sets of vehicles left the location and
drove in tandem on a wintry night when few cars were on the road; and (5) the officers’ training
and experience investigating drug trafficking, more than fulfill the reasonable suspicion
requirement.
As to the argument that the police had predetermined that all vehicles leaving the auto
shop would be stopped, we evaluate “whether reasonable suspicion existed at the point of
seizure, not at the point of attempted seizure.” United States v. Jones, 562 F.3d 768, 773 (6th
Cir. 2009). During the suppression hearing, the officers described the information discussed
above, which arose before and after the initial briefings and prior to the actual seizure of the
vehicles. Thus, at the moment when the officers made the traffic stops, the officers had
sufficient evidence to find reasonable suspicion. This determination that the police had
reasonable suspicion is consistent with other similar cases. See, e.g., United States v. Flores, 571
F.3d 541, 544–45 (6th Cir. 2009) (finding reasonable suspicion based on intercepted
conversations indicating that a drug delivery was about to take place at a suspected stash house
and the presence of an unfamiliar vehicle at the location at the time of delivery); United States v.
Davis, 514 F.3d 596, 600–01 (6th Cir. 2008) (finding reasonable suspicion on the basis of an
informant’s indication that the defendant would be “posted-up” at a specific location in a high
crime area, the presence of the defendant at the location, and the fact that the defendant did not
appear to have a license on file though he was driving); Garza, 10 F.3d at 1246 (finding
reasonable suspicion to stop a truck where the defendant made phone calls with a suspected drug
distributor, where the defendant paid “close attention” to a truck that a police drug dog had
alerted was carrying marijuana, and where two trucks traveled in tandem). The officers therefore
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satisfied the “minimal level of objective justification for making the stop.” United States v.
Sokolow, 490 U.S. 1, 7 (1989).
Having assessed the validity of the initial stop, we now review the officers’ subsequent
conduct. Once the police initiated the stops, it was only a matter of minutes before they
discovered the bales of marijuana and arrested Landeros-Sandoval and Carrillo-Alvardo. The
defendants were not arrested, nor were their vehicles searched, until the police had smelled and
viewed the marijuana in the cargo area. Under these circumstances, the degree of intrusion into
the suspect’s personal security was reasonably related in scope and that the police had probable
cause to arrest the suspects. See Davis, 514 F.3d at 610 (finding probable cause to arrest where
marijuana was in plain view in a vehicle); Garza, 10 F.3d at 1246 (finding probable cause to
search a vehicle where an officer smelled marijuana). Accordingly, we AFFIRM the denial of
the motion to suppress for both Landeros-Sandoval and Carrillo-Alvardo.
III. Sufficiency of the Evidence
1. Legal Standard
Landeros-Sandoval and Carrillo-Alvardo next argue that the evidence to support their
convictions is insufficient. We review such claims de novo. United States v. Gunter, 551 F.3d
472, 482 (6th Cir. 2009). To sustain a conviction, we must assess “whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v. Wallace, 597
F.3d 794, 800 (6th Cir. 2010) (quotation marks and internal citations omitted). Direct and
circumstantial evidence can be used to satisfy the government’s burden. Gunter, 551 F.3d at
482. Further, “[t]he government may meet its burden through circumstantial evidence alone, and
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such evidence need not exclude every possible hypothesis except that of guilt.” United States v.
Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995).
2. Sufficiency of the Evidence to Support the Conspiracy Convictions
“To sustain a conviction for conspiracy under 21 U.S.C. § 846, the government must
have proved: (1) an agreement to violate drug laws, in this case 21 U.S.C. § 841; (2) knowledge
and intent to join the conspiracy; and (3) participation in the conspiracy.” United States v. Sliwo,
620 F.3d 630, 633 (6th Cir. 2010) (internal quotation marks and citation omitted). The
defendants argue that the government has failed to satisfy the first and second prongs—that they
entered in an agreement with their co-conspirators or that they knew the object of the conspiracy.
