1

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3809

___________

United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Lynn C. Bower, * 

* 

Appellant. *

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Submitted: March 13, 2007

Filed: May 10, 2007

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Before MELLOY, SMITH, and BENTON, Circuit Judges.

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SMITH, Circuit Judge.

Lynn C. Bower was indicted for conspiracy to distribute and possess with intent

to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§

846, 841(a)(1), and 841(b)(1). The jury convicted Bower of the charged offense. The

district court1

 subsequently sentenced Bower to 188 months' imprisonment. Bower

appeals his conviction, arguing that the evidence is insufficient to support the jury's

guilty verdict and that his sentence is unreasonable. We affirm. 
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I. Background

To establish that Bower was guilty of conspiring to distribute

methamphetamine, the government presented its case through the testimony of nine

cooperating witnesses and two law enforcement officers. 

First, Jolene Cortez testified pursuant to a cooperation plea agreement that codefendant Francisco Robles would go to the apartment of Jennifer Lovings—Bower's

ex-girlfriend—and give methamphetamine to Bower on numerous occasions. In

exchange, Bower would give Robles approximately $2,000. Thereafter, she explained

that she and Robles would go to Grandmothers Restaurant where Robles would call

a young Hispanic male known as "Nephew" to pick Robles up from the restaurant.

According to Cortez, when Robles and "Nephew" returned to the restaurant, Robles

would have about four to five ounces of methamphetamine. Then, Cortez and Robles

would go back to Lovings's home where Bower was present. Robles, Bower, Cortez,

and Loving would use methamphetamine together. According to Cortez, Bower came

to her apartment on numerous occasions between January and April 2005 to pick up

methamphetamine from Robles. Before that time, Bower met Robles at other places

to obtain the methamphetamine.

Second, Lovings, testifying pursuant to a cooperating plea agreement, stated

that she purchased methamphetamine from Bower at the South Omaha garage and was

aware that Bower was selling drugs to other people at the garage, including Michael

Anderson. According to Lovings, she also started going to a garage at 72nd and

Crown Point ("Crown Point garage") where she saw Bower with large quantities of

methamphetamine and witnessed him weigh out the methamphetamine into smaller

user quantities. Lovings purchased methamphetamine from Bower at the Crown Point

garage three times per week. Lovings testified that she was at the Crown Point garage

five to six times per week where she witnessed about 10 transactions on each

occasion. Like Cortez, Lovings also testified that Robles delivered methamphetamine
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to Bower at Lovings's residence on several occasions and that Bower would go to

Cortez's apartment to obtain methamphetamine from Robles. 

Third, Woody Joe Jackson testified that he worked with Bower at a garage on

26th and G Street in 2003 and that Bower would give Jackson methamphetamine in

exchange for Jackson working on cars for Bower. This occurred about once a week

for about three months during the summer. Jackson also admitted to stealing two

pounds of methamphetamine from Bower. As a result, Bower, along with two or three

other men, beat Jackson.

Fourth, Mendy Landon testified that she received methamphetamine from

Bower one time, while her husband, Michael Landon, obtained methamphetamine

from Bower a couple of times per week. 

Fifth, Michael Landon testified that he would go to Bower's garage, located

around 24th and F Street, to get methamphetamine from Bower approximately four

to five times per week. He also went to the Crown Point garage to obtain

methamphetamine from Bower about 50 times. According to Michael Landon, Bower

also met him at his house or at the cemetery where he worked to get the

methamphetamine. 

Sixth, Amy Shackelford testified that she went to Bower's garage on Cass Street

("Cass Street garage") to purchase methamphetamine and saw him with large

quantities of methamphetamine. She also obtained methamphetamine from Bower at

the Crown Point garage. According to Shackelford, Lovings informed her that Bower

received his methamphetamine from Robles. At Lovings's apartment, Shackelford

witnessed Bower weigh out methamphetamine into smaller quantities. She also

testified that Lovings gave her a video tape of a drug deal conducted at Lovings's

apartment between Bower and Robles. 
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Seventh, David Roland testified that he would trade electronic equipment with

Bower for drugs. Roland went to both the Crown Point garage and to the garage on

26th Street to obtain methamphetamine from Bower. Roland observed Bower with

large quantities of methamphetamine. 

Eighth, David Wise testified that he purchased methamphetamine from Bower

at the Cass Street garage on two or three occasions. He also stated that he observed

Bower with large quantities of methamphetamine, witnessed Bower weigh out the

methamphetamine into smaller quantities, and saw Bower sell the methamphetamine

to others, including Michael Landon. Additionally, Wise explained that because

Bower and Lovings did not trust one another, they installed video cameras in their

apartment. Lovings brought the video tapes to Wise's house to watch. One of the tapes

was a drug transaction between Bower and Robles, which showed Robles giving

Bower methamphetamine and Bower paying Robles. 

Ninth, Anita Heberlein testified that she met Bower and Robles through Cortez.

