UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TOMMY DEAN BULLCOMING, Defendant - Appellant. No. 18-6083 (D.C. No. 5:17-CR-00227-HE-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , BALDOCK , and KELLY , Circuit Judges.

________________ _________________ Defendant Tommy Dean Bullcoming pleaded guilty to one count of possession with intent to distribute mariju ana, in violati on of 21 U.S.C. § 841(a)(1). The court sentenced him to ten months’ imprisonment . Defendant appeals, arguing that the district court erred in de nying his motion to suppress 1 and that his prison sentence,

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Defendant preserved his right t o appeal this i ssue in his plea agreement. FILED United States Court of Appeals Tenth Circuit 

### March 11, 2019
Elisabeth A. Shumaker Clerk of Court2 which exceeded the advisory guide lines range, is substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. I. Background Bryan Stark, a Chief of Police with the Bureau of Indian Affair s, drove to a casino in Hammon, Oklahoma, in his marked patrol car, in respon se to a dispatcher’s report that a security officer at the casino, Samantha Candy, h ad reported observing marijuana in a white v ehicle in the parki ng lot. Chief Stark a rrived at the casino approximately 25 minutes later, parked near the entrance, and w ent inside. After a brief conversation with Ms. Can dy regarding the location of the white vehicle in the parking lot, Chief Stark and Ms . Candy walked outside. While t hey stood near Chief Stark’s patrol car, Ms. Candy phy sically pointed out the white vehicle in the parking lot. “At that time, the [vehicl e’s] lights came on, it started to drive off, and [Chief Stark] conducted a traffic stop.” R., Vol. 4 at 25. After the white vehicle came to a stop in t he parking lot, Chie f Stark got out of his patrol car and made contact w ith the female driver. Defend ant was a passenger in the car. The driver rolled down her window, and Chief Stark no ticed the odor of raw marijuana coming from inside the c ar. Another police officer, County Deputy Dillon Mach, arrived and approached the passenger side of the vehicle. Chief Stark directed the driver and Defendant to exit the vehicle and stand behind i t. Deputy Mach found a bag inside the vehicle, and Ch ief Stark discovered a brick of marijuana inside the bag. Chief Stark also saw some green leafy marijuana on the ve hicle’s floor.3 Defendant moved to suppress the ma rijuana seized from the vehic le. The district court denied the motion , holding that Chief Stark had (1) reasonable suspicion to stop the vehicle based upon Ms. Candy’s report of criminal activity, and (2) probable cause to arrest Def endant for possession of mariju ana and to search the vehicle based upon the smell of marijuana eman ating from it. Defendant pleaded guilty to one c ount of possession with intent to distribute marijuana. At sentencing, the d istrict court calculated Defend ant’s advisory guidelines sentencing range as zero to six months’ imprisonment . The court varied upward and sentenced him to ten months’ imprisonment.
II. Discussion A. Denial of Motion to Suppress In reviewing a district court’s denial of a motion to suppress, “we view the evidence in the light most favor able to the government, accept the district court’s findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness unde r the Fourth Amendment.” United States v. Saulsberry , 878 F.3d 946, 949 (10th Cir. 201 7) (internal quotation marks omitted). 1. Reasonable Suspicion for the Traffic Stop “In order to effect a lawful st op, police must h ave an objectiv ely reasonable and articulable suspicion that criminal activity is afoot. In determining whether reasonable suspicion exists, we look at the tota lity of the cir cumstances.” United
