U.S. v. Pinnow

• Decision Date: 01 December 2006
• Docket Number: No. 06-1466.,06-1466.
• Citation: 469 F.3d 1153
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Richard PINNOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1153

469 F.3d 1153

UNITED STATES of America, Plaintiff-Appellee, v. David Richard PINNOW, Defendant-Appellant.

No. 06-1466.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2006.

Filed: December 1, 2006.

Alfred E. Willett, argued, Cedar Rapids, Iowa, for appellant.

Kelly Mahoney, argued, Asst. U.S. Attorney, Des Moines, Iowa, for appellee.

Before LOKEN, Chief Judge, BEAM and GRUENDER, Circuit Judges.

LOKEN, Chief Judge.

In January 2004, Coralville, Iowa, police arrested David Pinnow after he loaded chemicals and equipment used to manufacture methamphetamine into a taxi outside his hotel. Police found additional precursor chemicals and equipment in his hotel room and in a car he had rented. Pinnow pleaded guilty to attempting to manufacture methamphetamine. His presentence investigation report (PSR) recommended a three-level enhancement because the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life or to the environment. See U.S.S.G. § 2D1.1(b)(8)(B).¹ The district court² overruled Pinnow's objection to the enhancement and sentenced him to 175 months in prison, seven months above the bottom of his advisory guidelines sentencing range of 168 to 210 months. Pinnow appeals, challenging the enhancement and the reasonableness of his sentence. We affirm.

I.

Paragraphs 5-15 of Pinnow's PSR set forth a detailed summary of his offense conduct. Paragraph 27 recommended the § 2D1.1(b)(8)(B) enhancement. Pinnow objected to one sentence in paragraph 9 that is not material to this appeal. He also objected to the drug quantity calculation, an objection that was resolved at sentencing when the parties stipulated to a base offense level of 30. And he objected to the enhancement recommended in paragraph 27. The following fact summary is taken from portions of paragraphs 5-15 to which Pinnow did not object.

After Coralville police officers detected a strong odor of ether emanating from a rental car parked at a local hotel and a police dog alerted to the presence of drugs in the car, the police obtained a warrant and towed the vehicle. A subsequent search uncovered burnt aluminum foil containing an unknown residue; a plastic pitcher containing an unknown brown substance; an empty bottle of isopropyl alcohol; starter fluid; a five gallon bucket with lid and plastic tubing; multiple valves, plugs, and clamps; and receipts for the purchases of chemicals used in the manufacture of methamphetamine. Hotel records associated the rental car with room 163. The officers learned that Pinnow was staying in room 163 and had recently stayed at other hotels in the Coralville area.

When police saw Pinnow put several packages in the trunk of a taxi and hurriedly leave the hotel, they arrested him on outstanding warrants. A search of Pinnow and his belongings yielded acetone, sulfuric acid, a gas mask, lithium batteries, burnt aluminum foil, coffee filters, glass and plastic containers and tubing, a digital scale, and a seven-gallon metal tank wrapped in plastic bags. Most significantly, police found fourteen boxes of various over-the-counter cold medications containing enough pseudoephedrine to manufacture 18.36 grams of actual (pure) methamphetamine, and a white powder which, when tested, proved to be enough crushed pseudoephedrine to manufacture 32.38 grams of actual methamphetamine. A warrant search of Pinnow's hotel room yielded aluminum foil, one partially full and two empty bottles of isopropyl alcohol, store receipts listing precursor chemicals, an empty container of a cold medicine containing pseudoephedrine, and an unopened cold syrup containing pseudoephedrine. At his change-of-plea hearing, Pinnow admitted that he acquired these items and crushed the pseudoephedrine "in order to manufacture methamphetamine using what is known as the lithium ammonium reduction method."

At sentencing, the district court overruled Pinnow's objection to the § 2D1.1(b)(8)(B) enhancement, explaining that the amounts and types of precursors and the undisputed facts in the PSR "reveal the defendant traveling and living with a veritable toxic waste dump that was dangerous to himself as well as others." Turning to the sentence to be imposed, the court noted that Pinnow possessed the necessary precursors "and a very large quantity of pseudoephedrine pills," that he has been a "one-person crime spree" for the past 20 years, living in at least thirteen States, that he "has abused alcohol, marijuana, cocaine, methamphetamine, Valium, and LSD," and that he has a "continued history of violent criminal behavior." For these reasons, and "taking into account all the factors under [18 U.S.C. § 3553(a)]," the court imposed a sentence of 175 months in prison, somewhat above the bottom of the advisory guidelines range of 168-210 months.

II.

On appeal, Pinnow first argues that the district court erred in imposing the three-level enhancement under § 2D1.1(b)(8)(B) because "his mere possession of methamphetamine precursors and materials, did not create a substantial risk of harm to human life or the environment." We review de novo the application of the substantial risk of harm standard to the undisputed facts summarized in the PSR. See United States v. Underwood, 364 F.3d 956, 961, 969-70 (8th Cir.2004); United States v. Davidson, 409 F.3d 304, 313 (6th Cir.2005); United States v. Houchins, 364 F.3d 182, 187 (4th Cir.2004), vacated on other grounds, 543 U.S. 1104, 125 S.Ct. 1004, 160 L.Ed.2d 1018 (2005).

In section 3612 of the Methamphetamine Anti-Proliferation Act of 2000, Congress directed the Sentencing Commission to amend the guidelines to provide an enhancement of "not less than 3 offense levels" for "any offense relating to the manufacture, attempt to manufacture, or conspiracy to manufacture amphetamine or methamphetamine . . . if the offense created a substantial risk of harm to human life . . . or the environment." Pub.L. No. 106-310, § 3612, 114 Stat. 1228-29 (2000). The legislative history explained:

[T]hese chemicals and substances [used to manufacture methamphetamine] are utilized in a manufacturing process that is unstable, volatile, and highly combustible. Even small amounts of these chemicals, when mixed improperly, can cause explosions and fires. For every one pound of methamphetamine that is produced, approximately five pounds of toxic and often lethal waste products may be left behind at the laboratory site, or disposed of in rivers, kitchen sinks, or sewage systems in an effort to conceal evidence of illegal manufacturing. More disturbing is that most of these laboratories are situated in residences, motels, trailers, and vans, and often times are operated in the presence of children.

H.R.Rep. No. 106-878, pt. 1, at 22 (2000). The Sentencing Commission responded by promulgating what is now § 2D1. 1(b)(8)(B). Application Note 20(A) to § 2D1.1 provides that, in determining "whether the offense created a substantial risk of harm to human life or the environment, the court shall include consideration of" the quantity of chemicals and toxic substances found at the laboratory, the manner in which those chemicals and substances were stored and disposed of, the duration of the offense, and the extent and location of the manufacturing operation.

The plain language of both § 2D1. 1(b)(8)(B) and its authorizing legislation confirm that the substantial-risk-of-harm enhancement does not automatically apply to every offense involving methamphetamine manufacture. A panel of the Ninth Circuit has held that a district court "may not rest application of the...