U.S. v. Staten

• Decision Date: 07 June 2006
• Docket Number: No. 05-30055.,05-30055.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sue Ellen STATEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 384

450 F.3d 384

UNITED STATES of America, Plaintiff-Appellee, v. Sue Ellen STATEN, Defendant-Appellant.

No. 05-30055.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2005.

Filed June 7, 2006.

June Lord, Great Falls, MT, for defendant-appellant Sue Ellen Staten.

William W. Mercer, United States Attorney, and Joseph E. Thaggard, Assistant United States Attorney, United States Attorney's Office, Great Falls, MT, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CR-04-00039-SEH.

Before: GOULD and BERZON, Circuit Judges, and SCHWARZER,^* District Judge.

BERZON, Circuit Judge:

United States v. Booker held that although district courts are no longer required to follow the United States Sentencing 6214 Guidelines ("Guidelines"), when making sentencing decisions, "the [Sentencing Reform] Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals." 543 U.S. 220, 259, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (citing 18 U.S.C.A. § 3553(a) (Supp.2004)); see also United States v. Cantrell, 433 F.3d 1269, 1278 (9th Cir.2006) ("[N]otwithstanding that the Guidelines are now effectively advisory,. . . district courts, while not bound to apply the Guidelines, `should still consult them for advice as to the appropriate sentence.'" (citation omitted)). Concomitantly, as we have repeatedly held in the aftermath of Booker, we continue to have a duty to review district courts' required application of the Guidelines. We do so to assure that the district courts properly appreciate the advice offered by the now-advisory Guidelines before factoring that advice into their determination, under 18 U.S.C. § 3553(a), of the appropriate sentence. See United States v. Mix, 442 F.3d 1191, 1195 (9th Cir.2006) ("[A]s was the case before Booker, the district court must calculate the Guidelines range accurately. A misinterpretation of the Guidelines by a district court effectively means that [the district court] has not properly consulted the Guidelines." (last alteration in original) (internal citations and quotation marks omitted)).

Conducting the requisite review of the post-Booker application of the Guidelines in this case, we conclude that the district court failed properly to take account of the appropriate factors when applying the Guidelines section 2D1.1(b)(5)(B) enhancement for creating a substantial risk of harm to human life or the environment. We therefore vacate the sentence imposed on Sue Ellen Staten and remand for resentencing.

I.

The events which ultimately resulted in this appeal developed as follows:¹ On October 24, 2003, Sue Ellen Staten and Jennifer Gatewood rented two adjacent rooms at the Terrace Motel, numbered 8 and 9. Later that night, Staten helped to carry a microwave into room 8, where Denis K. Loftis, Gatewood's boyfriend, had assembled equipment necessary to manufacture methamphetamine. Loftis and Staten were arrested in room 8 by officers who had been tipped off to the manufacturing operation. Because of the perceived hazardous environment, the motel was evacuated. A hazardous materials disposal team seized, among other things, the following items from the rooms: "a kitchen bowl containing iodine and red phosphorus; hypodermic syringes, one of which contained a clear liquid substance; a Pyrex plate with methamphetamine residue; canning jars containing a liquid substance; razor blades; a microwave oven; a Fry Daddy deep fat fryer; and several 20 ounce soft drink bottles containing liquid substances." The PSR concluded that Staten had conspired with Gatewood and Loftis in several manufacturing operations, which resulted in the "produc[tion] [of] a conservative amount of one-half gram of methamphetamine" on each occasion.

Staten pleaded guilty pursuant to a plea agreement to conspiracy to manufacture methamphetamine under 21 U.S.C. §§ 841(a)(1) and 846. The PSR, prepared on July 23, 2004, prior to the issuance of Booker, assessed a base offense level of twelve pursuant to Guidelines section 2D1.1(c)(14) and increased the offense level to twenty seven pursuant to section 2D1.1(b)(5)(B). The latter provides for an increase of three offense levels or, if the resulting increase is less than twenty seven, an increase of the offense level to twenty seven "[i]f the offense involved (i) the manufacture of . . . methamphetamine; and (ii) created a substantial risk of harm to (I) human life . . .; or (II) the environment." U.S. Sentencing Guidelines Manual § 2D1.1(b)(5)(B) (emphases added).² The PSR also recommended a two-level decrease for acceptance of responsibility pursuant to section 3E1.1(a) and a one-level decrease for timely notifying government of her intention to plead guilty pursuant to section 3E1.1(b). Because Staten fell into criminal history category III, the PSR concluded that a Guidelines imprisonment range of sixty-three to seventy-eight months was appropriate. See id. ch. 5, pt. A (Sentencing Table).

