U.S. v. Sherrod, No. 90-4467

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GARWOOD and DEMOSS; GARWOOD
Citation964 F.2d 1501
PartiesUNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. James Edwin SHERROD, Defendant-Appellant Cross-Appellee, and Steven Lee Sherrod, a/k/a William Wayne Embry and Lonnie Jerrell Cooper, Defendants-Appellants, Jerry Wayne Sewell, II and Jerry Wayne Sewell, Sr., Defendants-Appellants Cross-Appellees.
Docket NumberNo. 90-4467
Decision Date23 June 1992

Page 1501

964 F.2d 1501
UNITED STATES of America, Plaintiff-Appellee Cross-Appellant,
v.
James Edwin SHERROD, Defendant-Appellant Cross-Appellee,
and
Steven Lee Sherrod, a/k/a William Wayne Embry and Lonnie
Jerrell Cooper, Defendants-Appellants,
Jerry Wayne Sewell, II and Jerry Wayne Sewell, Sr.,
Defendants-Appellants Cross-Appellees.
No. 90-4467.
United States Court of Appeals,
Fifth Circuit.
June 23, 1992.

Page 1502

Gaylyn Cooper, Beaumont, Tex. (Court-appointed), for James Edwin Sherrod.

Steven C. Barkley, Beaumont, Tex. (Court-appointed), for Steven Lee Sherrod.

Linda Cansler, Beaumont, Tex. (Court-appointed), for Jerry Lee Sewell, II.

Kent Adams, Beaumont, Tex. (Court-appointed), for Jerry Lee Sewell, Sr.

Dewey J. Gonsoulin, Beaumont, Tex. (Court-appointed), for Lonnie J. Cooper.

Bob Wortham, U.S. Atty., James O. Jenkins, Paul E. Naman, Asst. U.S. Attys., Beaumont, Tex., Mervyn Hamburg, Dept. of Justice, Washington, D.C., for U.S.

Appeals from the United States District Court for the Eastern District of Texas.

Before GARWOOD and DEMOSS, Circuit Judges, and LITTLE, * District Judge.

GARWOOD, Circuit Judge:

A jury convicted the five defendants-appellants now before this Court of three counts involving, inter alia, conspiracy to manufacture and the manufacture of phenylacetone and methamphetamine. We affirm

Page 1503

the convictions and sentences of all five defendants.

Proceedings Below

Defendants Jerry Wayne Sewell, Sr. (Sewell, Sr.), Jerry Wayne Sewell II (Sewell II), Lonnie Jarrell Cooper (Cooper), James Sherrod, and Steven Sherrod were charged in a May 1989 superseding indictment. 1 Also charged in this indictment were co-defendants Jack Rhodes (Rhodes), Dan Hill (Hill), Lisa Ervin (Ervin), and Darlene Roznovsky (Roznovsky). 2 The indictment contained three counts: (1) conspiracy to (a) manufacture phenylacetone (P2P), amphetamine, and methamphetamine, (b) possess amphetamine and methamphetamine with the intent to distribute, and (c) distribute amphetamine and methamphetamine; (2) manufacturing P2P; and (3) manufacturing a mixture containing methamphetamine. The conspiracy charge and the charge of manufacturing the methamphetamine mixture alleged enhanced penalty provisions for violations of 21 U.S.C. §§ 846 and 841(a)(1) involving a kilogram or more of a mixture or substance containing a detectable amount of methamphetamine.

Following a jury trial in October and November 1989, defendants were convicted and sentenced on all three counts. They appeal their convictions and sentences on constitutional and evidentiary grounds. The Government cross-appeals the sentences of James Sherrod, Sewell, Sr., and Sewell II, alleging noncompliance with the sentencing guidelines and statutory minimum sentence provisions.

Factual Background

In early 1989, law enforcement officials from the Sheriff's Department of Calcasieu Parish, Louisiana, began working with a confidential informant, Danny Johnson (Johnson), 3 to identify and apprehend individuals involved in drug trafficking in the area. Among the names given to the authorities by Johnson was that of defendant Sewell, Sr., 4 from whom Johnson had previously obtained methamphetamine. One of the primary goals of Johnson's cooperation with the Calcasieu Parish Sheriff's Department was to locate the laboratory source of Sewell, Sr.'s methamphetamine.

When Johnson first began work as an informant, the law enforcement officials' focus was on Sewell, Sr.'s connections with a source of methamphetamine in San Antonio, Texas, known as "Fred." Because of financial problems with Fred, however, Sewell, Sr. began making arrangements to manufacture amphetamine and methamphetamine independently.

