                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3050
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Michael Paul Patterson,                  *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: December 12, 2006
                                  Filed: April 4, 2007
                                   ___________

Before LOKEN, Chief Judge, MURPHY and SHEPHERD, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

      Michael Patterson entered a conditional plea of guilty to an indictment that
charged him with being a felon in possession of a firearm, attempting to manufacture
methamphetamine, possessing a sawed-off shotgun in furtherance of a drug offense,
and manufacturing an unregistered firearm (a pipe bomb). The district court1
sentenced Patterson to 207 months in prison, applying a six-level enhancement for
causing a substantial risk of harm to the life of a minor in the commission of the
methamphetamine manufacturing offense. Patterson appeals, challenging the denial

      1
        The HONORABLE WILLIAM R. WILSON, JR., United States District Judge
for the Eastern District of Arkansas
of his motion to suppress, the six-level enhancement, and the reasonableness of his
sentence. We affirm.

       Suppression Issues. At the suppression hearing, Officers Brad Cartwright and
Robert Roe testified that they went to the residence of Patterson and his girlfriend,
Kendra Fletcher, for a “knock and talk” after receiving an anonymous tip that
Patterson and Fletcher were manufacturing and dealing methamphetamine at that
location. When Fletcher opened the door, Cartwright said they were there to pick up
a reported meth lab. Fletcher denied having a meth lab but consented to a search of
the residence, invited the officers in, and signed a consent-to-search form. The
officers explained that she could revoke her consent at any time.

       The officers and Fletcher passed through the kitchen and into the living room,
where Patterson was visiting with a friend, Randy Bearden. Patterson asked what was
going on; Cartwright identified himself and said he was investigating a report of a
meth lab there. Patterson said, “Go ahead and search. I don’t mind. We don’t have
anything to hide.” Cartwright saw a partially open closet door and asked Fletcher to
turn on its light. When she did so, Cartwright saw in plain view a sawed-off shotgun
and glass pipes for smoking methamphetamine. At this point, Fletcher said, “I don’t
think this is right.” Cartwright asked Fletcher if she was revoking her consent to
search. When Fletcher vacillated, Cartwright said they were stopping the search and
would apply for a search warrant. After checking everyone’s identification and
learning that Patterson was a convicted felon, the officers arrested Patterson and
Fletcher for possession of an illegal sawed-off shotgun and drug paraphernalia. They
allowed Bearden to leave.

      Patterson was promptly taken to jail. Fletcher was not taken to jail until her
mother came to pick up Fletcher’s three or four year old son, who also lived in the
house. The residence was then secured while Cartwright and Roe applied for and
obtained a search warrant. The warrant search uncovered multiple firearms, six grams

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of methamphetamine, and a variety of chemicals and equipment used in the
manufacture of methamphetamine. The pipe bomb was found in Fletcher’s vehicle,
where Patterson later admitted putting it.

       Defense witnesses gave conflicting testimony at the suppression hearing.
Fletcher testified that the officers pushed their way into the house and coerced her into
signing a consent form she did not understand. Johnson Davis, Patterson’s former
boss, testified that, when Patterson called to ask for advice during the encounter,
Davis told Patterson he did not have to consent to a search of his home without a
warrant, and Davis then heard a belligerent officer say, “You either are going [to] let
us search it and if you make us go get a warrant you are going to have to leave the
premises.” Patterson testified that Officer Cartwright looked in the closet without
asking Patterson for consent. Fletcher’s mother testified that, when she came to pick
up the child, an officer was “digging through stuff in the closet” while Fletcher was
telling him to stop searching.

       Crediting the officers’ testimony, the district court denied Patterson’s motion
to suppress, finding that both Fletcher and Patterson consented to Cartwright’s search
of the closet, where he found a sawed-off shotgun and drug paraphernalia that gave
the officers probable cause to arrest Patterson and Fletcher and obtain a warrant to
search the remainder of the residence and their vehicles.

      On appeal, Patterson argues that the district court violated the Supreme Court’s
recent decision that “a warrantless search of a shared dwelling . . . over the express
refusal of consent by a physically present resident cannot be justified . . . on the basis
of consent given to the police by another resident.” Georgia v. Randolph, 126 S. Ct.
1515, 1526 (2006). Here, had the district court credited Patterson’s testimony that
Officer Cartwright avoided asking Patterson for consent until after the closet search,
we would need to construe and apply the Supreme Court’s caveat that the police have
no obligation “to take affirmative steps to find a potentially objecting co-tenant” when

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one co-tenant has consented to the search. Randolph, 126 S. Ct. at 1527. But the
district court did not credit Patterson’s testimony, instead finding that Patterson
expressly consented to a search of the closet. As that credibility finding is not clearly
erroneous, Cartwright searched the closet with the consent of both Fletcher and
Patterson, uncovering probable cause to arrest them both and to obtain a warrant to
search the remainder of their residence. The motion to suppress was properly denied.

       The Sentencing Enhancement. The advisory guidelines provide for a six-
level enhancement if the methamphetamine manufacturing offense created a
substantial risk of harm to the life of a minor. See U.S.S.G. § 2D1.1(b)(8)(C).2 At
Patterson’s change-of-plea hearing, he admitted that the warrant search uncovered a
propane bottle with torch, a can of butane fuel, a large quantity of 7% iodine tincture,
a bottle of liquid fire, a bottle of peroxide, a bottle of lye, matchbooks, lighter fluid,
and a beaker and a coffee pot containing liquids from which methamphetamine and
pseudoephedrine were recovered.

