                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             May 20, 2009
                              No. 08-14928                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D.C. Docket No. 06-00225-CR-KOB-JEO

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

FREDDIE DALE YOUNG,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                               (May 20, 2009)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Freddie Young appeals his 78-month sentence imposed upon resentencing
for (1) conspiracy to manufacture a mixture and substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

846; (2) manufacturing a mixture and substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and

(3) possessing a firearm while being an unlawful user of a controlled substance, in

violation of 18 U.S.C. § 922(g)(3).

      On appeal, Young first argues that the district court erred in its finding that

he was responsible for at least ten grams of methamphetamine. Young contends

that the drug quantity finding was based on Investigator Brian Chaffin’s testimony,

which was hearsay, speculation, and inconsistent. Young argues that because he

was cooking methamphetamine for his own use, he could not have been cooking

methamphetamine as often as the district court found.

      The district court’s determination of drug quantity is a finding of fact that we

review for clear error. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.

2005). Where a defendant is responsible for more than 10 but less than 20 grams

of methamphetamine, a base offense level of 18 is appropriate. U.S.S.G.

§ 2D1.1(a)(3)(c)(11) (2006).

      “When a defendant objects to a factual finding that is used in calculating his

guideline sentence, such as drug amount, the government bears the burden of



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establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398

F.3d at 1296.

      Where there is no drug seizure or the amount seized does not reflect
      the scale of the offense, the court shall approximate the quantity of the
      controlled substance. Moreover, in estimating the quantity of drugs
      attributable to a defendant, a court may base its computation on
      evidence showing the average frequency and amount of a defendant’s
      drug sales over a given period of time. Thus, sentencing may be
      based on fair, accurate, and conservative estimates of the quantity of
      drugs attributable to a defendant.

Id. (internal citations and quotations omitted).

      Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error. The district court did not clearly err in holding Young

responsible for at least ten grams of methamphetamine. Chaffin testified that

Young stated that he would produce approximately three to four grams of

methamphetamine per cooking session. Chaffin stated that during the two weeks

preceding Young’s arrest, he received daily complaints that Young was making

methamphetamine. Moreover, Chaffin had been receiving complaints about

Young making methamphetamine for months prior to his arrest.

      Though complaints alone are inadequate in reliably estimating drug quantity,

Young’s statement that he would produce approximately three to four grams of

methamphetamine per session makes it more likely than not that he produced at

least ten grams within the two weeks preceding his arrest. It is also worth noting

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that there was extensive circumstantial evidence of repeat methamphetamine

production, including bi-phase methamphetamine oil, a hot plate, iodine crystals,

match books, “HEET,” hydrogen peroxide, and acetone on Young’s premises.

Therefore, the district court did not clearly err in determining that Young was

responsible for at least 10 grams of methamphetamine.

      Young next argues that the district court did not have a factual basis on

which to enhance his sentence pursuant to U.S.S.G. § 2D1.1(b)(8)(C) for his

mobile home methamphetamine laboratory creating a substantial risk of harm to

the life of a minor. Young concedes that methamphetamine laboratories are

inherently dangerous, but contends that the government failed to prove that he ran

his laboratory in a way that created a specific substantial risk of harm to the life of

a minor.

      We review a district court’s factual findings for clear error and its

interpretation of the guidelines de novo. United States v. Taber, 497 F.3d 1177,

1179 (11th Cir. 2007), cert. denied, 128 S.Ct. 949 (2008). The Sentencing

Guidelines provide that “[i]f 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, [the offense level should] increase by 6

levels. If the resulting offense level is less than level 30, increase to level 30.”



                                            4
U.S.S.G. § 2D1.1(b)(8)(C) (2006).

      The district court did not clearly err in finding that Young’s actions placed a

minor at risk. A hazardous materials team was needed to clean up the property

because the materials constituted hazardous waste. Moreover, Young had two

children living in his mobile home, one of whom told Chaffin that he had to leave

the house because the smell was so bad. Finally, Chaffin estimated that between

six and eight children lived within 100 yards of Young’s mobile home. The

district court’s factual findings were not clearly erroneous, and it properly applied

the enhancement. In addition, because the district court stated that the sentencing

guidelines were advisory, any argument predicated upon improperly used judge-

found facts to enhance Young’s sentence fails.

      Finally, Young argues that the harm to a minor enhancement resulted in an

unreasonable sentence because he had no prior criminal history. He questions how

it can be reasonable that he received a higher offense level increase under the

enhancement than a criminal recidivist defendant. He suggests that the Sentencing

Commission might be in a good position to set blanket policies regarding

offenders, but courts are in a better position “to fine tune” a reasonable sentence

for particular defendants.

      We review the sentence imposed by the district court for reasonableness.



                                           5
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Because Young’s

offense involved the manufacture of methamphetamine and created a substantial

risk of harm to the life of a minor, his offense level would normally be increased

by 6 levels, but because the resulting offense level was less than 30, the offense

level automatically was increased to 30, pursuant to U.S.S.G. § 2D1.1(b)(8)(C).

      Here, the district court’s sentence was procedurally sound as the court

correctly calculated Young’s guideline range, treated the guidelines as advisory,

and considered the § 3553(a) factors. Additionally, the below-guidelines range

sentence is substantively reasonable. The district court chose to sentence Young

below the guideline range because the court found that it was unfair to raise

Young’s offense level to 30 instead of increasing it only by the 6 points he would

have received if he had a higher criminal history category. The district court went

on to note that his sentence was within the guideline range had he received only the

6-level increase for the harm to minor enhancement, rather than the automatic

offense level of 30 that was otherwise applicable. Therefore, the sentence Young

now requests is actually the sentence that he received. Accordingly, we affirm.

     AFFIRMED.




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