U.S. v. Chamness, 05-1902.

• Citation: 435 F.3d 724
• Decision Date: 25 January 2006
• Docket Number: No. 05-1902.,05-1902.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John CHAMNESS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

435 F.3d 724

UNITED STATES of America, Plaintiff-Appellee, v. John CHAMNESS, Defendant-Appellant.

No. 05-1902.

United States Court of Appeals, Seventh Circuit.

Argued October 27, 2005.

Decided January 25, 2006.

Esteban F. Sanchez (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Douglas J. Beevers (argued), Office of the Federal Public Defender, Springfield, IL, for Defendant-Appellant.

Before RIPPLE, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge.

John Chamness pled guilty without the benefit of a written plea agreement to two counts of knowingly attempting to manufacture a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The presentence investigation report, applying the November 1, 2004, version of the United States Sentencing Guidelines, determined that Chamness had a total offense level of 32 and a criminal history category of IV. This calculation, adopted by the district court, included a three-level increase in Chamness's offense level pursuant to U.S.S.G. § 2D1.1(b)(6)(B) for creating a substantial risk of harm to human life or the environment during his attempt to manufacture methamphetamine. Chamness appeals the enhancement. We affirm.

I. HISTORY

The basis of Chamness's appeal centers around Count 2 of the indictment, so we recount only the facts relevant to this count. On July 31, 2003, Deputy Chief Ron Burke of the Taylorville, Illinois, police department was called to a mobile home located in a trailer park. The trailer's owner had reported that people were attempting to enter it. Burke and other officers arrived and met with the owner, who said people were in the trailer, were manufacturing methamphetamine, and were threatening to harm him.

Burke was the first officer to enter the small trailer. He smelled a strong odor of ether and saw a white fog that "took up the whole entire living room/kitchen area." He also saw glass jars with tubes sticking out and containing a white substance. At this point, people began to flee. Several individuals, including Chamness, were caught, while others escaped. Authorities suspected that the mobile home was being used as a clandestine methamphetamine laboratory. Therefore, in accordance with standards established by the Drug Enforcement Administration, the police left the trailer and arranged for a hazardous waste disposal team to secure it. A later search of the laboratory revealed two glass jars containing 923 milliliters of liquid that contained methamphetamine, one gallon of muriatic acid, a one gallon container of Coleman stove fuel, peeled lithium batteries, an operating air pump, and 26 ounces of salt.

Chamness pled guilty to two counts of attempting to manufacture methamphetamine. At sentencing, the court heard detailed testimony from Sanford Angelos, a DEA forensic chemist. Angelos explained Chamness was engaged in a second gassing of the liquid, in which hydrochloric acid is used to extract methamphetamine left behind after the completion of the first process. While the first stage of cooking had produced approximately 90 grams of methamphetamine, there was no evidence that Chamness was present during this first cook. The second gassing was able to produce only two or three grams, although the second gassing requires a higher level of expertise. Chamness concedes he was involved in this second gassing stage.

The district court applied the three-level enhancement for creating a substantial risk to human life, over Chamness's objection. The court discussed each of the required factors in making this determination, and explained that it does not give this enhancement in all methamphetamine cases. The resulting sentencing range of imprisonment was 168 to 210 months, and the court sentenced Chamness to 168 months' imprisonment on each count, to run concurrently.

II. ANALYSIS

We review the district court's interpretation of the Sentencing Guidelines de novo. United States v. Ewing, 129 F.3d 430, 434 (7th Cir.1997) (citation omitted); United States v. Wilson, 98 F.3d 281, 282 (7th Cir.1996) (citation omitted). However, we review its factual findings underpinning the enhancement for clear error. United States v. Blalock, 321 F.3d 686, 689-90 (7th Cir.2003) (citation omitted); United States v. Johnson, 227 F.3d 807, 812-13 (7th Cir.2000) (citations omitted). A finding of fact is clearly erroneous only if, based upon the entire record, we are "left with the definite and firm conviction that a mistake has been committed." Johnson, 227 F.3d at 813 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

