               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0032n.06
                           Filed: January 9, 2007

                                          No. 05-6577

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )        ON APPEAL FROM THE
               v.                                       )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE
JOHN K. MERRELL,                                        )        WESTERN DISTRICT OF
                                                        )        TENNESSEE
       Defendant-Appellant.                             )
                                                        )
__________________________________________              )




BEFORE: CLAY and ROGERS, Circuit Judges; and KATZ, District Judge.*

       KATZ, District Judge. This case involves a sentencing by the district court from which

Defendant appeals. After the matter was fully briefed on appeal, the parties waived oral argument.

This Court hereby AFFIRMS the sentence of the district court.

                                       BACKGROUND

       On March 27, 2003, the Memphis Police Department executed a search warrant at the 3848

Winwood, Memphis, Tennessee (“Winwood”) residence of             John K. Merrell (“Merrell” or



       *
        The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.

                                                1
“Defendant”) in a residential neighborhood. A video tape of the ensuing search showed the home,

an attached shed, and the backyard of the home, where the shed was located. The video tape also

showed several people, including a juvenile. The search yielded many materials commonly used to

manufacture methamphetamine, including Naphtha, acetone, lithium battery parts, anhydrous

ammonia, ammonia nitrate, Red Devil Lye containers, rags and towels, gas masks, and a ventilation

system for the shed. J.A. 165-81, 198, 295-96. There was also a swing set, toys, and children’s

medical equipment. J.A. 147-55.

       On March 19, 2003, Merrell was indicted by a federal grand jury on several counts. On July

2, 2003, Merrell pleaded guilty to manufacturing methamphetamine in violation of 21 U.S.C. §

841(a)(1). On January 22, 2004, the district court determined that Merrell’s sentencing range under

the Sentencing Guidelines was 360 months to life, based on an offense level of 40 and a Criminal

History Category of III. Merrell was sentenced to 240 months imprisonment, three years supervised

release, and a $100 special assessment. The 240 month sentence was the maximum under 21 U.S.C.

§ 841(a)(1). On June 14, 2005, this Court vacated the judgment and remanded the case pursuant to

U.S. v. Booker, 543 U.S. 220 (2005).

       On September 23, 2005, the district court conducted a re-sentencing hearing. The court

applied the factors under 18 U.S.C. § 3553(a) and found that the same Guideline range applied, 360

months to life. Merrell was again sentenced to 240 months, the maximum under 21 U.S.C. §

841(a)(1). Part of the offense level was a 6-level enhancement to Merrell’s guideline under U.S.S.G.

§ 2D1.1(b)(5)(C) for creating a substantial risk of harm to a minor.

                                          DISCUSSION

I. Standard of Review


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        This Court will review the first issue de novo and the second issue for reasonableness.

       Legal conclusions regarding application of the Sentencing Guidelines (“the Guidelines”) are

reviewed de novo, while factual findings are reviewed for clear error. U.S. v. Hover, 293 F.3d 930

(6th Cir. 2002). Whether an enhancement was properly applied is a mixed question of law and fact,

which this Court reviews de novo. U.S. v. Layne, 324 F.3d 464, 468 (6th Cir. 2003).

       The first issue before this Court is the application of section 2D1.1(b)(5)(C) of the Sentencing

Guidelines, a mixed question of law and fact. This Court will review the issue de novo.

       The second issue is a challenge to the district court’s sentence. This Court reviews

challenges to the district court’s sentencing determinations for reasonableness. Booker, 543 U.S. at

261; United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). “‘[R]eview for “reasonableness” is

not limited to consideration of the length of the sentence.’” Webb, 403 F.3d at 383 (citing United

States v. Crosby, 397 F.3d 103, 114 (2d Cir. 2005)). Courts must also consider “the factors

evaluated and the procedures employed by the district court in reaching its sentencing

determination.” Id. This Court will also consider “whether the district court adequately considered

and expressed its application of the relevant factors listed in 18 U.S.C. § 3553(a) to permit

‘meaningful appellate review.’” United States v. Davis, 458 F.3d 505, 510 (6th Cir. 2006).

