United States v. Lemmons, Edward W.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2078
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD W. LEMMONS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 98-6-CR-01-Y/H--Richard L. Young, Judge.
Argued August 8, 2000--Decided October 5, 2000
Before BAUER and COFFEY and MANION, Circuit Judges.
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
methcathinone, in violation of 21 U.S.C. sec.sec.
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. sec. 3B1.1(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 methcathinone 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 methcathinone 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 methcathinone 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 methcathinone 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 Catlett 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 two-
level 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. sec. 3B1.1.
The district court’s factual determination that
Lemmons qualified for an aggravating role
adjustment under U.S.S.G. sec. 3B1.1 is reviewed
under the clear error standard. See United States
v. Roth, 201 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
sec. 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, No. 99-4158, 2000 WL 994188 at *2 (7th
Cir. July 19, 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:
[t]he law is very clear that a sentencing judge
"may appropriately conduct an inquiry broad in
scope, largely unlimited either as to the kind of
information he may consider, or the source from
which it may come." * * * * A corollary to this
general principle is the rule that a sentencing
judge "may consider relevant information without
regard to the rules of evidence . . . provided
that the information has sufficient indicia of
reliability to support its probable accuracy."
U.S.S.G. sec. 6A1.3 (emphasis added). As this
court has explained:
The sentencing stage of a trial is one of the
most important parts of the criminal process. In
order for a judge to be well advised of the facts
surrounding the defendant’s background, and
particularly in view of the judge’s obligation to
the general public, as well as to the defendant,
to be fair, reasonable, and just, it is
imperative, that he be allowed to draw upon a
wealth of information concerning the defendant’s
background, from his date of birth up to and
including the moment of sentencing . . . . In
order to render justice to all, the judge must be
able to impress upon a defendant through the
expansive contents of an all encompassing
sentencing report that we are a country of laws
and not of men.
United States v. Hardamon, 188 F.3d 843, 849 (7th
Cir. 1999) (internal citations omitted).
The court specifically stated that "the case
file and the agent and also Mr. Lemmons’ son
Jerry indicate that several of these activities
were done and completed under Edward Lemmons’
instruction." Other information presented to the
court, such as the defendant paying Catlett’s
bail without ever having met him before, and the
testimony of the witnesses at the grand jury that
the defendant instructed them to purchase
precursor chemicals, support the court’s
conclusion that the other participants in the
methcathinone ring acted at his direction. This
court has held that the section 3B1.1 adjustment
"may apply so long as the criminal activity
involves more than one participant and the
defendant played a coordinating or organizing
role." United States v. Bush, 79 F.3d 64, 67 (7th
Cir. 1996) (citation omitted). The government
need only establish that Edward Lemmons had "some
real and direct influence, aimed at furthering
the criminal activity" on the other participants
in the criminal activity. See United States v.
Mustread, 42 F.3d 1097, 1103 (7th Cir. 1994). As
this court noted in Mustread, those over whom the
"leader or organizer" exercises control need not
"have played marionette to the defendant’s
puppeteer." Id. at 1104. Rather, a defendant, in
order to be a leader or organizer, "may simply
have organized or in some way directed" another
member of the conspiracy. Id. at 1104. And,
although the defendant makes much of the seven
factors in U.S.S.G. sec. 3B1.1(c), comment.
(n.4), we have never held that all of the factors
are required to establish that a defendant is
qualified for a section 3B1.1 increase. See
United States v. Fones, 51 F.3d 663, 665 (7th
Cir. 1995). Given the district court’s finding
that the other defendants purchased the guns as
well as the precursor drugs and distributed the
methcathinone to other sellers pursuant to Edward
Lemmons’s direction, it is most clear that the
defendant exercised more than sufficient control,
direction, and supervision over the activities of
other participants to qualify for the enhancement
as a manager or organizer under section 3B1.1(c).
Finally, Edward argues that the district court
improperly looked to his son’s PSR as a factual
basis for determining Edward’s role in the
conspiracy. As this court has held, if a judge
intends to base a sentencing adjustment on
evidence presented during a proceeding to which
the defendant was not a party, the judge should
give notice to the defendant in advance and
provide him with an opportunity to read the
transcript of the proceeding. See United States
v. Morales, 994 F.2d 386, 389 (7th Cir. 1993).
However, Lemmons’ counsel neither objected to nor
requested a continuance when it became apparent
that the sentencing court was making reference to
his son’s PSR, and we therefore review his claim
for plain error. Id. at 389-90. More importantly,
Edward cannot prevail on his due process claim
because he failed to demonstrate that the
information in Jerry’s PSR was unreliable. We
need not decide to what extent the district court
relied on Smith’s statements, because Edward has
not shown that such information, however it was
used, was inaccurate. See United States v. Anaya,
32 F.3d 308, 314 (7th Cir. 1994) ("To
successfully challenge her sentence the defendant
must show that the information before the court
was inaccurate, and that the court relied on
it.") (internal quotations and citations
omitted). Accordingly, this argument fails as
well.
We are convinced that the information provided
in Edward Lemmons’ PSR, which included the
testimony at his change-of-plea hearing, as well
as the information in the PSR’s of his co-
defendants, in the grand jury testimony, and in
the testimony at the conspirators’ change-of-plea
hearings, amply support the district court’s
finding that he was a manager or organizer of the
conspiracy. The PSR’s make it apparent that
Edwards manufactured the methcathinone, stored
it, financially backed the conspiracy, recruited
at least one conspirator, directed the three
accomplices, obtained the precursor chemicals,
and stored the trailer containing bulk quantities
of methcathinone ingredients parked on his
property. In our opinion, the other three
defendants were not equal partners with Edward in
the drug operation, as he alleges, by any stretch
considering all the facts set forth in the
record. The judgment of the district court is
AFFIRMED.
/1 Edward did not waive his right to appeal in his
guilty plea.