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The Honorable Stephen N. Limbaugh, United States District Judge for the

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3882

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Travis Lee Mull, *

* [UNPUBLISHED]

Defendant - Appellant. *

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Submitted: May 16, 2006

Filed: May 22, 2006

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Before BYE, HANSEN, and SMITH, Circuit Judges.

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PER CURIAM.

Travis Lee Mull pleaded guilty to one count of possessing pseudoephedrine,

knowing and having reasonable cause to believe it would be used to manufacture a

controlled substance, in violation of 21 U.S.C. § 841(c)(2). The district court1

sentenced him to ninety-seven months of imprisonment. We affirm. 

On June 5, 2003, Detective John Wall observed Mull and co-defendant Andy

Baldwin individually enter a St. Louis Target store and purchase two forty-eight-count
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boxes of store-brand pseudoephedrine. Each man headed directly to the cold aisle,

found the desired products, paid for them in cash, and returned to the same vehicle.

Detective Wall had a marked patrol vehicle conduct a traffic stop. During the stop,

Baldwin permitted the officer to search the vehicle, which contained twenty boxes of

pseudoephedrine–ten boxes each under the passenger's and driver's seats. Tests

determined the 960 pills contained a total of 57.6 grams of pseudoephedrine. 

Baldwin pleaded guilty to possessing the entire quantity of pseudoephedrine

and was sentenced to one already-served day of imprisonment and a term of

supervised release. Mull pleaded guilty, but objected to the presentence report's

recommendation he be held accountable for the entire quantity of pseudoephedrine

and the application of a leadership enhancement. He also moved for a downward

departure based on an overrepresented criminal history.

 

At the sentencing hearing, Detective Wall testified as to his observations at the

Target store and noted Mull stated the police could "put all the pills on me."

However, he did not know if Mull was referring to the ten boxes of pills found under

his seat or to the entire twenty boxes located in the vehicle. Officer Victor Wilfong

testified to post-Miranda statements made by both men. According to Officer

Wilfong, Baldwin drove Mull to buy pseudoephedrine pills, but Mull would dictate

which stores to visit, how to make purchases, and what to do in the event of a traffic

stop. For his troubles, Mull paid Baldwin $150.00 for delivery of 500 pills.

Additionally, Officer Wilfong testified Mull admitted to buying pseudoephedrine for

another individual over the past three years in exchange for methamphetamine.

Baldwin testified, albeit laden with inconsistencies, about how he and Mull would buy

cold pills at stores, but he contended he did not know why they bought the medicine

or why Mull paid him. 

The district court, relying on Officer Wilfong's "impressive" testimony and the

corroborating testimony of Officer Wall and Baldwin, determined Mull was
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responsible for the entire quantity of pseudoephedrine. After applying a leadership

enhancement based on the finding Baldwin was "easily led" and rejecting Mull's

motion for a downward departure because his case was not outside the "heartland,"

the court sentenced Mull to ninety-seven months, the minimum in his advisory

guideline range. 

 

We review the district court's application of the guidelines de novo and its

factual findings for clear error. United States v. Davidson, 437 F.3d 737, 739-40 (8th

Cir. 2006). Mull first contends the district court erred in not granting a downward

departure under § 4A1.3 for having an overrepresented criminal history. However,

we lack jurisdiction to review such a decision because after reviewing the record, we

reject Mull's contention the district court "erroneously believed that it was without

authority to grant the departure." United States v. Frokjer, 415 F.3d 865, 874-75 (8th

Cir. 2005) (citation omitted). 

Mull also claims the district court improperly added two offense levels under

U.S.S.G. § 3B1.1(c) for his leadership role. This enhancement is applicable if the

government can prove the defendant "controlled at least one other participant in the

offense," United States v. Voegtlin, 437 F.3d 741, 748 (8th Cir. 2006), and we review

this question of fact for clear error. United States v. Mesner, 377 F.3d 849, 851 (8th

Cir. 2004). The district court did not clearly err in determining Mull controlled

Baldwin, a person "easily led." See Voegtlin, 437 F.3d at 748 (upholding an

enhancement when the defendant instructed others to buy pseudoephedrine pills). 

Mull next objects to the district court's drug quantity calculation, a question of

fact. United States v. Allen, 440 F.3d 449, 452 (8th Cir. 2006). We find the district

court did not clearly err because the entire quantity of pseudoephedrine can be

considered either relevant conduct, U.S.S.G. § 1B1.3(a)(1)(B), or as a quantity over

which Mull had constructive possession. United States v. Stevens, 439 F.3d 983, 990
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(8th Cir. 2006) (holding a defendant has constructive possession over contraband

when he has "knowledge of its presence, combined with control" over the items).

Finally, we review Mull's sentence for reasonableness. United States v. Green,

442 F.3d 677, 681 (8th Cir. 2006). Because the district court correctly calculated

Mull's Guideline range, his sentence within it is presumptively reasonable. United

States v. Lazenby, 439 F.3d 928, 932 (8th Cir. 2006). Mull's sentence is reasonable,

despite the eight-year disparity between his and Baldwin's sentences because the two

men are not similarly situated. See United States v. Vasquez, 433 F.3d 666, 671 (8th

Cir. 2006) (upholding disparate sentences between co-defendants not similarly

situated). The sentence is also in accordance with the 18 U.S.C. § 3553(a) factors.

Accordingly, we affirm. 

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