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U.S. v Pritchett

Case No. 11-6489 (C.A. 6, Apr. 9, 2014)

Four defendants who were convicted of a methamphetamine conspiracy have raised multiple challenges to their convictions and sentences. For the reasons that follow, we affirm.

I. BACKGROUND



In January 2007, members of the Marion County sheriff’s department found a number of individuals in possession of “ice” methamphetamine during traffic stops. An investigation was initiated which included controlled purchases of methamphetamine by a confidential informant. The investigation led to a series of indictments charging 39 individuals with a methamphetamine conspiracy and associated drug and firearms offenses.

Four defendants, Appellants Harry Pritchett, Jessie Johnson, Eddie Rollins and Mike Coffelt, went to trial. After a fourteen-day jury trial, all four were found guilty of conspiracy to manufacture and distribute methamphetamine (Count 1) and conspiracy to possess a listed chemical – pseudoephedrine and iodine – with knowledge that the chemical would be used to manufacture methamphetamine (Count 2). Pritchett, Rollins and Coffelt were additionally found guilty of associated offenses. With respect to Pritchett and Coffelt, the jury found that the conspiracy charged in Count 1 involved 50 grams or more of methamphetamine (actual) or 500 grams or more of a mixture containing methamphetamine. With respect to Rollins and Johnson, the jury found that the conspiracy involved 5 grams of methamphetamine (actual) or 50 grams of a mixture containing methamphetamine. Pritchett was sentenced to 240 months in prison; Rollins was sentenced to 360 months in prison; Johnson was sentenced to 97 months in prison; and Coffelt was sentenced to 240 months in prison.
 

 

Judge(s): Robert Holmes Bell
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Communications , Construction , Contracts , Criminal Justice , Education , Expert Witness , Government / Politics , Health Care , Insurance , International , Transportation
 
Circuit Court Judge(s)
Alice Batchelder
Robert Bell
Richard Griffin

 
Trial Court Judge(s)
Curtis Collier

 
Appellant Lawyer(s) Appellant Law Firm(s)
Charles Dupree
Clifton Harviel
Michael Stengel
James Woolard Miller Canfield
Melissa Salina Office of the Federal Public Defender
Dennis Terez Office of the Federal Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Scott Winne U.S. Department of Justice

 

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conviction of defendant under § 841(c)(2) based on possession of only one listed coffelt appeals the trial court’s enhancement of his sentence pursuant to offense other than the one alleged in the indictment nor did it invite the jury to find guilt 5 f.3d 192, 194 (6th cir.1993)). the issue of whether a plea under a state alternative nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 17 47 f.3d 401, 404 (11th cir. 1995) (per curiam); united states v. gomez, 24 f.3d 924, i. background probation if the court does not deem him to be guilty of a crime.” id. at 113-14 for the jury conviction, a district court may sentence a defendant based on acquitted every other circuit that has considered the issue of alternative or diversionary proved unsuccessful at the trial court level.”). “an error is plain when it is obvious, confidential informant, to testify over johnson’s objection that he had used imposed by law upon conviction of a crime, or for any other purpose.” 18 u.s.c. § 3607(b). coffelt “we review de novo a challenge to the sufficiency of the evidence supporting a the language of dickerson and the ramifications of a guilty plea under a state first- the officers found several 2-liter coke bottles containing what appeared to be fuel, a can the honorable robert holmes bell, united states district judge for the western district of showing (1) an error, (2) that is plain, and (3) that affects his fundamental rights.” 457, 463 (6th cir. 2009)). a factual finding is clearly erroneous only where, considering f.3d 888, 911 (d.c. cir. 2008); see also united states v. norbury, 492 f.3d 1012, 1015 pritchett was additionally found guilty of manufacturing methamphetamine in violation of united states v. hettinger, 242 f. app’x 287, 298-99 (6th cir. 2007) (affirming a felony drug offense has become final, such person shall be sentenced to a term of v. gomez, 24 f.3d 924, 930 (7th cir. 1994) (noting that the defendant had “plainly” been diversion from the judicial process without a finding of guilt (e.g., the testimony regarding johnson’s prior use was brief and was related to the subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability the charges are dismissed and the defendant is discharged without adjudication of guilt, motion to suppress the fruits of the september 2008 grundy county search. court’s correction of the jury instruction as to count 2 in response to a jury question nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 4 at trial, the government asserted that knight’s use of methamphetamine with united states v. see, 574 f.3d 309, 313 (6th cir. 2009)). “‘when a district court has “a conviction becomes final for the purpose of [federal] sentencing when the time for appellant johnson challenges the sufficiency of the proof to support a finding (1927)). the supreme court held that it was “plain that one cannot be placed on information, hawes ascertained that rollins’ license had been revoked. at this point taking a direct appeal from the judgment of conviction has expired.” miller, 434 f.3d purpose of the initial traffic stop is completed, an officer cannot further detain the 5 inventory search was credible. “this court accords deference to the district court’s v. gibbs, 182 f.3d 408, 420 (6th cir.1999). “an agreement to violate the drug laws need sentences for first offenders has held that a deferred, expunged or dismissed state nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 10 statute deferring proceedings after a plea without an adjudication of guilt); united states of methamphetamine mixture, rather than the charged 50 grams of actual does not require possession or distribution of more than one listed chemical. see, e.g., purpose without “separate reasonable suspicion”when officer hawes elected to wait for not clearly erroneous for the magistrate judge to accept deputy bell’s sworn testimony distribute “pseudoephedrine, a list i chemical, and iodine, a list ii chemical, knowing and methamphetamine with johnson three to five years before the conspiracy. notes. section 4a1.2 provides that for purposes of computing a defendant’s criminal history, “[a] discovery doctrine, “allows unlawfully obtained evidence to be admitted at trial if the proceedings.” id. pritchett contends that the failure to give a cautionary instruction was opinion in january 2007, members of the marion county sheriff’s department found a have been used to enhance his sentence because it was entered pursuant to the tennessee nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 20 on whether coffelt’s plea is a prior conviction. see bdt prods., inc. v. lexmark int’l, fact of a prior conviction.” united states v. martin, 526 f.3d 926, 941 (6th cir. 2008). overwhelming, eliminating any fair assurance that the conviction was substantially accessible to others. under these facts, any error in failing to give a cautionary a variance. it did not create a possibility that defendants would be convicted of an these three conditions, we may exercise our discretion to correct the error only if the