October 28, 2016
from the United States District Court for the Southern
District of Illinois. No. 4:13-cr-40077-JPG-l - J. Phil
Ripple, Kanne, and Rovner, Circuit Judges.
Ripple, Circuit Judge.
Lynn was convicted of one count of conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), 846 and 18 U.S.C. § 2; and one count of
conspiracy to possess pseudoephedrine, in violation of 21
U.S.C. §§ 841(c)(2), 846 and 18 U.S.C. § 2.
The court imposed a below-guidelines sentence of 192
Lynn contends that the district court erred in admitting two
kinds of evidence at trial: (1) National Precursor Exchange
System ("NPLEX") logs concerning pharmacy purchases
of products containing pseudoephedrine, an ingredient in
methamphetamine; and (2) a video of a chemist demonstrating a
particular method for producing methamphetamine, known as
"shake-and-bake." Mr. Lynn also contends that he
should not have been sentenced as a career offender because
his two predicate offenses for aggravated battery do not
qualify as violent felonies.
affirm. The district court did not err in allowing the
introduction of the NPLEX logs because those records are
nontestimonial. Similarly, although the
"shake-and-bake" video showed a different, and
perhaps more sophisticated, means of production, the
video's presentation did not prejudice Mr. Lynn. Finally,
the district court properly applied the career offender
enhancement because Mr. Lynn's prior Illinois aggravated
battery convictions were crimes of violence under U.S.S.G.
January 15, 2013, at about 3:00 a.m., Mr. Lynn called Sheriff
Jerry Suits of Pope County, Illinois. He told the Sheriff
that, he, along with Ryan Carey, Amy Ficker, and Sarah
Hor-ton, had been cooking and using methamphetamine in a
house on Madison Street in Golconda, Illinois. Mr. Lynn
expressed concern that some of the people in the house wanted
to continue using methamphetamine even though young children
recently had returned to the house. Mr. Lynn specifically
admitted to Sheriff Suits that he had been "involved in
it, too" and that he "ha[d] cooked some in there
and, yeah, [he] ha[d] used it.
on this call, Sheriff Suits immediately initiated an
investigation. He called several members of his team,
including Officer Josh Moore. Sheriff Suits asked Officer
Moore to check the NPLEX logs to see if anyone in the home
had purchased Sudafed. NPLEX logs track lawful purchases of
products containing pseudoephedrine, which is a necessary
ingredient in methamphetamine.
addition to checking the logs, Sheriff Suits sent officers to
the Madison Street home. His "number one goal was to do
the welfare check on the kids. His secondary goal was to
"smell around and go through the bedroom and see if
[he] could smell anything. Around 4:40 a.m., police officers
approached the house. Eventually, one of the occupants opened
the door, and the officers entered to complete a welfare
check. After speaking with at least two adults, Ficker and
Horton, Sheriff Suits called the Pope County State's
Attorney, Melissa Presser. The Sheriff advised her of the
information that he had received from Mr. Lynn on site and
from the NPLEX logs, which showed that Carey and Horton
recently had purchased pseudoephedrine. At approximately 8:00
a.m., the police executed a valid warrant to search the
the search, the police found remnants of a meth-amphetamine
lab in the home's basement and evidence of
methamphetamine manufacturing and use elsewhere in the house.
The home's tenant, Carey, told Sheriff Suits and the
other officers that he and the other occupants of the house,
Horton and Ficker, had been manufacturing and using
methamphetamine with Mr. Lynn earlier that day.
and Horton subsequently were convicted in Illinois state
court and agreed to cooperate with federal authorities to
avoid federal prosecution.
on the events of January 15, 2013, a grand jury in the
Southern District of Illinois indicted Mr. Lynn and charged
him in a three-count indictment with charges related to a
conspiracy to manufacture and distribute
methamphetamine. Mr. Lynn pleaded not guilty, and the
parties prepared for trial.
January 29, 2014, the Government filed a notice of intent to
introduce the NPLEX records under Federal Rules of Evidence
803(6) and 902(11). Mr. Lynn filed a response to the
Government's notice of intent on February 19, 2014; he
objected to the introduction of NPLEX records on two grounds.
First, Mr. Lynn argued that NPLEX records are documents
prepared in anticipation of litigation and, as such, do not
fall within the exception to the hearsay rule. Second, Mr.
