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 2018-05

United States v. David Lemmon ( 2018 )


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  •                   United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2457
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
David Hurl Lemmon
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
____________
Submitted: March 16, 2018
Filed: May 3, 2018
[Unpublished]
____________
Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
____________
PER CURIAM.
A jury convicted David Hurl Lemmon of conspiring to distribute
methamphetamine in violation of
    21 U.S.C. §§ 841
    (a)(1), 841(b)(1)(A)(viii), and 846
and of being a felon in possession of a firearm in violation of
    18 U.S.C. §§ 922
    (g)(1),
924(a)(2), and 924(e)(1). The district court1 sentenced Lemmon to 420 months’
imprisonment on the drug-distribution conviction and 180 months on the firearms-
possession conviction to run concurrently. Lemmon appeals, arguing that the jury
lacked sufficient evidence to convict him of either offense and that the sentence is
substantively unreasonable. We affirm.
Lemmon first argues that he cannot be convicted of conspiring to distribute
methamphetamine because “[t]he only evidence against [him] . . . was the testimony
of alleged co-conspirators.” At its core, Lemmon’s argument is that the eyewitness
testimony connecting him to the conspiracy is not credible and that the circumstantial
evidence against him is inconclusive. “We have repeatedly upheld jury verdicts
based solely on the testimony of co-conspirators and cooperating witnesses, noting
that it is within the province of the jury to make credibility assessments and resolve
conflicting testimony.” United States v. Coleman,
    525 F.3d 665
    , 666 (8th Cir. 2008)
(citing United States v. Velazquez,
    410 F.3d 1011
    , 1015-16 (8th Cir. 2005)). We
likewise uphold the conviction here.
Lemmon also argues that he cannot be convicted of being a felon in possession
of a firearm because the firearms found at his house belonged to his girlfriend. To
prove constructive possession of a firearm, the government needed to show that
Lemmon had “both knowledge that the [firearm] [wa]s present and dominion over the
premises where the contraband [wa]s located.” United States v. Ways,
    832 F.3d 887
    ,
897 (8th Cir. 2016) (citing United States v. McClellon,
    578 F.3d 846
    , 854 (8th Cir.
2009)). At a minimum, the jury heard testimony that Lemmon and his girlfriend were
the only adult occupants of the house and that law enforcement discovered a .40
caliber pistol in the master bedroom closet of Lemmon’s residence, where both men’s
and women’s clothing was present. Viewing this testimony in the light most
1
The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.
-2-
favorable to the verdict, the jury could reasonably infer that Lemmon had knowledge
of the firearm and dominion over the location where the firearm was located. United
States v. Jirak,
    728 F.3d 806
    , 811 (8th Cir. 2013) (standard of review).2
Lemmon further argues that his 420 month sentence is substantively
unreasonable because the “sentence is greater than necessary to comply with the
purposes set forth in [the U.S. Sentencing Guidelines (Guidelines)].” The district
court carefully considered the relevant Guidelines, however, and varied downward
from the advisory Guidelines’ sentence of life imprisonment. We thus conclude that
the district court did not abuse its discretion in imposing its sentence. United States
v. Feemster,
    572 F.3d 455
    , 461 (8th Cir. 2009) (en banc) (standard of review); see
also United States v. Moore,
    581 F.3d 681
    , 684 (8th Cir. 2009) (“[W]here a district
court has sentenced a defendant below the advisory guidelines range, ‘it is nearly
inconceivable that the court abused its discretion in not varying downward still
further.’” (quoting United States v. Lazarski,
    560 F.3d 731
    , 733 (8th Cir. 2009))).
The judgment is affirmed.3
______________________________
2
Lemmon argues that the district court erred by admitting video footage from
a digital video recorder found at Lemmon’s residence. Given the evidence at trial,
any error in the admission of the video footage was harmless. United States v. Byler,
    98 F.3d 391
    , 394 (8th Cir. 1996) (standard of review).
3
We have reviewed and now deny the pending motion for leave to file a pro se
supplemental brief.
-3-