States v. Conner , 699 F.3d 1225, 1228 (1 0th Cir. 2012) (ci tation omitted).4 “Reasonable suspicion requires onl y some minimal level of objec tive justification.” Id. (internal quotations omitted). Defendant contends tha t Chief Stark’s stop of the white vehicl e in the casino parking lot was not supported b y reasonable suspicion because i t was based entirely on Ms. Candy’s report of crimi nal activity. He argues that Chi ef Stark was required to obtain further information fr om Ms. Candy to substantiate he r report, and that the government was required to produ ce evidence that she had provid ed reliable information in the pas t. Based on factors we generally conside r in assessing whether a tip from a citiz en informant provides reasonable suspicion to support a traffic stop, see Saulsberry , 878 F.3d at 950, we see no error in the district court’s hold ing. As always, this is a case-specific analysis, and “no single factor is dispositive.” Id. (internal quotation marks omitted). First, Ms. Candy was not an an onymous tipster. “The veracity o f identified private citizen informants . . . is generally presumed in the a bsence of special circumstances suggesting that t hey should not be trusted.” Id. (internal quotation marks omitted). Here, Chief Sta rk was aware that Ms. Candy is a security officer at the casino. See id. (noting tipster identified hims elf as an employee of a particu lar business, “distinguish[ing] himse lf from a truly anonymous info rmant who has not placed his credibility at risk” (internal quotation marks omitt ed)). Additionally, Chief Stark met with M s. Candy face-to-face. See United States v. Sanchez , 519 F.3d 1208, 1214 (10th Cir. 2008) (no ting the difference between in-p erson informants and5 anonymous calls). And her “implic it motive was the public inte rest (at least there is no reason to believe otherwise).” Saulsberry , 878 F.3d at 950. Ms. Candy also “reported [her] contemporaneous, firsthand knowl edge.” Id. (internal quotation marks omitted); see R., Vol. 4 at 25 (Chief S tark testifying, “The information I acted upon was my d ispatch telling me there was a vehicle in the parking lot, a white vehicle tha t Security Officer Candy had ob served marijuana in.”). Her tip was also suffici ently detailed: she reported s eeing marijuana in a particular vehicle, and she point ed to that vehicle in Chief St ark’s presence. See Saulsberry , 878 F.3d at 948, 950 (rejecti ng defendant’s contention that a report of “someone smoking marijuana in a b lack Honda with Texas license plates parked at an Arby’s” was not sufficiently detailed); Sanchez , 519 F.3d at 1211, 1214 (holding woman’s report that “she had seen a man wearing a gray shirt st riking a woman in the face at a nearby intersection” w as “not overly general”). Last , Chief Stark’s partial corroboration of Ms. Candy’s tip was also sufficient; she assis ted him in locating the white vehicle that she had descri bed in the casino parking lot. See United States v. Madrid , 713 F.3d 1251, 1261 (10th Cir . 2013) (holding tip was adequat ely corroborated “[a]lthough the calle r’s description of the possib le criminal activity . . . was not verified by the officers ”). The district court did not err in holding that Chief Stark had reasonable suspici on to stop the white vehicle.
2. Probable Cause to Search the Vehicle “Probable cause to search a veh icle is established if, under th e totality of the circumstances, there is a fair probability that the car contain s contraband or6 evidence.” United States v. Downs , 151 F.3d 1301, 1303 (10t h Cir. 1998) (emphasis, brackets, and internal quotation marks omitted). Defendant con cedes that “[t]he odor of marijuana is sufficient to e stablish probable cause to searc h the passenger compartment [of a] vehicle for e vidence relating to the possess ion of marijuana.” Aplt. Opening Br. at 13; see Downs , 151 F.3d at 1303. He ar gues, however, that Chief Stark’s inconsistent testi mony regarding whether he or De puty Mach discovered the bag containing the marijuana “call[s] the entire ty of his testimony into question.” Aplt. Opening Br. at 14. The district court disagreed, fi nding that Chief Stark’s testim ony was “generally credible with respe ct to what happened.” R., Vol. 4 at 54. Although Defendant pointed out i nconsistencies in Chief Stark’s testimon y at the suppression hearing, the court saw “no reas on to discount his testimony tha t . . . when he approached the car he smelled marijuana.” Id. We “defer to the d istrict court when reviewing the credibility of th e witness on whose testimony it relies in making its factual findings.” United States v. Pacheco , 884 F.3d 1031, 10 50 (10th Cir. 2018) (internal quotation marks omitted). Defendant fails to show c lear error in the court’s finding that Officer Stark’s tes timony regarding the marijuana smell emanating from the vehicle was credible. See United States v. Roberson , 864 F.3d 1118, 1121 (10th Cir. 2017) (“When reviewi ng the denial of a motion to sup press, we accept the district court’s . . . determina tions of witness credibility un less they are clearly erroneous.” (internal quo tation marks omitted)), cert. denied , 138 S. Ct. 2649 (2018).7 Accordingly, the district cour t did not err in finding that the search of the vehicle was supported by probable cause. Because the record supports bot h the district court’s reasonabl e-suspicion and probable-cause determinations, we affirm the district court’s d enial of Defendant’s motion to suppress.
