                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-5166



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.


MICHAEL KEVIN HARRIS,

                  Defendant - Appellant.




                              No. 06-5295



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.


LARRY A. LYONS,

                  Defendant - Appellant.



Appeals from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:05-cr-00019-3; 2:05-cr-00019-4)


Argued:   February 1, 2008                  Decided:   March 14, 2008
Before MICHAEL and SHEDD, Circuit Judges, and Liam O’GRADY, United
States District Judge for the Eastern District of Virginia, sitting
by designation.


Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.


ARGUED: Jonathan David Fittro, Clarksburg, West Virginia; Dorwin
John Wolfe, Elkins, West Virginia, for Appellants. Stephen Donald
Warner, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West
Virginia, for Appellee. ON BRIEF: Sharon L. Potter, United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:


     Larry A. Lyons and Michael Kevin Harris both appeal their

convictions and sentences related to widespread methamphetamine

seizures    in    the    Northern   District     of    West   Virginia,     which

culminated in a federal grand jury investigation and a series of

indictments.          Michael Kevin Harris pled guilty to perjury, in

violation of 18 U.S.C. § 1623 and was sentenced to fifty-seven (57)

months’ incarceration.        Harris appeals his sentence claiming that

the district court erred in finding his perjury was “in respect to

a criminal offense”, triggering a cross reference to U.S.S.G. §

2X3.1.     Larry A. Lyons pled guilty to aiding and abetting the

manufacture      of    methamphetamine,    in   violation     of    18   U.S.C.   §

841(a)(1) and (2).         He appeals his sentence of one hundred (100)

months’    incarceration,       contending      that    the   district      court

erroneously applied a sentencing enhancement pursuant to U.S.S.G.

§ 2D1.1(b)(8)(B). We vacate and remand the sentence of Larry Lyons

finding that the while the district court identified the four

factors to consider when imposing such an enhancement, it failed to

abide by the requirements of the Guidelines and consider each

individual factor in the context of this case.                     We affirm the

sentence of Michael Kevin Harris, finding sufficient evidence in

the record to support the district court’s application of the

U.S.S.G. § 2X3.1 cross reference during sentencing.



                                       3
                                              I.

       On September 22, 2004 local police in Barbour County, West

Virginia discovered a methamphetamine laboratory in a trailer

behind the residence of Karl Kevin Hill on Mud Gut Road.                                  This

discovery was the first seizure of a substantial methamphetamine

lab in Barbour County and led to the discovery and eradication of

numerous other methamphetamine labs over the next two years.                              As a

result   of    these    seizures,         a    federal      grand    jury   conducted      an

investigation         into     the   problem         and     returned       a    series    of

indictments.        During this investigation, Kevin Michael Harris was

called to testify concerning his knowledge of the methamphetamine

operation on Mud Gut Road.            When testifying before the grand jury

on December 14, 2004, Harris denied having been to the Mud Gut Road

residence on more than one occasion.                     However, Harris had indeed

been    to    the     residence      on       more   than    one     occasion,      and    he

subsequently pled guilty to perjury related to this testimony on

November 7, 2005.

       Meanwhile, on May 3, 2005, an off-duty sheriff’s deputy, Mr.

Lee Wright, was traveling on Isner Creek Road in Randolph County,

West Virginia, when he noticed Larry Lyons and co-defendant Billy

Leary get out of Lyons’ vehicle and walk across the road into the

nearby woods carrying a white trash bag.                       The deputy called for

assistance      and     then    approached           both    Lyons    and       Leary   after

announcing that he was a police deputy.                     Lyons cooperated and came


                                                4
towards the deputy with his hands up, while Leary absconded into

the woods, where he also discarded the white trash bag.                                     The

responding deputy stopped Leary and recovered the white trash bag,

which     contained          chemicals      and       items    that     could   be   used   to

manufacture methamphetamine including: a glass mason jar, a plastic

milk jug with two clear plastic hoses, a pound of salt, coffee

filters, and liquid fire.               A glass container containing traces1 of

liquid methamphetamine was also found in the woods, as well as

methamphetamine manufacturing equipment in the back of Lyons’ car.

Lyons was subsequently indicted in regard to this incident and pled

guilty        to     aiding     and      abetting        in      the     manufacturing       of

methamphetamine.



                                              II.

      Harris         challenges       the   district          court’s    finding     that   his

perjury was “in respect to a criminal offense”, triggering a cross

reference to U.S.S.G. § 2X3.1, accessory after the fact. We review

sentences for abuse of discretion.                      Gall v. United States, 128 S.

Ct.     586        (2007).       We     review         the     district     court’s     legal

interpretations of the sentencing guidelines de novo and a district

court’s factual findings for clear error.                          See United States v.

Green, 436 F.3d 449, 456 (4th Cir. 2006).


      1
      United States and the defendant stipulated in a plea
agreement that the amount of liquid containing methamphetamine in
the glass globe was greater than 50ml but less than 200ml.

                                                  5
      Guideline § 2J1.3's cross reference to the guideline § 2X3.1,

accessory after the fact, applies anytime a defendant has committed

perjury in respect to a criminal offense.           The cross reference to

§ 2X3.1 applies even if the defendant has not actually acted as an

accessory, but has attempted to assist another person to escape

punishment for an offense.”        See United States v. Dickerson, 114

F.3d 464, 467 (4th Cir. 1997).           We find the Second Circuit’s

interpretation of § 2X3.1 and the meaning of “in respect to a

criminal offense” in United States v. Suleiman, 208 F.3d 32 (2d

Cir. 2000), persuasive.     Namely, we are persuaded that perjury “in

respect to a criminal offense” is not limited to false statements

given in response to a question referring to a specific criminal

offense.   Id. at 39.     Indeed, the purpose of the cross reference

is to treat more severely perjuries that risk an incomplete or an

inaccurate investigation before a grand jury.             Id.