In United States v. Sliwo, this court overturned a conviction for conspiracy to distribute
marijuana where the defendant transported an empty van and served as a lookout when the drugs
were loaded, but failed to actually see the drugs being loaded. Id. As this court concluded, “[n]o
evidence was presented that demonstrated Defendant’s knowledge that the purpose of the
scheme was the acquisition of marijuana.” Id. at 638. The court caveated its determination that
there was insufficient evidence by acknowledging, “[i]f Defendant had entered the truck yard,
his conviction may have been affirmed even though nobody directly saw him loading marijuana
into the van. In addition, if Defendant had entered the van after the marijuana was loaded, even
though the boxes were all closed, the conviction may have been affirmed.” Id. at 637 n.5.
While “participation in a scheme whose ultimate purpose a defendant does not know is
insufficient to sustain a conspiracy,” id. at 633, this is clearly not such a circumstance. Unlike
Sliwo, direct and circumstantial evidence presented to the jury linked Landeros-Sandoval and
Carrillo-Alvardo to the essential object of the conspiracy: the possession with the intent to
distribute marijuana. Id. The following evidence was presented at trial. An informant had told
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the police that a large shipment of marijuana was going to be delivered by a tractor-trailer at the
auto shop. The auto shop had been under investigation for two years for involvement in stolen
auto parts and narcotics. The police observed a tractor-trailer, which matched the informant’s
description, being unloaded with a fork lift during inclement weather and after business hours,
making it less likely that the defendants were unlucky bystanders or customers. Moreover, given
the size of the shipment, the jury could reasonably have inferred that several individuals were
involved in the unloading of the trailer and the reloading of the drugs into the vans.3 After the
trailer was unloaded, a caravan of vehicles, including two white cargo vans completely loaded
with marijuana, left the auto shop. Each cargo van was followed by a minivan, and the vans
proceeded to drive in tandem.
Focusing for a moment on Landeros-Sandoval, he was discovered by police transporting
a cargo van carrying over a ton of marijuana. This was not a case where he was merely present
at the scene of the crime or driving a vehicle where the drugs were hidden in the gas tank or
transporting a closed box filled with odorless drugs. See United States v. Craig, 522 F.2d 29, 31
(6th Cir. 1975); United States v. Coppin, 1 F. App’x 283 (6th Cir. 2009); United States v.
Morrison, 220 F. App’x 389 (6th Cir. 2007). The marijuana, which was located in the rear of the
cargo van, could easily be seen from where Landeros-Sandoval was driving, and the marijuana
was packaged into bundles commonly used to transport the drug. Finally, the officers testified
that the smell of marijuana and diesel was so strong that they could smell it from outside of the
vehicle. “The smell of marijuana is certainly relevant evidence, and courts have pointed to the
smell as evidence that the presence of marijuana was obvious.” United States v. Wright, 12 F.3d
3
O’Toole testified that it took seven to ten officers a couple hours to unload the marijuana from
the cargo vans, and that the marijuana bales smelled of diesel fuel. He also indicated that after
going home his clothing smelled strongly of marijuana. R. 397, Tr. Tran., O’Toole Testimony,
Page ID # 2050–51.
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215, 1993 WL 465164, *4 (6th Cir. 1993) (unpub.) (citing multiple cases in which the smell of
marijuana was used as evidence). Under these circumstances, it belies belief that Landeros-
Sandoval did not know that he was transporting marijuana or engaging in a conspiracy to
distribute marijuana.
While the sufficiency of the evidence with relation to Carrillo-Alvardo is a closer call,
enough evidence has been presented to support his conviction for conspiracy. We will not repeat
the evidence discussed above. Suffice to say, Carrillo-Alvardo was also present at the auto shop,
which was suspected to be a “big distribution point for marijuana,” R. 397, Tr. Tran., James
Testimony, Page ID # 2093, on the evening that a large shipment of drugs was allegedly
unloaded. He drove a chase car mimicking the movement of Landeros-Sandoval’s drug-laden
cargo van. Police discovered a pen used to detect counterfeit bills and a handwritten note in
Carrillo-Alvardo’s minivan with the name “Landeros-Sandoval” written on it, further tying him
to the drug van. Also, critically, the jury heard testimony that Carrillo-Alvardo reeked of a
combination of marijuana and diesel, and his car smelled strongly of the same odor.4 This smell
suggests that Carrillo-Alvardo assisted with the loading or was present at the loading or at a
minimum knew about the marijuana, which was the essential object of the conspiracy. See
Sliwo, 620 F.3d at 638.
