172721P.pdf   02/27/2019  United States  v.  Allen Peithman, Jr.
   U.S. Court of Appeals Case No:  17-2721
                          and No:  17-2722
                          and No:  17-2723
                          and No:  17-2768
   U.S. District Court for the District of Nebraska - Lincoln   
   [PUBLISHED] [Erickson, Author, with Benton and Beam, Circuit Judges] 
   Criminal case - Criminal law. The court's error in submitting a statutory 
   sentencing enhancement as a separate offense for violation of 18 U.S.C. 
   Sec. 3147 was harmless as the various items of evidence concerning 
   defendant Peithman's incarceration and supervised release status would 
   have been admitted at trial without the charge; the court did not err in 
   rejecting defendant Elder's request to present a public 
   authority/entrapment by estoppel defense; evidence was sufficient to 
   support defendant Petithman's convictions for conspiracy and investment of 
   illicit drug profits; in light of the juror's response to the court's 
   inquiry, the court did not abuse its discretion in permitting a 
   temporarily ill juror to continue on the case; imposition of a joint and 
   several money judgment under 18 U.S.C. Sec. 981(a)(1)(C) in the amount of 
   $1.025 million affirmed; however, that portion of the judgment imposed 
   jointly and severally under 21 U.S.C. Sec. 853 relating to the conviction 
   for conspiracy to distribute drug paraphernalia is reversed; no error in 
   imposing an enhancement under Guidelines Sec. 2D1.1(b)(12) as the 
   enhancement applies to paraphernalia equipment and could be based on 
   acquitted conduct; no error in imposing an obstruction of justice 
   enhancement under Guidelines Sec. 3C1.1; the district court did not err in 
   rejecting defendant Peithman's request for a minor participant downward 
   departure; no error in cross-referencing the controlled substance table; 
   defendant Peithman's structuring conviction played no part in the 
   calculation of his offense level because it did not produce the highest 
   offense level of defendant's convictions, and any error with regard to the 
   structuring conviction was harmless; challenge to amount of downward 
   variance rejected; the district court did not err in making defendant 
   Peithman's revocation sentence consecutive to these new offense 
   convictions; defendant Elder's challenges to the cross-reference and use 
   of the drug quantity table rejected; court may rely on acquitted conduct 
   at sentencing; defendant Elder's within-Guidelines sentence is 
   presumptively reasonable.