contends that the evidence was not proper background evidence because his relationship plain error because frizzell interspersed his factual testimony regarding the search of an opportunity to straighten themselves out on the road of life without the based on a prior conviction that remains subject to direct attack on appeal. see united was based on coffelt’s march 2006 guilty plea to one count of felony possession of in denying rollins’ motion to suppress the fruits of the june 2009 traffic stop. 1 nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 12 reversal. the federal rules of criminal procedure provide that “[a]ny error, defect, that we have determined that a deferred adjudication is a “prior conviction” under § 841, (8th cir. 1998) (joining the third, fourth, fifth, seventh and eleventh circuits in holding that federal law governs the definition of a prior conviction under § 841). as 528 f.3d at 911. contrary to coffelt’s argument, his inability to appeal his judicial lynn dempsey testified that in 2008 and 2009, every week or every other week, johnson of the crime johnson was charged with, and the jury would have readily inferred that mandatory minimum triggered by the jury’s findings, instead of the 10-year mandatory united states v. campbell, 980 f.2d 245, 249-51 (4th cir.1992). based on the language c. agent frizzell’s opinion testimony there has been no adjudication of guilt, his plea does not meet the ordinary meaning of contends that if a federal drug offense discharged through prejudgment probation cannot count as a “prior tennessee, for appellee. on brief: james woolard, university of michigan search as being incident to arrest should have been given greater weight than the of § 841, the manner in which diversionary dispositions are treated under the sentencing this analysis, this court neither independently weighs the evidence, nor judges the would not have personally recognized the connection of these items to the manufacture knight’s and johnson’s prior relationship had anything to do with the inception of the provided the jury with an amended instruction on count 2 as follows: “first, that two suppression because the traffic stop was unreasonably extended beyond its original sentence enhancement under section 841(b)(1)(b) – to punish and deter recidivism.” 4, 5, 6, 7, 8, and 10). rollins was additionally found guilty of manufacturing methamphetamine in or when the litigant otherwise offers a legitimate explanation.”); dsc communications judicial proceeding is counted as a sentence under §4a1.1(c) even if a conviction is not formally entered, united states v. lopez-medina, 461 f.3d 724, 743 (6th cir. 2006) (citing johnson v. to arrest. rollins asserts that the affidavits prepared by the sheriff that described the argued: james woolard, miller canfield, detroit, michigan, for appellant in the trial court, citing united states v. hardy, 228 f.3d 745 (6th cir. 2000), determined over the police radio and recognized rollins’ name. he called officer hawes and contributed to johnson’s conviction. the testimony was brief, use was not an element dismissal was entered on august 18, 2010. coffelt contends that his plea should not rollins’ motion to suppress be denied because both searches were valid inventory and coffelt were additionally found guilty of associated offenses.1 the government must prove a conspiracy “to commit the crime of possessing or sentencing statute is a prior conviction under § 841 is an open issue that we must address under 21 u.s.c. § 841(b)(1)(a). “this court reviews de novo the legal conclusion that guilty of or pleads guilty or nolo contendere to the offense for which deferral of further that he was part of a conspiracy. he contends that the proofs supported nothing more § 922(g)(1), possessing methamphetamine laboratory equipment and chemicals in violation of 21 u.s.c. the sheriff was not present when deputy bell decided to search the car, and the sheriff 11-6495. scott a. winne, united states attorney’s office, chattanooga, section 841(b)(1)(a) provides that, for purposes of a conviction involving forms an integral part of a witness’s testimony, or completes the story of the charged analysis above, the federal statute is not ambiguous. the term “conviction” as used in or more persons conspired or agreed to commit the crime of possessing or distributing 13-5133, — f. app’x —, 2013 wl 5509103, at *1 (6th cir. oct. 7, 2013) (rejecting united states court of appeals black’s law dictionary (9th ed. 2009) defines “conviction” in part as bell stopped rollins for passing in a no-passing zone. deputy bell determined that diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a 21 u.s.c. § 841(b)(1)(a) for a drug conviction from 2006. the sentence enhancement light most favorable to the prosecution, the court is satisfied that the evidence was credibility of witnesses who testified at trial.’” united states v. howard, 621 f.3d 433, containing methamphetamine. with respect to rollins and johnson, the jury found that at trial.’” united states v. howard, 621 f.3d 433, 459-60 (6th cir. 2010) (quoting nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 6 sentence-enhancement provisions.’” united states v. cisneros, 112 f.3d 1272, 1280 _________________ “rejected the argument that a first-offender status adjudication resulting in a sentence of disjunctive reflects the necessary discrepancies between indictments and plaintiffs-appellants. were photographed and then destroyed as hazardous materials before any testing was we are not bound by its treatment of a felony conviction when we apply the federal lack of merit. recent decision in alleyne v. united states, ––– u.s. ––––, 133 s. ct. 2151(2013), “did budd, 496 f.3d at 521. variances, are not per se prejudicial. id. we will reverse the settled that “a judge is permitted to find, based on the preponderance of the evidence, the because pritchett did not request a cautionary instruction or object to the lack of v. santos, 553 u.s. 507, 511 (2008)). “‘as in all cases of statutory construction, our task viewing the evidence in the light most favorable to the prosecution, any rational trier of united states, 520 u.s. 461, 466 (1997)). “a defendant can demonstrate plain error by - is an ‘element’ that must be submitted to the jury.” 133 s. ct. at 2155. however, the response to a jury note asking whether they were required to find both pseudoephedrine is a reasonable possibility that the evidence complained of might have contributed to the 1990)). although a determination of whether a plea under the tennessee judicial would purchase his limit of pills and give them to dempsey in exchange for § 843(a)(6), using and maintaining drug premises in violation of 21 u.s.c. § 856(a)(1), and possessing conviction for purposes of federal sentencing statutes.” id. at 824. see also united to have a ‘reasonable and articulable suspicion that criminal activity [is] afoot.’”). miller: not extend apprendi to facts that do not increase the prescribed statutory penalties.” id. conspiracy. moreover, while knight’s relationship to johnson may have been important in determining what federal law is, at least one court has looked to the the policy behind state first-offender provisions and similar alternative (per curiam), cert. denied, 134 s. ct. 347 (2013) (holding that alleyne did not the facts indicate that the officers inevitably would have discovered and seized the section 841(c)(2) provides that it is a violation of federal law to knowingly or error seriously affected the fairness, integrity, or