US v. Foster Williams, III, No. 11-5148 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5148 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FOSTER GAY WILLIAMS, III, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:11-cr-00012-JPB-JSK-1) Argued: October 25, 2012 Decided: March 25, 2013 Before NIEMEYER, GREGORY, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Judge Gregory wrote a separate opinion concurring in the judgment. ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. Stephen Donald Warner, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee. ON BRIEF: William J. Ihlenfeld, II, United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Appellant Williams") pleaded methamphetamine 841(b)(1)(C), applied a Foster in and Gay Williams to conspiracy guilty violation 846. three-level At of 21 ("Appellant to manufacture U.S.C. sentencing, enhancement III the pursuant to §§ 841(a)(1), district court United States Sentencing Guidelines ( U.S.S.G. ) § 2D1.1(b)(13)(C)(ii) (2010). This enhancement applies when an offense involves the manufacture of methamphetamine and creates a substantial risk of harm to human life. Appellant Williams challenges the application of this enhancement on the ground that he did not endanger anyone methamphetamine, apply in as other and, much as than himself therefore, the enhancement should the enhancement in to apply while manufacturing not such a circumstance would, in essence, make the enhancement applicable in the all methamphetamine purpose of an manufacturing enhancement. cases, Because thereby we defeating conclude that Appellant Williams actions did, in fact, pose a substantial risk of harm to the lives of others, and not simply his own, we affirm. I. A. Appellant Williams manufactured methamphetamine using what is known as the shake and bake method. 2 This increasingly popular method of methamphetamine manufacture involves mixing an assortment of common household chemicals including Coleman fuel, drain opener, ammonium nitrate (found in cold pack compresses), lithium (found in over-the-counter batteries), cold and pseudoephedrine medication) in a (found medium-sized in plastic bottle causing a series of chemical reactions to take place. Once those reactions have taken place, the manufacturer creates a gaseous mixture in a second bottle using either sulfuric or muriatic acid. The second bottle has a hose attached to it, which the manufacturer uses to spray the gas onto the liquid which is contained in the first bottle. This process, known as smoking, causes solid methamphetamine to precipitate. the resulting Ultimately, solid this is process filtered, takes the roughly process two is hours Once complete. and yields approximately one and a half grams of methamphetamine. Though simple, this manufacture is very dangerous. 1 notes that the mixture method of methamphetamine The Presentence Report ( PSR ) described above is bomb-like and capable of exploding or blowing a hole wherein the mixture of 1 Indeed, Appellant Williams conceded as much at sentencing: THE COURT: You concede the manufacture of meth is in fact dangerous? Mr. Kornbrath: I have to. I mean there s chemicals involved and it s a process that could go wrong. J.A. 36. Citations to the J.A. refer to the Joint Appendix filed by the parties in this case. 3 chemicals and fire shoots out creating a flash fire. Moreover, the shake and bake method does not J.A. 94. produce the signature chemical smell of a traditional methamphetamine lab, therefore, persons within a close proximity have no warning that they are in danger. Id. The district court concluded that Appellant Williams manufactured methamphetamine using this method at two separate locations: (1) his home a trailer in Junior, West Virginia; and (2) the Econo Lodge motel in Elkins, West Virginia. 1. In late 2010, police in Junior, West Virginia, learned from an informant that Appellant Williams was involved in the manufacture of methamphetamine. conducted trailer. the surveillance Appellant Williams single-wide The trailer was in a remote area, 75-100 yards from nearest covering on On January 28, 2011, police the occupied windows residence. of the Police trailer and observed smelled blankets a strong chemical odor coming from within. On February 2, 2011, police executed a search warrant at the trailer and found items typically used to manufacture and ingest methamphetamine. Specifically, the items located at the trailer were: a syringe on the coffee table, a box with four additional syringes, burned foil, a smoking pipe made out of a light bulb, three syringes on 4 the bedroom dresser, various syringes in the bathroom, a jar with a hose taped to the lid, a can of Coleman fuel, a bottle of muriatic acid, batteries cut in two, and rubber gloves. Outside the trailer, police found a burn pile, an empty can of Coleman fuel, and rubber gloves. Several items found inside the trailer including the light bulb, the spoon, and the straw tested positive for methamphetamine and pseudoephedrine. 