As an initial matter, we note the parties made no mention of whether Chamness's ultimate sentence was reasonable. Although it was not mandatory for Chamness to be sentenced in accordance with the Guidelines, sentencing courts must continue to give consideration to them. See United States v. Booker, 543 U.S. 220, 125 S.Ct. at 757, 764-65 (2005). "The Sentencing Reform Act requires resentencing when the challenged sentence was `imposed as a result of an incorrect application of the sentencing guidelines.'" United States v. Scott, 405 F.3d 615, 617 (7th Cir.2005) (quoting 18 U.S.C. § 3742(f)(1)). As we have stated, this provision survived Booker. Id. (citing Booker, 125 S.Ct. at 764). Therefore, "[a]n incorrect application of the guidelines requires resentencing under the post-Booker sentencing regime." Id. (citation omitted); United States v. Skoczen, 405 F.3d 537, 548 (7th Cir.2005) ("Even under an advisory regime, if a district court makes a mistake in calculations under the Guidelines, its judgment about a reasonable sentence would presumably be affected by that error and thus (putting aside the implications of plain error review) remand would be required just as before."). Chamness may have made a valid tactical decision to focus all of his energies on appeal on the risk to human life enhancement. In any event, as explained later, we find Chamness's sentence is reasonable under the circumstances.

A. The Application of § 2D1.1(b)(6)(B)

Congress has found that the manufacture of methamphetamine "poses serious dangers to both human life and to the environment," and it is "unstable, volatile, and highly combustible." H.R.Rep. No. 106-878(I), at 22 (2000). As a result, Congress enacted the Methamphetamine Anti-Proliferation Act of 2000 (the "Act"), which provided that the United States Sentencing Commission "shall ... increase the base offense level . . . by not less than 3 offense levels above the applicable level in effect on the date of the enactment of this Act" for any methamphetamine manufacturing offense that "created a substantial risk of harm to human life." Pub.L. No. 106-310, § 3612(a)(2), 114 Stat. 1227, 1229 (2000). In response, the Commission added a three-level increase in § 2D1.1(b)(6)(A), now found at § 2D1.1(b)(6)(B), see U.S.S.G. app. C, amends. 608, 620, 667, which provides that if an offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life (other than a minor or incompetent) or to the environment, then the offense level should be increased by three levels. Chamness now appeals the role this enhancement played in the determination of his ultimate sentence.

While the Act did not define "substantial risk of harm," the relevant Guideline's commentary lists the following factors that a court must consider when determining the existence of a substantial risk of harm:

(i) The quantity of any chemicals or hazardous or toxic substances found at the laboratory, and the manner in which the chemicals or 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 neighborhood or a remote area), and the number of human lives placed at substantial risk of harm.

U.S.S.G. § 2D1.1, cmt. n. 20. We turn now to a review of each of these factors.

1. Quantity of Chemicals or Hazardous or Toxic Substances and the Manner of Storage

Chamness emphasizes he was found performing only a second gassing of the methamphetamine, and not performing the more dangerous initial production of methamphetamine that involves the use of anhydrous ammonia. Therefore, the process in which he was engaged in did not involve any ammonia, and only 3 grams of methamphetamine in total were being produced. However, a review of the chemicals and hazardous or toxic substances found in the trailer reveals the factor weighs in favor of applying the enhancement.

The police discovered an operating laboratory upon entering the trailer. Chamness was attempting to "gas off" a liquid containing ether or Coleman fuel. Hydrochloric gas is used during this process. Specifically, the police recovered one gallon of muriatic acid, one gallon of Coleman fuel (or ether), salt, and glass jars containing a liquid, which in turn, contained methamphetamine.

Coleman fuel is flammable and can be explosive. United States v. Layne, 324 F.3d 464, 470 (6th Cir.2003); see also United States v. Dick, 173 F.Supp.2d 765, 767 (E.D.Tenn.2001). Muriatic acid is toxic and can cause severe burns. Layne, 324 F.3d at 470. 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. With respect to the methamphetamine itself, evidence before the court indicated that police officers handling suspects at a laboratory, even for very short periods of time, can become contaminated with methamphetamine, and unknowingly carry this material away from the scene and expose their own families. Perhaps most...