public reputation of the judicial denied a motion to suppress, this court reviews the evidence in the light most likely to mandatory minimum sentence was increased by judge-found facts. accordingly, (6th cir.1998)). in miller, the prior conviction became final 30 days after sentencing chapman v. houston welfare rights org., 441 u.s. 600, 608 (1979)). in graham, after arguing that their sentences were unconstitutionally enhanced based on the filing of a number of individuals in possession of “ice” methamphetamine during traffic stops. an _________________ v. there is no reasonable possibility that the evidence complained of might have appeal from the united states district court yet to address our procedure when a party wishes to file a supplemental brief on an issue 459-60 (6th cir. 2010) (quoting united states v. talley, 164 f.3d 989, 996 (6th below the 40-year statutory maximum, and he was sentenced pursuant to the 5-year even if it was error to admit this testimony, its admission does not warrant (5th cir. 1997) (quoting united states v. morales, 854 f.2d 65, 68 (5th cir.1988)). in officer hawes developed probable cause to arrest rollins for driving without a valid § 841 is broad enough to include guilty pleas followed by a term of probation. coffelt states v. graham, 622 f.3d 445, 460 n.15 (6th cir. 2010) (noting that this circuit has with a technical legal advantage if, not having learned a lesson, they nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 3 lack merit. rollins argues that the fruits of the june 2009 tracy city search were subject to offender diversionary statute, other federal circuit courts have found a conviction for have been convicted without the evidence erroneously admitted, but on “‘whether there participation in the common plan.” united states v. martinez, 430 f.3d 317, 330 a state judge and pleaded guilty to a felony drug offense and thereafter submitted to a to prove a conspiracy under 21 u.s.c. § 846, the government was required to regarding his drug transactions with the defendant six years prior to the conspiracy was slight.” caver, 470 f.3d at 233. “[a] buyer-seller relationship is not alone sufficient to united states v. mcauliffe, 490 f.3d 526, 534 (6th cir. 2007) (quoting united states v. law de novo.” united states v. cochrane, 702 f.3d 334, 340 (6th cir. 2012) (quoting cir. 2003)). even if rollins had not heard from deputy bell or awaited his arrival, he tie a buyer to a conspiracy, for mere sales do not prove the existence of agreement that the pseudoephedrine and iodine would be used to manufacture methamphetamine.” in explain the charged offense, to complete the story of the confidential informant’s appellant’s opening brief. miller v. admin. office of courts, 448 f.3d 887, 893 (6th cir. (2013) (citing united states v. mcgrattan, 504 f.3d 608, 610 (6th cir. 2007)). conspiracy. based upon these findings of fact, the magistrate judge recommended that for the reasons stated in this opinion, defendants’ convictions and sentences are “when a term is undefined, we give it its ordinary meaning.” id. (quoting united states interpreting the term “conviction” differently for purposes of § 841 and the sentencing manufacture and distribute more than 5 grams of actual methamphetamine or 50 grams witnesses, so the jurors had the tools for properly evaluating the opinions in frizzell’s towed. he further testified that it is the grundy county sheriff’s department’s policy witness roles nor a clear demarcation between their fact testimony and expert opinion a prior conviction is a qualifying offense under 21 u.s.c. § 841(b)(1)(a).” united 1 coffelt contends that even if his 2006 guilty plea can be considered a conviction, count 2 of the indictment properly charged in the conjunctive (pseudoephedrine absence of other evidentiary errors). the proceeding of record by which a person is legally found guilty of any the conspiracy involved 5 grams of methamphetamine (actual) or 50 grams of a mixture conviction.’” united states v. clay, 667 f.3d 689, 700 (6th cir. 2012) (quoting united v. maclloyd, 526 f. app’x 434, 439 (6th cir. 2013) (citations omitted), cert. denied, testimony. moreover, similar items were seized from co-defendant coffelt’s residence, plaintiff-appellee, of guilt, a person qualifies for a deferred sentence under the statute only if he “[i]s found and iodine). the amended instruction on count 2, which instructed the jury in the and are reversible error.” id. tainted evidence by following ‘routine procedures.’” united states v. garcia, 496 f.3d it makes sense to also treat it as a prior conviction under § 841, because iii. conclusion states v. adams, 722 f.3d 788, 805 (6th cir. 2013). a variance occurs when the prior use of methamphetamine was relevant to show his participation in the conspiracy. the statutory maximum for conspiracy to manufacture and distribute more than 5 grams chemical, pseudoephdrine). “‘it is settled law that an offense may be charged jury instruction on opinion evidence with respect to three of the government’s expert we have noted that the waiver may be subject to exceptions, such as when the argument 39 individuals with a methamphetamine conspiracy and associated drug and firearms methamphetamine or 500 grams of methamphetamine mixture. at sentencing, the court johnson was a user based on evidence that he routinely exchanged pseudoephedrine for probation is not a ‘prior conviction for a felony drug offense [that] has become final’ for completed his term of probation on march 15, 2010, and an order of expungement and is also consistent with the policy behind first-offender provisions. as we noted in co., 305 f.3d 498, 510 (6th cir. 2002)). occasional buyer-seller relationship with dempsey. searches as opposed to impermissible searches incident to arrest. the trial court adopted sufficient to support the jury’s finding that johnson knowingly participated in the drug 841(b)(1)(c), possessing methamphetamine laboratory equipment and chemicals in violation of 21 u.s.c. all of the alternative theories that go forward. juries, on the other hand, “conviction.” officer hawes waited approximately ten minutes for bell to arrivebeforeplacing convicted because the state treated his plea and sentence as a “conviction” during the 496 f.3d 517, 521 (6th cir. 2007). “‘a constructive amendment results when the terms persuasive. the purpose of the finality requirement is to prevent sentence enhancement is to interpret the words of [the statute] in light of the purposes congress sought to conviction if the expungement or dismissal does not alter the legality of the conviction rollins’ license had been revoked and advised rollins that he was going to jail. deputy of conviction and are subject to the subpoena power of the courts of civil jurisdiction.” tenn. code ann. almendarez-torres, pritchett and rollins’ challenges to their sentences are denied for * traffic stops, one on september 15, 2008, in grundy county, and one on june 25, 2009, johnson’sargumentlacksmerit. johnson’ssentenceof97monthsdidnotexceed count 2 of the indictment charged the defendants with conspiracy to possess and johnson’s challenge to his sentence lacks merit. in undertaking a sufficiency of the evidence analysis, “‘this court neither file name: 14a0066p.06 as a prior conviction under § 841. 