       The second issue is a challenge to the district court’s use of “reasonableness” language as

opposed to “sufficient but not greater than necessary” language in its oral sentencing, an objection

to the adequate consideration and expression of the district court’s sentence. Therefore, this Court

will review the district court’s sentence for reasonableness.

II. Analysis

       A. The District Court Properly Enhanced Defendant’s Sentence for Posing a


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       Substantial Risk of Harm to the Lives of Minors.

       Merrell appeals the district court’s application of a six-level enhancement to his sentence as

a result of the district court’s finding that Merrell’s activity created a substantial risk of harm to

minors under U.S.S.G. § 2D1.1(b)(5)(C). For the following reasons, this Court agrees with the

district court’s finding that Merrell’s conduct created a substantial risk of harm to minors and

warrants a six-level enhancement under the Guidelines.

       The Guidelines provide for the following enhancements:

       (B) If the offense (i) involved the manufacture of amphetamine or methamphetamine;
       and (ii) created a substantial risk of harm to (I) human life other than a life described
       in subdivision (C); or (II) the environment, increase by 3 levels. If the resulting
       offense level is less than level 27, increase to level 27.

       (C) 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,
       increase by 6 levels. If the resulting offense level is less than level 30, increase to
       level 30.

U.S.S.G. § 2D1.1(b)(5)(B)-(C) (2002). The accompanying application note provides a list of

nonexclusive factors that a court should consider when deciding whether the defendant’s

methamphetamine activity created a substantial risk of harm to the lives of individuals or the

environment:

       (i) The quantity of any chemicals or hazardous or toxic substances found at the
       laboratory, 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 a remote area), and the number of human lives placed at
       substantial risk of harm.

U.S.S.G. § 2D1.1 at cmt. n.20 (2002).



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        This Court agrees with the district court’s conclusion that a balancing of these factors shows

that Defendant’s drug manufacturing activity posed a substantial risk of harm to the lives of minors.

In particular, the district court properly concluded on the basis of the evidence before it that multiple

children had access to and had been present at the premises, and that Defendant’s conduct thereby

created a substantial risk of harm to the lives of minors.

                1. Factors (i)-(iii): The Quantity, Disposal, and Extent of Hazardous Materials
                at the Premises.

        When authorities searched Defendant’s Winwood residence, they discovered vast quantities

of ingredients, containers, and other materials used in the manufacture of methamphetamine. J.A.

174. Many of these materials were toxic, flammable, or even explosive. J.A. 170, 174, 198. Among

the dangerous materials was Naphtha, a highly explosive substance that Defendant used as a solvent

to make methamphetamine, that was found in the house and in the attached shed. J.A. 170, 198, 296.

Authorities also found a container of acetone, which is flammable and can cause burns, J.A. 161, and

remnants of lithium batteries, also used in methamphetamine manufacture, J.A. 295. In the backyard

shed, officers found a twenty-five gallon tank of anhydrous ammonia, J.A. 295, a bag of ammonia

nitrate, J.A. 165, and numerous empty Red Devil Lye containers, J.A. 169. A search of the backyard

shed also yielded “rags and . . . towels [that] reeked of ammonia,” J.A. 181, two gas masks, J.A. 169,

and a complex ventilation system to filter out of the shed the acid gas that posed a risk of burns and

lung damage, J.A. 164, 168, evidence that even Defendant knew how harmful the hazardous

materials he was using were. Authorities also found pseudoephedrine “pill soak” jars in the house’s

kitchen, J.A. 154. Many of these materials, including some of the Naphtha, lithium batteries, lye,

ammonia, and traces of ephedrine, were found thrown away in trash cans around the premises and



                                                  -5-
in standard city garbage cans in the driveway. J.A. 172-75, 295. Finally, upon interrogation the

officers discovered that Defendant had been manufacturing methamphetamine for a long time. For

at least two years prior to the search, Defendant had not even worked, but rather he earned his

income by making and selling methamphetamine. J.A. 234.

