United States v. Jared L. Hester

Case: 14-15748 Date Filed: 10/14/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15748
Non-Argument Calendar
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D.C. Docket No. 3:13-cr-00034-RV-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JARED L. HESTER,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Florida
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(October 14, 2015)
Before WILLIAM PRYOR, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Jared Hester appeals his sentence of 97 months of imprisonment, imposed
following resentencing, for conspiring to possess and distribute pseudoephedrine
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with the knowledge or having reasonable cause to believe that it would be used to
manufacture methamphetamine. 21 U.S.C. §§ 841(c)(2), 846. Hester challenges the
calculation of his base offense level based on a factual finding that he was
responsible for more than 70 grams and less than 100 grams of pseudoephedrine.
See United States Sentencing Guidelines Manual § 2D1.11(d)(5) (Nov. 2013). We
affirm.
Hester argues that most of pseudoephedrine attributed to him was purchased
for lawful use, but the district court did not clearly err in making a contrary
finding. The district court found that, of the 40 boxes of pseudoephedrine that
Hester bought, he acquired 37 of the boxes for manufacturing methamphetamine.
That finding reasonably could have been based on the trial testimony of three of
Hester’s coconspirators that they saw Hester purchase pseudoephedrine and give it
to a coconspirator who manufactured methamphetamine. The district court was
entitled to credit the coconspirators’ accounts, which were consistent with certified
records from seven pharmacies showing that Hester and his coconspirators had
made their purchases in tandem. See United States v. Pham, 463 F.3d 1239, 1244
(11th Cir. 2006). Although Hester’s wife testified at sentencing that Hester gave
her 30 of the boxes of extended-release medicine to treat her allergies, the district
court reasonably discredited that testimony as inflating the amount of “Sudafed
tablets she [could have] consumed.”
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The district court did not clearly err in finding that Hester was responsible
for more than 70 grams and less than 100 grams of pseudoephedrine. A
defendant’s base offense level is determined based on his actions and “all
reasonably foreseeable acts . . . of others in furtherance of the jointly undertaken
criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Hester does not dispute that he
purchased 34.42 grams of pseudoephedrine from the same pharmacy and within a
few minutes of when his coconspirators purchased an additional 46.18 grams of the
substance. The district court was entitled to find that Hester knew or reasonably
could have foreseen that the more than 80 grams of pseudoephedrine would be
used to manufacture methamphetamine. See United States v. Ismond, 993 F.2d
1498, 1499 (11th Cir. 1993). The district court correctly assigned Hester a base
offense level of 30. See U.S.S.G. § 2D1.11(d)(5).
We AFFIRM Hester’s sentence.
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