The sentencing hearing occurred just after Booker was decided. In light of Booker, the district court treated the Guidelines as "advisory only." The district court allowed argument about the PSR at the sentencing hearing and invited counsel to raise any other pertinent information.

In response to that invitation, both parties submitted expert reports with regard to the substantial risk of harm issue. Staten's expert based his brief report on "the evidence and video tape in this case." While "not disput[ing] [that] there exist[ ] potential dangers for all clandestine methamphetamine labs," Staten's expert

[could not] state, within a reasonable degree of scientific certainty, based upon the evidence found, evidence analyzed, lack of chemical odor notation and the video tape, any "real" hazards or dangers existed at the scene that would pose a significant threat or danger to any persons other than the cook and those present in the room.

The government's expert presented a report which detailed various "hazards associated with methamphetamine manufacture." According to this report, such hazards include the potential for flash fire caused by the atmospheric concentration of alcohol; "[the health hazard and dangers] associated with iodine tinctures or [the] handling of iodine crystals"; the generation of hydriodic acid, a respiratory irritant; the generation of hydriodic acid fumes and phosphine gas, both of which are potentially lethal; the possibility that the coffee or paint filters used to collect solid red phosphorus might auto-ignite; the dangers associated with handling caustic lye (sodium hydroxide); the need to dispose of chemical waste generated by the manufacturing process; the potential for others to be exposed to improperly disposed of waste; and the potential for subsequent occupants of the location of the manufacture to be "unwitting[ly] expos[ed] to methamphetamine residue and other hazardous by-products of the manufacturing process."

At sentencing, Deputy Jergens testified that while he was searching the motel room he found what appeared to be an uncovered container of iodine and an uncovered container of Coleman fuel. He also testified that between three and five people were evacuated from the motel, including two from an adjacent room.

Staten objected to the section 2D1.1(b)(5)(B) enhancement on the ground that the Booker advisory Guidelines remedy may not be applied to a pre-Booker crime and so, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the facts supporting the enhancement must be proved beyond a reasonable doubt. She also maintained that on any burden of proof, the district court did not properly determine that the enhancement was supported by the established facts. The district court rejected both arguments, observing that any Guidelines calculation was "only an advisory component" of the factors it was obliged to consider under Booker. The district court then explained that, in its view, the substantial risk of harm enhancement was applicable. After recognizing that under Booker it was to consider all the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Staten to sixty-three months imprisonment with three years of supervised release to follow, a sentence within the calculated advisory Guidelines range.

Staten now reasserts the objections she raised at her sentencing: She argues, first, that the Booker advisory Guidelines regime cannot apply to her, as she committed her crime before Booker was decided, and that the failure to determine whether the facts supporting the enhancement were proven beyond a reasonable doubt therefore violated her due process rights. Second, she argues that the district court erred in determining that the evidence presented at the sentencing hearing and the facts established in the PSR support application of the section 2D1.1(b)(5)(B) substantial risk of harm enhancement.

II.

"We review ex post facto challenges to sentencing decisions de novo." United States v. Ortland, 109 F.3d 539, 543 (9th Cir.1997); see also Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir.2003). While the constitutional prohibition against ex post facto laws "by its terms, applies only to changes in the law resulting from legislative or executive action, . . . the [Supreme] Court has extended similar principles to the Due Process Clause to cover `unforeseeable [judicial] construction of a criminal statute.'" United States v. Dupas, 419 F.3d 916, 920 n. 3 (9th Cir.2005) (second alteration in original) (quoting Bouie v. City of Columbia, 378 U.S. 347, 354-55, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)), cert. denied, ___ U.S. ___, 126 S.Ct. 1484, 164 L.Ed.2d 261 (Mar. 6, 2006). Staten asserts such a due process argument, which we review as we would a traditional ex post facto argument.

Under Booker, we review the ultimate...