        These facts strongly support the district court’s finding that factors (i), (ii), and (iii) of the

application note to § 2D1.1(b)(5) support the application of the sentence enhancement. The sheer

volume and quantity of the materials found, in addition to their dispersal across the front, inside, and

back of the house, as well as the shed, satisfy factor (i). Factor (ii) is met by the lack of any specific

care in disposing of the materials and substances which the Defendant knew to pose hazardous risks

to human health and the environment. Finally, the duration and extent of the drug activities to be

considered under factor (iii) are present as well. Defendant Merrell had earned his sole income from

methamphetamine manufacture for at least two years; he had constructed an intricate ventilation

system in the backyard shed, indicating a certain level of permanence to the structure and its uses;

and the presence of manufacturing materials throughout the premises indicated that the

manufacturing was an on-going process that took place throughout the house in addition to inside

the shed.

                2. Factor (iv): The Minors Placed at Risk of Harm.

        The main factor at dispute within this issue is whether minors’ lives were placed at risk of

harm by the Defendant’s methamphetamine-manufacturing activities. The facts strongly suggest that

people, and in particular children, had their lives put at substantial risk of harm.

        A court must take into account “[t]he location of the laboratory (e.g., whether the laboratory

is located in a residential neighborhood or a remote area), and the number of human lives placed at


                                                   -6-
substantial risk of harm.” U.S.S.G. § 2D1.1 at cmt. n.20. The fact that a methamphetamine

operation took place in a residential area weighs in favor of applying an enhancement. Layne, 324

F.3d at 471; see also United States v. Houchins, 364 F.3d 182, 189 (4th Cir. 2004). This Court has

recognized the dangers posed by methamphetamine operations:

       [M]ethamphetamine can be made from readily available and legal chemicals and
       substances, and . . . it poses serious dangers to both human life and to the
       environment . . . . [T]hese chemicals and substances 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.

Layne, 324 F.3d at 468-69.

       The Winwood address is located in a residential neighborhood. J.A. 201. Several people,

including minors, resided at the Winwood home. When the police conducted their search of the

premises, they found the Defendant, a Ms. Linda Cooper, and a 16 year old boy, all of whom were

identified as residents of the Winwood home. J.A. 147-48, 155, 295. The officers also found

evidence that other minors lived in the house, a handicapped boy and a young girl. The evidence

included a hospital bed and breathing equipment for a handicapped boy whom Ms. Cooper identified

as a resident, J.A. 148, 175-76, equipment that had been present since at least March 2002, J.A. 225,

243. Authorities also found a child’s bed covered with toys beside the bed that Ms. Cooper said was

hers. J.A. 149-50. The backyard contained a swing set and toy car, near the shed where the

methamphetamine was made and the toxic gas was ventilated. J.A. 155. This evidence strongly

suggests that the trial court was correct in pointing out that Defendant’s activities had the effect,


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intentional or not, of putting minors at serious risk, and that Defendant therefore deserved an upward

adjustment in accordance with Section 2D1.1(b)(5)(C). J.A. 280. Defendant argues, in his defense

on this issue, that the trial court’s finding was too vague to support a sentencing enhancement, and

that there was no evidence that the children lived or were present at the Winwood address at the

same time Defendant was actually making the drugs. Def.’s Br. at 21-26. In its oral ruling, the

district court noted that “all of these children had access to the premises and all of them were at one

time or another there.” J.A. 258. Defendant argues that “[t]his finding is vague and does not identify

any specific temporal connection of the children to the address, much less any period when the

potentially dangerous chemicals were being used.” Def.’s Br. at 25.

       Defendant’s argument contains two implicit presumptions with which this Court takes issue.

First, Defendant assumes that the Guidelines require residence by children to establish a risk of harm

to minors. There is no support for this reasoning in the text of the Guidelines, nor does Defendant

support this presumption with caselaw. The district court found that certain minors had access to

the premises and were at one time or another present at the premises. J.A. 258. A child need not

live at a residence to be subject to the risk of harm caused by the manufacture of methamphetamine.

Access and presence is sufficient, given the extraordinary risks inherent in the drug-making process.

See Layne, 324 F. 3d at 468-69.

       Defendant disputes that the minors discussed herein lived at the Winwood residence. There

is strong evidence, including the toys, beds, and hospital equipment discussed above, to the contrary.