1995) (citing nix v. williams, 467 u.s. 431, 444 (1984)). “[t]he doctrine applies where we review evidentiary rulings for an abuse of discretion. united states v. criminal conviction.” united states v. carson, 560 f.3d 566, 579 (6th cir. 2009). in instructions which so modify essential elements of the offense charged that there is a specifically united states v. miller, 434 f.3d 820 (6th cir. 2006), to find that coffelt had of methamphetamine, focusing instead on the location of the items in areas that were with respect to united states v. lopez-medina, 461 f.3d 724, 743 (6th cir. 2006) (quoting united states h. johnson (11-6490), eddie rollins (11- the government’s right to charge in the conjunctive and prove in the was sentenced to 360 months in prison; johnson was sentenced to 97 months in prison; denied, 132 s. ct. 762 (2011). nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 21 resulted in a constructive amendment and/or a prejudicial variance. methamphetamine, “if any person commits such a violation after a prior conviction for and many of the opinions expressed by frizzell, such as the role of red phosphorous and be inferred from circumstantial evidence that can reasonably be interpreted as contendere, in a judicial proceeding is counted as a sentence under hawes decided he would arrest rollins. grundy county deputy bell heard the exchange nevertheless determined that the admission of the testimony was harmless. id. at 751 criminal conduct for which johnson was on trial. nevertheless, it was not about conduct ganier, 468 f.3d 920, 925 (6th cir. 2006). admissible background evidence “consists evidence standard. united states v. white, 551 f.3d 381, 386 (6th cir.2008) (en banc). a. prior drug conviction - , jackson v. virginia, 443 u.s. 307, 319 (1979) (emphasis in original). “‘in undertaking (holding that defendant placed on probation under judicial diversion statute had no boucha, 236 f.3d 768, 774 (6th cir. 2001). “the ‘policy of lenity means that the court jury is informed of the dual roles of a law enforcement officer as a fact witness and an bell procured a tow slip, called for a tow truck, and began to conduct an inventory wrinkle in this case is the fact that the jury was initially instructed in the conjunctive and of the issues presented for review and an argument on each issue presented). however, pritchett’s home with opinions regarding the indicia of methamphetamine at 823 (6th cir. 2006) (citing united states v. walker, 160 f.3d 1078, 1093 united states v. childs, 539 f.3d 552, 569 (6th cir. 2008)). “admission of other-acts - he had no right to appeal, his conviction never became final. coffelt’s argument is not resulting from a finding or admission of guilt, or a plea of nolo will not interpret a federal statute so as to increase the penalty it places on an individual united states v. mejias, 47 f.3d 401, 404 (11th cir. 1995) (per curiam). methamphetamine conspiracy have raised multiple challenges to their convictions and expert witness, so that the jury can give proper weight to each type of testimony.” (equating a plea of guilty and its notation by the state court, followed by a sentence of over the sheriff’s affidavits in light of the fact that the sheriff did not conduct the search, undermine the rule set forth in almendarez-torres); united states v. keglar, no. brief on appeal. we have held that an issue is waived when it is not raised in the improper searches incident to arrest under arizona v. gant, 556 u.s. 332 (2009),5 when miller’s time to appeal expired. 434 f.3d at 824. unlike the georgia statute on facts materially different from those alleged in the indictment. the only possible minimum triggered by the sentencing judge’s findings. thus, the district court did not proceedings.” id. at 739 (citing johnson v. united states, 520 u.s. 461, 466-67 (1997)). law school federal appellate litigation clinic, ann arbor, 594, 609 (6th cir. 2013), “[a]lthough almendarez-torres may stand on shifting sands, 3 fact could have found the essential elements of the crime beyond a reasonable doubt.” that he was ever present during the manufacture of methamphetamine. according to 50 grams or more of methamphetamine, or 500 grams or more of a mixture containing d. sufficiency of the evidence sentences. for the reasons that follow, we affirm. conviction if (1) a variance occurred and (2) the variance affected the defendant’s r. crim. p. 52(a). harmless error analysis focuses not on whether the defendant could § 4a1.1(c) even if a conviction is not formally entered , except that § 841(b)(1)(b) (providing for a sentence of 5-40 years for 5 grams or more of remains ambiguous after consideration of its plain meaning, structure and legislative properly arrested for driving without a license, that he did not have a passenger with him agent frizzell participated in the arrest of pritchett and the search of pritchett’s 6495 initial briefs were due. assuming they properly presented their sentencing challenges defendant received diversion can be considered as prior criminal behavior to elevate a defendant’s range for purposes of this appeal. conjunctively in an indictment where a statute denounces the offense disjunctively.’” pritchett and rollins filed supplements to their appeals with citations to alleyne, within the meaning of § 841. adams v. united states, 622 f.3d 608, 612 (6th cir.2010). bell, district judge. four defendants who were convicted of a murph, 707 f.2d 895, 896 (6th cir. 1983)). at trial, the government may prove and the nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 13 sentences imposed under § 841, “congress has not exempted from the ‘prior lopez-medina, 461 f.3d 724, 738-39 (6th cir. 2006) (“even when a party has brought noted by the fifth circuit, “state law could be looked to ‘for informational purposes, but of what occurred, rather than to the specific provisions contained in the state statute. in testified that the reason those items were seized was because of their suspected may convict a defendant on any theory contained in the indictment. as johnson in 2009 about methamphetamine. the government also asserted that johnson’s this argument lacks merit. federal law governs whether a prior conviction is final grams or more of methamphetamine (actual) or 500 grams or more of a mixture diversion statute was a “prior conviction” for purposes of § 841 was not necessary to the dickerson, 460 u.s. at 112. “‘a plea of guilty differs in purpose and effect from a mere affirmed. (6th cir. 2005) (internal quotation omitted). “[o]nce the existence [of] a conspiracy is manufacture of methamphetamine. even if it was error not to give a cautionary on appeal, rollins argues that the fruits of the september 2008 grundy county diversion does not negate a finding of finality. instead, it supports a finding of finality affected his substantial rights. the trial court gave the jurors the sixth circuit standard normal household items without providing an explanation as to their association with the in concluding that a guilty plea under a state first-offender diversionary program 2006); see fed. r. app. p. 28(a) (requiring the appellant’s brief to contain a statement transactions between wright and castillo-mejia prior to the beginning of the conspiracy id. (“[w]e have applied rule 52(b)’s plain error review to new suppression arguments conviction” under § 841, congress undoubtedly intended to treat a state offense discharged through an sentences should be vacated and remanded for resentencing. pseudoephedrine in 100 separate purchases from various pharmacies. co-defendant with knight was not at issue. by dicta in a previously published panel opinion.” quoting united states v. burroughs, 196 grams, even though the jury found that johnson purchased less than 100 grams of in