                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0254n.06
                               Filed: April 5, 2007

                                             No. 05-5375

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
        Plaintiff-Appellee,                         )
                                                    )    ON APPEAL FROM THE UNITED
v.                                                  )    STATES DISTRICT COURT FOR THE
                                                    )    EASTERN DISTRICT OF TENNESSEE
ROBERT GLEN BRAIN,                                  )
                                                    )
        Defendant-Appellant.                        )




        Before: DAUGHTREY and GILMAN, Circuit Judges, and RUSSELL,* District Judge.


        PER CURIAM. The defendant, Robert Glen Brain, appeals the sentence imposed

by the district court following his guilty plea to one count of a seven-count indictment

charging him with attempted manufacture of methamphetamine and possession of

equipment, chemicals, products and materials used to manufacture methamphetamine.

Brain claims on appeal that he should not have received a six-level increase in his base

offense level for creating a substantial risk of harm to the life of a minor, under United

States Sentencing Guideline § 2D1.1(b)(6)(C) (2004). He also challenges the validity of

the ratio set out in the guidelines for converting the chemical pseudoephedrine to




        *
          The Hon. Thom as B. Russell, United States District Judge for the W estern District of Kentucky,
sitting by designation.
No. 05-5375
United States v. Brain

methamphetamine, contending that the Sentencing Commission’s promulgation of the

controlling guideline was arbitrary and capricious.




       The latter question, addressing methods established by Congress to estimate the

amount of methamphetamine that can be manufactured from certain precursor chemicals,

is now foreclosed by our recent ruling in United States v. Martin, 438 F.3d 621, 639 (6th

Cir. 2006), in which we upheld the validity of the conversion ratio promulgated by the

Sentencing Commission in response to Pub. L. No. 106-310, § 3651(b)(2), 114 Stat. 1238-

39 (2000), against a challenge raising the same issue as the defendant raises in this case.

The former question, concerning the enhancement under the sentencing guidelines for

substantial risk of harm, is not so easily resolved, however, and requires a review of the

facts before the district court at sentencing.


                    FACTUAL AND PROCEDURAL BACKGROUND


       The defendant’s association with the manufacture of methamphetamine over a

period of at least eight months is apparent on the record. On October 4, 2002, he was

present when officers searched the premises of James Holt and found a

methamphetamine lab in operation. In his plea agreement in this case, the defendant

admitted his involvement in that methamphetamine manufacturing operation. On February

27, 2003, local police officers executed a search warrant at the defendant’s residence and


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United States v. Brain

seized    numerous chemicals      and   other items used in the          manufacture     of

methamphetamine, including hydrogen peroxide, Red Devil lye, and a propane torch.

When officers returned to the defendant’s residence on March 7, 2003, to execute an

arrest warrant issued as a result of the evidence seized during the February 27 search, one

of them detected an odor associated with the operation of a methamphetamine lab inside

the house and asked the defendant for permission to search the premises once again. He

refused to give consent, and the officers secured the premises to prevent the destruction

of evidence until a search warrant could be secured.


         When they executed the warrant, they found evidence that a methamphetamine lab

was being operated at the defendant’s home and seized quantities of hydrogen peroxide,

liquid acetone, more Red Devil lye, a gallon of Coleman fuel, glassware and syringes, a

coffee pot and a blender containing a white residue, and other materials and chemicals

used in the manufacture of methamphetamine. Also present at the house was the

defendant’s 17-year-old son, Bobby, who commented to officers “that he knew that it was

a matter of time before the police would catch them” and that “he [had] sold his speakers

because he was afraid that [officers conducting a search] would seize them.”


         The probation officer who prepared the pre-sentence report recommended that the

defendant’s base offense level be increased under U.S.S.G. § 2D1.1(b)(6)(C) (2004),

which provides: “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


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United States v. Brain
incompetent, increase by 6 levels” to a minimum level of 30. The district court found that

this specific offense characteristic was applicable, ruling as follows:


       I have considered the factors . . . about the substantial risk of harm, the
       testimony here was that there was quite a bit of material in here, two bottles
       of hydrogen peroxide, Red Devil lye, syringes, white residue on pots,
       acetone, a lot of chemicals and materials, toxic substances used to
       manufacture methamphetamine. Everything was sitting all over the place,
       residue in pots and jars and pans. It’s obvious that methamphetamine had
       been manufactured in that location and in the not too distant past, because
       the fumes were there. The fumes themselves are very dangerous to life and
       limb. The location was in the defendant’s house.
       This was his son. . . . [W]hat his son said gives a good indication that he had
       been around when, during the manufacturing process at some point or the
       other. So I find that the government has carried its burden of proving by a
       preponderance of the evidence that there was a substantial risk of harm to
       this minor.                      * * * * *
       Existence of the chemicals themselves, the presence of the child in the
       presence of those fumes [ ] in itself poses a substantial danger. And, also,
       the fact that I think its very likely that the manufacturing process took place
       in the presence of the minor.


The defendant now appeals the district court’s application of 2D1.1(b)(6)(C) to enhance

his sentence of 130 months.


                                       DISCUSSION


The Standard of Review


       On appeal, the government asks us to review the district court’s decision to increase

the defendant’s offense level under the deferential standard set out by the Supreme Court

in Buford v. United States, 532 U.S. 59 (2001).    There, the Court noted that a reviewing

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United States v. Brain
court is required to “give due deference to the district court’s application of the [sentencing]

guidelines to the facts,” as required by 18 U.S.C. § 3742(e), but also observed the “the

‘deference that is due depends on the nature of the question presented.’” Id. at 63 (quoting

Koon v. United States, 518 U.S. 81, 98 (1996)). In Buford, the Court held that resolution

of the question decided by the district court, i.e., whether, based on a state court record,

there had been a “functional consolidation” of the defendant’s prior convictions for

purposes of determining his status as a career criminal, was entitled to deference on

appeal “[i]n light of the fact-bound nature of the legal decision, the comparatively greater

expertise of the District Court [in making this particular kind of determination], and the

limited value of uniform court of appeals precedent” in deciding such questions of state

procedural law. Id. at 66.


