               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0387n.06

                                        No. 14-5306


                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                                                                                   FILED
UNITED STATES OF AMERICA,                             )                        May 29, 2015
                                                      )                    DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                            )
                                                      )
v.                                                    )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
JEFFREY SCOTT BRADEN,                                 )        COURT FOR THE EASTERN
                                                      )        DISTRICT OF TENNESSEE
       Defendant-Appellant.                           )
                                                      )
                                                      )

       BEFORE:       MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge.                Defendant, Jeffrey Scott Braden, was

found guilty by a jury of conspiring to manufacture at least fifty grams of methamphetamine;

possessing equipment, chemicals, products and materials used to manufacture methamphetamine

with knowledge that they would be used to manufacture methamphetamine; and possessing

ammunition as a convicted felon.     The district court sentenced Braden to the mandatory

minimum term of life imprisonment for conspiring to manufacture at least fifty grams of

methamphetamine; 20 years of imprisonment for the possession of equipment, chemicals,

products and materials used to manufacture methamphetamine; and 10 years of imprisonment for

possessing ammunition as a convicted felon, with the sentences running concurrently. Braden

appeals his conviction and sentence on two grounds: (1) the jury had insufficient evidence to

convict him of conspiring to manufacture methamphetamine; and (2) the district court

erroneously sentenced Braden to life imprisonment based on his prior convictions for crimes

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committed during the time-frame of the conspiracy. After reviewing the record, we affirm

Braden’s conviction and sentence.

                                               I.

       A federal grand jury charged Braden, along with forty-one others, with conspiring to

manufacture at least fifty grams of methamphetamine between January 2004 and March 2013 in

violation of 21 U.S.C §§ 846; possessing equipment, chemicals, products and materials used to

manufacture methamphetamine with knowledge that they would be used to manufacture

methamphetamine in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2; and charged Braden

specifically with possessing ammunition as a convicted felon in violation of 18 U.S.C. §

922(g)(1).

       In September 2013, Braden’s case proceeded to trial. At trial, several co-defendants

testified that Braden enlisted them, as well as others, to obtain pseudoephedrine and other

methamphetamine manufacturing materials, including batteries, coffee filters, rubber tubing, and

Coleman fuel.    Specifically, Brandy Braden, an unrelated co-defendant, testified that she

facilitated Braden’s cooking of methamphetamine by providing him with filters, batteries,

Coleman fuel, and pseudoephedrine in exchange for cash or methamphetamine.             She also

testified that Braden and another individual, Randy Smith, cooked methamphetamine together.

According to Brandy, Braden and Smith “were partners most of the time. . . . They would get

boxes [of pseudoephedrine] and combine their boxes and cook together.”

       Similarly, Shannon Ruffner, another co-defendant, testified that she brought Braden a

smoke hose to assist him in manufacturing methamphetamine, and in return, she received

methamphetamine.     Another co-defendant, Jessica Davis, testified that Braden walked her

through how to make methamphetamine. Davis further testified that during this time, Braden



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called an individual from his cellphone to instruct someone to acquire more “cold packs”—a

product containing ammonium nitrate, which is a common ingredient used in the production of

methamphetamine. The jury also heard from Kenny Lamarr, a co-defendant, who testified that

on one occasion Braden facilitated Lamarr’s cooking of methamphetamine by providing him

with Sudafed.

       Additionally, Jason Leach, a Narcotics Investigator for the Anderson County Sheriff’s

Office, testified about his interview with Braden. In the course of the interview, Braden initially

told Leach that he cooked with Lawrence “Stony” Scriver. Braden then changed his statement to

admit only that he “used to deal with Stony.” However, Braden again changed his response

stating, “No, I didn’t deal with Stony, but I have personal knowledge of Stony and what his

involvement in meth is.” Braden then said “I’m not interested in giving statements on anyone or

snitching on anyone. I’m obviously going away for a long time. I just want to do my time and

get it over with.”

       Subsequently, Kelly Smith, a Trooper for the Tennessee Highway Patrol testified about a

February 7, 2004, incident involving Braden and Scriver. Smith stopped a car—in which Scriver

was the driver and Braden was the passenger—for crossing a center dividing line. After Scriver

handed over his license, he sped away. During the pursuit, Smith observed Braden throw several

objects out of the passenger window, including a glass jar containing a liquid that later tested

positive for ephedrine. Once Scriver and Braden were ultimately apprehended, Smith found

aluminum foil, lithium batteries, Coleman fuel, and coffee filters—items consistent with the

manufacture of methamphetamine—in the car.

       The jury found Braden guilty of all charges.          Pursuant to 21 U.S.C. § 851, the

government filed a notice of its intent to enhance Braden’s sentence based on his six prior felony



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convictions. Due to the statutorily mandated sentence of life imprisonment, the district court

sentenced Braden to a mandatory minimum term of life imprisonment for conspiring to

manufacture at least fifty grams of methamphetamine; 20 years of imprisonment for possessing

equipment, chemicals, products and materials used to manufacture methamphetamine with

knowledge that they would be used to manufacture methamphetamine; and 10 years of

imprisonment for possessing ammunition as a convicted felon, with the sentences running

concurrently. Braden timely appealed.

                                                II.