Heberlein lived across the hall from Cortez and received methamphetamine from

Robles at Cortez's apartment. According to Heberlein, she saw Bower at Cortez's

apartment three or four times.

Tenth, Omaha Police Officer Jeffrey Hunter testified that he interviewed

Jackson after Bower assaulted him. Officer Hunter stated that Jackson informed him

of his belief that the assault was in retaliation for his stealing the methamphetamine.

Officer Hunter explained that he then began doing research on Bower and

subsequently took Jackson to a couple of addresses. Jackson then took Officer Hunter

to Bower's residence and to a garage in the area of 26th and G Street.

Finally, Omaha Police Detective Mark Lang, an expert regarding drug

trafficking, testified that in April 2005, he became involved in a narcotics

investigation with a person named Dave Roland after being told that Roland had
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information pertaining to individuals who were involved in distributing illegal

narcotics, specifically, methamphetamine. Detective Lang met with Roland and

debriefed him. An agreement was made that an investigation would start on an

individual Roland was obtaining methamphetamine from—Jennifer Lovings. 

Detective Lang testified that he later met with Michael Anderson and

supervised a recorded phone call between Anderson and Bower. The purpose of the

phone call was to have Anderson try to buy methamphetamine from Bower. Detective

Lang explained that the term "ice cream" ("I'm in dire need of ice cream") referred to

methamphetamine. Bower informed Anderson that he was out. Anderson then asked

"What about Jen?" Bower explained that Jen was gone, meaning that she had been

arrested, along with Cortez. Detective Lang testified that during the taped phone

conversation, Anderson mentioned Robles. 

Detective Lang stated that Lovings and Bower were both arrested on May 4,

2005. When Bower was arrested, he had in excess of $3,000, suspected drug records,

and 1.7 grams of methamphetamine in his possession. In excess of $1,000 was located

in Bower's left front pants pocket, and an additional $2,000-plus was located in his left

rear pants pocket. Detective Lang further testified that Bower was arrested again on

June 9, 2005. (Tr. 349). When Bower was arrested, he was in possession of one gram

of methamphetamine. 

He also testified about the different locations where Bower was known to have

conducted drug transactions, including a two-bay garage with two enclosed trailers

parked in front of one of the bays located at 4202 South 26th Street, Crown Point

Storage facility at approximately 73rd and Crown Point, 4532 South 19th Street, a

duplex on 4216 Vinton Street—the residence of Wise and Shackelford, and 4604

South 42nd Street—the residence of Mendy Landon, Michael Landon, Lovings, and

Bower. 
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Following a four-day trial, the jury returned a guilty verdict. A presentence

investigation report (PSR) was subsequently prepared. Based on a finding that Bower

was responsible for 3,033.45 grams (3 kilograms) of methamphetamine, the PSR

placed Bower at an Offense Level 34. A two-level enhancement was added pursuant

to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during the drug conspiracy,

yielding a total Offense Level 36. With an Offense Level 36 and a Criminal History

Category II, Bower's Guidelines range was 210 to 262 months.

Bower filed objections to the PSR, specifically objecting to the offense conduct,

offense level computation, quantity determination, and the firearm enhancement. He

also filed a motion for a downward departure, arguing that the PSR overstated his

criminal history. A revised PSR was prepared that addressed Bower's objections. 

The government filed a sentencing brief arguing that the district court should

hold Bower accountable for 8.8 kilograms of methamphetamine, placing him at an

Offense Level 36. The government also argued that Bower should receive the firearm

enhancement recommended in the PSR. Although not recommended in the PSR, the

government also argued that Bower should receive an enhancement based on

obstruction of justice. 

At the sentencing hearing, the government presented evidence regarding the

obstruction of justice enhancement. The district court found that an obstruction of

justice enhancement was not warranted and further determined that Bower should be

held accountable for between one-and-a-half and five kilograms of methamphetamine,

placing him at Offense Level 34. 

The district court upheld the firearm enhancement and placed Bower at an

Offense Level 36. Addressing Bower's Criminal History Category II, the district court

stated that "dealing with criminal history categories really are very difficult to handle

because there aren't very many choices. And you get into certain categories awfully
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quick—awfully quick, even though the conduct that's being considered maybe really

doesn't justify that. And I believe that's true here." The district court then reduced

Bower's criminal history to a Category I, resulting in a Guidelines range of 188 to 235

months' imprisonment. Citing age, community factors, sentencing disparity, and a

recidivism study, Bower argued for a sentence below the Guidelines. The district court

responded:

[R]ecidivism is—is a hard one. I know that we can go by a lot of

statistics, but statistics aren't individuals. And it's a little difficult

sometimes when you're looking at statistics to say, well, this person

probably won't do this or probably will do this; nevertheless, their actual

actions might be different. I have difficulty saying that a departure

on—on that basis would be justified.

And I don't think that—it seems to me that, again, as I said earlier in

connection with the sentencing of Mr. Robles, that we're dealing with

one of the most destructive drugs that society knows today. And it's a

drug that just totally consumes the individual who becomes involved

with it. And it's almost instantaneously addictive. 