2. On February 8, 2011, members of the West Virginia State Police learned from an informant that Appellant Williams was staying in Room 131 of the Econo Lodge motel in Elkins, West Virginia. The informant also indicated that there was an active warrant for Appellant Williams arrest. Later that day, three state police officers traveled to the motel. When they arrived, they confirmed that Appellant Williams was indeed staying at the Econo Lodge, that he had been there for four days, and that he was scheduled to check out later that day. The officers also obtained a key to Appellant Williams room from the hotel clerk. The officers then went to Appellant Williams room, knocked on the door, and announced their presence. When no one answered, they entered the room, only to find it unoccupied. While in the motel room, one of the officers observed a backpack in plain view. The officers also observed that the backpack was 5 partially open and that it contained a bottle connected to a hose. Police then exited the room and hid nearby, waiting for Appellant Williams to return. the door and attempted to open When he did, he walked up to it. started walking toward the lobby. placed him under arrest. Finding it locked, The officers interceded and Following the arrest, the officers asked Appellant Williams what was inside the room. Williams stated that he the motel room contained containing items to manufacture methamphetamine. Appellant a backpack Despite this admission, Appellant Williams denied ownership of the materials, claiming they belonged to his girlfriend. Appellant Williams was then taken into custody. Thereafter, a certified lab technician arrived on the scene. to By that time, Appellant Williams had already been taken magistrate authorizing a court, where search of he the signed motel a written room. consent Pursuant to form that authorization, the technician proceeded to search the room. During the search, the technician found all of the materials necessary to manufacture methamphetamine. Specifically, inside the backpack, the technician found: a hose connected to a plastic bottle, a gallon of Coleman fuel, a quart of hydrochloric acid, a lithium battery, drain opener, bottles, hoses, and a Gatorade bottle that contained a white paste-like 6 substance. Lab reports later concluded that the white paste in the Gatorade bottle was dissolved pseudoephedrine. 2 In addition to the items found in the backpack, the technician found a one pint bottle Coleman of fuel, clear a liquid, box of a receipt sleeping for pills, the and purchase instant of ice compressors. He also found three syringes and a spoon inside the night stand. And, on February 8, Appellant Williams girlfriend posted a picture to her Facebook account of her in the Econo Lodge captioned up partying all night long. J.A. 110. 3. In addition to the evidence found at the trailer and the motel, repeatedly the district purchased methamphetamine. court found ingredients Specifically, that Appellant used Appellant to Williams manufacture Williams purchased Coleman fuel and muriatic acid numerous times between December 26, 2010 and February 18, 2011. Appellant Williams also bought pseudoephedrine on eleven occasions between December 10, 2010 and January 26, 2011. B. On April 19, 2011, a grand jury sitting in the Northern District of West Virginia at Elkins returned an 182 Pseudoephedrine is the active ingredient in over-thecounter cold medication. As noted, it is also one of the main ingredients in the manufacture of methamphetamine. 7 count indictment charging Appellant Williams with conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846, § 841(a)(1), and § 841(b)(1)(C); sixteen counts of possession of materials to be used to manufacture methamphetamine in violation of 21 U.S.C. § 843(a)(6) and § 843(d)(2); and one count of maintaining a drug involved premises in violation of 21 U.S.C. § 856(a)(2). On June 3, 2011, Appellant Williams pleaded guilty to a single count of conspiracy to manufacture methamphetamine. In the PSR, the probation officer recommended a base offense level of 28 3 with a three level decrease for acceptance of responsibility and a three level enhancement pursuant to U.S.S.G. § 2D1.1(b)(13)(C)(ii) for creating a substantial risk of harm to human life. enhancement, Williams had the probation manufactured Lodge and the trailer. manufactured Importantly, in deciding to apply this officer concluded methamphetamine at that both Appellant the Econo See J.A. 94 ( [T]he defendant and others methamphetamine in a trailer located on his parents property and also at the Econolodge hotel located in Elkins, West Virginia. ). This calculation resulted in a total recommended offense level of 28. 