UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOHN LEROY MILNE, Defendant - Appellant. No. 18-2037 (D.C. No. 2:17-CR-01923-RB-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , KELLY , and MORITZ , Circuit Judges.

________________ _________________ Defendant-Appellant John Leroy M ilne was convicted by a jury of conspiracy to distribute 100 kilograms or mor e of marijuana (Count 1), 21 U.S .C. § 846, and possession with intent to distri bute 100 kilograms or more of m arijuana (Count 2), 21 U.S.C. § 841(a)(1), (b)(1)(B), a nd 18 U.S.C. § 2. He was se ntenced to concurrent 78- month terms of imprisonment fo r each count, follo wed by four ye ars of supervised release for each count also to r un concurrently. 1 R. 270–71. On appeal, he challenges the district court’s decisions (1) denying his motion to suppre ss; (2) allowing the physical

* This order and judgment is not b inding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cit ed, however, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32. 1. FILED United States Court of Appeals Tenth Circuit 

### December 14, 2018
Elisabeth A. Shumaker Clerk of Court2 evidence to be brought in the c ourtroom and adm itting evidence that Mr. Milne had heroin in his wallet when arrest ed; (3) denying h is motion for judgment of acquittal; and (4) imposing an obstruction of j ustice sentencing enhancement, U.S.S.G. § 3C1.1. Our jurisdiction arises under 28 U.S. C. § 1291 and 18 U.S.C. § 3742 (a)(2), and we affirm.

Background Mr. Milne and a codefendant, Manue l Pavón-Rodriguez, were indic ted after Border Patrol agents found bundles of marijuana in the rear car go area of Mr. Milne’s vehicle and Mr. Pavón, an illegal alien, hiding in the back sea t. A. The Suppression Hearing Mr. Milne moved to suppress the bundles of marijuana and the pr esence of Mr. Pavón, arguing that Border Patro l Agent Matthew Defayette pulle d him over without reasonable suspicion and that a ll evidence deriv ed from his enc ounter was derivative evidence. See 1 R . 22–27. In the altern ative, Mr. Milne argue d that even if he were not seized initially, the encounte r developed into a seizure withou t reasonable suspicion. Id. at 25. The district court he ld a two-day hearing on the su ppression motion. See 3 R.
5–225. Agent Defayette testified that o n the morning of June 23, 2017, he was stationed in his vehicle at the intersection of State Line Ro ad and Highway 80 just south of Rodeo, New Mexico. Id. at 11, 14. Just before 8:00 a.m., he observed Mr. Milne pass him headed northbound on Highway 80 in a FordExplorer with tinted windows without any visible license plates. Id. at 14, 23. Agent Defayette furthe r testified that he got behind3 Mr. Milne’s vehicle and followed it northbound on Highway 80 fo r about a mile-and-ahalf to two miles before the veh icle pulled over at the Rodeo T avern. Id. at 15. Mr. Milne did not park in a parking space perpendicular to both the Rodeo Tavern and Highway 80, but rather paralle l to Highway 80. Id. at 18. Age nt Defayette parked approximately two car lengths b ehind Mr. Milne, facing the same direction, and he alerted his dispatch that he was conducting a “welfare check” o n Mr. Milne’s vehicle. Id. According to Agent Defayette, h e turned on his rear-facing emer gency lights to warn oncoming motorists of his presence on the side of the road , but he did not turn on his siren or his front-facing emer gency lights while he was dri ving or parking behind Mr. Milne. Id. 19, 49, 189. On cro ss-examination, Mr. Milne’s cou nsel questioned the agent about a photograph taken an hou r after his encounter with Mr. M ilne that clearly shows his front-grille lights illumina ted. Id. at 43–45. Agent Defa yette testified on redirect that, although he did not remember tur ning his lights on, he was sure that he did not turn them on prior to his encounte r with Mr. Milne. Id. at 51. Upon pulling over, Mr. Milne exited his vehicle and approached the driver’s side of the agent’s vehicle. Id. at 18–19. Agent Defayette asked M r. Milne if everything was okay, to which Mr. Milne responded that he was stopping to get something to drink. Id. at 19. The agent thought Mr. Miln e’s response “kind of odd,” a s the Rodeo Tavern was neither a grocery store nor open at that time in the morning. Id. at 19–20. In the ensuing colloquy, Agent Defayette though t that several responses of Mr. Milne were odd: (1) Mr. Milne indicated that he was trav eling from Benson, Arizona to P hoenix, Arizona, but Rodeo is east of both Benson a nd Phoenix; (2) Mr. Milne claimed he was looking for4 work in Rodeo, but Rodeo is a sm all town lacking many opportuni ties for work; and (3) Mr. Milne appeared nervous a nd was sweating throughout the conversation, but the weather was not hot at the time . Id. at 20–21. According to A gent Defayette, the tone of the conversation was “normal.” Id. at 21. Agent Defayette asked Mr. Milne i f he was transporting anything illegal or if anyone else was inside the vehi cle, and if he could look inside . Id. Mr. Milne declined. When asked for identif ication, Mr. Milne told the agent that he lacked identification, but he gave his name and date of b irth. Id. at 22. As Agent Defay ette was about to run a records check, Border Patrol Ag ents Roger Evan Jay, Jr., and Re ne Rocha arrived. Id. at 22, 47, 56. Agent Jay informed Agent Defayette that Mr. Mil ne had a temporary license plate taped on the inside of the back gla ss of his vehi cle, but Agent Defayette testified that it was difficult to see because of the tinted gl ass. Id. at 23. According to Agent Defayette, Mr. Milne offered to retrieve the temporary li cense plate out of the window. 1 Id. at 23–24; 35. Mr. Milne th en opened the glass portion of his vehicle’s back hatch about four inches “just so he could get his hand in there ,” at which point Agent Defayette noticed numerous burla p sacks in the vehicle’s rear c argo area. Id. at 24. Agent Defayette asked him about the sacks, and Mr. Milne told h im that they were “bales.” Id. at 25. Agent Defayette testified that such sacks are normally used in narcotics smuggling. Id. at 24. Agent Defayette then asked hi m if there was anyone else

