United States v. Rex Palmer Alexander , 404 F. App'x 457 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15746 ELEVENTH CIRCUIT
DECEMBER 10, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-14014-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REX PALMER ALEXANDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 10, 2010)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Rex Palmer Alexander appeals his sentence and convictions for conspiring
to manufacture, distribute, or possess with intent to distribute five grams or less of
methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and possessing
precursor chemicals to manufacture methamphetamine, id. § 841(c)(1). Alexander
argues that the district court erroneously denied him leave to file an untimely
motion to suppress; the jury should have been instructed that possession of
methamphetamine was a lesser-included offense of his conspiracy charge; and the
evidence was insufficient to support his convictions. Alexander also argues that
the district court made three erroneous findings of fact in calculating his sentence
and his sentence is unreasonable. We affirm.
The district court did not abuse its discretion by denying Alexander leave to
file an untimely motion to suppress. After the deadline for filing his pretrial
motion had elapsed, see Fed. R. Crim. P. 12(b)(3)(C), (c), Alexander moved to
suppress his confession on the ground that “his original detention and arrest was
conducted completely without probable cause, reasonable suspicion or otherwise.”
Several months earlier, the district court had already examined the events that
preceded Alexander’s arrest in determining whether to detain him until trial. See
18 U.S.C. § 3142(g). Although the district court later appointed Alexander a new
attorney, the attorney had access to the written order of detention weeks before he
sought leave to file an untimely motion to suppress. See United States v. Taylor,
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792 F.2d 1019, 1024–26 (11th Cir. 1986). Alexander failed to provide good cause
to waive the deadline for the motion. Fed. R. Crim. P. 12(e).
The district court also did not abuse its discretion by refusing to instruct the
jury that possession of methamphetamine was a lesser-included offense of
conspiracy to manufacture methamphetamine. An “offense is not ‘necessarily
included’ in another unless the elements of the lesser offense are a subset of the
elements of the charged offense,” Schmuck v. United States, 489 U.S. 705, 716,
109 S. Ct. 1443, 1450 (1989), and conspiracy to manufacture methamphetamine
and possession of that illegal drug contain different elements. The crime of
conspiracy involves an agreement to and knowing and voluntary participation in
manufacturing methamphetamine, United States v. Ramsdale, 61 F.3d 825, 829
(11th Cir. 1995), and the crime of possession involves knowledge of and control
over methamphetamine, United States v. Miranda, 425 F.3d 953, 959 (11th Cir.
2005). Because possession of methamphetamine “require[d] [proof of] an element
not required for” conspiracy to manufacture the illegal substance, Schmuck, 489
U.S. at 716, 109 S. Ct. at 1450, Alexander was not entitled to have the jury
instructed that possession of methamphetamine was a lesser-included offense.
The district court did not err in denying Alexander’s motion for a judgment
of acquittal. The government presented testimony from Alexander’s family, a
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friend of Alexander’s father, and investigating agents that Alexander lived in the
house where the methamphetamine was manufactured; he purchased muriatic acid
and more than 13 grams of pseudoephedrine and transported others to purchase
precursor materials; he stripped striker plates from match boxes to produce red
phosphorous and crushed pseudoephedrine pills; he participated in the end process
of “blowing out” the methamphetamine; and he sold methamphetamine. See
Miranda, 425 F.3d at 959–62. When agents searched Alexander’s residence, they
discovered large quantities of precursor materials and drug paraphernalia and lifted
his fingerprints from a funnel and glass Pyrex dish used to manufacture the illegal
substance. Alexander admitted to agents that he had purchased pseudoephedrine
and had participated in manufacturing methamphetamine. See United States v.
Jiminez, 564 F.3d 1280, 1285–86 (11th Cir. 2009). In addition, when Alexander
saw agents searching his residence, he attempted to flee. See United States v.
Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009) (an “attempt[] to flee” can
be considered “as evidence of guilt”). Although Alexander testified that he aided
in the production process only to obtain methamphetamine for personal use, the
jury was free to treat his testimony as substantive evidence of his guilt. Jiminez,
564 F.3d at 1285. There was overwhelming evidence to establish that Alexander
was guilty both of conspiring to manufacture with intent to distribute
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methamphetamine and of possessing precursor materials.
We reject Alexander’s three challenges to the calculation of his sentence.
First, the district court did not clearly err in attributing 16.78 grams of
methamphetamine to Alexander. The district court was entitled to conclude that
the amount of drugs seized from Alexander’s residence did not adequately reflect
the extent of his offense based on the large quantity of precursor materials
discovered in his house, the possibility that those precursor materials could yield as
much as 33.56 grams of methamphetamine, and the “complicated” nature of the
drug laboratory. See United States v. Smith, 240 F.3d 927, 931 (11th Cir. 2001).
Second, the district court did not clearly err by denying Alexander a reduction for a
minor role in the conspiracy in the light of his contributions to the purchase of
precursor materials and the manufacturing process. See United States v. Rodriguez
De Varon, 175 F.3d 930, 940–41 (11th Cir. 1999) (“[T]he district court must
measure the defendant’s role against the relevant conduct for which []he has been
held accountable.”). Third, the district court also did not clearly err in denying
Alexander a reduction for an acceptance of responsibility because “he proceeded to
trial and ‘consistently attempted to minimize his role, despite evidence to the
contrary.’” United States v. Caraballo, 595 F.3d 1214, 1233 (11th Cir. 2010)
(quoting United States v. Rubio, 317 F.3d 1240, 1244 (11th Cir. 2003)).
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The district court also did not abuse its discretion by sentencing Alexander
at the low end of the guideline range. The district court stated that it had
considered “the statement of all the parties, the presentence [investigation] report
which contains the advisory guidelines and the sentencing factors” and it found
that a sentence of 120 months of imprisonment was necessary to “deter
[Alexander] from further criminal conduct.” 18 U.S.C. § 3553(a). Alexander’s
sentence is reasonable.
We AFFIRM Alexander’s convictions and sentence.
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