anticipation of having the vehicle towed. officer hawes testified that if he arrests the prove, beyond a reasonable doubt, “(1) an agreement to violate drug laws, (2) knowledge _________________ expunged under a state judicial diversion program, with no adjudication of guilt and no clark v. maggio, 737 f.2d 471, 479 (5th cir. 1984)). in lopez-medina, this court found defendants’ rights to a fair trial. substantial likelihood that the defendant may have been convicted of an offense other methamphetamine” in violation of 21 u.s.c. § 841(c)(2). the trial court initially the sentencing guidelines instruct that the provisions of §4a1.2 (definitions and instructions that is later removed from a criminal record based on innocence or legal error. see law, serve.’” dickerson v. new banner inst., inc., 460 u.s. 103, 118 (1983) (quoting e. testimony of paul knight the government presented evidence that johnson purchased 242.4 grams of deemed waived under rule 12(e).”) nevertheless, it may be reviewed for plain error. manufacturing. is arrested and there is no one present who can drive the vehicle away, or that grundy purposes of our decision today.” id. as we noted in united states v. mack, 729 f.3d the issue of whether the plea under the georgia first-offender statute was a prior michigan, melissa m. salina, office of the federal public defender, instructed the jury that to find a defendant guilty of the conspiracy charge in count 2, found noncompliant. in other words, coffelt did everything necessary to prove his guilt for appellant in 11-6489. charles p. dupree, chattanooga, tennessee, for appellant in crime esp. by a jury and on which the judgment is based.” “when reviewing a district court’s decision on a motion to suppress, we use a government can prove by a preponderance that the evidence inevitably would have been because a diversionary disposition resulting from a plea would count as a prior conviction under the career offender provisions of the sentencing offense.” id. in hardy, this court held that a confidential informant’s testimony deferred prosecution) is not counted. a diversionary disposition offense.” id. “typically, such evidence is a prelude to the charged offense, is directly nos. 11-6489/ 6490/ 6491/ contradictory testimony of the arresting officer. the magistrate judge was aware of the pursuant to sixth circuit i.o.p. 32.1(b) time on appeal that were not contained in the original suppression motion will be coffelt contends that because the tennessee statute specifically provides that entry of judgment, is a qualifying conviction for purposes of a sentence enhancement “because the parties do not contest that decision’s vitality, we do not revisit it for x cir.1999)). “[t]he defendant bears a heavy burden when making a sufficiency of the nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 18 counsel verdict) that a person is guilty of a crime.” webster’s third international united states v. lapointe, 690 f.3d 434, 440 (6th cir. 2012). guidelines, and the policies behind diversionary programs, we join with the other circuits the report and recommendation and denied the motion to suppress. as noted in united states v. johnson, 732 f.3d 577 (6th cir. 2013), the supreme court’s allowing agent frizzell to testify as both a fact and an expert witness without giving the held johnson responsible for the quantity of pseudoephedrine he purchased, i.e., substantial rights. adams, 722 f.3d at 805. pseudoephedrine when it convicted johnson of conspiracy to manufacture and distribute rights. 560 f.3d at 470. see also martin, 520 f.3d at 659-60 (holding that the lack of would still have arrested rollins for lack of a valid drivers’ license, and he would still of insurance, but gave hawes his birth date and social security number. based on this of an indictment are in effect altered by the presentation of evidence and jury admission or an extrajudicial confession; it is itself a conviction. like a verdict of a jury jury a cautionary instruction regarding his dual role. _________________ corp. v. next level communications, 107 f.3d 322, 326 n.2 (6th cir. 1997) (“[w]e have g. motion to suppress based on shown, the evidence linking an individual defendant to that conspiracy need only be of methamphetamine, their significance would eventually have been recognized in light testimony. he could not explain his reasons for seizing, photographing, and destroying states v. meraz, 998 f.2d 182, 184 (3d cir. 1993); united states v. lippner, 676 f.2d search as being incident to arrest. because he did not previously raise the argument that coffee filters in the manufacture of methamphetamine, were discussed in more detail by evidence challenge.” carson, 560 f.3d at 580. 21 u.s.c. §§ 841(a)(1) and 841(b)(1)(c), possessing firearms as a convicted felon in violation of 18 u.s.c. the case presently remains good law and we must follow it until the supreme court conspiracy to manufacture and distribute methamphetamine (count 1) and conspiracy id. at 187. it is conclusive. more is not required; the court has nothing to do but give judgment and that deputy bell conducted the search “incident to the arrest.” despite the sheriff’s felony convictions” for purposes of career offender status under § 4b1.1. u.s.s.g. § 4b1.2 application because his conviction is not subject to reversal. than that he was an occasional buyer of methamphetamine. if ‘sufficiently persuasive.’” (quoting pdv midwest ref., l.l.c. v. armada oil & gas instruction regarding the detective’s dual role was erroneous, but that the error was investigation was initiated whichincluded controlled purchases ofmethamphetamine by dictionary (1986) defines “conviction” in part as “the act of proving, n recognition that it would not be appropriate to enhance a sentence based on a conviction for the eastern district of tennessee of chattanooga. thegovernment’sexpertwitnesses. inaddition, during his cross-examination of frizzell, (“in light of other compelling evidence against rouse, we can say with ‘fair assurance’ methamphetamine. johnson’s son testified that he had seen johnson trade nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 11 is not clear that it was necessary to explain to the jury the nature of their prior definitions as an aid to understanding the ordinary meaning of the term “conviction”: history, the rule of lenity is applied in favor of criminal defendants.” united states v. we also review de novo the question of whether a variance has occurred. united nonpublic records retained by the court, as provided in subsection (a), shall constitute the official record > discussing the term “conviction” under the gun control act, the supreme court has noted united states of america, determining the meaning of “conviction” under federal law, courts look to the substance probation, with being “convicted” under 18 u.s.c. § 922(g) & (h)). sentencing statutes is “to allow first offenders, who are often youthful, firearms as an unlawful user of a controlled substance in violation of 18 u.s.c. § 922(g)(3). continue their criminal conduct.” johnson challenges the testimony of the pharmacists, because they were not 4 appeal. see tennessee v. norris, 47 s.w.3d 457, 461-63 (tenn. crim. app. 2000) county has a policy requiring the inventorying of all vehicles that will be towed. it was united states v. talley, 164 f.3d 989, 996 (6th cir.1999)). viewing the evidence in the neither pritchett nor rollins raised any challenge to his sentence in his initial improperly extended the traffic stop beyond its original purpose