                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1501
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
William Michael Fortney,                 *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: October 22, 2003

                                   Filed: February 6, 2004
                                    ___________

Before LOKEN, Chief Judge, HEANEY and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                             ___________

LOKEN, Chief Judge.

      After William Michael Fortney pleaded guilty to conspiring to manufacture
methamphetamine and endangering human life in its manufacture, see 21 U.S.C.
§§ 841(b)(1)(A), 846, and 858, he was sentenced to 232 months in prison. Fortney
appeals his sentence, challenging the district court’s1 application of the Sentencing
Guidelines relating to methamphetamine manufacture and endangering. We affirm.


      1
       The HONORABLE JAMES E. GRITZNER, United States District Judge for
the Southern District of Iowa.
        The relevant Guidelines2 provided that Fortney’s conspiracy and endangering
counts must be grouped for sentencing purposes. See U.S.S.G. § 3D1.2. The offense
level for the group is the offense level for the “most serious” count in the group, that
is, the count with “the highest offense level.” § 3D1.3(a). Fortney’s conspiracy count
involved a stipulated quantity of at least 50 but less than 150 grams of actual
methamphetamine, which produced a base offense level of thirty-two. See U.S.S.G.
§§ 2D1.1(a)(3), (c)(4). The district court adjusted the base level upward by two levels
because a dangerous weapon was used. See § 2D1.1(b)(1). Applying guidelines
Amendment 608, the court added another three levels because the offense involved
the manufacture of methamphetamine and created a substantial risk of harm to human
life. See U.S.S.G. app. C, amend. 608 (adding § 2D1.1(b)(6)(A)). This resulted in
a total offense level of thirty-seven.

       Fortney’s endangering offense violated 21 U.S.C. § 858, which prohibits
“creat[ing] a substantial risk of harm to human life” “while manufacturing a
controlled substance in violation of this subchapter.” Guidelines § 2D1.10 governs
this offense and provides a base offense level of “3 plus the offense level from the
Drug Quantity Table in § 2D1.1.” U.S.S.G. § 2D1.10(a)(1). For Fortney’s offense,
that produced a base offense level of thirty-five. Again applying Amendment 608,
the district court adjusted the base level upward by three levels because the offense
involved the manufacture of methamphetamine, § 2D1.10(b)(1)(A), resulting in a
total offense level of thirty-eight. Thus, for purposes of § 3D1.3, the endangering
count became the most serious count in the group.

      Starting with a group offense level of thirty-eight, the district court granted
Fortney a three-level reduction for acceptance of responsibility and determined that


      2
       Because his offenses occurred in 2001, Fortney’s sentence was determined
under the Guidelines in effect on November 1, 2000, and Amendment 608, which
added § 2D1.1(b)(6) and § 2D1.10(b)(1) effective December 16, 2000.

                                          -2-
his guidelines sentencing range is 292 to 365 months. The court then granted the
government’s motion for a downward departure for Fortney’s substantial assistance,
departed downward by 60 months from the bottom of his guidelines range, and
imposed concurrent sentences of 232 months on the conspiracy count and 120 months
(the statutory maximum) on the endangering count. On appeal, Fortney argues that
his total offense level should be thirty-four, the adjusted offense level for the
conspiracy count, which would reduce his guidelines range to 262 to 327 months.3

       The statutory maximum penalty for Fortney’s endangering offense (120
months) is lower than the statutory maximum for his conspiracy offense (life in
prison) and the sentence he in fact received (232 months). In United States v.
Kroeger, we applied § 2D1.10 to a similar group of offenses prior to Amendment 608
and held that the endangering count “set the offense level for the group” because
§ 3D1.3(a) expressly provides that the most serious offense is the one with the highest
guidelines offense level, not the one with the highest statutory maximum penalty.
229 F.3d 700, 703 (8th Cir. 2000); accord United States v. Evans, 318 F.3d 1011,
1020 (10th Cir.), cert. denied, 123 S. Ct. 2291 (2003). Congress then enacted the
Methamphetamine Anti-Proliferation Act of 2000, which provided that the
Sentencing Commission “shall . . . increase the base offense level . . . by not less than
3 offense levels above the applicable level in effect on the date of the enactment of
this Act” for any methamphetamine manufacturing offense that “created a substantial
risk of harm to human life.” Pub. L. No. 106-310, § 3612(a)(2), 114 Stat. 1227, 1229
(2000). The Commission adopted Amendment 608 in response to this statute, adding
three-level increases in both § 2D1.1(b)(6)(A) and § 2D1.10(b)(1)(A).


      3
       We have some doubt whether we may even entertain this appeal because the
bottom of the guidelines range urged by Fortney, 262 months, is well above the 232-
month sentence imposed by the district court after granting a substantial downward
departure. See 18 U.S.C. § 3742(f), as construed in Williams v. United States, 503
U.S. 193, 202-03 (1992). But this issue is not jurisdictional, and as the government
has not raised it, we decline to consider it.

