USA v. Smith, 99-3326
| Decision Date | 12 April 2000 |
| Docket Number | No. 99-3326,99-3326 |
| Citation | 210 F.3d 760 |
| Parties | (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM K. SMITH, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 99 CR 30044--G. Patrick Murphy, Judge.
Before COFFEY, MANION and ROVNER, Circuit Judges.
William K. Smith pled guilty to charges of conspiring to manufacture methamphetamine and assaulting a federal officer. The district court sentenced him to 33 months on each count, to be served concurrently. In calculating this sentence, the district court adjusted Smith's sentence two levels upward pursuant to U.S.S.G. sec. 3C1.2, for reckless endangerment during flight. On appeal, Smith objects to this enhancement on two grounds. First, he contends the government failed to meet its burden in proving that he actually endangered the officers' lives. Second, Smith faults the district court for relying on personal, extra- record knowledge instead of record evidence in making its findings on this enhancement. We vacate the sentence and remand.
One of the substances used in the manufacture of methamphetamine is anhydrous ammonia, which is also used in the farming industry as a fertilizer. Anhydrous ammonia has a boiling point of 28 degrees below zero, which means that to store it in a liquid form, it must be kept at extremely low temperatures or it must be stored under pressure. On farms, it is typically stored under pressure, and then injected into the soil where it combines with the water in the soil to form a fertilizer. "Anhydrous" means "free from water" and this same quality which makes anhydrous ammonia useful in farming renders it very dangerous to people. When liquid anhydrous ammonia comes into contact with skin or eyes or when the vapor is inhaled, it can severely burn and damage tissues. In sufficient quantities and concentrations, it can cause death.
On the day of Smith's arrest, police officers had been alerted to a possible methamphetamine manufacturing operation, and were surveilling Smith and his co-conspirator Alfred Poppen. The officers observed Smith and Poppen stop off at an anhydrous ammonia storage tank at a local farm, where they apparently obtained some of the substance in a bucket. After driving a short distance, Poppen and Smith allegedly transferred the anhydrous ammonia into a thermos and continued on to Smith's home. At that time, officers attempted to stop the vehicle by activating their lights. Poppen and Smith continued driving, and began to head out of town. The two officers continued to follow the car driven by Poppen. During the pursuit, the officers saw Smith toss a thermos lid out the window. One officer observed Smith dumping anhydrous ammonia out of the thermos through the rolled down window of the car. The chase took place on a gravel road and the officers kept a distance of only five to ten feet between the vehicles because they did not want the road dust to obscure their vision of the activity in the car. One officer reported that the ammonia was in liquid form as it was being poured out the window but that it instantly vaporized, creating a cloud through which the officers then drove in the course of the pursuit. The officers closed the vents of their car and ensured that the windows were closed, and they were not actually injured by the ammonia dumping. Once the defendants' car stopped, Smith tried to run from the officers and attacked one of them as he was being captured, giving rise to the charge of assaulting a federal officer.
The district court enhanced Smith's offense level under section 3C1.2 of the Sentencing Guidelines, and Smith objected to the enhancement. In sentencing Smith, the court listened to argument from the government and from Smith regarding the dangerousness of anhydrous ammonia. The court considered two reports published by universities regarding the safe handling of anhydrous ammonia in the agricultural setting. Smith's counsel argued that there was no evidence of the quantity of the substance released, and no evidence of what quantity would be harmful under the circumstances in which it was released, out in the open air during close pursuit. After hearing argument from Smith's counsel, the court asked whether counsel had ever worked on a farm. Smith's counsel replied that she had not, and the court ruled on Smith's objection:
All right. Thank you. The court understands the defendant's objection; but, the objection is overruled. There is--I'm satisfied that you get a nose full of anhydrous ammonia or a face full of it, it is dangerous. And I'm not trying to bring my own personal experience into this; but, I can't ignore the fact that growing up in the country I know what anhydrous ammonia is. And this is very dangerous. It just is.
Sentencing Tr. at 9. The court then adopted the probation officer's position that Smith's dumping of anhydrous ammonia created a risk of serious bodily injury. Smith appeals from the two-level increase on two grounds. First, he contends the government did not meet its burden of proving the dangerous nature of anhydrous ammonia in the quantity and concentrations that he released in the course of flight from the officers. Second, he contends that the district court improperly relied on extra-record knowledge in assessing the dangerousness of anhydrous ammonia, and the district judge should have recused himself when he became aware that he was unable to disregard his prior knowledge.
We review the district court's enhancement for clear error. United States v. Watson, 189 F.3d 496, 501 (7th Cir. 1999); United States v. Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994). The government has the burden of establishing by a preponderance of the evidence facts which justify an upward adjustment of the defendant's base offense level. Watson, 189 F.3d at 502. Section 3C1.2 provides:
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, increase by 2 levels.
U.S.S.G. sec. 3C1.2.1 Smith argues that although anhydrous ammonia is a dangerous substance, there is no evidence in the record supporting a finding that he created a substantial risk of death or serious bodily injury in the quantity and concentration he released from the car during flight. A defendant recklessly creates a substantial risk when he is aware of the risk created by his conduct, and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise. Chandler, 12 F.3d at 1433. He also contends that the district judge relied on his own personal knowledge of the dangerousness of this substance rather than on any record evidence in reaching his conclusion. The government contends that we should look to the dangerousness of the act and not the consequences of the act in assessing whether Smith created a substantial risk of death or serious bodily injury. The government argues that it was merely fortuitous that the substance vaporized and did not harm the officers as they drove through the vapor cloud, and that the defendant should not benefit from this fortuitous outcome. The government further maintains that because Smith did not request that the district judge recuse himself, Smith waived any claim for recusal.
We begin by reviewing the record to determine if there is evidence supporting the finding that Smith's dumping of anhydrous ammonia created a substantial risk of death or serious bodily injury to the officers during the pursuit. The district court adopted the probation officer's position in rejecting Smith's challenge to the adjustment. The probation officer's Presentence Investigation Report ("PSR") recounts the officers' testimony that during the pursuit, Smith first tossed a thermos lid out the car window and then twice dumped anhydrous ammonia from the thermos. The PSR then concludes that "[b]ecause the defendant recklessly endangered law enforcement officials during flight by dumping anhydrous ammonia out of a window of a moving vehicle, a two level increase is warranted pursuant to sec. 3C1.2." In the calculations section of the report, the PSR repeats...
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