       We conclude that Buford is inapplicable here. In the first place, the Supreme Court’s

remedial ruling in United States v. Booker “severed and excised” section 3742(e) from the

Sentencing Reform Act, along with § 3742(a), in order to make the remainder of the Act

constitutional. 543 U.S. 220, 245, 259 (2005). Moreover, we have held in a post-Booker

decision that the specific issue raised in this case, involving risk of harm from the

manufacture of methamphetamine, is a mixed question of law and fact subject to de novo

review. See United States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005) (citing United

States v. Layne, 324 F.3f 464, 468 (6th Cir. 2003)); see also United States v. Humphrey,

279 F.3d 372, 379 n.4 (6th Cir. 2002) (using the de novo standard in reviewing an

application of the guidelines and distinguishing the case from Buford). Hence, we reject the

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United States v. Brain
government’s contention that deference is “due” in this case and undertake a de novo

review of the district court’s decision.




The § 2D1.1(b) Enhancement


         On appeal, the defendant takes issue with the basis for the substantial-risk-of-harm

enhancement, contending that the officers executing the warrant did not actually observe

methamphetamine being manufactured at the time they also saw the defendant’s son in the

house. But this argument overlooks the fact that when officers first entered the house, they

detected the odor of methamphetamine being processed, which observation formed the

basis for the issuance of the search warrant. That the manufacturing process was no

longer in operation when they returned with the warrant does not diminish what was

obviously a continuing threat to anyone on the premises, including the defendant’s minor

child.


         In order to see this clearly, one need only compare the facts of this case to the

situation in another recent methamphetamine manufacturing opinion from this court, United

States v. Layne, 324 F.3d 464 (6th Cir.), cert. denied, 540 U.S. 888 (2003). In Layne, we

traced the legislative history of the Methamphetamine Anti-Proliferation Act of 2000, which

recognizes, among other things, the hazards associated with methamphetamine’s

dangerous manufacturing process and the inherent risk of harm that it poses to human life.


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No. 05-5375
United States v. Brain
Id. at 468. Our analysis in Layne focused on the four factors that are set out in Application

Note 21(A) to § 2D1.1 for consideration in the determination of the substantial-risk-of-harm

enhancement, including:


       (i) The quantity of any chemicals or hazardous toxic substances found at the
       laboratory, or the manner in which the chemicals or substances were stored.
       (ii) The manner in which hazardous or toxic substances were disposed, or the
       likelihood of release into the environment of hazardous or toxic substances.
       (iii) The duration of the offense, or the extent of the manufacturing operation.
       (iv) The location of the . . . methamphetamine laboratory (e.g., in a residential
       neighborhood or a remote area) and the number of human lives placed at
       substantial risk of harm.1


Id. at 469 (internal citation omitted).


       The substantial-risk-of-harm enhancement in Layne was imposed for risk to human

life, as provided in § 2D1.1(b)(5)(B), a specific characteristic that results in an increase of

three levels rather than the six-level increase mandated by § 2D1.1(b)(6)(C) if the risk is to

a minor, as it is here. Pertinent to our analysis in this case is the following observation in

the Layne opinion concerning the manufacture of methamphetamine:


       Certain of the chemicals used in th[e] process are toxic and inherently
       dangerous. During the manufacturing process, some of these chemicals,
       which are highly flammable, present a threat of explosion. These chemicals
       pose an additional risk should anything go wrong during the manufacturing
       process. The process produces toxic gases, which pose a serious risk to
       those who inhale them, and other dangerous byproducts.


        1
        In the 2004 Sentencing Guidelines Manual the relevant factors are set out in Note 20(A), with no
changes to the relevant text.

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United States v. Brain
Layne, 324 F.3d at 470. Because of the explosive nature of methamphetamine ingredients

and the toxicity of the gases produced in its manufacture, we identified those who were

endangered by Layne’s activities as other residents in the eight-unit apartment building in

which the methamphetamine lab was located, as well as the occupants of a nearby

elementary school. Id. at 471. If the chemicals found in Layne’s apartment can be

considered to have created a substantial risk of harm to others in the neighborhood, it would

be difficult to conclude that the district court was clearly erroneous in finding that many of

those same chemicals also posed a substantial risk of harm to the life of the defendant’s

son, who was actually on the premises at the time the chemicals in this case were seized.

Thus, this case is unlike the situation in our recent opinion in United States v. Davidson, 409

F.3d 304 (6th Cir. 2005), in which the methamphetamine lab was being operated behind

locked doors in the loft of the defendants’ barn. There we held that “the location [wa]s,

relatively speaking, one of the least hazardous possible types of illegal methamphetamine

manufacturing operations” and “clearly less dangerous to human life than the lab involved

in Layne, where we did affirm a Substantial-Risk-of-Harm Enhancement.” Id. at 314.


       As in Layne, we find in this case that three of the four Application Note factors are

satisfied: the quantity of hazardous materials and the manner of their storage (various

dangerous chemicals, found throughout the house); the duration of the manufacturing

operation (over a period of weeks, if not months); and the location of the lab and the

number of lives placed in “substantial risk of harm” (unknown but including, most

significantly, that of a minor). And as in Layne, we also find that the lack of information

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United States v. Brain
concerning the fourth factor, i.e., the manner of disposal of the hazardous materials and

likelihood of their release into the environment, does not militate against application of the

enhancement. Id. at 470-71.


                                      CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court.




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