1 Agent Jay testified at the sup pression hearing that he asked Mr. Milne if he could pull out the temporary license plate, to which Mr. Milne consented. 3 R. 61.5 inside the vehicle, to which M r. Milne responded that there was a person lying in the back seat. Id. at 25. The agents subsequently arrested Mr. Mi lne. Id. at 25–26. Agent Jay also testified at the suppression hearing. Germane t o this appeal, he testified that he activated his rear-facing emergency lights wh en he and Agent Rocha arrived at the Rodeo Tavern. Id. at 57, 67. According to Agen t Jay, he and other Border Patrol agents typically activat e their rear-facing emergency li ghts before exiting their vehicles near a road as a “precau tion” to alert oncoming vehicl es of their presence. Id. at 57–58. He also testified tha t he observed Agent Defayette’s rear-facing emergency lights but did not notice any activated front-facing lights. I d. at 59. Contrary to Agent Defayette’s t estimony, Mr. Milne testified th at Agent Defayette turned on his front-grille emerg ency lights, forcing Mr. Milne to pull over. Id. 145–47, 177. He explained that he parkedparallel to Highway 80 rather than in a parking space because Agent Defayette had pu lled him over, and that he was aw are that the Rodeo Tavern was closed. Id. at 149. He also denied stating that he stopped for a drink, and he testified that if he were thirsty , he would have gone to a near by grocery store. Id. at 150. The district court found that the Border Patrol agents were mor e credible than Mr. Milne, and that it would resolve any factual disputes in favor of the Border Patrol agents’ testimony. United States v. Miln e, No. CR 17-1923 RB, 2017 WL 4675745, at *1 (D.N.M. Oct. 16, 2017). Accordi ngly, it found that Mr. Milne p ulled over voluntarily and exited his vehicle of his o wn accord. Id. at *5. It furth er found that Mr. Milne was free to leave his encounter with Agent Defayette. Id. Next, i t reasoned that Mr. Milne had volunteered suspicious answe rs to Agent Defayette’s questio ns such that, even if Mr.6 Milne was detained for Fourth Am endment purposes when Agents Jay and Rocha arrived, such detention was sup ported by reasonable suspicion. Id. at *6. Finally, it found that Mr. Milne voluntarily r etrieved his temporary licens e plate, which allowed the officers to observe the burlap sacks in his v ehicle. Id. at *7 . The sacks, in conjunction with Mr. Milne’s statements that they contained “bales” and tha t there was a man lying down in his back seat, created pro bable cause to believe that the vehicle contained evidence of a crime. I d. Because “[a]t no stage of the intera ction did Border Patrol violate Messrs. Milne and Pavón’s Fourth Amendment rights,” the court denied Mr. Milne’s motion to suppress. Id.
B. The Trial Prior to trial, the government in formed the court that it inten ded to display the marijuana seized from Mr. Milne’s vehicle, 3 R. 231–32, which w as in 11 duct-taped bundles. 2 4 R. 143, 157. It also informed the court that the Border Patrol had destroyed the burlap sacks surrounding the bundles pursuant to agency pra ctice. 3 R. 231–32. Mr. Milne objected to their admissi on at trial, arguing that “[w]e don’t know if the smell is going to be the same as it was” a t the time of his arrest, and that he did not know how the government ascertained the con tents of the bundles. 4 R. 63–64 . The court overruled his

