                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         August 19, 2005

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-4030
 v.                                             (D.C. No. 2:03-CR-383-PGC)
                                                           (Utah)
 LANE LELAND LARSON,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Lane Leland Larson pled guilty to a one count indictment, admitting he

possessed 2.88 grams of pseudoephedrine with intent to manufacture

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing,

the district court adjusted Mr. Lane’s base offense level pursuant to U.S.S.G. §

2D1.1(b)(5)(C) based on its finding that his offense “created a substantial risk of

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
harm to the life of a minor.” Mr. Larson maintains that we should vacate his

sentence because the court’s use of § 2D1.1(b)(5)(C) to enhance his sentence

violates his Sixth Amendment right to have a jury determine beyond a reasonable

doubt facts which support his sentence. We affirm.

      The initial presentence report (PSR) calculated Mr. Larson’s base offense

level at 18 and recommended a three-point reduction for acceptance of

responsibility. Aplt. Br. Attach. 4, at 4. It did not include a recommendation for

an enhancement pursuant to § 2D1.1(b)(5)(C). Based on a criminal history

category of VI and a total offense level of 15, Mr. Larson’s applicable guidelines

range was 41 to 51 months imprisonment. Id. at 15. The government objected to

the initial PSR based on the lack of an enhancement for “the manufacture of

methamphetamine by the defendant [that] created a substantial risk of harm to a

minor pursuant to U.S.S.G. § 2D1.1(b)(5)(C).” Id. Attach. 5, at 1.

      “After receiving additional investigative materials, including cleanup

information and crime scene photographs, and discussing the application with

counsel, the probation office agree[d] with the government,” and applied the

enhancement. Id. The addition of this enhancement elevated Mr. Larson’s total

offense level to 27, id. Attach. 6, at 4, resulting in an applicable guideline range




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of 130-162 months imprisonment. Id. at 15. 1 Mr. Larson objected to the

enhancement, contending the government did not prove by clear and convincing

evidence that his offense conduct actually created a substantial risk of harm to his

minor child.

       At sentencing, the government elicited testimony from Officer Mike

Renckert, a law enforcement agent who participated in the investigation of Mr.

Larson. Rec., vol. II at 7. Officer Renckert testified that he was employed by

Utah’s Adult Probation and Parole Office and in that capacity had gone to visit

Mr. Larson, who resided with his parents. Id. Mr. Larson’s parents allowed the

agents to enter their home and reported that their son was not there but that he

resided in the basement. As Officer Renckert entered the stairway to the

basement, he was confronted with what he described as a “metallic-type smell in

the air” that “you can actually taste,” an odor typical to methamphetamine labs.

Id. at 7-8.

       Mr. Larson crossed paths with Officer Renckert as the agent was coming

down the stairs. Id. at 9. He told the agent his bedroom was the room on the

right-hand side of the basement hallway. Id. Officer Renckert testified that he




       The district court applied a two-level downward departure for exceptional
       1

post-offense rehabilitative efforts, resulting in an offense level of 25 and a
guideline range of 110-137. It sentenced Mr. Larson to 110 months
imprisonment.

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examined that room and there were no personal effects in it to show it was Mr.

Larson’s. Id. The officer then witnessed Mr. Larson’s three year old son coming

down the hallway. Id. at 10. The little boy told Officer Renckert that “he spent

the night with his father and that he was sleeping in the room to the left.” Id.

Officer Renckert entered the bedroom on the left-hand side of the hallway and

observed various items indicative of methamphetamine production including Red

Devil Lye, muriatic acid, propane, acetone, a torch, a Coleman stove, a hotplate,

and red phosphorous residue. Id. at 11-12, 43. He also noticed the lab was in

close proximity to the home’s water heater and furnace, creating a risk of

combustion. Id. at 14. During Mr. Larsen’s testimony, he conceded that his son

slept in the basement, but he maintained that his son neither entered nor slept in

the bedroom where the meth lab was located. Id. at 32-33.

      The district court held that the § 2D1.1(b)(5)(C) enhancement was

applicable to the defendant’s offense conduct. Id. at 43. The court based its

decision on the following findings, applying a “clear and convincing” standard of

proof: (1) Mr. Larson’s child believed that the room where the methamphetamine

laboratory was located was his bedroom; (2) the items found in that room were

dangerous and could have attracted the child’s attention; (3) even if the child did

not sleep in the room with the methamphetamine laboratory, he easily could have

wandered into the room and found the dangerous substances; and (4) the vapors


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that were accumulating from the lab could have posed a risk of an explosion in

the basement of the home. Id. at 42-44.