Finally, the jury heard testimony that approximately 2,546 kilograms of marijuana with
an estimated street value of $5.6 million dollars was confiscated. A reasonable jury could infer
that “it would be highly unlikely for drug dealers to hire [an innocent third party] to move
4
As James described the smell, “[f]rom outside [Carrillo-Alvardo’s] vehicle once the window
was down, the odor was overwhelming from that vehicle to a point that I actually thought, with
my training and experience, that there would be several bales of marijuana in this vehicle. It was
a marijuana odor with a masking odor of diesel or kerosene fuel. And it was overwhelming and
it was also on his person . . . .” R. 397, Tr. Tran., James Testimony, Page ID # 2091 (emphasis
added).
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millions of dollars of marijuana that had a pungent odor and was wrapped in clear plastic.”
United States v. Bonas, 434 F. App’x 422, 431 (6th Cir. 2011); see also United States v.
Gbemisola, 225 F.3d 753, 760 (D.C. Cir. 2000) (similar); United States v. Quilca-Carpio,
118 F.3d 719, 722 (11th Cir. 1997) (similar). While this evidence is not of the smoking-gun
variety, “[i]nferential proof may be controlling where the offense charged is so inherently
secretive in nature as to permit the marshalling of only circumstantial evidence. This is the norm
in drug conspiracy prosecutions . . . .” United States v. Pelfrey, 822 F.2d 628, 632 (6th Cir.
1987).
Accordingly, a reasonable jury could have determined that the defendants knew of the
conspiracy and agreed to join it. As the defendants have not satisfied the “very heavy burden”
necessary to overturn their convictions, United States v. Jackson, 473 F.3d 660, 669 (6th Cir.
2007), we AFFIRM their convictions on the conspiracy charge.
3. Sufficiency of the Evidence to Support the Aiding and Abetting Convictions
Landeros-Sandoval and Carrillo-Alvardo next argue that the government has presented
insufficient evidence to satisfy the charge for aiding and abetting. Just as a reasonable jury could
have determined that the defendants knew about and participated in a conspiracy to distribute the
marijuana, for the same reasons there is sufficient evidence for a jury to have convicted them of
aiding and abetting. The defendants were participants who assisted in the transportation of the
drugs and the commission of a crime, not merely hapless and unwitting spectators. See United
States v. Pena, 983 F.3d 71, 73 (6th Cir. 1993) (finding insufficient evidence for aiding and
abetting where the government only showed the defendant’s presence as a passenger in a car
carrying cocaine). A reasonable jury could conclude based upon the presence of the defendants
at the location where the drugs were unloaded, their coordinated activities to transport a large
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quantity of drugs, the smell of marijuana and diesel fuel in their vehicles and on Carrillo-
Alvardo’s person, and in the instance of Landeros-Sandoval, the presence of marijuana in his
vehicle, that they had knowledge of the “general scope and nature of the illegal [activity] and
awareness of the general facts concerning the venture.” Sliwo, 620 F.3d at 638 (internal citation
omitted). We, therefore, AFFIRM the defendants’ convictions for aiding and abetting.
IV. Sufficiency of the Indictment and the Alleyne Challenge
Landeros-Sandoval argues that his conviction should be reversed because his prior drug
conviction, which increased the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A),
was not submitted to the jury and because the indictment failed to list the prior felony drug
conviction as an element of the offense. This argument is predicated on the recent Supreme
Court case in Alleyne v. United States, 133 S. Ct. 2151 (2013). There, the Court held any fact
that “increases the penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt . . . [and therefore, the] mandatory minimum is an ‘element’
that must be submitted to the jury.” Id. (internal citation omitted). The Alleyne Court, however,
expressly refused to address whether the traditional exception under Almendarez-Torres v.
United States, 523 U.S. 224 (1998), which establishes that prior convictions need not be
presented to a jury or included in an indictment, still applied. Alleyne, 133 S. Ct. at 2160 n.1.
