                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-15746                ELEVENTH CIRCUIT
                                                           DECEMBER 10, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                     D. C. Docket No. 08-14014-CR-JEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

REX PALMER ALEXANDER,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (December 10, 2010)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Rex Palmer Alexander appeals his sentence and convictions for conspiring
to manufacture, distribute, or possess with intent to distribute five grams or less of

methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and possessing

precursor chemicals to manufacture methamphetamine, id. § 841(c)(1). Alexander

argues that the district court erroneously denied him leave to file an untimely

motion to suppress; the jury should have been instructed that possession of

methamphetamine was a lesser-included offense of his conspiracy charge; and the

evidence was insufficient to support his convictions. Alexander also argues that

the district court made three erroneous findings of fact in calculating his sentence

and his sentence is unreasonable. We affirm.

      The district court did not abuse its discretion by denying Alexander leave to

file an untimely motion to suppress. After the deadline for filing his pretrial

motion had elapsed, see Fed. R. Crim. P. 12(b)(3)(C), (c), Alexander moved to

suppress his confession on the ground that “his original detention and arrest was

conducted completely without probable cause, reasonable suspicion or otherwise.”

Several months earlier, the district court had already examined the events that

preceded Alexander’s arrest in determining whether to detain him until trial. See

18 U.S.C. § 3142(g). Although the district court later appointed Alexander a new

attorney, the attorney had access to the written order of detention weeks before he

sought leave to file an untimely motion to suppress. See United States v. Taylor,



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792 F.2d 1019, 1024–26 (11th Cir. 1986). Alexander failed to provide good cause

to waive the deadline for the motion. Fed. R. Crim. P. 12(e).

      The district court also did not abuse its discretion by refusing to instruct the

jury that possession of methamphetamine was a lesser-included offense of

conspiracy to manufacture methamphetamine. An “offense is not ‘necessarily

included’ in another unless the elements of the lesser offense are a subset of the

elements of the charged offense,” Schmuck v. United States, 489 U.S. 705, 716,

109 S. Ct. 1443, 1450 (1989), and conspiracy to manufacture methamphetamine

and possession of that illegal drug contain different elements. The crime of

conspiracy involves an agreement to and knowing and voluntary participation in

manufacturing methamphetamine, United States v. Ramsdale, 61 F.3d 825, 829

(11th Cir. 1995), and the crime of possession involves knowledge of and control

over methamphetamine, United States v. Miranda, 425 F.3d 953, 959 (11th Cir.

2005). Because possession of methamphetamine “require[d] [proof of] an element

not required for” conspiracy to manufacture the illegal substance, Schmuck, 489

U.S. at 716, 109 S. Ct. at 1450, Alexander was not entitled to have the jury

instructed that possession of methamphetamine was a lesser-included offense.

      The district court did not err in denying Alexander’s motion for a judgment

of acquittal. The government presented testimony from Alexander’s family, a



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friend of Alexander’s father, and investigating agents that Alexander lived in the

house where the methamphetamine was manufactured; he purchased muriatic acid

and more than 13 grams of pseudoephedrine and transported others to purchase

precursor materials; he stripped striker plates from match boxes to produce red

phosphorous and crushed pseudoephedrine pills; he participated in the end process

of “blowing out” the methamphetamine; and he sold methamphetamine. See

Miranda, 425 F.3d at 959–62. When agents searched Alexander’s residence, they

discovered large quantities of precursor materials and drug paraphernalia and lifted

his fingerprints from a funnel and glass Pyrex dish used to manufacture the illegal

substance. Alexander admitted to agents that he had purchased pseudoephedrine

and had participated in manufacturing methamphetamine. See United States v.

Jiminez, 564 F.3d 1280, 1285–86 (11th Cir. 2009). In addition, when Alexander

saw agents searching his residence, he attempted to flee. See United States v.

Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009) (an “attempt[] to flee” can

be considered “as evidence of guilt”). Although Alexander testified that he aided

in the production process only to obtain methamphetamine for personal use, the

jury was free to treat his testimony as substantive evidence of his guilt. Jiminez,

564 F.3d at 1285. There was overwhelming evidence to establish that Alexander

was guilty both of conspiring to manufacture with intent to distribute



                                           4
methamphetamine and of possessing precursor materials.

      We reject Alexander’s three challenges to the calculation of his sentence.

First, the district court did not clearly err in attributing 16.78 grams of

methamphetamine to Alexander. The district court was entitled to conclude that

the amount of drugs seized from Alexander’s residence did not adequately reflect

the extent of his offense based on the large quantity of precursor materials

discovered in his house, the possibility that those precursor materials could yield as

much as 33.56 grams of methamphetamine, and the “complicated” nature of the

drug laboratory. See United States v. Smith, 240 F.3d 927, 931 (11th Cir. 2001).

Second, the district court did not clearly err by denying Alexander a reduction for a

minor role in the conspiracy in the light of his contributions to the purchase of

precursor materials and the manufacturing process. See United States v. Rodriguez

De Varon, 175 F.3d 930, 940–41 (11th Cir. 1999) (“[T]he district court must

measure the defendant’s role against the relevant conduct for which []he has been

held accountable.”). Third, the district court also did not clearly err in denying

Alexander a reduction for an acceptance of responsibility because “he proceeded to

trial and ‘consistently attempted to minimize his role, despite evidence to the

contrary.’” United States v. Caraballo, 595 F.3d 1214, 1233 (11th Cir. 2010)

(quoting United States v. Rubio, 317 F.3d 1240, 1244 (11th Cir. 2003)).



                                            5
      The district court also did not abuse its discretion by sentencing Alexander

at the low end of the guideline range. The district court stated that it had

considered “the statement of all the parties, the presentence [investigation] report

which contains the advisory guidelines and the sentencing factors” and it found

that a sentence of 120 months of imprisonment was necessary to “deter

[Alexander] from further criminal conduct.” 18 U.S.C. § 3553(a). Alexander’s

sentence is reasonable.

      We AFFIRM Alexander’s convictions and sentence.




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