3 In so doing, the probation officer declined to accept the parties stipulated base offense level of 26. However, as discussed below, the district court ultimately utilized the parties proposed offense level of 26. 8 At sentencing, Appellant Williams raised two objections to the PSR. First, he objected to the PSR s use of the base level of 28. This objection was largely based on the fact that offense the parties level of had 26. 4 previously The district stipulated a base sustained court to this objection and calculated Appellant Williams sentence using a base offense level of 26. Second, Appellant Williams argued the evidence was insufficient to justify the application of the enhancement with respect to the manufacture trailer or the motel. argued that located the PSR immediately Appellant Williams location, 75 to of at either the As to the trailer, Appellant Williams mistakenly behind argued 100 methamphetamine residence at the time. 5 his that yards claimed that family s the away trailer from the his trailer house. was was Instead, in nearest a remote occupied The Government conceded this point. 4 The discrepancy between the stipulated base offense level and the recommended base offense level in the PSR reflects the fact that the parties agreed that some of the pseudoephedrine was purchased for legal purposes while the probation officer treated all of Appellant Williams pseudoephedrine purchases as illegal. 5 There is a residence located approximately thirty yards away from Appellant Williams trailer. However, it is only occupied during the summer months and, therefore, was unoccupied when the police uncovered evidence of methamphetamine manufacturing. 9 Based on this concession, Appellant Williams argued that the trailer was too remote for any methamphetamine manufacturing conducted there to pose a risk to anyone other than himself. As to the motel, Appellant Williams argued there was no factual support there. for the claim that he manufactured methamphetamine Instead, he asserted that the motel was simply used for storage of the materials. The district court applied the enhancement. overruled this objection and In so doing, the district court noted, the presentence report is accepted and ordered filed and made a part of the record herein. J.A. 43. Accordingly, the district court found that Appellant Williams total offense level was 26, resulting in imprisonment. a recommended The district sentence court Williams to 120 months imprisonment. of then 120 150 sentenced months Appellant This appeal followed. II. A district court determines whether a sentencing enhancement applies based on a preponderance of the evidence standard. United States v. Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011). When reviewing a district court s application of an enhancement, we review conclusions of law de novo and findings of fact for clear error. United States v. Houchins, 364 F.3d 182, 187 (4th Cir. 2004), vacated on other grounds, 543 U.S. 1104 (2005). Whether a district court has properly found the 10 existence of a substantial risk of harm to human life or the environment within the meaning of Guidelines § 2D1.1(b)(5)(B) is a mixed question of law and fact which we review de novo. Id. (internal citations and quotation marks omitted). III. 1. The 2010 Sentencing Guidelines Manual, which was in effect at the time of Appellant Williams sentencing, provides: If the offense involved the manufacture of amphetamine or methamphetamine and the offense created a substantial risk of harm to (I) human life . . . ; or (II) the environment, increase by 3 levels. If the resulting offense level is less than level 27, increase to level 27. U.S.S.G. § 2D1.1(b)(13)(C)(ii). The relevant application note provides as follows: 20. Substantial Risk of Harm Associated with Manufacture of Amphetamine and Methamphetamine. the (A) Factors to Consider. In determining, for purposes of subsection (b)(13)(C)(ii) . . . , whether the offense created a substantial risk of harm to human life or the environment, the court shall include consideration of the following factors: (i) The quantity of any chemicals or hazardous toxic substances found at the laboratory, and the manner in which the substances were stored. (ii) The manner in which hazardous or toxic substances were disposed, and the likelihood of release into the environment of hazardous or toxic substances. (iii) The duration of the offense, and the extent of the manufacturing operation. (iv) The location of the laboratory (e.g., whether the laboratory is located in a residential 11 neighborhood or a remote area), and the number human lives placed at substantial risk of harm. U.S.S.G. § 