B. Substantive Reasonableness of D efendant’s Ten-Month Sentence We review Defendant’s challenge t o the substantive reasonablene ss of his above-guidelines sentence fo r an abuse of discretion. See United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1216 (10th Cir. 2008). We “give due deference to the district court’s decisi on that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal quotation ma rks omitted). We will find that the district court “act ed within its discretion unles s the sentence was arbitrary, capricious, whimsica l, or manifestly unreasonable.” United States v. Franklin , 785 F.3d 1365, 1370 (10th Cir . 2015) (internal quotation mark s omitted). The district court calculated D efendant’s advisory guidelines s entencing range as zero to six months’ imprisonm ent. Finding that his criminal history was significant, the court sentenced Defendant above that range to ten months’ imprisonment—a sentence the cour t believed was necessary to pro tect the public from the risk of further crimes. See 18 U.S.C. § 3553(a)(1), (2)(C). Defendant acknowledges that the c ourt considered the § 3553(a) factors. He believes, however, that it should have given more weight to his history of alcohol abuse. But we will not substitu te our judgment for that of the sentencing court. See8 Gall v. United States , 552 U.S. 38, 51-52 (2007). Defe ndant also complains that his ten-month sentence is 67% greater than the top of the applicabl e guidelines range. But “deviations from the Guidel ines range will always appear mo re extreme—in percentage terms—when th e range itself is low.” Id. at 47-48. Defendant’s primary argument is t hat the district court varied upward to ensure that he would not be released f rom custody before the governmen t arrested him on new federal charges including ca pital murder. Defendant argues this was an improper factor for the court to consider, but he cites no case supporting that proposition. See Fed. R. App. P. 28(a)(8)(A) (re quiring citations to authoritie s supporting each argument); Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (declining to consider argum ents that are inadequately pr esented in appellant’s opening brief). In his reply brief, 2 Defendant argues that, even if the new federal charges related to his history a nd characteristics and the need to protect the public, the facts underlying the new char ges were not before the court. But contrary to this assertion, it is clear from the sentencing transcript that the district court was familiar with the new case. Moreover, we find no basis in the transcript to conclude that D efendant’s potential release before his arr est on the new charges actually influenced the district court’s sentencing decision. The court did not mention that is sue in discussing its reasons for sentenci ng Defendant. And while the status of his arrest on the new

2 “This court does not ordinarily r eview issues raised for the f irst time in a reply brief.” Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000).9 charges was raised at the sentencing hearing, the probation off icer also informed the court that Defendant was already subject to a detainer filed by the tribal court in another case. Defendant questi ons (again, only in his reply br ief) whether that detainer would have prevented h is release, but he does not show that the district court shared the same concern. Conse quently, we find no basis to inf er that the court sentenced Defendant above the gui delines range to prevent his r elease before his arrest on the new federal charge s. Defendant fails to show tha t his sentence is substantively unreasonable.
III. Conclusion The judgment of the distr ict court is affirmed.

Entered for the Court
Bobby R. Baldock Circuit Judge