2 In his brief, Mr. Milne character izes the marijuana as “seale d,” both in the courtroom and in his vehicle when covered by the burlap sacks. Aplt. Br. at 16, 30, 39. Such terminology is misle ading. The record andthe parties’ briefs make clear that the marijuana was divided into “bund les,” each wrapped in duct tape , and that these bundles were surrounded by burlap while in the rear cargo area of Mr. M ilne’s vehicle. See, e.g., United States v. Milne, 297 F . Supp. 3d 1146, 1148 (D.N.M. 2017 ); Aplt. Br. at 16, 51– 52; Aplee. Br. at 7, 1 3; 1 Supp. R. 42–43.7 objection, reasoning that the mar ijuana was relevant to Mr. Mil ne’s knowledge of the bundles’ contents, that Mr. Milne could argue to the jury that the marijuana’s smell had changed over time, and that add itional testimony would elucidat e the government’s testing methodology. Id. at 64. At trial, Agent Defayette testifi ed as he did at the suppressio n hearing, id. at 46– 62, 65–80, including how Mr. Milne retrieved his temporary lice nse plate. 3 Id. at 57. In addition, the governmen t brought the bundle s of marijuana into the courtroom during his testimony. Id. at 65. Agent De fayette testified that the bund les were the same bundles that he recovered from Mr. Milne’s vehicle, but that they were missing their burlap covering. Id. at 66. He also testi fied that marijuana smells stronger in smaller areas than larger ones. Id. Supervisory Bor der Patrol Agent Edward Marsh all also testified that the smell of marijuana was stronger w ithout the burlap sacks, and that the sacks altered the odor in degree, not in ki nd. Id. at 113, 115–16. Counsel for Mr. Pavón, Mr. Milne’s codefendant, sought to cross -examine Agent Defayette about 0.2 grams of her oin found in Mr. Milne’s wallet after Mr. Milne’s arrest. Mr. Pavon’s counsel argued that the evidence was relevant to Mr . Milne’s credibility, while Mr. Milne argued that it wa s unduly prejudicial compared to its probative value. Id. at 71–72. The court allowed the questions pur suant to Fed. R. Evid. 404(b) over Mr.