2D1.1(b)(13)(C)(ii) cmt. n. 20. of While a district court must consider all four factors, it need not find that all are met in order to apply the enhancement. See Houchins, 364 F.3d at 188 n.9. Applying these factors in this case, the district court found: I am going to find that the enhancement does apply by a preponderance of the evidence. There s no question we had cooking, as that term is loosely used, the preparation of meth at the trailer, which was somewhat secluded but as I read the application notes, the cooking doesn t have to take place for there to be the enhancement. The application note instructs the Court to look at the chemicals that were present, the manner in which they were stored, also to look at the duration of the offense and apparently based on the at least the part at the trailer, it was going on for some period of time. The location of the laboratory; certainly one was in a remote area; the other was in a position, not laboratory, but where the place where the chemicals were stored was in a location, being the motel room, which placed a number of human lives at a substantial risk of harm. J.A. 43. Further, at sentencing, the court engaged in following discussion with Appellant Williams counsel: THE COURT: I understand your objection but the guideline actually reads: Created a substantial risk of harm to human life. It doesn t say others and/or the environment. Appellant Counsel: Right. addict who s making meth. Human Life. 12 We have a meth the THE COURT: J.A. 37. He s human. Thus, per the reasoning of the district court, because Appellant Williams is human and because he endangered his own life by manufacturing methamphetamine, the enhancement should apply. 2. On insufficient appeal, Appellant evidence to Williams support argues the that there is of the application enhancement either as to the trailer or the Econo Lodge. regard to the trailer, he asserts that, given its With remote location, he was the only human life endangered and that the district court thus erred in finding that danger to the manufacturer is sufficient to justify the application of the enhancement. With regard to the Econo Lodge, Appellant Williams contends that he never manufactured methamphetamine there and that, instead, he merely used the motel room for storage. Accordingly, he asserts the enhancement cannot apply. We court erred agree in with finding Appellant Williams that enhancement the that the district applies because Appellant Williams endangered his own life. simply To broadly construe the phrase human life to include situations where the defendant is the only person endangered would impermissibly turn the enhancement methamphetamine into a de manufacturing facto minimum cases, 13 as sentence every in all person who manufactures methamphetamine places themselves at a substantial risk of harm. (9th Cir. See United States v. Staten, 466 F.3d 708, 716 2006). enhancement, which This is factual circumstances. to would be violate applied the only spirit in of the extraordinary See United States v. Pinnow, 469 F.3d 1153, 1156-57 (8th Cir. 2006) ( [A] district court may not rest application of the enhancement on facts that are necessarily common to most or every manufacture because analysis of the mandatory factors in Application Note 20(a) demands an inquiry into the details of a particular case. )(quoting Staten, 466 F.3d at 716). However, because we find the evidence at the motel sufficient to justify the application of the enhancement, we affirm on that basis. An U.S.S.G. § evaluation of the 2D1.1.(b)(13)(C)(ii) four factors enhancement relevant to demonstrates the that Appellant Williams methamphetamine manufacturing activities at the Econo Lodge posed a substantial risk of harm to human life. a. Quantity of Chemicals or Substances and Manner of Storage Hazardous or Toxic Appellant Williams contends this factor weighs against application because all of could fit inside a backpack. the chemicals found at the motel However, this does not necessarily weigh against application of the enhancement. 14 First, because the entire shake and bake process of manufacturing methamphetamine takes place inside a medium-sized soda bottle, this method does not require a manufacturer to possess a large volume of materials. Nevertheless, this method of manufacture is highly dangerous. Additionally, motel create United serious States ( [M]any of v. of hazards Whited, the methamphetamine many are if 473 chemicals the substances not F.3d toxic, carefully 296, involved found 299 in inherently stored. (6th the in Cir. See 2007) production dangerous, the of highly flammable, and pose a serious risk to those who inhale them. ) (citations and internal quotation marks omitted); United States v. Chamness, 435 F.3d 724, 727 (7th Cir. 2006) ( Coleman fuel is flammable and can be explosive. cause severe burns. Muriatic acid is toxic and can The acid and salt are combined to create hydrochloric acid, and the evidence before the district court indicated such an acid is a strong irritant of the eyes, mucous membranes, and skin. ) (internal citations omitted); United States v. Layne, 324 F.3d 464, 470 (6th Cir. 2003) ( Acetone, Coleman fuel, explosive. burns. ); and red Muriatic phosphorus gas is a are toxin flammable that can and cause can be severe United States v. Dick, 173 F. Supp. 2d 765, 767 (E.D. Tenn. 2001) ( Campstove fuel is both flammable and explosive. ). 