without reasonable a qualifying prior drug conviction. (dkt. no. 1484, sent. tr. at 33-35.) in miller we at 584. see also united states v. jones, 533 f. app’x 562, 573-74 (6th cir. 2013) coffelt suggests that a better comparison is found in the federal prejudgment probation and inc., 602 f.3d 742, 750 (6th cir. 2010) (“[o]ne panel of [the sixth circuit] is not bound no. 1:09-cr-181—curtis l. collier, district judge. (rejecting contention that amount of drugs attributable should have been capped by the source and large volumes of narcotics creates an inference of conspiracy.” united states 331 (6th cir. 2009) (“no doubt exceptions abound – when intervening authority arises and specifically provides that the discharge is not a conviction. tenn. code ann. § 40- the conviction was not final for purposes of § 841 because it was not subject to appeal. myers drafted the affidavits of complaint against rollins, and stated in those affidavits appellant pritchett contends that the district court abused its discretion by pritchett’s substantial rights or the fairness, integrity, or public reputation of the judicial fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct because the sentence fell within the statutory range). johnson’s 97-month sentence was § 40-35-313(b)(2) (emphasis added). furthermore, even under tennessee law, criminal acts for which a than the one charged in the indictment.’” id. (quoting united states v. smith, 320 f.3d sufficient.’” united states v. caver, 470 f.3d 220, 233 (6th cir. 2006) (quoting united driver’s license. moreover, the discovery of the items in the trunk of rollins’ vehicle the trial court determined that it was bound by sixth circuit precedent, particular case.” united states v. martin, 520 f.3d 656, 659 (6th cir. 2008) (quoting informed himthat rollins might have methamphetamine on him. officershawes waited three of the appellants, coffelt, pritchett and johnson, argue that the district on june 25, 2009, officer hawes of the tracy city police department stopped before: batchelder, chief judge; griffin, circuit judge; bell, district judge* conviction qualifies as a prior conviction under § 841. see, e.g., united states v. pritchett’s counsel did not dispute the relationship of the items seized to the manufacture nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 9 evidence at trial proves facts materially different from those alleged in the indictment. frizzell’s opinion testimony necessarily included both fact and opinion appellant johnson argues that the trial court erred in allowing paul knight, a conduct because the standard of proof at sentencing is the lower preponderance of the the magistrate judge held an evidentiary hearing on the motions and made nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 8 finding. he does not contest the finding that the traffic stop was valid, that he was plain error where there was “no cautionary jury instruction regarding the agents’ dual supreme court specifically declined to disturb the narrow exception for the fact of a incentive to learn a lesson . . . [but] is clearly not meant to provide them chemicals and equipment in violation of 21 u.s.c. § 843(a)(6) (counts 11 and 12 ). coffelt was duration of his probation). pseudoephedrine or iodine knowing or with reasonable cause to believe that the (9th cir. 2007) (“an expunged or dismissed state conviction qualifies as a prior acquired through lawful means.” united states v. kennedy, 61 f.3d 494, 497 (6th cir. qualifies as a prior conviction for purposes of a sentence enhancement under § 841. and intent to join the conspiracy, and (3) participation in the conspiracy.” united states sentencing guidelines for guidance. the sentencing guidelines provide for not proper background evidence or 404(b) evidence. the court noted that there was not diversion from juvenile court is not counted. violation of 21 u.s.c. §§ 841(a)(1) and 841(b)(1)(c), and possessing methamphetamine laboratory violate alleyne because neither johnson’s statutory maximum sentence nor his enhance his sentence if he continued to engage in felony drug offenses. johnson in the past provided the context for knight’s initiation of a conversation with who could drive his car, that it was routine police procedure to tow cars when the driver § 843(a)(6), and using and maintaining drug premises, in violation of 21 u.s.c. § 856(a)(1). (counts 3, all of the evidence, the court “is left with the definite and firm conviction that a mistake expungement of his record does not amount to a determination that the crime never findings of fact which are not contested on appeal. on september 15, 2008, deputy jon nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 22 to inventory all vehicles that are towed. after deputy bell found the incriminating methamphetamine). so long as the sentence falls within the statutory range prescribed - having reasonable cause to believe that the chemical would be used to manufacture instruction regarding frizzell’s dual testimony, pritchett has not shown that the error that the jury’s verdict ‘was not substantially swayed’ by any improperly received witness and an expert witness, but has noted that care should be taken “to assure that the based on the intervening authority of alleyne, we nevertheless find that their challenges he was otherwise prejudiced by the amendment of the instructions. there is nothing in sentence.’” id. at 112-13 (quoting kercheval v. united states, 274 u.s. 220, 223 “seriously affect[ ] the fairness, integrity, or public reputation of the proceedings” in the notice of prior convictions. they contend that based on the reasoning of alleyne, their of those other acts that are inextricably intertwined with the charged offense or those mike coffelt, went to trial. after a fourteen-day jury trial, all four were found guilty of methamphetamine (using the 2:1 ratio of pseudoephedrine to actual methamphetamine - cause to believe, that the listed chemical will be used to manufacture a controlled jury verdict finding him only responsible for between 5 grams and 50 grams of meth whether something is a prior conviction for purposes of § 841 is governed by he tailored his arguments or proofs based on the proposed original instructions, or that 134 s. ct. 280 (2013). offenses. testimony, or to establish the charged conspiracy itself. id. at 749-50. the hardy court used in the manufacture of methamphetamine. rollins contends that officer hawes to knight’s ability to initiate a conversation with johnson about methamphetamine, it did not testify at the suppression hearing. because the finding that the search was a valid finally, we evaluate appellant rollins’ contention that the district court erred in appellee. 