Landeros-Sandoval claims that Alleyne’s holding that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” indicates that the
Almendarez-Torres exception no longer has continued viability. This court has already
addressed this question and determined that the Supreme Court’s decision in Almendarez-Torre
is still good law, even post-Alleyne. United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013);
United States v. Wynn, 531 F. App’x 596 (6th Cir. 2013) (per curiam). Consistent with this
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United States v. Carrillo-Alvardo, et al.
precedent, we reject Landeros-Sandoval’s argument that his prior conviction should have been
submitted to the jury or included in the indictment and AFFIRM his sentence.
V. Minor Role Reduction
Finally, Carrillo-Alvardo contends that his sentence was procedurally and substantively
unreasonable because the district court failed to consider his minor role when calculating the
advisory guidelines range and when determining his actual sentence. Under U.S.S.G. § 3B1.2, a
defendant who is “substantially less culpable than the average participant” can receive a sentence
reduction. U.S.S.G. § 3B1.2, cmt. 3(A). Carrillo-Alvardo concedes that he did not raise an
objection before the district court regarding its failure to apply this minor role reduction.
Accordingly, we review the claim of procedural adequacy for plain error, which requires
Carrillo-Alvardo to show “(1) error (2) that was obvious or clear, (3) that affected defendant’s
substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (internal quotation
marks and citation omitted).
Carrillo-Alvardo has not satisfied this burden. The only evidence presented at sentencing
of Carrillo-Alvardo’s minor role was the claim made by his attorney that Carrillo-Alvardo was a
“tag-along behind a mule driving a vehicle.” R. 396, Sent. Tr., Page ID # 1777. In his brief to
this court, Carrillo-Alvardo again makes a bare-bones assertion that his involvement with the
marijuana was limited and that he was not even a courier. He does not cite, however, the
sentencing transcript, nor does he indicate any additional mitigating evidence presented to the
district court to substantiate his claim of having a minor role or being substantially less culpable.
In explaining its sentence, the district court referred to the 18 U.S.C. § 3553 factors and
indicated, “I think that all things taken, including the seriousness of the offense and the
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Case Nos. 13-5101/5119
United States v. Carrillo-Alvardo, et al.
characteristics of the offense, as well as [Carrillo-Alvardo’s] personal characteristics, and the
need to reflect and respect—to encourage respect for the law, militates in favor of the sentence
that I have imposed here . . . .” R. 395, Sentencing Tr., Page ID # 1780. As Carrillo-Alvardo has
not demonstrated that the trial court plainly failed to “analyze the relevant sentencing factors”
Vonner, 516 F.3d at 388 or was obviously in error, the district court’s sentence was procedurally
reasonable.
Turning to the question of substantive reasonableness, “[a] sentence may be considered
substantively unreasonable when the district court selects a sentence arbitrarily, bases the
sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an
unreasonable amount of weight to any pertinent factor.” United States v. Conaster, 514 F.3d
508, 520 (6th Cir. 2008). Carrillo-Alvardo argues that the district court failed to consider a
relevant sentencing factor, namely his minor role in the offense. The evidence indicates that the
court was not only familiar with Carrillo-Alvardo’s role in the offense, but also that it considered
this precise point in selecting his sentence. While the government requested a mid-to-high
sentence within the guidelines range because of the quantity of marijuana involved, Carrillo-
Alvardo’s actual sentence of 121 months is at the very bottom of the guidelines range of 121 to
151 months, and only one month over the 120 mandatory minimum term of imprisonment. See
21 U.S.C. § 841(b)(1)(A)(vii). The court clearly attempted to balance what it viewed as a “very
bold crime involving quite a large amount of marijuana,” R. 395, Sentencing Tr., Page ID #
1780, with Carrillo-Alvardo’s modest criminal history and role. As there is a “presumption of
reasonableness for within-guidelines sentences,” Vonner, 516 F.3d at 389, Carrillo-Alvardo’s
sentence was also substantively reasonable, and, we therefore AFFIRM his sentence.
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United States v. Carrillo-Alvardo, et al.
VI. Conclusion
For all of these reasons, we AFFIRM the judgment of the district court.
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United States v. Juan Landeros-Sandoval
Court: Court of Appeals for the Sixth Circuit
Date filed: 2014-03-06
Citations: 558 F. App'x 536
Copy CitationsCombined Opinion