15 Moreover, as the probation officer noted in the PSR, Appellant Williams stored these dangerous materials in an uncontrolled manner and in and/or around areas accessible to other unsuspecting individuals. J.A. 93. Thus, this factor weighs in favor of applying the enhancement. b. Manner of Disposal and Likelihood of Release Into Environment There was no evidence as to the manner of disposal of the materials at the motel. Thus, this factor is indeterminate. c. Duration of the Offense Manufacturing Operation and Extent of the Appellant Williams contends this factor weighs against applying the enhancement place at the motel. because manufacturing did not take He further contends that the district court did not make a finding to the contrary. Rather, he asserts the district court found that the motel was only used for storage. While the district court did not expressly indicate at sentencing that Appellant Williams manufactured methamphetamine at both the motel and the trailer, the PSR did. previously noted, the defendant and others J.A. 94 ( As manufactured methamphetamine in a trailer located on his parents property and also at the Econolodge hotel in Elkins, West Virginia. ). As noted, the district court accepted the PSR and made it a part 16 of the record in this case. 6 Because Appellant Williams failed to demonstrate otherwise, we may treat the finding in the PSR as a finding of fact by the district court. See United States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999) ( If the district court relies on information in the presentence report (PSR) in making findings, the defendant bears the burden of establishing that the information relied on by the district court in making its findings is incorrect; mere objections are insufficient. ). Here, there is ample evidence to support this finding. As noted, law enforcement found all of the materials necessary to manufacture methamphetamine using the shake and bake method (i.e. hoses, hydrochloric dissolved glass acid, and a plastic lithium pseudoephedrine) in bottles, battery, Appellant Coleman drain opener, Williams motel Fuel, and room. 6 Specifically, at the sentencing hearing, the district court adopted the findings of the PSR in open court. Additionally, in its Statement of Reasons, the district court similarly indicated that it was adopting the PSR. Finally, at sentencing, the district court overruled Appellant Williams objection to the application of the enhancement, which was based on Appellant Williams contention that manufacturing did not take place at the motel. Thus, the district court properly adopted the factual findings of the PSR. See United States v. Walker, 29 F.3d 908, 912 (4th Cir. 1994) ( It is self-evident that, in expressly overruling Walker s objections to the PSR, the court was in fact adopting the controverted PSR findings. ) Notably, the only two other areas of disagreement with the PSR (i.e. the PSR s use of a base offense level of 28 and the PSR s findings as to the location of the trailer) were either stipulated or conceded by the parties. 17 Additionally, police uncovered three syringes and a spoon in the motel room and Appellant Williams girlfriend posted a picture to Facebook with the caption up partying all night long. The Facebook post is particularly relevant here, because Appellant Williams pled guilty to conspiracy and because Appellant Williams admitted to police officers that the backpack in the motel room contained items to manufacture methamphetamine and that his girlfriend was staying in the motel room with him. Moreover, several of the items found in the motel room contained pseudoephedrine residue, evincing their use in the manufacture of methamphetamine. sustain a This evidence is more than sufficient to finding that Appellant methamphetamine at the motel. Williams manufactured Therefore, this factor weighs in favor of applying the enhancement. d. Location of the Laboratory and Number of Human Lives Placed at Substantial Risk of Harm By manufacturing methamphetamine at a motel, Appellant Williams placed a number of human lives at risk. Williams concedes as much. See J.A. at 41-42 Appellant (Appellant Counsel: I concede, if there was meth manufactured in a hotel room [the enhancement] applies because there s people right next door[.] ) Thus, this factor applying the enhancement. 