3 Agent Rocha also testified that Mr. Milne had trouble pulling out the temporary license plate, as he did so by opening on ly the “top part of the window , the hatch” and reaching up to about his e lbow. 4 R. 93.8 Milne’s objection, id. at 73, 77 , but it included in its final charge to the jury that Mr. Milne was “not on trial for any act, conduct, or crime not char ged in the Indictment.” 4
Id. at 442. Agent Jay testified at trial tha t there was a “very strong” mar ijuana odor in Mr. Milne’s vehicle at the time o f the search. Id. at 85. He also testified that Mr. Pavón was wearing camouflage when the agents found him in the back seat o f Mr. Milne’s vehicle, “which is notorious . . . for smugg ling of narcotics.” Id. at 86. The government also presented ev idence that the bundles contain ed about 246 pounds of marijuana, or over 1 11 kilograms. Id. at 61, 137. D rug Enforcement Agency (DEA) Special Agent Billy Ray Hopk ins testified that, pursuant to DEA policy, he sent 11 samples to a laboratory to test for narcotics. Id. at 137. All 11 samples came from one bundle, id. at 138, and all te sted positive for marijuana. Id. at 134, 193–99.

4 The cross-examination regardin g the heroin consisted of the f ollowing line of questioning: Q. [W]hen the other d efendant, Mr. Milne, was searched, you fou nd something in his wallet, didn’t you? A. Yes, sir. Q. And it was a tiny amount that was field-tested for positive for [sic] heroin? A. Yes, sir. Q. And it was like, what, .2 g rams or a very small amount? A. Yes, sir. It was a small amount.
4 R. at 77–78.9 The government also called DEA Sp ecial Agent Joseph Montoya, wh o testified as a drug-investigations expert. Id . at 217. He provided informa tion about “backpackers” and drug couriers, including th eir method of transportation, th eir frequent use of camouflage, the value of differe nt controlled substances, and f avored drug-smuggling routes, including Highway 80. Id. at 214–15, 217–226. After the government rested, Mr. M ilne moved for a judgment of acquittal on both charges, arguing that no reasonab le jury could find that (1) Mr . Milne conspired to commit a crime; (2) the offenses involved at least 100 kilogram s of marijuana; and (3) Mr. Milne knowingly possesse d marijuana. Id. at 240–41. T he district court denied the motion as to the conspiracy c harge, id. at 243, and it took the motion as to the quantity of marijuana under a dvisement. Id. at 245. Mr. Milne testified that he had re cently divorced, that he was homeless, and that he was recently convicted of amphetamine possession and an esca pe charge. Id. at 250. He had been working as a handyman, and he t estified that he had driven to southern Arizona and New Mexico in searc h of handyman or ranch work. Id . at 251–52. On the day before his arrest, he drove east on Interstate 10 (“I-10”) from Tucson, Arizona, through Benson and Willcox, Ariz ona, then south onto Highway 80 through Rodeo to Apache, Arizona, before return ing to Willcox for the night. Id . at 254–61. He testified that the following day, he drove back east on I-10. He observe d at the intersection of I10 and Highway 80 three men st anding in front of a temporary te nt selling rugs and paintings. Id. at 262, 264. He as ked them about work opportun ities, and they told him that they needed feed delivered from a ranch house at the south end of Rodeo to a house10 on Highway 80 at the north endof Rodeo. Id. at 264–65. He ag reed and drove south on Highway 80 until he came to the r anch house, where he testified he saw five to six “regular guys” wearing jeans o r cargo pants, a few wore cowboy hats, and one wore a baseball cap. Id. at 269–70. Acc ording to Mr. Milne, he opene d his trunk, and the men loaded burlap sacks into the bac k of his vehicle without his he lp. Id. at 271–72. He described the sacks as smelling “dirty” and “musty” but not lik e the burning marijuana he had smelled at concerts he ha d attended. Id. at 272. After th e men loaded the sacks, Mr. Milne testified that a Spanish-s peaking man — Mr. Pavón — enter ed his vehicle and lay down. Id. at 273. Mr. Milne assume d the man was a ranch hand who would help to unload the bales, and he did not object or ask any questions as to the man’s presence. Id. at 273–74. Mr. Milne then recoun ted pulling over for Agent Def ayette. Id. at 275–79. Mr. Pavón also testified. He tes tified that he paid a smuggler to take him from Agua Prieta, Mexico, to Phoeni x. Id. at 338–40. He traveled w ith a group from Mexico to the driveway of the ranch hou se in Rodeo, where Mr. Milne arrived in his Ford Explorer. Id. at 341–43. Like Mr . Pavón, the other members of the group were wearing camouflage. Id. at 346. When Mr. M ilne arrived, some members of his group collected sacks from behind shrubs and load ed them into Mr. Milne’s vehic le, and Mr. Pavón’s smuggler told him to get in Mr. Milne’s vehicle. Id. at 343. According to Mr. Pavón, Mr. Milne told him to lie down . Id. Mr. Pavón testified that “you couldn’t really smell” the marijuana in the vehicle . Id. at 344. He further testifie d that Mr. Milne told him, “a moment,” after he pulled over a t the Rodeo Tavern, which Mr. Pa vón interpreted to mean that he should wait in the vehicle. Id. at 351.11 At the close of Mr. Milne’s case, the government informed the c ourt that it had, in the interim, tested each bundle , and it was prepared to call a witness to testify as to their contents. Id. at 364–65. Mr. Milne objected, arguing that the government already had an opportunity to present such evi dence. Id. at 3 65–66. He then renewed his motion for acquittal. Id. at 366. The court held that it would not allow the government to reopen, and it allowed the jury to re nder a verdict. Id. at 367–79. The jury acquitted Mr. Pavón, but not Mr. Milne. Id. at 511. Mr. Milne filed a renewed motion for mistrial, 5 1 R. 160, which the court denied. Id. at 215. At sentencing, the district court acc epted the government’s argume nt that Mr. Milne’s offense level should include a t wo-level enhancement for obstru ction of justice because of perjured testimony . The district court explained that Mr. M ilne “was not truthful in his testimony pretty much from the ti me that he left Phoenix until he was arrested,” and that “he was misleading the jury” w ith respect to his reasons for be ing in Rodeo and his purported ignorance as to the marijuana and the purpose of Mr. Pavón’s presence in his vehicle. 4 R. 526.