However, even if the minors did not “live” at the Winwood home, it is conceded that they did have

access to the premises, that one of them even slept at the residence the night before the search, and

that hazardous materials were located throughout the premises. Therefore, because minors did have


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access to the premises and were present at times, Defendant’s activities created a substantial risk of

harm to the lives of those minors, even if they did not “live” at the Winwood home.

       The second presumption implicit in Defendant’s argument is that manufacturing

methamphetamine only creates a risk of harm to minors who are present on the premises at the same

time the drugs are being manufactured. This is not the case. This Court has recognized the risk of

the mere presence of the chemicals and wastes around a premises, particularly around children.

Layne, 324 F.3d at 470; see also United States v. Skelton, 101 Fed. Appx. 89, 90-91 (6th Cir. 2004);

United States v. Massey, 79 Fed. Appx. 832, 834, 837 (6th Cir. 2003).

       As established in the above discussion of the material found around the house, Defendant did

not confine his process merely to an inaccessible shed. Hazardous materials were found throughout

the premises, including the kitchen, the trash, and in a tub near the swing set and toy car. While

Defendant denied having used the premises for major phases of manufacturing the drug, the trial

court properly credited the compelling evidence that drugs were made largely at the Winwood

premises. J.A. 258; see Layne, 324 F.3d at 470 (“[T]he inherent danger of the chemicals found in

[Defendant’s] apartment militates in favor of applying § 2D1.1(b)(6)(A) here.”); United States v.

Bivens, 129 Fed.Appx. 159, 165 (6th Cir. 2005). Defendant need not have been manufacturing the

drugs with minors present in order to pose a risk of harm to them. Merrell scattered hazardous

materials, poisonous gases, and other chemicals and materials throughout the inside of the home, the

outside, and the neighboring shed in the back yard. It was this part of his activity that created the

most direct risk of harm to the lives of the minors who had access to or were ever present at the

premises. Together, the balancing of these factors favors the application of a sentence enhancement

for creating a substantial risk of harm to the life of a minor.


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        B. Defendant’s Sentence Was Reasonable.

        Defendant argues that the district court erred by imposing what it believed to be a

“reasonable” sentence, instead of what this Circuit has required, “a sentence sufficient, but not

greater than necessary, to comply with the purposes” of section 3553(a)(2). Def.’s Br. at 31.

        This Court reviews challenges to the district court’s sentencing determinations for

reasonableness. Booker, 543 U.S. at 261; Webb, 403 F.3d at 383. In determining reasonableness,

this Court reviews the “the factors evaluated and the procedures employed by the district court in

reaching its sentencing determination.” Id. As discussed above, “[s]ection 3553(a) instructs district

courts to impose a sentence sufficient, but not greater than necessary, to comply with the purposes

set forth in that section.” United States v. Foreman, 436 F.3d 638, 643 (6th Cir.2006) (quotations

omitted). Although no longer bound by the Guidelines, district courts are still required to consider

the applicable Guideline range along with the other statutory factors. Booker, 543 U.S. at 245-46.

“Both district courts imposing sentences in the first instance as well as appellate courts reviewing

sentences on appeal are to be guided by the factors set forth in 18 U.S.C. § 3553(a).” United States

v. Jackson, 408 F.3d 301, 304 (6th Cir.2005). Under this new scheme, “district courts are required

to consider the applicable Guidelines sentencing range when arriving at a defendant's sentence, . .

. but only as one factor of several laid out in § 3553(a).” Id. (internal citations omitted). As such, this

Court “may conclude that a sentence is unreasonable when the district judge fails to ‘consider’ the

applicable Guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a),

and instead simply selects what the judge deems an appropriate sentence without such required

consideration.” Webb, 403 F.3d at 383 (internal quotations omitted). Moreover, this Court will

consider “whether the district court adequately considered and expressed its application of the


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relevant factors listed in 18 U.S.C. § 3553(a) to permit ‘meaningful appellate review.’” Davis, 458

F.3d at 510.

        Defendant argues that the court should not have used the phrase “reasonable,” but rather the

“sufficient but not greater than necessary” language. Id. This argument constitutes a challenge to

part of the procedure by which the district court reached its sentence determination, and therefore

the court’s use of the “reasonable” standard is reviewed for reasonableness. Webb, 403 F.3d at 383.

