United States v. Theresa Flieger , 364 F. App'x 290 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1712
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Theresa Flieger, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 22, 2010
Filed: February 4, 2010
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Before BYE, RILEY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Theresa Flieger appeals the district court’s1 judgment, entered upon a jury
verdict finding her guilty of possession of pseudoephedrine, knowing it would be used
to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). She was
sentenced at the bottom of the calculated advisory Guidelines range to 151 months in
prison and two years of supervised release. On appeal, Flieger’s counsel has filed a
brief under Anders v. California, 386 U.S. 738 (1967), challenging the sufficiency of
the evidence to support the jury’s verdict and the district court’s application of an
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
obstruction-of-justice sentencing enhancement under U.S.S.G. § 3C1.1. For the
reasons that follow, we affirm.
Upon careful review, see United States v. Coleman, 584 F.3d 1121, 1125 (8th
Cir. 2009) (denial of motion for judgment of acquittal is reviewed de novo, and
evidence is viewed in light most favorable to verdict, giving verdict benefit of all
reasonable inferences; reviewing court does not weigh evidence or assess witness
credibility, and reverses only if no reasonable jury could have found defendant guilty
beyond reasonable doubt), we find that the government’s evidence was sufficient. In
particular, the evidence at trial included the testimony of witnesses who observed
Flieger give boxes of pseudoephedrine pills to a methamphetamine manufacturer in
exchange for methamphetamine, and use methamphetamine. See United States v.
Hudspeth, 525 F.3d 667, 677 (8th Cir. 2008) (to convict under § 841(c), government
must prove defendant possessed or distributed pseudoephedrine “knowing, or having
reasonable cause to believe, that . . . [it] will be used to manufacture a controlled
substance”); see also United States v. Khattab, 536 F.3d 765, 769-70 (7th Cir. 2008)
(affirming § 841(c)(2) conviction where evidence supported conclusion that defendant
knew pseudoephedrine he attempted to purchase would be used to manufacture
methamphetamine).
In addition, we conclude that the district court did not clearly err in finding that
Flieger had given intentionally false testimony at trial in an effort to mislead the jury.
While Flieger testified that she had merely consumed the pseudoephedrine pills she
purchased over the years in question and had not used methamphetamine during this
time, others testified as to their observations to the contrary. Thus, we hold that the
district court did not err in applying the obstruction-of-justice enhancement. See
United States v. Boesen, 541 F.3d 838, 851-52 (8th Cir. 2008) (reviewing district
court’s factual findings for clear error and its application of advisory Guidelines de
novo; affirming imposition of § 3C1.1 enhancement where district court found by
preponderance of evidence that defendant willfully gave false testimony concerning
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material matter, rather than as result of confusion, mistake, or faulty memory); United
States v. Titlbach, 300 F.3d 919, 924 (8th Cir. 2002) (affirming imposition of § 3C1.1
enhancement where defendant’s testimony that he had not participated in
methamphetamine manufacturing conflicted with other witnesses’ testimony); United
States v. Simms, 285 F.3d 1098, 1101-02 (8th Cir. 2002) (although § 3C1.1 is not
intended to punish defendant for testifying, defendant who commits perjury is subject
to enhancement).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues. Accordingly, we affirm the
judgment of the district court, and grant counsel’s motion to withdraw.
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