Preparations were begun for making the drugs: several conversations concerning the conspiracy were held in Cooper's auto mechanic shop in Mossville, Louisiana; Rhodes, an associate of Sewell, Sr. from Oklahoma, located a chemist, or "cook"; 5 Cooper compiled a list of the chemicals and equipment necessary for the laboratory process; Sewell II and Roznovsky collected equipment and chemicals stored on Sewell, Sr.'s property; Sewell II, Steven Sherrod, and Rhodes helped load the items into Rhodes' car, a 1977 Cadillac, for transport to the laboratory site, which was in a semi-rural area near Orange, Texas.

On March 8, 1989, Johnson, Rhodes, Steven Sherrod, and James Sherrod drove to Dallas in the Cadillac. In Dallas, they met Roznovsky who had gone there to purchase the remaining chemicals and laboratory

Page 1504

equipment. These items were placed in the trunk of the Cadillac, along with the equipment and chemicals that had come from Sewell, Sr. The four men then continued on to Lake Charles, Louisiana, where Johnson had an apartment.

Law enforcement officials, in close contact with Johnson, kept the Cadillac under surveillance and contacted the Texas Department of Public Safety (DPS) to arrange a stop of the vehicle in order to obtain the identity of its occupants. 6 A DPS patrolman stopped the car near Beaumont on the pretext that a tail light was malfunctioning. He ascertained that the occupants were Johnson, Rhodes, and James Sherrod; Steven Sherrod produced false identification giving his name as William Wayne Embry. The DPS officer, as requested by Louisiana law enforcement officers, did not search the car.

Once the four men arrived in Lake Charles, Johnson contacted Cooper to get directions to the laboratory. Cooper arranged to lead them to the laboratory the next morning. The next day, the group met Cooper at a local truck stop and followed him to an auto mechanic shop near Orange, Texas, owned by Hill. The group unloaded the items from the trunk and carried them to the laboratory, which was set up in an old school bus located behind Hill's trailer. The group discovered that one of the laboratory flasks was the wrong size. Sewell, Sr., who had remained in Bells, Texas, sent Roznovsky to Orange with the proper equipment.

James Sherrod began working in the laboratory on March 9. Hill was also there working on a batch of methamphetamine that he had started before the others arrived. Steven Sherrod and Rhodes stayed in Johnson's apartment in Lake Charles. Johnson made several trips to the laboratory to check on things, reporting by telephone to Sewell, Sr. and Cooper and keeping the law enforcement officials apprised of the situation.

The Calcasieu Parish Sheriff's Department, joined by agents from the Drug Enforcement Agency (DEA) and officers from the Orange County police and sheriff departments, maintained a constant surveillance of the Hill property. Early in the morning of March 11, DEA agents obtained a warrant to search the Hill property. The officers planned to wait to execute the warrant until Sewell, Sr. arrived at the laboratory to inspect the finished product. During the afternoon of March 11, however, officers near the laboratory observed Rhodes and Steven Sherrod arrive in the Cadillac, open the trunk of the vehicle, and drive away a few minutes later. Fearing that the defendants were dismantling the laboratory to move it or that Rhodes and Steven Sherrod were removing evidence, officers stopped the Cadillac after it had crossed the state line into Louisiana. Shortly thereafter, the agents executed the search warrant at the laboratory site.

In the school bus, the agents found chemical mixtures in a cake pan, a Coca-Cola syrup canister, and a Mason jar. The agents took samples from each of these containers; tests of these samples revealed methamphetamine. 7 Precursor chemicals were also found in the bus. 8

At the same time they obtained the search warrant, the agents also obtained from the magistrate issuing the warrant an order permitting them to destroy the chemical mixtures (except for retained samples), provided that photographs were taken of the mixtures and their containers before the destruction. 9 The order did not contain any provision allowing for the destruction of the containers themselves. Nevertheless, the agents at the scene decided to destroy the containers as well because they were contaminated by the hazardous chemical

Page 1505

mixtures. 10 Samples of the mixtures from at least two of the containers were retained, and later tested.

Defendants were arrested and indicted on conspiracy and manufacturing charges.