Discussion Mr. Milne raises four issues on ap peal. We consider each in tu rn.

5 Mr. Milne had filed a motion for mistrial during trial, argui ng that government agents had stored the marijuana bundles adjacent to the courtroom, whe re they “loudly” opened and field-tested them, in a manne r that allowed jurors to smell them upon exiting the courtroom and that “significan tly altered an admitted exhibit.” See 1 R. 161–62. The court took the matter under advisem ent and modified the jury in structions to mitigate any potentially prejudicial e ffects. 4 R. 421–35.12 A. Motion to Suppress Whether and when a defendant was unreasonably “seized” under th e Fourth Amendment is a question of law w e review de novo. United State s v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017). H owever, on appeal from the denial of a motion to suppress, we view the evidence in the light most favorable to the district court’s ruling, id., and we accept its findings o f fact and determinations of w itness credibility unless clearly erroneous. United States v. Chavez, 534 F.3d 1338, 134 3 (10th Cir. 2008). A district court clearly errs if i ts findings lack support in the record, or, “after reviewing all the evidence, we are left with a definite and firm conviction t hat a mistake has been made.” United States v. Cash, 733 F.3d 1264, 1273 (10th Cir. 2 013) (quoting United States v. Tafoya, 557 F.3d 1121, 1126 (10th Cir. 2009)). The Fourth Amendment prohibits unreasonable seizures by the gov ernment. U.S. Const. amend. IV. A seizure onl y occurs when an officer, “by m eans of physical force or show of authority, has in some wa y restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). In the absence of physical force, a seizure occurs only upon a showing that (1) an officer dis played his authority, and (2) th e citizen submitted to such show of authority. United State s v. Salazar, 609 F.3d 1059, 10 64 (10th Cir. 2010). Because the government concedes that Agent Defayette lacked rea sonable suspicion to pull over Mr. Milne’s vehicle, 6 the sole issue is whether Mr. Milne pulled