Lynn argued that admitting the records would violate his
right to confrontation under Crawford v. Washington,
541 U.S. 36 (2004). The Government did not respond to this
filing, and the district court made no findings on the
admissibility of the records.
Lynn's jury trial began on June 22, 2015. Sheriff Suits
was the first witness to testify. Sheriff Suits testified
about the phone call he had received from Mr. Lynn on January
15, 2013, and also described the small methamphetamine
laboratory found in the basement of Carey's house.
Moore testified as well. He stated that he had checked the
NPLEX logs after the welfare check in preparation to secure a
search warrant for the premises. From the NPLEX logs, he had
learned that Carey and Horton recently had purchased
pseudoephedrine. Carey's records revealed that he had
purchased pseudoephedrine twice between January 11 and 15,
2013. In his testimony, Carey explained that, a few weeks
prior to January 15, he and Mr. Lynn had used a quarter gram
of methamphetamine with Ficker and Horton. When Carey asked
if Mr. Lynn could get more, Mr. Lynn said that he knew how to
cook methamphetamine. Carey purchased the pseudoephedrine,
and, between January 11 and 15, Carey "cooked"
methamphetamine twice with Mr. Lynn by mixing the ingredients
in a jug and shaking it. Horton also confirmed that she, Mr.
Lynn, Carey, and Ficker had been using methamphetamine
together in January of 2013.
Government also presented an expert witness, Officer William
Brandt Blackburn. Officer Blackburn was a member of the
Illinois State Police Meth Response Team and testified that
he believed that Mr. Lynn had used the "shake-and-
bake" method to cook methamphetamine. The Government
played a silent video of a chemist using the
"shake-and-bake" method in a laboratory setting,
while Officer Blackburn explained that method. Officer
Blackburn admitted that this video may differ from Mr.
Lynn's actual experience. For example, he noted that the
amount of methamphetamine produced varies, and that, outside
of a laboratory, someone using this method may employ another
type of drain cleaner, table salt, or muriatic acid and
aluminum foil to get the same result. Officer Blackburn also
explained that the video depicted a chemist using test tubes
and laboratory equipment, but that, outside this setting, a
methamphetamine cook would use anything from a bottle to a
jar to a bowl to produce methamphetamine.
this testimony, the Government rested its casein-chief. Mr.
Lynn moved for a judgment of acquittal, which the district
court denied. The defense then rested, and the case was
submitted to the jury. The jury found Mr. Lynn guilty of both
presentence report ("PSR") concluded that Mr. Lynn
was a career offender under section 4B1.1 of the United
States Sentencing Guidelines. This determination was based on
two prior convictions for crimes of violence, including two
convictions of aggravated battery under Illinois law in 2007.
Applying the career offender guideline, the PSR calculated
Mr. Lynn's offense level at 32 and his advisory
sentencing range at 210 to 262 months. The PSR did not
suggest a basis for a sentence below the guidelines range.
Lynn had not been classified as a career offender, his total
offense level would have been 18, and the applicable
guidelines range would have been 57 to 71 months. Defense
counsel filed a motion in support of a variance and requested
a sentence of 60 months in prison. In that motion, defense
counsel noted the difference between the career offender
guideline range and the guideline range for the offenses of
conviction. He argued that the prior convictions should be
considered related and insufficiently serious to warrant a
sentence within the career offender guidelines range. He also
argued that Mr. Lynn should receive a lower sentence because
none of the methamphetamine involved was intended for
distribution. Finally, the motion noted that, if Mr. Lynn had
not called Sheriff Suits, the present case would not have
district court accepted the PSR's unchallenged
calculation and, after considering the 18 U.S.C. §
3553(a) factors, imposed a below-guidelines sentence of 192
months' imprisonment. Mr. Lynn timely appeals his
conviction and sentence.
Lynn's appeal of his conviction rests on his claim that
the district court erred in admitting the NPLEX logs and the
"shake-and-bake" video. With respect to his
sentence, Mr. Lynn claims that the career offender guideline
was applied improperly because his prior aggravated battery
convictions do not qualify as "crimes of violence."
We address these issues in turn.
examine first whether the district court erred in admitting
the NPLEX records. The parties dispute the appropriate
standard of review. Mr. Lynn contends that his pretrial
objection was sufficient to trigger de novo review. The
Government asserts that we should ...