United States v. Timothy Jevon Sewell ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 23, 2007
___________________________
THOMAS K. KAHN
CLERK
No. 05-16070
___________________________
D.C. Docket No. 03-00232-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY JEVON SEWELL,
Defendant-Appellant.
_____________________________
Appeal from the United States District Court
for the Middle District of Alabama
_____________________________
(February 23, 2007)
Before CARNES, PRYOR and FARRIS*, Circuit Judges.
PER CURIAM:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
Timothy Sewell appeals his conviction and sentence for conspiracy to
possess methamphetamine with intent to distribute, possession of
methamphetamine with intent to distribute, and possession of a firearm by a
convicted felon. We affirm.
The record shows that Sewell engaged in coordinated conduct that went
beyond simple “buy-sell” transactions. He frequently traveled with John Tierce to
Atlanta to buy methamphetamine, sometimes pooling his and Tierce’s money to
make purchases. He also enlisted his girlfriend, Jamie Davis, to hold large
amounts of money and drugs for him. There is sufficient evidence, if believed, to
convict Sewell of conspiracy.
The district court gave the standard Eleventh Circuit jury instruction on the
elements of conspiracy. This instruction sufficiently addressed the substance of
Sewell’s requested “buyer-seller” instruction. See United States v. Brazel, 102
F.3d 1120, 1140 (11th Cir. 1997); United States v. Lively, 803 F.2d 1124, 1128-29
(11th Cir. 1986).
Evidence of witness intimidation is generally admissible to show a
defendant’s consciousness of guilt, see Brazel, 102 F.3d at 1154. There is no
showing that Sewell’s particular acts of intimidation were so unduly prejudicial
that they should have been excluded under Fed. R. Evid. 403.
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This court’s precedent clearly establishes that escape is a crime of violence
for purpose of applying the Career Offender Guideline, U.S.S.G. § 4B1.1. See
United States v. Gay, 251 F.3d 950, 954 (11th Cir. 2001).
Sewell’s alleged miscalculation arguments are all moot. The district court
subjected Sewell to the Career Offender Guideline, U.S.S.G. § 4B1.1. Under the
Career Offender Guideline, Sewell’s offense level was automatically set at 34 and
his criminal history was automatically set at VI, regardless of how his offense
level and criminal history would otherwise have been calculated. See U.S.S.G. §
4B1.1(b).
Sewell provides absolutely no reasoning as to why his 250-month sentence
was unreasonable. The party challenging the sentence has the burden of showing
that it is unreasonable, United States v. Pope, 461 F.3d 1331, 1333 (11th Cir.
2006).
Sewell argues that his assistance was substantial, and “[t]here is no way the
Government can claim that it was honestly dissatisfied with his performance.”
This bare allegation of substantial assistance is insufficient to compel the
Government to make a substantial-assistance motion. As the Supreme Court has
said, “[A] claim that a defendant merely provided substantial assistance will not
entitle a defendant to a remedy or even to discovery or an evidentiary hearing. . . .
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although a showing of assistance is a necessary condition for relief, it is not a
sufficient one.” Wade v. United States, 504 U.S. 181, 186-87, 112 S.Ct. 1840,
1844 (1992).
AFFIRMED.
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