6 The stopping of a vehicle, eve n if brief, constitutes a seizu re, Delaware v. Prouse, 440 U.S. 648, 653 (1979), and must be evaluated for reasonableness. Such evaluation “depends on a balance between th e public interest and the indiv idual’s right to personal13 over voluntarily. Whethe r Agent Defayette turned on his front- grille emergency lights is highly relevant. Mr. Milne conte nds he did not pull over volun tarily, but in response to Agent Defayette’s emergency lig hts. In support, he relies uponthe following evidence: (1) he stopped in the parking l ot of a closed restaurant; (2) h e parked on the side of and parallel to Highway 80 rather t han in a parking space; and (3) the photograph that clearly shows Agent Defayette had activ ated his front-grille emergency lights. Aplt. Br. at 34– 35. Undoubtedly, such evidence plausibly s upports his account. But the district court heard testimony that contradict ed his account, and it credited that testimony over his testimony. Agent Defayette unequ ivocally denied that he had ac tivated his front-grille emergency lights prior to stopp ing behind Mr. M ilne, and the other agents testified that they did not notice his front-g rille emergency lights activated . In addition, Mr. Milne’s unprompted exiting of h is vehicle belied hi s contention that he had been unconstitutionally seized. Faced w ith two plausible views of the evidence, the district court credited the testimony of t he agents, which was consisten t, and we cannot find clear error. The denial of the suppre ssion motion must be upheld.

security free from arbitrary inte rference by law officers.” Un ited States v. BrignoniPonce, 422 U.S. 873, 878 (1975). B ecause Border Patrol agents serve a “special function” of preventing illegal al ien traffic a nd contraband smuggling, they lack authority to enforce traffic laws. Id. at 883 & n.8. We have long held that a Border Patrol agent may stop a vehicle only upon reas onable suspicion that the vehi cle is involved in illegal trafficking or smuggling. See U nited States v. Cantu, 87 F.3d 1118, 1121–22 (10th Cir. 1996).14 B. Evidentiary Decisions We review a district court’s decision to admit or exclude relev ant evidence under Fed. R. Evid. 403 for an abuse o f discretion. United States v. Archuleta, 737 F.3d 1287, 1292 (10th Cir. 2013). “A district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifes tly unreasonable judgment.” U nited States v. Silva, 889 F.3d 704, 709 (10th Ci r. 2018) (quoting Ralst on v. Smith & Neph ew Richards, Inc., 275 F.3d 965, 968 (10t h Cir. 2001)). Mr. Milne argues that the distric t court abused its discretion regarding the bundles of marijuana because the prejudi cial effect of the bundles with out their burlap sacks substantially outweighed their p robative value. Given the impo rtance of knowledge in this case, Mr. Milne argues that because the smell was stronger in court than in his vehicle, the jury’s conclusion as to his knowledge was affected . Mr. Milne also challenges the relevance of the m arijuana’s smell, as he only t estified to knowing the smell of burning marijuana, a p oint further bolstered by the fa ct that he described the bundles’ smell as “dirty” and “musty.” 7 Mr. Milne’s arguments are not per suasive. Under Fed. R. Evid. 403, “[t]he court may exclude relevant evidence i f its probative value is substan tially outweighed by”