      In this case, Harris was called to testify in a grand jury

investigation   regarding    his    knowledge      of   the     Mud   Gut   Road

methamphetamine investigation.       Harris had ample notice that the

grand jury was investigating a criminal offense, and that his

statements, if false, could impede the progress or accuracy of such

an investigation.       Upon review of the record, we find the facts

and   circumstances   sufficient    to   support    the    district     court’s

determination that Harris’ perjury was “in respect to a criminal




                                     6
offense.” We therefore affirm Harris’ sentence and the application

of a cross reference to U.S.S.G. § 2X3.1, accessory after the fact.




                                      III.

       Lyons contends that the district court erroneously imposed

upon       him   a   sentencing   enhancement   pursuant    to   U.S.S.G.   §

2D1.1(b)(8)(B)2.        “When reviewing the district court’s application

of the guidelines in regard to sentence enhancement, we review the

court’s findings of fact for clear error.”                 United States v.

Houchins, 364 F.3d 182, 187 (4th Cir. 2004); see also United States

v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).                  Whether a

district court has properly found the existence of a substantial

risk of harm to human life or the environment within the meaning of

§ 2D1.1(b)(8)(B) is a mixed question of law and fact which we

review de novo.         Id.; see also United States v. Layne, 324 F.3d

464, 468 (6th Cir. 2003).

       Application Note 20 of U.S.S.G. § 2D1.1(b)(8)(B) identifies

four factors that a sentencing court is required to assess in

determining whether an offense created a substantial risk of harm

to human life or the environment.3              While earlier versions of


       2
        Formerly, U.S.S.G. § 2D.1.1(b)(6)(B).
       3
      Pursuant to Application Note 20 of § 2D1.1, the four factors
a court must consider are as follows: (i) the quantity of any
chemicals or hazardous or toxic substances found at the laboratory,

                                       7
Application Note 20 provided only that a court “may” consider the

factors in determining applicability of the risk enhancement, the

note was amended in November 2001 to mandate that the four factors

“shall” be considered.       Houchins, 364 F.3d 182, at 188.           In order

to pass muster on appellate review, a sentencing court need not

find each factor satisfied to apply the sentencing enhancement at

hand, but it must consider the four Guideline factors and their

relevance to the individual circumstances of the case before

applying the enhancement.       Houchins, 364 F.3d 182, at n.9.

       Upon review of the record, it is clear that the district court

carefully identified the four factors that must be considered in

order to impose the substantial risk enhancement. In addition, the

district court discussed a previous evidentiary hearing, United

States v. Rose, in which the court found through expert testimony

that anytime methamphetamine is “cooked” there is a substantial

risk   of   harm   to   human   life   and       the   environment.    However,

Application Note 20 requires something more, specifically that the

district court apply each factor to the facts of the case before it

to   determine     whether   there     is    a    substantial   risk   under   §



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 remote area), and the number of human
lives placed at substantial risk of harm.

                                        8
2D1.1(b)(8)(B).    The Guidelines mandate consideration of several

factors, such as the amount of chemicals found at the site, the

duration of the offense, and the location of the laboratory. While

the district court was welcome to consider the expert testimony

heard in the case of United States v. Rose, the Guidelines prohibit

the district court from reaching the automatic conclusion that in

every instance in which methamphetamine is “cooked”, there is a

substantial risk of harm to human life and the environment.          Such

a generalized conclusion cannot be squared with the individualized

four factor inquiry that is required by the plain language of

Application Note 20 of the guideline.      Therefore, finding that the

district   court   failed   to   apply   the   required   factors   for   a

sentencing enhancement based on substantial risk, we vacate and

remand for further consideration of the factors under Application

Note 20, as they apply to the facts in this case.4




                                  IV.

     In conclusion, we find that the district court did not abuse

its discretion and was not clearly erroneous in finding that



     4
      Lyons makes an additional argument contending that the
district court erred in sentencing him to 100 months’ imprisonment,
while sentencing his co-defendant to probation.        We will not
entertain claims in regard to a sentencing disparity of this kind,
thus Lyons’ claim merits no additional consideration. See United
States v. Khan, 161 F.3d 477, 500 (4th Cir. 2007); see also United
States v. Pyles, 482 F.3d 282, 290 (4th Cir. 2006).

                                    9
Harris’ perjury was “related to a criminal offense”, nor in its

subsequent application of the cross reference to U.S.S.G. § 2X3.1.

As such, we affirm Harris’ sentence.

     In the case of Larry Lyons, we find that the district court

failed to abide by the requirements of U.S.S.G. § 2D1.1(b)(8)(B)

and Application Note 20, which mandates that the court shall

consider each of four individual factors when determining whether

an offense created a substantial risk of harm to human life.

Therefore,   we   vacate   the   district    court’s   imposition   of   a

sentencing enhancement and remand for further consideration of the

four factors as required by the statute.

                                            AFFIRMED IN PART AND VACATED
                                                    AND REMANDED IN PART




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