                                                A.
       Braden first contends that the jury had insufficient evidence to convict him of conspiracy.

The relevant question on appeal then is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime.” United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (internal quotation marks

omitted). “We reverse a conviction for insufficiency of the evidence only if it is not supported

by substantial and competent evidence, whether direct or wholly circumstantial, upon the record

as a whole.” United States v. LaPointe, 690 F.3d 434, 443 (6th Cir. 2012). In making this

determination, however, the court does “not reweigh the evidence, reevaluate the credibility of

witnesses, or substitute our judgment for that of the jury.” United States v. Deitz, 577 F.3d 672,

677 (6th Cir. 2009) (citation omitted).

       Under 21 U.S.C. § 841(a)(1), it is unlawful for any person to knowingly or intentionally

manufacture, or possess with intent to manufacture, methamphetamine.            Any person who

conspires to commit a violation of § 841(a)(1) shall be guilty of conspiracy pursuant to 21 U.S.C.

§ 846. “To establish a drug conspiracy, the government must prove (1) an agreement to violate

drug laws; (2) knowledge and intent to join the conspiracy; and (3) participation in the

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conspiracy.” United States v. Layne, 192 F.3d 556, 567 (6th Cir. 1999). The parties’ agreement

need not be explicit. Rather, a tacit or material understanding among the parties is sufficient.

See United States v. Avery, 128 F.3d 966, 970–71 (6th Cir. 1997). Once a conspiracy is shown

beyond a reasonable doubt, a defendant’s connection to the conspiracy “need only be slight.”

United States v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001).

       Braden does not deny that he manufactured methamphetamine but argues that the

government has failed to sufficiently prove that there was an agreement between Braden and

others to manufacture methamphetamine. Specifically, Braden contends that the evidence was

insufficient because it relied mostly on the testimony of the cooperating co-defendants. Braden

claims that because these witnesses never implicated Braden during their initial debriefings with

the government prior to trial, their credibility is completely undermined. However, Braden was

able to, and did, challenge each witness’s respective credibility on cross-examination. Indeed,

Braden’s counsel went to great lengths to ensure that the jury was aware that the relevant

witnesses failed to mention Braden during their initial statements to law enforcement. The jury,

however, rejected this argument as it convicted Braden.        Appellate review is no place for

arguments concerning a government witness’s lack of credibility. See Deitz, 577 F.3d at 681.

       A reasonable jury could infer from the extensive testimony that Braden agreed to

manufacture methamphetamine with others. For instance, Brandy testified that she observed

Braden and another individual combining their pseudoephedrine pills to cook methamphetamine.

She also admitted that she had provided Braden with materials and chemicals to facilitate his

methamphetamine production. Furthermore, Investigator Leach testified that Braden originally

admitted to cooking methamphetamine with Scriver. Even though Braden later retracted that

statement, Trooper Smith’s testimony provides additional support for the jury finding that



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Braden was involved in a conspiracy to manufacture methamphetamine.                Smith, after

apprehending Scriver’s car following a police chase, testified that the items found in the car—

aluminum foil, lithium batteries, Coleman fuel, and coffee filters—as well as the items thrown

from the car during the chase—a glass bottle containing ephedrine and Tupperware filled with

exploding white powder—were wholly consistent with the manufacture of methamphetamine.

       Smith and Leach’s testimony left the jury with three pieces of evidence: (1) Braden

originally admitted to cooking methamphetamine with Scriver; (2) Braden and Scriver were in a

car together that contained materials and chemicals used in methamphetamine production; and

(3) both Braden and Scriver attempted to evade police officers, suggesting their involvement in

illicit activity. Therefore, although the record may be devoid of any formal agreement to

manufacture methamphetamine, this evidence—when combined with other testimony indicating

that Braden cooked methamphetamine with other individuals—is sufficient for a jury to

reasonably infer that there was a tacit or mutual understanding among the co-defendants and that

Braden acted in concert with others to knowingly and intentionally manufacture

methamphetamine.

                                              B.

       Braden also argues that the district court erred in sentencing him to life imprisonment.

Although Braden acknowledges the existence of all six prior felony drug convictions, Braden

argues that both his due process and double jeopardy rights were violated when the sentencing

judge enhanced Braden’s sentence due to these convictions particularly because the convictions

were based on substantive crimes which occurred within the same time-frame as the alleged

conspiracy. Braden concedes, however, that the Sixth Circuit has sanctioned such a practice.

See United States v. Brazil, 395 F. App’x 205, 222–23 (6th Cir. 2010); United States v. Odeneal,



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517 F.3d 406, 416–17 (6th Cir. 2008); and United States v. Hughes, 924 F.2d 1354, 1361–62

(6th Cir. 1991). Nevertheless, and without explanation, he urges that it is impermissible in this

particular case. But this court is bound by Sixth Circuit precedent. Little v. BP Exploration &

Oil Co., 265 F.3d 357, 362 (6th Cir. 2001) (“[W]e are bound by Sixth Circuit precedent unless it

is overruled by either our court sitting en banc or the Supreme Court.”). Even if the court were

not so bound, Braden has failed to present any argument to support his claim that the sentencing

court erred in enhancing Braden’s sentence based on his prior drug felony convictions. Thus,

this claim is waived. United States v. Kelso, 468 F. App’x 551, 556–57 (6th Cir. 2012) (“‘Issues

adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,

are deemed waived.’” (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997))).

                                              III.

       For the foregoing reasons, we affirm Braden’s conviction and sentence.




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