United States v. Edward W. Lemmons

230 F.3d 263, 2000 U.S. App. LEXIS 24905, 2000 WL 1476650
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 5, 2000
Docket99-2078
StatusPublished
Cited by13 cases

This text of 230 F.3d 263 (United States v. Edward W. Lemmons) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Edward W. Lemmons, 230 F.3d 263, 2000 U.S. App. LEXIS 24905, 2000 WL 1476650 (7th Cir. 2000).

Opinion

COFFEY, Circuit Judge.

Edward Lemmons, his son, and two co-defendants were indicted for, and entered a plea of guilty to, the crime of conspiracy to manufacture and distribute methcathi- *265 none, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Lemmons was sentenced to 70 months’ imprisonment, the lowest possible sentence within the applicable guideline range. He challenges only the sentencing court’s determination that he was “an organizer, leader, manager, or supervisor” in the criminal activity and the consequent imposition of a two-level upward adjustment under U.S.S.G. § 3Bl.l(c).

Following their indictment on the conspiracy and distribution charges, all three of the other members of this conspiracy pled guilty. The defendant in this case, Edward Lemmons, was the last to do so. According to his PSR, between May 1996 and May 1997, Edward Lemmons, Jerry Lemmons (Edward’s son), Jerry Catlett and Jim Smith engaged in a conspiracy to manufacture, possess, and distribute meth-cathinone in southern Indiana. Edward told the police of numerous people who bought and sold methcathinone for him and reported that he was responsible for financing the methcathinone ring. All of the ingredients for manufacturing meth-cathinone were found in a Wells Fargo trailer owned by Edward and parked on his property. The defendant had purchased the trailer in Florida toward the end of the one-year conspiracy, along with four 55-gallon drums of a precursor chemical, that were stored in his home in Trinity Springs, Indiana. At the time of their arrest, however, his son Jerry Lemmons had the keys to the trailer.

Edward Lemmons would pay Catlett cash for acquiring the precursor chemicals, and would give Smith money or methcathi-none for trips to Bloomington, Indiana and Louisville, Kentucky. Pursuant to the instructions of Edward Lemmons, each of the named defendants traveled to Louisville and Bloomington to purchase the chemical ingredients for the manufacture of methcathinone and to deliver methcathi-none to Edward Lemmons’ other customers. Several other people not named in the indictment also traveled to Kentucky to purchase precursor chemicals at Edward Lemmons’ behest.

Jerry Catlett had no contact with and did not know Edward Lemmons prior to the time that Edward posted the bond for his release. After his release, Jerry Cat-lett distributed methcathinone for Edward. At the time of their arrest, Catlett and Edward had stored the material necessary for the manufacturing of methcathinone in the trunk of a car on Edward’s property. Catlett eventually purchased a 9mm handgun from Edward and made three additional trips on Edward’s behalf to purchase more guns for him. Toward the end of the conspiracy, in the spring of 1997, Catlett moved in with Edward at his Trinity Springs, Indiana, residence where the methcathinone was manufactured.' Smith also resided with Edward off and on throughout the course of the conspiracy.

As previously stated, the defendant entered a plea of guilty 1 and, based on the record, the trial court calculated his base offense level at 26 for the 631 grams of methcathinone capable of being produced by the chemicals in the trailer. The court then decreased the offense level by 3 levels finding that Edward Lemmons had accepted responsibility for his crimes, imposed a twolevel upward adjustment for possession of firearms, and, over the defendant’s objection, also imposed a two-level adjustment for his role in the offense as a manager or supervisor. Lemmons’ adjusted offense level was 27, which, with a criminal history category of I, set the guideline range at 70 to 87 months, and the court sentenced him to 70 months’ imprisonment and three years’ supervised release. He appeals only the court’s imposition of the two-level adjustment for being a manager or supervisor under U.S.S.G. § 3B1.1.

The district court’s factual determination that Lemmons qualified for an aggravating role adjustment under U.S.S.G. § 3B1.1 is reviewed under the clear error standard. See United States v. Roth, 201 *266 F.3d 888, 891 (7th Cir.2000). The defendant’s sole argument on appeal is that the district court erred in determining that he warranted an aggravating role adjustment under § 3B1.1. He divides this argument into three subparts. First, he asserts that the information in his PSR was insufficient to form the factual basis for the court’s finding that he was a supervisor within the conspiracy. Second, he argues that there is no factual support for determining that his co-defendants’ roles were less supervisory. And finally, he argues that the court improperly relied on facts gleaned from Jerry Lemmons’ PSR because he was not given an opportunity to challenge them.

On appeal, Lemmons initially argues that the information in the PSR was insufficient to sustain the court’s finding that he was a “supervisor.” We disagree because the PSR lists a number of factors reflecting his supervisory position, including: (1) Edward Lemmons alone financed the operation; (2) all of the precursor chemicals and equipment for manufacturing the methcathinone were stored on Edward Lemmons’ property; (3) each of the other three defendants at some point lived with Edward Lemmons on his property; (4) each of the other three defendants performed services under Edward Lemmons’ direction in furtherance of the conspiracy, including acquiring the precursor chemicals as well as the stolen guns; (5) each of the other three defendants sold or distributed the methcathinone that Edward Lemmons manufactured; and (6) above all, he directed and supervised the actions as listed herein. The defendant’s response is that the other defendants purchased the precursor chemicals “for” him only in the sense that the co-defendants were going to be in Kentucky anyway, and that they simply made the purchases as a favor. The district court’s factual finding that he did in fact direct the purchases of precursor chemicals was based largely on the court’s credibility determinations, namely that Lemmons’ explanation of the events was less believable than that of the other defendants, and this court refuses to disturb such credibility determinations except in very unusual circumstances. See United States v. Kamoga, 177 F.3d 617, 622 (7th Cir.1999). Nothing in this record leads us to conclude that the district court’s decision to credit the other defendants’ testimony over that of Edward Lemmons was clearly erroneous. See United States v. Matthews, 222 F.3d 305, 307 (7th Cir.2000) (“If the fact finder chooses between two permissible views of the evidence, the choice is not clearly erroneous.”).

Even assuming that the information in Edward Lemmons’ PSR alone was insufficient to establish that the co-defendants were acting under the defendant’s direction, the district court was obviously entitled, and required, to review the entire record before it. As we have stated before:

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Bluebook (online)
230 F.3d 263, 2000 U.S. App. LEXIS 24905, 2000 WL 1476650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-edward-w-lemmons-ca7-2000.