And my feeling is that the people who get involved in this, and

particularly in the distribution of methamphetamine, need to be—needed

to be treated harshly, if you—if you wish.

I—and I don't believe that the evidence here or his past history justifies

the Court—and I don't ever call it a departure any longer because the

guidelines are not mandatory, they—they are simply one of the factors

the Court must consider. But if the Court—and that's particularly true in

the Eight Circuit. If I am going to sentence the defendant outside those

guidelines as they presently exist, then I have to have some substantial

reasons for doing so. And I don't see any reasons generally, either under

the decisions of the Supreme Court in the Koon case, for example, or the
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statements of the Untied States Sentencing Commission that would

justify my do[ing] that. 

The district court then sentenced Bower to 188 months' imprisonment. 

II. Discussion

Bower raises two arguments on appeal. First, he argues that insufficient

evidence supports his conviction for conspiracy to distribute and possess with intent

to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§

846, 841(a)(1), and 841(b)(1). Second, he argues that his sentence is unreasonable

because the sentence imposed was greater than necessary to comply with the statutory

sentencing objectives and did not correctly balance the factors under 18 U.S.C. §

3553(a).

A. Sufficiency of the Evidence

Bower asserts that insufficient evidence exists to support his conviction because

(1) the government's evidence was from witnesses whose testimony was inconsistent

and devoid of credibility and (2) the government placed into evidence credible

testimony from law enforcement officers that contradicted the testimony of his alleged

accomplices. 

"We review the sufficiency of the evidence de novo, viewing evidence in the

light most favorable to the government, resolving conflicts in the government's favor,

and accepting all reasonable inferences that support the verdict." United States v. May,

476 F.3d 638, 640–41 (8th Cir. 2007) (internal quotations and citation omitted). We

will only reverse the defendant's conviction "if no reasonable jury could have found

the defendant guilty beyond a reasonable doubt." Id. at 641 (internal quotations and

citation omitted). 
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"Although [a defendant may] conten[d] that the government witnesses were not

credible, we do not review questions involving the credibility of witnesses, but leave

credibility questions to the jury." United States v. Barajas, 474 F.3d 1023, 1025 (8th

Cir. 2007) (internal quotations and citations omitted); see also United States v. Lopez,

443 F.3d 1026, 1031 (8th Cir. 2006) (en banc) ("We are obliged to defer to the jury's

determination of the credibility of the witnesses."). "Attacks on the sufficiency of the

evidence that call upon this court to scrutinize the credibility of witnesses are

generally not an appropriate ground for reversal." United States v. Tabor, 439 F.3d

826, 829 (8th Cir. 2006) (internal quotations and citation omitted). 

While Bower contends that the government witnesses, specifically his alleged

accomplices, were not credible, and contradicted testimony by law enforcement, we

have "repeatedly upheld jury verdicts based solely on the testimony of co-conspirators

and cooperating witnesses, noting that it is within the province of the jury to make

credibility assessments and resolve conflicting testimony." Id. 

Therefore, we hold that "[t]he jury's choice to credit the testimony of these

witnesses was within its province, and the testimony itself was more than sufficient

for a reasonable jury to find [Bower] guilty." Id. at 830. 

B. Reasonableness of the Sentence

Bower's second argument is that his sentence is unreasonable because the

district court imposed a sentence that was greater than necessary to comply with the

statutory sentencing objectives and failed to correctly balance the factors under §

3553(a). 

"[S]entences within the advisory Guidelines range are presumptively

reasonable." United States v. Akers, 476 F.3d 602, 607 (8th Cir. 2007). To rebut this
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presumption, the defendant must point to evidence in the record "indicating that [the

district court] applied significant weight to an 'improper or irrelevant factor' or []

failed to apply appropriate weight 'to a relevant factor [under § 3553(a)].'" United

States v. Donnelly, 475 F.3d 946, 956 (8th Cir. 2007) (quoting United States v. Haack,

403 F.3d 997, 1004 (8th Cir. 2005)). 

Because Bower's sentence of 188 months' imprisonment falls within the

presumptively reasonable advisory Guidelines range of 188 to 235 months'

imprisonment, Bower bears the burden of rebutting this presumption. Bower asserts

that the district court "committed a clear error in judgment in balancing the relevant

sentencing factors," because (1) no evidence exists that he exerted any influence or

control over his younger accomplice, who received lesser sentences than he did, and

(2) he, at the age of 50, is not likely to re-offend, as studies show that the recidivism

rate drastically declines as the age of the offender increases, particularly after the age

of 50. 

As the district court's colloquy with Bower demonstrates, however, the district

court considered Bower's arguments and rejected them in weighing the § 3553(a)

factors. Because the district court adequately considered the § 3553(a) factors in

sentencing Bower at the low end of the advisory Guidelines range, we hold that

Bower's sentence is not unreasonable. 

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

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