Discussion

I. Cross Appeal.

The Government cross-appeals the sentences of Sewell, Sr. and Sewell II, contending that the district court erred in applying the statutory minimum penalty provisions of 21 U.S.C. § 841(b)(1)(B) instead of those of section 841(b)(1)(A). 11

The version of 21 U.S.C. § 841 that was in effect at the time of the offenses set forth two different penalties for identical violations of section 841(a) 12 involving one hundred grams or more of a mixture or substance containing a detectable amount of methamphetamine. 13 Under section 841(b)(1)(A), the penalty for a first-time offender was a term of imprisonment which could not be less than ten years or more than life; for a defendant with two or more final convictions for a felony drug offense, the penalty was "a mandatory term of life imprisonment without release." Section 841(b)(1)(B) provided a penalty for the same violation of a term of imprisonment which could not be less than five years and not more than forty years; if the defendant had a prior final conviction for a drug-related felony, the sentence was for a term of imprisonment not less than ten years and not more than life.

Sewell, Sr. and Sewell II were convicted of manufacturing 17.5 kilograms of a mixture containing a detectable amount of methamphetamine and were sentenced under section 841(b)(1)(B). Sewell II received the statutory minimum sentence of five years' imprisonment on each count, running concurrently. Sewell, Sr. had three prior convictions for drug-related felonies and therefore was subject to the more serious penalty. He received concurrent sentences of 360 months...

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159 practice notes
  • U.S. v. Ramos-Hernandez, No. MO-00-CR-141-F(25).
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 2 Enero 2002
    ...F.2d 1234, 1250 (5th Cir.1982). Moreover, a conspiracy is a single crime no matter how diverse its objectives. United States v. Sherrod, 964 F.2d 1501, 1513 (5th Cir.1992) (citing Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561 (1919)). In this scenario, the Pecos indict......
  • U.S. v. Richards, No. 94-4052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Junio 1996
    ...936 F.2d 623, 625-26 (1st Cir.), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); United States v. Sherrod, 964 F.2d 1501, 1509-10 (5th Cir.1992); United States v. Beltran-Felix, 934 F.2d 1075, 1076 (9th Cir.1991). This usable/unusable distinction has been applied by two ......
  • U.S. v. Richards, No. 94-4052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 11 Octubre 1995
    ...936 F.2d 623, 625-26 (1st Cir.), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); United States v. Sherrod, 964 F.2d 1501, 1509-10 (5th Cir.1992); United States v. Beltran-Felix, 934 F.2d 1075, 1076 (9th Cir.1991). This usable/unusable distinction has been applied by two ......
  • U.S. v. Innie, No. 92-50239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 Octubre 1993
    ...methamphetamine, whichever is greater. U.S.S.G. § 2D1.1(c) n.* (1989). 3 The Fifth Circuit reaffirmed Walker in United States v. Sherrod, 964 F.2d 1501, 1509-11 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 832, 121 L.Ed.2d 701 (1992) and cert. dismissed, --- U.S. ----, 113 S.Ct. 834, ......
  • Request a trial to view additional results
159 cases
  • U.S. v. Ramos-Hernandez, No. MO-00-CR-141-F(25).
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • 2 Enero 2002
    ...F.2d 1234, 1250 (5th Cir.1982). Moreover, a conspiracy is a single crime no matter how diverse its objectives. United States v. Sherrod, 964 F.2d 1501, 1513 (5th Cir.1992) (citing Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561 (1919)). In this scenario, the Pecos indict......
  • U.S. v. Richards, No. 94-4052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Junio 1996
    ...936 F.2d 623, 625-26 (1st Cir.), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); United States v. Sherrod, 964 F.2d 1501, 1509-10 (5th Cir.1992); United States v. Beltran-Felix, 934 F.2d 1075, 1076 (9th Cir.1991). This usable/unusable distinction has been applied by two ......
  • U.S. v. Richards, No. 94-4052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 11 Octubre 1995
    ...936 F.2d 623, 625-26 (1st Cir.), cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); United States v. Sherrod, 964 F.2d 1501, 1509-10 (5th Cir.1992); United States v. Beltran-Felix, 934 F.2d 1075, 1076 (9th Cir.1991). This usable/unusable distinction has been applied by two ......
  • U.S. v. Innie, No. 92-50239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 Octubre 1993
    ...methamphetamine, whichever is greater. U.S.S.G. § 2D1.1(c) n.* (1989). 3 The Fifth Circuit reaffirmed Walker in United States v. Sherrod, 964 F.2d 1501, 1509-11 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 832, 121 L.Ed.2d 701 (1992) and cert. dismissed, --- U.S. ----, 113 S.Ct. 834, ......
  • Request a trial to view additional results

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