7 Mr. Milne also cites a Seventh Circuit case inwhich the cour t held open containers of marijuana were unfairly prejudicial. Aplt. Br. at 40–41 (citin g United States v. Garcia, 986 F.2d 1135, 1141–42 (7th C ir. 1993)). Howeve r, the Seventh Circuit did not find the marijuana’s odor per se prejudi cial, but rather that the distri ct court erred by allowing the marijuana to remain in the cour troom and uncovered throughout the defendant’s case-inchief. Garcia, 986 F.2d at 1141–42.15 certain factors, including unfai r prejudice and misleading the jury. Fed. R. Evid. 403. As the government correctly notes, this court has held that the ad mission of actual drug evidence generally is not more prejudicial than probative, and that deficiencies of the evidence speak to its weight, not its admissibility. Aplee. Br . at 28; see also United States v. Thomas, 749 F.3d 1302, 1310 (10th Cir. 2014). Here, the smell and appearance of the bundles — the same bundl es recovered from Mr. Milne’s ve hicle — were highly probative both as to whether M r. Milne was aware of the nature of his cargo, and as to whether the untested bundles in fact contained marijuana. Further, Agent Jay testified that he smelled marijuana in M r. Milne’s vehicle, 3 R. 63, and Agent Marshall testified that the burlap sacks only altere d the pungency, not the nature of the odor. 4 R. 113, 115–16. Witnesses also testified that the bundles likely smell ed stronger without the burlap sacks, thereby allowing t he jury to discount the probati ve nature of the smell if it chose to do so. Aplee. Br. at 27 –28. In short, this issue was for the jury, which was aided by the physical evidence, and the district court did not abuse its discretion in allowing the contraband to be present. Mr. Milne also argues that the c ourt erred by allowing Mr. Pavó n’s attorney to question Mr. Milne about the heroi n on his person at the time o f his arrest. He characterizes the heroin as eith er irrelevant, highly prejudici al, or impermissible propensity evidence. Aplt. Br. a t 41–44. The government count ers that it was relevant to show absence of mistake and inten t to distribute marijuana. Ap lee. Br. at 34. In the alternative, it argues that its i ntroduction was harmless becau se the heroin played a minor role at trial, Mr. Milne volunteere d that he was recently convi cted for amphetamine16 possession, which is arguably more prejudicial than Mr. Pavón’s questioning, the court mitigated any risk of u nfair prejudice through its limiting ins truction, and the evidence of Mr. Milne’s guilt was otherwise ov erwhelming. We agree with th e government: the testimony likely had little effect on the jury’s verdict so any error in admitting the heroin possession is harmless when placed in context and would not war rant reversal. Fed. R. Crim. P. 52.
C. Sufficiency of the Evidence We review a denial of a motionfor judgment of acquittal by eva luating the evidence on the record as a whol e, but we only review the evide nce at the time the defendant’s motion was made if the court reserves ruling on the motion. United States v. Delgado-Uribe, 363 F.3d 1077 , 1082 (10th Cir. 2004). According ly, we review Mr. Milne’s challenge as to the pro of of knowledge by evaluating th e record as a whole, but we review Mr. Milne’s challenge a s to the drug-quantity evidenc e only by evaluating the government’s evidence. 8 We review all of the evidence (d irect and circumstantial) in the light most favorable to the gove rnment to determine whether a r easonable trier of fact could find guilt beyonda reasonable doubt. United States v. R ufai, 732 F.3d 1175, 1188 (10th Cir. 2013).