495, 506 (6th cir. 2007) (quoting united states v. vite–espinoza, 342 f.3d 462, 466 (6th more probable than not that the error materially affected the verdict.’” id. (quoting a cautionary instruction for an officer’s dual testimony, although erroneous, did not johnson, the evidence, at best, shows that he used methamphetamine and had an - nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 16 ii. discussion ofrollins’ previous arrest for methamphetamine and the discoveryofmethamphetamine nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 23 pseudoephedrine for methamphetamine with dempsey ten to twelve times. four defendants, appellants harry pritchett, jessie johnson, eddie rollins and consideration of diversionary dispositions as follows: society can be confident that the grand jury has found probable cause for the ten minute delay was not unconstitutional because during the traffic stop probative of the charged offense, arises from the same events as the charged offense, inventory search was not clearly erroneous, the trial court did not err in denying rollins’ presented by the government). johnson contends that the district court improperly sentenced him based on a greater quantity of drugs than found by the jury. evidence in rollins’ vehicle, grundy county sheriff myers arrived at the scene. sheriff 647, 656 (6th cir.2003)). “[c]onstructive amendments are considered per se prejudicial and coffelt was sentenced to 240 months in prison. nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 14 the traffic stop was unreasonably prolonged, it has been waived. see united states v. and of actual methamphetamine or 50 grams of methamphetamine mixture. see 21 u.s.c. imprisonment which may not be less than 20 years . . . .” 21 u.s.c. § 841(b)(1)(a). harry allen pritchett (11-6489), jessie jury instructions. indictments must be phrased in the conjunctive so that driver, the vehicle is towed unless there is someone present who can drive the vehicle suspicion in violation of rollins’ fourth amendment right to be free from unreasonable although the tennessee statute expressly provides that there is no adjudication for deputy bell to arrive, then put rollins under arrest, and began an inventory search f. sentencing an identity of parties involved in the transactions, the testimony was not necessary to harmless because the defendant failed to establish that the error affected his substantial proceedings. nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 25 the tennessee statute itself describes the diversion proceedings as a “conviction”: “[t]he pritchett and coffelt, the jury found that the conspiracy charged in count 1 involved 50 nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 2 § 841 purposes” (citing miller, 434 f.3d at 824)). although miller appears to suggest judicial diversion statute, tenn. code ann. § 40-35-313. although coffelt or does not represent that the defendant was actually innocent of the crime.”). 35-313(a)(2). familiar with him and did not witness his purchases. he challenges the testimony of his in rollins’ wallet when he was brought to the jail. accordingly, there was no plain error 456 (11th cir.1982); williams v. united states, 651 f.2d 648 (9th cir.1981). this is a distributing pseudoephedrine and iodine knowing or have reasonable cause to believe substance.” 21 u.s.c. § 841(c)(2). section 841(c)(2) refers to “a listed chemical.” it of guilt was a prior conviction, so the only issue before the court was whether the affects substantial rights, and seriously affects the fairness or integrity of judicial because of an intervening change in law”). alleyne was issued after the appellants’ considered in miller, tennessee’s judicial diversion statute does not provide for direct the issue for our consideration is whether a plea that was dismissed and to possess a listed chemical – pseudoephedrine and iodine – with knowledge that the trial judge may instruct in the disjunctive form used in the statute. id. states v. corona, 493 f. app’x 645, 653 (6th cir. 2012), cert. denied, 133 s. ct. 1268 evidence relevant to the crime of arrest might be found in the vehicle. id. at 35. and to support a conviction, and the court treated him as though he were guilty and had states v. forrest, 17 f.3d 916, 918 (6th cir.1994)). “the existence of a conspiracy may rollins for speeding. rollins was unable to produce his license, registration, or proof occurred or that he was in fact innocent. as noted by the d.c. circuit, for purposes of the government to prove “either pseudoephedrine or iodine was the purpose.” the court affidavits, but found that deputy bell’s testimony that he searched the car as part of an when such an interpretation can be no more than a guess as to what congress intended.’” coffelt’s successful completion of his probationary sentence and the later instructed in the disjunctive. however, none of the defendants has suggested that nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 7 additionally found guilty of manufacturing methamphetamine in violation of 21 u.s.c. §§ 841(a)(1) and is based on intervening authority. united states v. huntington nat’l bank, 574 f.3d 329, such an instruction at trial, we review the lack of a cautionary instruction for plain error. - identical process in the same manner. the flaw in coffelt’s argument is that he has provided no authority occupant is justified only if the arrestee was unrestrained and within reaching distance of the passenger coffee filters, plastic tubing, a zip-lock baggie, a coffee pot, and propane tanks. he state of having been proved guilty,” and as “[t]he judgment (as by a jury intentionally possess or distribute “a listed chemical knowing, or having reasonable 112 f.3d at 1280 (finding a prior conviction under § 841 despite provisions of texas 750 (“although dictum is unnecessary to the decision, it may nevertheless be followed a result, judges read jury instructions in the disjunctive. instruction regarding agent frizzell’s dual role testimony did not seriously affect argument that alleyne requires prior convictions to be alleged in the indictment and inventory all vehicles that are to be towed. nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 19 found as facts by the jury at trial). because alleyne did not disturb the holding in winne, united states attorney’s office, chattanooga, tennessee, for of punishment. tennessee v. kelley, 34 s.w.3d 471, 481 (tenn. crim. app. 2000). convictions’ that must be counted those convictions removed from a criminal record for decided and filed: april 9, 2014 at least 5 grams of actual methamphetamine but fewer than 50 grams of actual conviction ever became “final.” id. at 822, 823. accordingly, miller is not controlling acts, the telling of which is necessary to complete the story of the charged offense.” since almendarez-torres v. united states, 523 u.s. 224 (1998), it has been well- methamphetamine. he received a four-year term of probation under tennessee’s disjunctive (pseudoephedrine or iodine) did not result in a constructive amendment or containing methamphetamine. pritchett was sentenced to 240 months in prison; rollins expungement statute, 18 u.s.c. § 3607(a)(2), which, like the tennessee judicial diversion statute provides v. thomas, 74 f.3d 676, 683 (6th cir. 1996)). “[p]lain error depends on the facts of the raised for the first time on appeal after a defendant’s original suppression arguments toledo, ohio, dennis g. terez, office of the federal public defender, conducted on them. for computing criminal history) are applicable to the determination of whether a defendant has “two prior mixed standard of review: we review findings of fact for clear error and conclusions of a confidential informant. the investigation led to a series of indictments charging inventory search to be credible. to suggest that federal courts would not use a federal offense discharged through prejudgment probation irregularity, or variance that does not affect substantial rights must be disregarded.” fed. denying his motion to suppress evidence seized from his car following two separate residence. frizzell testified about the items seized from pritchett’s residence, including craddock, 593 f.3d 699, 701 (8th cir. 2010); united states v. law, 528 f.3d 888, must exist for there to be a conspiracy,” but “evidence of repeat purchases from a single evidence of other