                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 6, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-40151



UNITED STATES OF AMERICA

                                      Plaintiff-Appellee,

versus


DAVIS WAYNE CARNEY, also known as “God”

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
           for the Eastern District of Texas, Sherman
                          4:03-CR-84-1
                      --------------------

Before REAVLEY, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Davis Wayne Carney (“Carney”) appeals the district

court’s determination that the six-level enhancement for causing

a substantial risk of harm to the life of a minor while producing

methamphetamine, pursuant to U.S.S.G. § 2D1.1(b)(5)(C), applied

to his conduct.   We reverse and remand for further proceedings

consistent with this opinion.

                           I.   INTRODUCTION



     *
          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that this opinion should not be published and is not precedent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.
     Carney pled guilty to count 1 and count 8 of a 21-count

indictment against him and 17 other co-defendants.    Count 1

charged Carney with conspiracy to manufacture, distribute or

possess with intent to manufacture, distribute or dispense 500

grams or more of a mixture or substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 846.

Count 8 charged Carney with knowingly using, carrying or

possessing a firearm during, in relation to, and in furtherance

of a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1).

     The district court found that Carney’s total offense level

was 35, representing an initial base offense level of 32, with a

three-level reduction for acceptance of responsibility pursuant

to U.S.S.G. § 3E1.1(a) and (b), and a six-level enhancement for

causing a substantial risk of harm to the life of a minor

pursuant to U.S.S.G. § 2D1.1(b)(5)(C).

                     II. STATEMENT OF THE FACTS

     Carney admits that he illegally manufactured methamphetamine

(“meth”).    At the time of his arrest, on May 24, 2001, he was

living outside of Whitesboro, Texas, along with his wife and his

four young children.    When the police arrived on that day to

execute a search warrant and to arrest him, Carney, after seeing

the police, grabbed his three-year-old son and entered his

storage building/shed.    Moments later, Carney emerged without a

fight and surrendered to police.
     The storage shed contained paraphernalia used to “cook”

methamphetamine, including two Hydrogen Chloride (“HCl”)

generators inside of a trash bag, a jar containing a cloudy

liquid (later determined to be methamphetamine in the later

stages of production), 3.3 grams of methamphetamine, and tools or

equipment commonly used for the production of methamphetamine.

The police also found two rifles, a revolver and a part of a

semiautomatic or automatic pistol in the shed.

     An HCl generator emits HCl gas, which can be fatal to humans

when inhaled in concentrated amounts.   A “generator” is a bottle

containing sulfuric acid and salt, with a hose that emits gas

used to produce powder methamphetamine.   The HCl generators had

been used, at a different location, within the previous 24 hours

and had been “capped off” before being placed in a trash bag for

disposal.   Nevertheless, Sergeant Whitney, the police officer who

initially searched the shed, testified that the two HCl

generators were still reacting and emitting some gas, even though

they had been “capped off.”

     Additionally, Sergeant Whitney testified that the jar found

in the shed contained meth that was crystallizing.   At that stage

of production, a dangerous gas is generated in the air.

Furthermore, he testified that the dangerous gas emitted during

meth production can permeate walls and textiles and cause injury

as much as a month later.

     When he searched the shed, Sergeant Whitney wore an
artificial personal respirator for precaution because the odor of

HCl gas was present.    However, the police did not conduct any

tests to determine the concentration of HCl gas in the air inside

of the shed, nor was there any testimony as to the degree of

danger or type of harm that existed in the shed.

                           III. DISCUSSION

A. Standard of Review

     We review legal conclusions related to the application of

the sentencing guidelines de novo.    United States v. Huerta, 182

F.3d 361, 364 (5th Cir. 1999).

B.   Discussion

     Section 2D1.1(b)(5)(C) of the United States Sentencing

Guidelines provides for an increase of six offense levels when

the defendant engaged in the manufacture of methamphetamine and

created a substantial risk of harm to the life of a minor.1

     Carney argues that the phrase “harm to the life of a minor”

contemplates serious harm, not just any harm.    The district court

found, and the government argues on appeal, that the words “to

the life” in the guidelines are inconsequential surplusage, and

that the enhancement applies whenever the manufacture of

methamphetamine creates a substantial risk of any harm to a

minor.


     1
      “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 incompetent, increase by 6 levels.”
U.S.S.G. § 2D1.1(b)(5)(C).
     At the sentencing hearing, the district judge said:

     ... it appears to me that it requires simply a risk of
     harm. Not a risk to the life of the minor, but a risk of
     harm. I don’t know why they put the words “to the life.”
     They could have just said “substantial risk of harm to a
     minor.”

     The district court erred by simply dismissing the words “to

the life” when interpreting the guideline.   Congress chose these

specific words and we must assume that Congress and the

Sentencing Commission included the same for a reason.

     When construing a criminal statute, we “must follow the

plain and unambiguous meaning of the statutory language.”     United

States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004).   Moreover, “a

statute must, if possible, be construed in such fashion that

every word has some operative effect.”   Id. (citations omitted).

     If Congress had intended for § 2D1.1(b)(5)(C) to apply

whenever the manufacture of methamphetamine caused a substantial

risk of any type of harm to a minor, then it would have passed a

law that said “substantial risk of harm to a minor.”    However,

Congress did not do so.   Instead, it passed a law that requires a

substantial risk of harm to the life of a minor.2   The inclusion

of the words “to the life” indicates that Congress wanted to

punish situations in which children faced a substantial risk of

serious harm, as opposed to any type of harm.   Harm “to the life

of a minor” suggests a type of harm that could cause death or a



     2
      Section 3612(a)(2)(B) of the Methamphetamine Anti-
Proliferation Act of 2000, Pub. L. 106-310.
serious injury that would adversely affect the life of a minor.

     We also note that the application notes for § 2D1.1(b)(5)(C)

include four factors that a court “shall” apply when determining

if the six-level enhancement applies to a defendant’s conduct.

U.S.S.G. § 2D1.1, cmt. n. 20(A).    The district court in the

instant case did not consider these factors with respect to

Carney’s conduct.    It was error to not do so, and on remand the

district court should weigh the factors provided in the

application notes.

                           IV. Conclusion

     The district court erred by using an incorrect standard to

determine if the six-level enhancement in § 2D1.1(b)(5)(C)

applied to Carney’s conduct.   The district court required a

substantial risk of any type of harm, whereas the language of the

guideline provision actually requires a “substantial risk of harm

to the life of a minor.”   U.S.S.G. § 2D1.1(b)(5)(C).3

     Accordingly, for the foregoing reasons, the judgment of the

district court is REVERSED and the case REMANDED for further

     3
      The legislative history for the Methamphetamine Anti-
Proliferation Act of 2000 indicates that Congress was concerned
with more serious exposure to meth laboratories than that which
occurred in the instant case. The House Judiciary Committee
Report states: “More disturbing is that most of these
laboratories are situated in residences, motels, trailers, and
vans, and often times are operated in the presence of children.”
H.R. Rep. 106-878 at 22 (Sept. 21, 2000). The Report also says:
“Law enforcement officials cite frequent discovery of children
living and playing among toxic and volatile chemicals in home-
based amphetamine and methamphetamine laboratories.” Id. at 27.
The district court may find this legislative history to be
helpful when considering if the six-level enhancement should
apply to Carney’s conduct.
proceedings consistent with this Court’s opinion.
