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United States v. Fortune

United States District Court, E.D. Tennessee, Greeneville

August 8, 2017

UNITED STATES OF AMERICA
v.
LAMONT DARNELL FORTUNE

          MEMORANDUM AND ORDER

          LEON JORDAN, UNITED STATES DISTRICT JUDGE.

         In April 2017, the undersigned presided over a jury trial in which the defendant was found guilty of both distributing cocaine base and conspiring to distribute and possess with the intent to distribute cocaine base. Sentencing is set for August 17, 2017.

         The United States Probation Office has prepared and disclosed a Presentence Investigation Report (“PSR”) [doc. 200] to which the defendant has raised twelve objections [doc. 205]. In response, the probation office has disclosed the PSR Addendum [doc. 215]. For the reasons that follow, the defendant's objections will be overruled.

         I.

         Objection One

         Paragraph 6 of the PSR introduces paragraphs 7 through 14 by stating, “The following is a summary of the evidence presented during the trial.” The defendant objects to these paragraphs in their entirety. While admitting that this “section of the PSR fairly reflects the trial testimony, ” the defendant nonetheless objects because he “maintains his innocence.”

         The court has reviewed paragraphs 7 through 14 and finds them to be an accurate summary of the evidence. Because these paragraphs are indeed a fair reflection of the trial proof (as admitted by the defendant himself), the first objection will be overruled.

         II.

         Objection Two

         At paragraphs 14 and 20, the PSR holds the defendant accountable for a total of 1.8 kilograms of cocaine base over the course of the conspiracy. The defendant objects because “he maintains his innocence.”

         The defendant does not challenge the manner in which the PSR calculates the 1.8 kilogram quantity nor does he cite any contradictory evidence.

A district court may generally rely on the PSR's facts unless the defendant produces evidence that contradicts the PSR's findings. A defendant cannot show that a PSR is inaccurate by simply denying the PSR's truth. . . . He must produce more than a bare denial, or the judge may rely entirely on the PSR.

United States v. House, No. 16-1691, 2017 WL 2569706, at *3 (6th Cir, June 14, 2017) (citations, quotation, and alteration omitted). Not only has the present defendant produced no more than a bare denial. He has, as noted above, conceded that paragraph 14 of his PSR “fairly reflects the trial testimony.” The PSR's drug quantity finding is based on a conservative summary of proof that this court heard and found credible. The defendant's second objection will be overruled. See Id. (The defendant “must produce more than a bare denial[.]”).

         III.

         Objection Three

         At paragraph 24, the PSR increases the defendant's offense level by two pursuant to advisory United States Sentencing Guideline (“U.S.S.G.”) § 3C1.2, which provides for an enhancement, “If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer . . ..” The flight in question must be conduct relevant to the offense of conviction, see U.S.S.G. § 1B1.3(a), such as “in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1).

         Paragraphs 11 and 12 of the PSR accurately note the testimony of codefendants Charles Loftly and Heyward Dargan regarding the defendant's high-speed flight from law enforcement that took place on May 1, 2015. Both men testified that the defendant told them he had thrown at least eight ounces of cocaine out of his car ...


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