     Case: 09-50172       Document: 00511052993        Page: 1    Date Filed: 03/16/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 16, 2010
                                     No. 09-50172
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TERA ANN CALDWELL, also known as Tera Caldwell,

                                                   Defendant-Appellant


                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 6:08-CR-171-4


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Tera Ann Caldwell appeals the 200-month sentence imposed following her
guilty plea conviction for conspiracy to manufacture methamphetamine and for
possession      of    a    chemical,    product,      or   material      to   manufacture
methamphetamine. She argues that the district court clearly erred in imposing
a six-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(10)(D).
        We review the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. United

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-50172

States v. Cisneros-Guiterrez, 517 F.3d 751, 764 (5th Cir. 2008). A factual finding
is clearly erroneous only if, after reviewing the entire record, we are left with the
definite and firm conviction that a mistake has been made. United States v.
Valdez, 453 F.3d 252, 262 (5th Cir. 2006). A factual finding is not clearly
erroneous if it is plausible in light of the entire record. Id.
      Section 2D1.1(b)(10)(D) provides for a six-level increase in a defendant’s
offense level “if the offense (i) involved the manufacture of amphetamine or
methamphetamine; and (ii) created a substantial risk of harm to the life of a
minor or an incompetent.” § 2D1.1(b)(10)(D). Offense is defined as “the offense
of conviction and all relevant conduct under U.S.S.G. § 1B1.3 . . . unless a
different meaning is specified or is otherwise clear from the context.” U.S.S.G.
§ 1B1.1, comment. (n.1(H)). Application note 20(A) to § 2D1.1 sets forth several
factors to be considered in determining whether the enhancement is warranted:
(1) the quantity and manner of storage of chemicals or hazardous or toxic
substances found at the laboratory; (2) the disposal method for the hazardous or
toxic substances and the likelihood of their release into the environment; (3) the
duration of the offense and extent of the manufacturing operation; and (4) the
location of the laboratory (e.g., whether it was located in a residential area or in
a remote area) and the number of lives placed at substantial risk of harm.
      Caldwell does not dispute that two of her three minor children tested
positive for methamphetamine as a result of having ingested methamphetamine.
Instead, she contends that she did not give her children methamphetamine, that
the danger to her children was not reasonably foreseeable to her, and that the
district court failed to consider the factors enumerated above.
      Caldwell’s arguments are belied by the record. The evidence demonstrates
that methamphetamine was produced in Caldwell’s home, where she and her
children lived, once or twice a week for over a year, that the room where the
methamphetamine was produced was in close proximity to the children’s room,
that items used to produce methamphetamine, including lye, ammonium

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                                No. 09-50172

sulphate, and other items, were stored in Caldwell’s home and were within reach
of a minor child, and that at least one minor child who was living in the house
described in detail part of the process of producing methamphetamine and
complained of an odor in the house.
      Even if Caldwell’s minor children were not present in the house during the
actual cooking process, the evidence reflects that the children were living in an
environment that made it possible for them to ingest methamphetamine, as
evidenced by the uncontested hair-follicle tests. Under the circumstances, it was
reasonably foreseeable to Caldwell that the environment in which the minor
children were living created a substantial risk of harm to the children.
      After reviewing the entire record, we are not left with the definite and firm
conviction that the district court erred in applying the enhancement.          See
Valdez, 453 F.3d at 262.        Accordingly, the district court’s judgment is
AFFIRMED.




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