        Defendant is correct that the district court’s obligation is to impose a sentence sufficient but

not greater than necessary to comply with the purposes of section 3553(a), and the Circuit Court’s

obligation is to review a sentence for “reasonableness” under Booker. Foreman, 436 F.3d at 644 n.1.

However, Defendant’s argument is a formalistic complaint that the district court used the wrong

words despite having applied the correct law. This Court has rejected such arguments. In United

States v. Williams, 436 F.3d 706, 709 (6th Cir. 2006), this Court held that the trial court, despite not

using the specific words required by statute, “articulated its reasoning sufficiently to permit

reasonable appellate review, specifying its reasons for selecting a sentence . . . .” “[T]his [C]ourt has

never required the ‘ritual incantation’ of the factors to affirm a sentence,” and neither should it

require the ritual incantation of language such as that which Defendant urges here. Id. “[W]e do not

demand that the district court recite any magic words to show us that it fulfilled its responsibility to

be mindful of the factors that Congress has instructed it to consider.” United States v. Contreras-

Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005); Williams, 436 F.3d at 709; see also United States

v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). In other words, this Court does not require the

precise formalism that Defendant would have it require. Rather, this Court will review the

underlying substance of a sentencing to ensure that the district court applied a reasonable sentence,


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considering the factors under the Guidelines. Moreover, in United States v. Davis, 458 F.3d at 510-

11, this Court held that the same asserted error by the district court (i.e., purporting to choose a

“reasonable” sentence rather than a sentence that was “sufficient, but not greater than necessary”)

was not reversible error because the district court considered the relevant § 3553(a) factors.

       Here, the district court considered each of the § 3553(a) factors in calculating the sentence.

The court, upon resentencing, made the following remarks:

       Was that sentence reasonable under 3553? . . . This is one of the most serious cases
       I have ever seen . . . not only because of the ongoing nature of the activity and the
       location of the activity, but also the factors that led to the sentence enhancement for
       Guideline purposes. It is an extremely serious matter to put a large number of people
       at risk . . . . Because of that seriousness, it is absolutely imperative that the Court
       promote respect for [the] law and deter others from this sort of conduct . . . . It is
       imperative that the Court protect the public from other crimes of this defendant[, who]
       is in Criminal History Category III [for] an assault with resisting official, vandalism,
       and . . . another assault. [His] several encounters with the law . . . appear to be related
       to his drug problems. It is possible, at least, that the defendant wouldn’t repeat his
       crimes. But should he, the risk [to the public] would be substantial . . . . I believe the
       defendant is in a place where he can get treatment for his condition. The sentence the
       Court imposed previously is . . . considerably below the Guidelines. But it is
       consistent with the statutory policy of the United States. Because of the statute, there
       is some disparity between where this defendant is and where others might be,
       depending upon the statute under which a fellow defendant might be charged . . . . But
       a lower sentence than the Court imposed would only increase that disparity, it
       wouldn’t reduce it . . . . For all those reasons, the Court concludes that the original
       sentence is a reasonable sentence.

J.A. 281-83. The trial court did not use the “sufficient but not greater than necessary” language,

instead opting for the “reasonableness” language. Doing so, while perhaps making appellate review

less straightforward, see United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005), does not

detract from the procedural reasonableness of the sentence.

       Defendant’s sentence is also substantively reasonable.           Ultimately, the district court

sentenced Defendant to the statutory maximum, a figure one-third less than the low end of the


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Guidelines range. The district judge neither “select[ed] the sentence arbitrarily, bas[ed] the sentence

on impermissible factors, fail[ed] to consider pertinent § 3553(a) factors, [nor gave] an unreasonable

amount of weight to any pertinent factor.” Webb, 403 F.3d at 385. Accordingly, Defendant’s

sentence is substantively reasonable.

                                          CONCLUSION

       For the reasons stated above, this Court AFFIRMS the district court’s upward adjustment

to Defendant’s sentence because Defendant’s conduct created a substantial risk of harm to the lives

of minors, and AFFIRMS Merrell’s sentence because it was reasonable.




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