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United States v. Lynn

United States Court of Appeals, Seventh Circuit

March 24, 2017

United States of America, Plaintiff-Appellee,
Colt V. Lynn, Defendant-Appellant.

          Argued October 28, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 4:13-cr-40077-JPG-l - J. Phil Gilbert, Judge.

          Before Ripple, Kanne, and Rovner, Circuit Judges.

          Ripple, Circuit Judge.

          Colt 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 months' imprisonment.

          Mr. 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.

         We 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. § 4B1.2(a)(1).




         On 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.[1]

         Based 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.

         In 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.[2] His secondary goal was to "smell around and go[] through the bedroom and see if [he] could smell anything.[3] 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 property.

          During 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.

         Carey and Horton subsequently were convicted in Illinois state court and agreed to cooperate with federal authorities to avoid federal prosecution.


         Based 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.[4] Mr. Lynn pleaded not guilty, and the parties prepared for trial.

         On 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.

         Mr. 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.

         Officer 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.[5] Horton also confirmed that she, Mr. Lynn, Carey, and Ficker had been using methamphetamine together in January of 2013.

          The 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.[6] 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.

         Following 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 counts.[7]


         The 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.

         If Mr. 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 been brought.

         The 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.



         Mr. 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.


         We 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 ...

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