        At sentencing, Christy Sullivan, a forensic chemist with the Arkansas State
Crime Laboratory, testified that she photographed these chemicals and equipment
during the warrant search and then tested some of the items at the lab. Sullivan
testified that the items included a pint glass jar half full of a yellow liquid on top and
a brown “reaction sludge” on the bottom. When tested, the contents were found to
contain methamphetamine, pseudoephedrine, phosphorus, iodine, and acid. Sullivan
explained that the two layers of liquid meant “they actually have finished the cook and
are getting ready to extract out the methamphetamine.” In response to a question by
the court, Sullivan opined that a meth lab “of this nature” would constitute a serious
danger to a minor:


      2
      After its adoption effective December 16, 2000, this provision was moved from
§ 2D1.1(b)(6)(B) to § 2D1.1(b)(5)(C) to § 2D1.1(b)(6)(C) to its present location, all
without substantive change. See U.S.S.G. App. C, amendments 608, 620, 667, 681.

                                           -4-
      Just the chemicals that are there, the strong acids, the sulfuric acid, the
      bases that were found, all of those are skin irritants and can cause burns
      on the skin. Iodine, once it’s in the elemental form, is a danger to . . .
      just anyone because it’s a respiratory irritant. It actually will form acid
      in your lungs and decrease lung capacity. All the chemicals are either
      carcinogenic or of some nature like that, like mutagenic, they can cause
      mutations and birth defects. Anytime you have a strong acid or a base
      around a child, you have a danger because . . . most children don’t know
      not to bother things of that nature, especially unmarked, in unmarked
      containers.

Based upon this evidence, the district court overruled Patterson’s objection to the six-
level enhancement, finding that “having these chemicals there did create a substantial
risk of harm to a minor that’s three or four years old.”

        On appeal, Patterson argues that the district court erred in applying this
guidelines provision because the court at sentencing did not expressly apply
Application Note 20(A) to § 2D1.1, which provides that “the court shall include
consideration” of enumerated factors in determining whether an offense created a
substantial risk of harm to human life or the environment. The Note 20(A) factors
include the quantity of chemicals, the manner in which they were stored and disposed,
the duration and extent of the manufacturing, the location of the laboratory (residential
or remote), and the number of human lives placed at risk. We have recently noted
that, while they are not exclusive, “the Note 20(A) factors may not be ignored and .
. . the details of the particular offense are important.” United States v. Pinnow, 469
F.3d 1153, 1157 (8th Cir. 2006).

       In this case, the district court read the text of § 2D1.1(b)(8)(C) at sentencing.
Neither counsel nor the court referred to Application Note 20(A), but the testimony
of forensic analyst Sullivan, supported by Patterson’s admissions at the change-of-
plea hearing, addressed “the details of the particular offense.” Her testimony
specifically addressed the Note 20(A) factors most relevant to endangering the life of

                                          -5-
Fletcher’s young child -- the presence of an operating lab in a small duplex apartment
in which the child was living, the nature of the chemicals that were present and the
specific risks of harm they posed to the child, and the careless manner in which the
chemicals were stored from the perspective of child safety. We decline to require a
rote recitation of the Note 20(A) factors when, as here, the sentencing record makes
clear that their substance has been adequately considered.3 Moreover, were a rote
recitation required, Patterson’s failure to raise the issue at sentencing would mean
review only for plain error. See generally United States v. Pirani, 406 F.3d 543, 549-
50 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005). Here, the alleged error
was not plain. Nor did it affect Patterson’s substantial rights because the legislative
history of the enhancement confirms that it was intended to apply to this offense. See
Pinnow, 469 F.3d at 1156-57.

       Reasonableness of the Sentence. Finally, Patterson argues that the sentence
is unreasonable because the district court felt unduly bound by the advisory guidelines
and therefore “must have” based the sentence on an unlawful presumption that a
guidelines-range sentence is reasonable. Of course, the present law of this circuit is
that a sentence within a properly determined advisory guidelines range is
presumptively reasonable, an issue the Supreme Court of the United States currently
has under review. Whether or not a guidelines range sentence is presumptively
reasonable under United States v. Booker, 543 U.S. 220 (2005), the guidelines range
is clearly entitled to some consideration. Here, after correctly determining that range,
the district court found no reason to go lower and sentenced Patterson to 87 months


      3
        We note that Application Note 20(A) applies to offenses described in
§ 2D1.1(b)(8)(B) as well as offenses described in § 2D1.1(b)(8)(C). No doubt for this
reason, some of the Note 20(A) factors, such as the manner of chemical disposal, the
likelihood of release into the environment, the extent of the manufacturing operation,
and the number of human lives endangered, are of little significance in determining
whether a methamphetamine manufacturing offense created a substantial risk of harm
to the life of a particular minor child.

                                          -6-
in prison, the bottom of that range, plus a consecutive ten-year mandatory minimum
sentence for being a felon in possession of a sawed-off shotgun in furtherance of his
drug trafficking offense. After careful review of the sentencing record, including
Patterson’s prior criminal history, we agree with the district court that this sentence
is reasonable.

      The judgment of the district court is affirmed.
                     ______________________________




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