crimes committed by the defendant.”). in united states v. toro, michigan, sitting by designation. was proper background evidence because it “was necessary to show how wright came our circuit does not categorically prohibitan officer fromtestifying as both a fact this record to suggest that the amendment of the jury instructions affected the have inventoried rollins’ vehicle before having it towed. and even if officer hawes policy reasons unrelated to innocence or an error of law.” united states v. law, 528 away. he further testified that it was the policy of the tracy city police department to objections to the report and recommendation, rollins only challenged the june 2009 expressly overrules it.” see also united states v. wynn, 531 f. app’x 596, 597 (6th cir.) support the district court's decision.’” id. (quoting united states v. adams, 583 f.3d noting that § 841 does not define “prior conviction,” we looked to the following evidence constitutes ‘harmless error’ if the other record evidence of guilt is swayed by the error.” united states v. hardy, 643 f.3d 143, 153 (6th cir. 2011), cert. compartment at the time of the search, or if it was reasonable for the arresting officers to believe that id. at 774-75 (quoting bifulco v. united states, 447 u.s. 381, 387 (1980)). based on the search were subject to suppression because the search was an improper search incident rollins under arrest and conducting the inventory search. during the inventory search vehicle or its occupants unless something happened during the stop to cause the officer not be express or formal. ‘a tacit or mutual understanding among the parties is a pretrial suppression motion, . . . any new suppression arguments raised for the first testimony.” id. at 745. in vasquez, this court held that the failure to give a cautionary argued: november 20, 2013 been convicted by placing him on probation. coffelt could have no doubt that his plea hardy, 228 f.3d at 748. it has “a causal, temporal or spatial connection with the charged independently weighs the evidence, nor judges the credibility of witnesses who testified clearly covered.” united states v. lanier, 520 u.s. 259, 266 (1997). “if the statute 2 the jury convicted johnson of the lesser-included offense of conspiracy to this conclusion does not violate the rule of lenity. the rule of lenity “ensures in gant the supreme court held that the search of a vehicle incident to the arrest of a recent conviction was not before us in miller. miller conceded that his deferred adjudication was on fair notice that a plea and resulting sentence of probation could be used to relationship. graham, 622 f.3d at 458. 434 f.3d at 824 (quoting united states v. petros, 747 f.supp. 368, 376 (e.d. mich. close in time to the charged conspiracy, and the government has not suggested that we review de novo the legal question of whether an indictment has been observed that “alternative sentencing such as that utilized by georgia in its first-offender - chemical would be used to manufacture methamphetamine (count 2). pritchett, rollins federal law rather than state law. see united states v. ortega, 150 f.3d 937, 948 period of probation, living under the threat of revocation and imprisonment were he united states v. cisneros, 112 f.3d 1272, 1281 (5th cir. 1997); united states v. mejias, united states v. vasquez, 560 f.3d 461, 470 (6th cir. 2009). “if the defendant satisfies statement, the magistrate judge found deputy bell’s testimony that he conducted an 11-6490. t. clifton harviel, memphis, tennessee, for appellant in 11-6491. scott a. association with the manufacture of methamphetamine. he also testified that the items and iodine for a guilty verdict on count 2, the court stated that it was only necessary for of heet, and a can of carburetor cleaner which deputy bell recognized as ingredients evaluating a sufficiency of the evidence claim, we must determine “whether, after that in some circumstances, “a guilty plea alone [is] enough to constitute a ‘conviction.’” in alleyne the supreme court held that “any fact that increases the mandatory minimum guidelines,4 prior conviction established by almendarez-torres. alleyne, 133 s. ct. at 2160 n.1. pseudoephedrine or iodine would be used to manufacture methamphetamine.” that all evidence found in his vehicles should have been suppressed. recommended for full-text publication treating a plea under a first-offender statute as a conviction for purposes of § 841 nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 15 deputy bell to arrive. at the evidentiary hearing before the magistrate judge and in his judicial diversion statute, which provides that upon successful completion of probation, falls within the inevitable discovery exception to the exclusionary rule. the inevitable cleveland, ohio, for appellant in 11-6495. michael j. stengel, memphis, tennessee, for the sixth circuit states v. desantis, 134 f.3d 760, 769 (6th cir.1998)). error is “‘harmless unless it is nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 5 to be acquainted with castillo-mejia and how their heroin-dealing relationship began.” determination in miller, the policy analysis is persuasive. see bdt prods., 602 f.3d at has been committed.” united states v. sanford, 476 f.3d 391, 394 (6th cir. 2007). methamphetamine. 133 f. app’x 181 (6th cir. 2005), we held that the limited testimony regarding drug co-defendants because they were not credible. he points out that there was no evidence baggage of a drug conviction on their record” and is meant “as an guidelines “would disrupt uniformity in federal sentencing and frustrate the purpose of nos. 11-6489/ 6490/ 6491/ 6495 united states v. pritchett, et al. page 24 constructively amended by the evidence or the jury instructions. united states v. budd, u.s.s.g. § 4a1.2(f).3 assessment of credibility.” united states v. howard, 621 f.3d 433, 450 (6th cir. 2010). proceedings is sought.” tenn. code. ann. § 40-35-313(b)(i)(a). coffelt stood before stop and there is no passenger to drive the vehicle, it is his practice to have the vehicle except that diversion from juvenile court is not counted.” u.s.s.g. § 4a1.2(f). 910-11 (d.c. cir. 2008); united states v. norbury, 492 f.3d 1012, 1015 (9th cir. 2007); 927-28 (7th cir. 1994); united states v. meraz, 998 f.2d 182, 184-85 (3d cir.1993); b. constructive amendment or prejudicial variance in tracy city. rollins’ motion was based on his contention that the searches were provision does not prevent the underlying offense from being treated as a prior purposes of § 841 despite the lack of a formal entry of judgment. see, e.g., cisneros, 6491), and mike coffelt (11-6495), “[t]he act or process of judicially finding someone guilty of a crime; the that the testimony was admissible as evidence to demonstrate relationships. johnson rollins has not presented any basis for overturning the magistrate judge’s credibility acknowledges that he pled guilty in 2006 to a drug offense, coffelt successfully finding, or adjudging a person guilty of an offense or crime . . . ; specif: search of the vehicle. deputy bell testified that when he arrests a driver during a traffic that “a disposition under subsection (a), or a conviction that is the subject of an expungement order under appeal as of right and no basis for discretionary appeal). coffelt suggests that because constituted sufficient proof as to his guilt and a finding thereof by a judge.2 seizures. see united states v. davis, 430 f.3d 345, 353 (6th cir. 2005) (“once the


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