                                          -3-
       On appeal, Fortney acknowledges, as he must, that Kroeger forecloses the
contention that his endangering count is not the most serious for purposes of the
grouping rules because of its lower statutory maximum. Instead, he argues that
Amendment 608 violated his right to substantive due process because it is
“fundamentally irrational, arbitrary and capricious” to increase the endangering
offense level by three levels in § 2D1.10(b)(1)(A).4 The increase is arbitrary, Fortney
explains, because “[n]othing in the enabling legislation” authorized the Commission
“to create a ‘super’ methamphetamine manufacturing offense [in § 2D1.10] whose
guideline range would naturally or likely exceed the guideline range for the more
‘serious’ manufacturing or conspiracy” offenses.

       This contention is totally without merit. Congress directed the Commission to
increase by at least three levels the offense level then applicable “to any offense
relating to the manufacture [of] methamphetamine.” Methamphetamine Anti-
Proliferation Act of 2000 § 3612(a)(1). The Commission obeyed this mandate by
adding three-level increases to both § 2D1.1 and § 2D1.10. U.S.S.G. app. C, amend.
608. Assuming without deciding that Sentencing Guidelines amendments are subject
to substantive due process challenge -- a serious issue Fortney does not even




      4
        Legislation is subject to highly deferential substantive due process review.
The test for this controversial inquiry is typically to determine whether a statute
reflects “the exercise of power without any reasonable justification in the service of
a legitimate governmental objective.” County of Sacramento v. Lewis, 523 U.S. 833,
846 (1998). On the other hand, the conduct of executive officials must, at a
minimum, “shock the conscience of federal judges” to violate substantive due
process. Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992). Whether
actions of the Sentencing Commission are subject to review under either of these
standards (or both) is a complex question that neither party addressed.

                                         -4-
acknowledge -- an amendment that accurately implements a directive of Congress
does not implicate substantive due process concerns.5

       Fortney next argues that the district court erred in using the entire drug quantity
from § 2D1.1 to calculate his endangering offense level under § 2D1.10 because,
although he stipulated to creating a substantial risk to human life on one day, the
government failed to prove that he created a substantial risk to human life on the
other occasions whose production or attempted production must be included to reach
the § 2D1.1 drug quantity of at least fifty grams of actual methamphetamine. We
reject this argument because it is flatly contrary to § 2D1.10(a)(1), which provides
that the base offense level under § 2D1.10 is based on “the offense level from the
Drug Quantity Table in § 2D1.1.” Here, all the drug quantity attributed to Fortney
under § 2D1.1 was manufactured methamphetamine. Therefore, we need not consider
how this provision in § 2D1.10(a)(1) should be construed in a multi-count drug case
in which manufactured methamphetamine constituted only a portion of the total drug
quantity calculated under § 2D1.1.

       Finally, Fortney argues that the three-level increase in § 2D1.10(b)(1)(A)
results in impermissible double counting because the same three-level increase was
already imposed in determining the total offense level on the conspiracy count under
§ 2D1.1. We disagree. “Double counting occurs when one part of the Guidelines is
applied to increase a defendant’s punishment on account of a kind of harm that has
already been . . . accounted for by application of another part of the Guidelines.”


      5
        Fortney does not challenge the Methamphetamine Anti-Proliferation Act of
2000 on substantive due process grounds, and properly so. Congress found that
methamphetamine manufacturing “poses serious dangers to both human life and to
the environment,” and that the manufacturing process is “unstable, volatile, and
highly combustible.” H.R. REP. NO. 106-878(I), at 22 (2000). Thus, the Act’s
mandate to the Commission to adopt Amendment 608 clearly bore a reasonable
relation to a legitimate governmental purpose.

                                           -5-
United States v. Rohwedder, 243 F.3d 423, 426-27 (8th Cir. 2001) (quotation
omitted). Under the grouping rules, only the offense level for the most serious
offense in the group is used as the group offense level. U.S.S.G. § 3D1.3(a).
Fortney’s conduct in creating a risk of harm by manufacturing methamphetamine is
an offense characteristic that increased the total offense level for his conspiracy count
under § 2D1.1. See § 2D1.1(b)(6)(A). But only the base offense level from the Drug
Quantity Table in § 2D1.1 was incorporated by reference into the base offense level
for his endangering count in § 2D1.10(a)(1). Thus, no double counting occurred by
the manner in which the endangering base offense level was determined. As for the
three-level increase imposed under § 2D1.10(b)(1)(A), Congress directed the
Commission to adopt a separate increase for endangering that is caused by the
manufacture of methamphetamine, and the Commission implemented this mandate
in Amendment 608. It is not double counting when the Guidelines impose
cumulative enhancements that reflect “conceptually separate notions relating to
sentencing,” as § 2D1.10(a)(1) and § 2D1.10(b)(1)(A) do. See Rohwedder, 243 F.3d
at 427.

      The judgment of the district court is affirmed.
                     ______________________________




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