8 The government notes that ou r review of this latter challenge is actually fo r plain error, as Mr. Milne did not renew his mo tion on this issue. Because “ review under the plain error standard . . . and a review o f sufficiency of the evidenc e usually amount to largely the same exercise,” United Stat es v. Rufai, 732 F .3d 1175, 1189 (10th Cir. 2013) (quoting United States v. Duran, 133 F. 3d 1324, 1335 n.9 (10th Cir. 1998 )), such distinction does not affect our analysis.17 Mr. Milne argues that no reasonab le jury could have concluded e ither that he knew the burlap sacks contained mariju ana or that every bundle conta ined marijuana, and thus that the court should have sentenc ed him pursuant to his posses sion only of the one tested bundle. We agree that the gover nment’s sampling allowed the ju ry to hear direct evidence only as to the contents of one of the bundles recovere d from Mr. Milne’s vehicle. But we do not require p roof by direct e vidence as to every item of contraband. The district court instructed the jury to consider direct and c ircumstantial evidence equally, and to draw reasonable in ferences from such evidence. 1 R. 180. Here, the jury heard enough circumstantial evid ence that proved Mr. Milne know ingly committed both crimes. Although we mi ght question why the government sampled only from one bundle initially, 9 the jury heard circumstantial evidence supporting the conclusi on that all bundles in fact contained mar ijuana, and that Mr. Milne knew th ey contained marijuana. This evidence included Mr. Milne’ s words and conduct during his conversation with Agent Defayette, the similar appe arance of all the bundles, age nts’ testimony that Mr. Milne’s vehicle smelled like ma rijuana, and Mr. Pavón’s testimo ny. Particularly because our standard of review requires us to view the evidence in the light most favorable to the

9 The government offers many examples in which this court has h eld that sampling — some of which was as low as 1% o f the total seized substances — sufficiently proved that all seized substances consisted of illegal narcotics. Aplee. B r. at 44–45. Mr. Milne is correct to criticize the govern ment for failing to conduct a ra ndom sample. Aplt. Br. at 49–50. Nevertheless, our cir cuit does not require such rand om sampling; rather, it has held that the “government must e stablish that a sampling techni que used to determine the existence and quantity of drugs i s reasonably reliable.” Unite d States v. Garner, 223 F. App’x 792, 795 (10th Cir. 2007) (unpublished) (emphasis added). That the government only sampled one bundle speaks onl y to the weight of the eviden ce.18 prevailing party and consider a ll evidence, direct and circumst antial, we hold that there was ample evidence supporting the jury’s conclusion, and the di strict court’s denial of Mr. Milne’s motions for acquittal and its sentence that account ed for his possession of over 100 kilograms of marijuana must be upheld.
D. Obstruction of Justice Enhancement We review the facts underlying a n obstruction of justice enhanc ement for clear error; legal conclusions concerni ng the Sentencing Guidelines a re reviewed de novo. United States v. Haw thorne, 316 F.3d 11 40, 1145 (10th Cir. 2003 ). Mr. Milne argues that the distric t court erred by increasing hi s sentence solely because it found him to be not c redible. Section 3C1.1 of the Sentencing Guidelines permits a district court to inc rease an offense level by two le vels if it finds that “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with re spect to the investigation, pr osecution, or sentencing of the instant offense of convictio n.” U.S.S.G. § 3C1.1 (2014). A finding of perjury is sufficient to trigger this guidelin e enhancement . United State s v. Rodebaugh, 798 F.3d 1281, 1300 (10th Cir. 2015). A def endant perjures himself when he (1) gives false testimony under oath; (2) about a material matter; and (3) his false testimony was willful. Id. Mr. Milne argues that the distric t court erred by not specifyin g what portions of his testimony were not truthfu l. Aplt. Br. at 54. This court requires that sentencing courts “be explicit about which representations by the defendan t constitute perjury.” Hawthorne, 316 F.3d at 1146. But a sentencing court is not required to “specifically19 identify” the perjurious stateme nts, so long as it identifies the statements “at least in substance.” United States v. Mas sey, 48 F.3d 1560, 1573 (10th Cir. 1995). That said, the district court specifically identified many of M r. Milne’s statements, including his desire to find workin Rodeo, his belief that the bales were animal feed, and that he did not know Mr. Pavón wa s an illegal alien. 4 R. 526. In light of this circuit’s requirements for a § 3C1.1 enhan cement for obstruction of justi ce, the district court went “above and beyond in identifying the portions of Milne’s trial testimony upon which it based the obstruction enhancem ent.” Aplee. Br. at 50. The dis trict court’s obstruction of justice enhancement must be upheld.
AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge