                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0723n.06
                                                                                          FILED
                                           No. 07-3799                                 Nov 05, 2009
                                                                                 LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                                ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
v.                                                        COURT FOR THE NORTHERN
                                                          DISTRICT OF OHIO
JERMAINE LEE,

       Defendant - Appellant.

                                                      /

Before: MARTIN, ROGERS, and COOK, Circuit Judges.

       BOYCE F. MARTIN, JR., Circuit Judge. Jermaine Lee argues that the government did not

present sufficient evidence to convict him because the witnesses, including the informants and his

co-defendants, had criminal convictions and other credibility issues, and also because the second

videotape of him selling crack to an FBI informant did not include a clear picture of his face. Lee

also argues that his sentence was unreasonable because the district court failed to consider the

Section 3553(a) factors. For the following reasons, we AFFIRM the judgment of the district court.

                                                 I.

       On June 14, 2006, the grand jury returned a 49-count indictment against Lee and his co-

defendants for activities related to the possession and sale of crack cocaine within 1,000 feet of a

public school. Lee was charged with Count 1, conspiracy to possess with intent to distribute and

to distribute more than 50 grams of crack in violation of 21 U.S.C. § 846; and Count 2, distribution

of approximately 1.32 grams of crack in violation 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C.
No. 07-3799
United States of America v. Lee
Page 2

§ 2; Count 26, distribution of approximately 6.8 grams of crack in violation 21 U.S.C. § 841(a)(1)

and (b)(1)(B) and 18 U.S.C. § 2; and Count 28, distribution of approximately 12.42 grams of crack

in violation 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2.

       At his trial, the government presented evidence of several sales, including Count 2, which

took place on August 16, 2005, and Count 26, which took place on December 13, 2005. On August

16, a videotape recorded Lee selling 1.32 grams of crack to police informant Dennis Park under the

supervision of FBI Special Agent Kolonick. Agent Kolonick, informant Parks, and co-defendant

Abdul Glover, who witnessed the sale and acted as a lookout for Lee, testified at trial. The jury also

viewed the videotape of the event.

       The jury also heard testimony about the December 13 sale from Agent Kolonick; informant

“Smiley,” who purchased the crack; and Lee’s co-defendants Kevin Daniels and Jeff Lee, who

participated in the sale. The jury also viewed this sale on videotape.

       At trial, Lee was found guilty of Counts 2 and 26, but not guilty of Counts 1 and 28. The

U.S. Probation Office prepared a presentence report and calculated his criminal history category at

V and his adjusted base offense level at 28, producing an advisory guideline sentencing range of 130-

162 months. At the May 29, 2007 sentencing, Lee did not object to the calculations therein. His

counsel requested that Lee be sentenced “at the lower end of the guidelines” but did not request a

variance. At sentencing, the government noted that this was Lee’s fifth conviction and that three of

the four prior adult felony convictions were for drug trafficking or possession.

       The court sentenced him to a term of 145 months on Counts 2 and 26 (concurrent) followed

by sixteen years’ supervised release. In doing so, the court stated:
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United States of America v. Lee
Page 3

        I have consulted the advisory Sentencing Guideline range. This is a sentence within
        that range. It is not a sentence at the lowest end, it is a sentence more at the mid
        range. This court has taken into consideration the what I consider to be an extensive
        criminal record, and you’re very fortunate you’re not a career offender.

Lee timely appealed.

                                                  II.

        A.      Sufficiency of the Evidence

        For claims of insufficient evidence, we review “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 beyond a reasonable doubt.” United States v. Wood, 364 F.3d 704, 716 (6th

Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We do not “weigh evidence,

make credibility determinations, or substitute . . . our judgment for the jury’s verdict.” United States

v. Crossley, 224 F.3d 847, 855-56 (6th Cir. 2000). We are required to “draw all available inferences

and resolve all issues of credibility in favor of the jury’s verdict.” United States v. Paige, 470 F.3d

603, 608 (6th Cir. 2006). “A defendant claiming insufficiency of the evidence bears a very heavy

burden. On review, all evidence must be construed in a manner most favorable to the government.”

United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.) (citations omitted), cert denied, 476 U.S.

1123 (1986). Evidence is not insufficient merely because the defendant doubts the credibility of

government witnesses. Paige, 470 F.3d at 608.

        To prove a violation of 21 U.S.C. § 841(a)(1), the government must prove that a person

knowingly and intentionally distributed a controlled substance. As noted above, the government

presented substantial evidence on Count 2, including three witnesses—an FBI agent, an informant,
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Page 4

and a co-defendant—and a videotape of the event. The government also presented testimonial

evidence on Count 26, including testimony of an FBI agent, an informant, and two co-defendants,

and a videotape of the sale. Though Lee was found not guilty of Count 28, the jury found him guilty

of Counts 2 and 26. While Lee is correct that some of the witnesses, including the informants and

his co-defendants, had criminal convictions and other credibility issues, the jury was able to observe

them and found their statements to be sufficiently credible to support their finding of guilt beyond

a reasonable doubt. As Lee has not met his substantial burden of showing that all evidence,

construed most favorably to the government, was insufficient to support his conviction, we reject

Lee’s argument.

       B.      Unreasonable Sentence Under Section 3553(a)

       Lee also argues that the court imposed an unreasonable sentence and failed to consider

pertinent Section 3553(a) factors. However, on October 8, 2009, the district court reduced Lee’s

sentence pursuant to 18 U.S.C. § 3582(c)(2) from 145 months to the statutory mandatory minimum

of 120 months. Thus, his claim that the district court failed to consider section 3553(a) factors is

now moot because, as his conviction stands, he cannot possibly receive a lower sentence.1

                                                 III.

       For the foregoing reasons, we AFFIRM the judgments of the district court.




       1
         He makes no argument that he would qualify for “safety valve” relief pursuant to 18 U.S.C.
§ 3553(f), nor does it appear that he would so qualify.