18 weighs strongly in favor of Moreover, even if we were to agree with Appellant Williams and conclude that the district court did not make a factual finding that manufacturing took place at the motel, we would solely nonetheless based affirm on the the fact judgment that all of the materials the Appellant hazardous chemicals in the motel room. had of district Williams court stored Here, Appellant Williams necessary to manufacture methamphetamine in his motel room, including Coleman fuel and sulfuric acid. improperly. As noted, both items can be hazardous if handled Despite this, Appellant Williams brought these items into a motel room that was occupied by an untold number of unsuspecting people. This fact alone supports the conclusion that Appellant Williams actions created a substantial risk of harm to human life. In reaching this conclusion, we reject Appellant Williams contention that the existence of a laboratory at the motel is a necessary enhancement. The only pre-requisite to pre-requisites the listed operation in the of the text of U.S.S.G. § 2D1.b(13)(C)(ii) are (i) the offense must involve the manufacture of methamphetamine and (ii) the offense must pose a substantial risk of harm to human life or the environment. The guideline contains no indication that it must be the manufacture of methamphetamine itself that causes a substantial risk of harm to human life, leaving open the 19 possibility that storage of hazardous chemicals in a dangerous manner could justify the application of the enhancement. Moreover, location of the while the laboratory, fourth it factor also references commands a the court to consider the number of human lives placed at a substantial risk of harm without any requirement that the risk of harm be posed by the manufacturing of methamphetamine. Thus, we agree with the district court insofar as the court concluded that a finding that methamphetamine was manufactured at the unnecessary to the application of the enhancement. motel was See J.A. 43 ( [A]s I read the application notes, the cooking doesn t have to take place for there to be the enhancement. ). IV. Thus, based on the relevant factors to be considered in applying the U.S.S.G. § 2D1.1(b)(13)(C)(ii) sentencing enhancement, we conclude that the evidence at the motel supports the district court s methamphetamine conclusion manufacturing risk of harm to human life. that activities Appellant posed a Williams substantial Accordingly, the enhancement was properly applied. For the foregoing reasons, the judgment of the district court is AFFIRMED. 20 GREGORY, Circuit Judge, concurring: I concur in the judgment, but write separately to emphasize that, in my view, the enhancement properly applies based on the only reason clearly provided by the district court: that Williams placed a number of human lives at a substantial risk of harm by bringing dangerous chemicals into a public motel room and storing them there. As the majority notes, these chemicals are hazardous if not stored properly, and yet, Williams chose to bring them into the motel room, placing them within reach of at least one other drug user, and exposing an untold number of other motel guests and employees to a substantial risk of harm. The majority goes on to conclude that the enhancement is also supported because the presentence report methamphetamine was manufactured in the motel room. stated that That fact, however, was vigorously disputed by Williams, and immediately after hearing his objection, the district court appeared to agree with his contention that the motel room was merely a place where chemicals were stored. In explaining its reasons for applying the enhancement, the court referred to the motel room as not [the] laboratory but the place where chemicals were stored. J.A. 43. Although the district court went on to adopt the presentence report, I would hesitate before assuming that every fact in a report is adopted by the district court, no matter how contradictory the court s 21 open court statements. Indeed, no one contends that the district court, after referring to the trailer as located in a remote area, J.A. 43, adopted the presentence report s erroneous finding that it was located immediately behind Williams s family s house. If this case hinged on whether or not methamphetamine was manufactured in the motel room, I would prefer to remand to allow the district court to clarify its factual findings. But because I agree with the majority that the enhancement would apply even assuming the district court did not find methamphetamine was manufactured in the motel room, I concur. 22 that

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