                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 20, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-50560
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                               versus

                         KELLY HARGRAVES,

                       Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 6:04-CR-160-2
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Kelly Hargraves appeals his sentence for two counts of

attempting to manufacture methamphetamine.    He contends that the

district court erred in applying the U.S.S.G. § 2D1.1(b)(6)(C)

enhancement to his sentence for creating a substantial risk of

harm to the life of a minor.

     Section 2D1.1(b)(6)(C) provides that if an offense involved

the manufacture of methamphetamine and created a substantial risk

of harm to the life of a minor or incompetent, the offense level


     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-50560
                                -2-

should be increased by six levels.   The guideline’s commentary

instructs that in determining whether the offense created a

substantial risk of harm to human life or the environment, the

district court shall consider the following factors: (1) the

quantity of any chemicals or hazardous substances found at the

laboratory and the manner in which they were stored; (2) the

manner of disposal of the hazardous or toxic substances and the

likelihood of their release into the environment; (3) the

offense’s duration and the size of manufacturing operation; and

(4) the laboratory’s location (e.g., whether it was located in a

residential versus a remote area) and the number of human lives

enduring a substantial risk of harm.   § 2D1.1(b)(6)(C), comment

(n.20(A)).   A “minor” is defined as a person who has not yet

attained the age of 18.   Id. at n.20(B); § 2A3.1, comment (n.1).

     Contrary to Hargraves’s assertions, the presentence report

(PSR) and the factual basis, which the district court relied on

in applying the enhancement, clearly reflect that a minor was

present in the residence while Hargraves was manufacturing

methamphetamine.   Hargraves’s own argument at the sentencing

hearing, that the minor was not present “during all the cooks,”

implies that the minor was present “during some of the cooks.”

The PSR further reflects that chemical materials were found

inside the residence and also in close proximity to the

residence.   In light of the evidence before the district court,

it cannot be said that the district court clearly erred in
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                                -3-

applying the § 2D1.1(b)(6)(C) enhancement.   Cf. United States v.

Simpson, 334 F.3d 453, 457-59 (5th Cir. 2003) (court did not

uphold enhancement because there was no evidence that a minor was

present during the time the defendant was involved in the

manufacturing process).   Accordingly, Hargraves’s sentence is

AFFIRMED.