      Mr. Larson contends the district court’s application of the enhancement to

his sentence constitutes a violation of Blakely v. Washington, 124 S. Ct. 2531

(2004), because the Sixth Amendment requires any fact that increases a

defendant’s penalty beyond the statutory maximum to be proved to a jury beyond

a reasonable doubt. Subsequent to briefing in the instant appeal, the Supreme

Court extended Blakely to the federal sentencing guidelines, holding the Sixth

Amendment requires that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” United States v. Booker, 125 S.

Ct. 738, 756 (2005). To remedy the guidelines’ Sixth Amendment violation, the

Court made the guidelines advisory in all cases. Id. at 757. In addition, the Court

expressly stated that its “remedial interpretation of the Sentencing Act” must be

applied “to all cases on direct review.” Id. at 769.

      Because Mr. Larson did not raise his Sixth Amendment argument in the

district court, we review his claim for plain error. F ED . R. C RIM . P. 52(b); see

also United States v. Dazey, 403 F.3d 1147, 1173-74 (10th Cir. 2005). To

establish plain error, Mr. Larson must demonstrate there was (1) error (2) that is


                                           -5-
plain and (3) that affected his substantial rights. United States v. Cotton, 535

U.S. 625, 631 (2002); United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th

Cir. 2005). If he satisfies his burden of establishing the first three prongs of the

plain error test, we may exercise our discretion to correct the error if it “seriously

affect[ed] the fairness, integrity or public reputation of the judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 469-70 (1997) (quoting United States v.

Olano, 507 U.S. 725, 736 (1993)); Gonzalez-Huerta, 403 F.3d at 732. We

conduct plain error analysis “less rigidly when reviewing a potential

constitutional error.” Dazey, 403 F.3d at 1174 (quoting United States v. James,

257 F.3d 1173, 1182 (10th Cir. 2001)).

       It is clear after Booker that Mr. Larson’s Sixth Amendment rights were

violated when his sentence was increased based on facts found by the judge. It is

well established that constitutional Booker error satisfies the first two criteria for

plain error review. Id. at 1174-75. Our analysis turns, then, on the third and

fourth criteria.

       An error that violates a defendant’s substantial rights “must have been

prejudicial: It must have affected the outcome of the district court proceedings.”

Olano, 507 U.S. at 734. Mr. Larson bears the burden of establishing prejudice

under the Olano test. Gonzalez-Huerta, 403 F.3d at 733. He must show “a

reasonable probability that, but for [the error claimed], the result of the


                                          -6-
proceeding would have been different.” United States v. Dominguez Benitez, 124

S. Ct. 2333, 2339 (2004). In a case involving constitutional Booker error, we

have held that a defendant may satisfy the burden in at least two ways:

      First, if the defendant shows a reasonable probability that a jury applying a
      reasonable doubt standard would not have found the same material facts
      that a judge found by a preponderance of the evidence, then the defendant
      successfully demonstrates that the error below affected his substantial
      rights . . . . Second, a defendant may show that the district court’s error
      affected his substantial rights by demonstrating a reasonable probability
      that, under the specific facts of his case as analyzed under the sentencing
      factors of 18 U.S.C. § 3553(a), the district court judge would reasonably
      impose a sentence outside the Guidelines range.

Dazey, 403 F.3d at 1175 (footnote omitted).

      Before the district court, Mr. Larson did not introduce any affirmative

evidence which supports either of these contentions. Indeed, he did not

controvert the agent’s testimony that his son was in close proximity to toxic and

potentially lethal substances when the agents arrived to investigate the

methamphetamine laboratory. Moreover, it is undisputed that Mr. Larson’s son

generally spent time in the basement where there was a risk of an explosion due to

the vapors that were accumulating from the methamphetamine laboratory. These

facts alone defeat the contention that a jury applying a reasonable doubt standard

would not have found the same material facts the judge found by clear and

convincing evidence. Mr. Larson also points to nothing in the record indicating

that the district court would reasonably impose a sentence outside the guideline


                                         -7-
range. As a result, we conclude that judicial fact-finding did not affect Mr.

Larson’s substantial rights under the third prong of the plain error test.

      Even assuming Mr. Larson could show that the sentencing error affected

his substantial rights, he has not met his “burden of persuading us that the error

seriously affected the fairness, integrity, or public reputation of judicial

proceedings,” United States v. Mozee, 405 F.3d 1082, 1091 (10th Cir. 2005),

thereby failing to satisfy the fourth prong of plain error review. In the context of

a constitutional Booker error, “the question before us is whether a reversal and

remand for resentencing by the district court under a discretionary guidelines

regime would advance the fairness, integrity, or public reputation of the courts.”

Id. It cannot be said that sentencing a defendant in accordance with a guideline

range supported by facts he testified to at the sentencing hearing would

undermine the fairness, integrity, or public reputation of the courts. For the

aforementioned reasons, we AFFIRM.

                                        SUBMITTED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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