                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0224p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                         Nos. 03-6544/6549
          v.
                                                      ,
                                                       >
 CHARLES ANTHONY DAVIDSON (03-6544); DEBRA            -
                                                      -
                          Defendants-Appellants. -
 ANN DAVIDSON (03-6549),

                                                      -
                                                     N
                     Appeal from the United States District Court
                    for the Eastern District of Kentucky at London.
                   No. 03-00006—Danny C. Reeves, District Judge.
                                        Argued: November 2, 2004
                                    Decided and Filed: May 18, 2005
            Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Michael Dean, Irvine, Kentucky, William G. Crabtree, London, Kentucky, for
Appellants. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington,
Kentucky, for Appellee. ON BRIEF: Michael Dean, Irvine, Kentucky, William G. Crabtree,
London, Kentucky, for Appellants. Charles P. Wisdom, Jr., ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee.
     MOORE, J., delivered the opinion of the court, in which EDMUNDS, D. J., joined.
GIBBONS, J. (p. 10), delivered a separate concurring opinion.




        *
         The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
Nos. 03-6544/6549 United States v. Davidson et al.                                                                    Page 2


                                                 _________________
                                                     OPINION
                                                 _________________
         KAREN NELSON MOORE, Circuit Judge. These appeals concern the applicability of two
subdivisions of the U.S. Sentencing Guidelines (“Guidelines”).1 Defendant-Appellant Debra Ann
Davidson (“Mrs. Davidson”) challenges the district court’s decision to apply both the § 2D1.1(b)(1)
firearm enhancement (“Firearm Enhancement”) and the § 2D1.1(b)(5)(B) substantial-risk-of-harm-
enhancement (“Substantial-Risk-of-Harm Enhancement”), while Defendant-Appellant Charles
Anthony Davidson (“Mr. Davidson”) challenges only the application of the Substantial-Risk-of-
Harm Enhancement to his sentence. See U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”)
§ 2D1.1(b)(1), 2D1.1(b)(5)(B). We conclude that, pursuant to United States v. Booker, 125 S. Ct.
738 (2005), the district court plainly erred in applying these enhancements, on the basis of judge-
found facts, as part of the (formerly mandatory) Guidelines sentencing system. Moreover, we
conclude that the Substantial-Risk-of-Harm Enhancement cannot properly be applied, on the facts
of this case, for purposes of determining the recommended Guidelines sentence. Accordingly, we
VACATE the sentences of both Mr. and Mrs. Davidson and REMAND the cases to the district
court for further proceedings consistent with this opinion and with the Supreme Court’s decision in
Booker.
                                                 I. BACKGROUND
        On January 28, 2003, federal agents accompanied by state and municipal police officers
executed a search warrant on the residence of Mr. and Mrs. Davidson. The search warrant
authorized the officers to search for a fugitive by the name of Mr. Mooneyham and to search the
couple’s residence for documents that might link Mooneyham to the Davidsons. Although they did
not find Mooneyham, the officers found a Ford Expedition connected to Mooneyham, as well as a
motor home containing a number of Mr. Mooneyham’s personal effects. More importantly for this
case, the officers made several discoveries suggestive of illegal activity, including: a working
methamphetamine laboratory in the loft of the Davidsons’ barn; a marijuana-growing operation in
the crawlspace of a workshop located next to the barn; numerous unlabeled pill bottles; several
baggies of an unidentified powder; additional marijuana; and numerous vehicles with the Vehicle
Identification Number (“VIN”) altered or obscured, or with improper registrations.
        A federal grand jury indicted Mr. and Mrs. Davidson on multiple counts relating to drug
manufacture, drug possession, and possession of stolen vehicles. The Davidsons moved to suppress
the evidence seized by the officers  during their search of the Davidsons’ property, and the district
court granted this motion in part.2 Four days before the scheduled trial date, and approximately two


         1
           Although both defendants were sentenced on November 21, 2003 — after the November 1, 2003, effective
date of the 2003 edition of the U.S. Sentencing Guidelines (“Guidelines”) Manual, see U.S. SENTENCING GUIDELINES
MANUAL (“U.S.S.G.”) § 1B1.11 (Nov. 1, 2003) — no party challenges the use of the 2002 Guidelines Manual in these
appeals. Unless otherwise noted, all references to individual guideline provisions refer to the 2002 edition of the
Guidelines Manual.
         2
           The government “d[id] not object to the suppression of: (i) the marijuana and marijuana seeds seized from
the refrigerator/freezer in the kitchen, (ii) the contents of the opaque pill bottles containing pills which, although visible,
were not identifiable by the searching officers prior to opening the pill bottles, and (iii) the vehicles that did not have
obscured, altered or removed vehicle identification numbers (VINSs).” Record (R.) 49 at 4 (Dist. Ct. Mem. & Order
filed June 9, 2003). Over the government’s objection, the district court granted the Davidsons’ request that marijuana
seized from “inside the refrigerators and/or freezers,” R. 49 at 20, and all of the marijuana seeds seized from the property
be suppressed. R. 49 at 21. However, the district court declined to suppress other evidence, including “the marijuana
in bags laying on the pool table and the plants in the indoor growing operation,” R. 49 at 20, the “filters and baggies
Nos. 03-6544/6549 United States v. Davidson et al.                                                              Page 3


months after the district judge’s ruling on their joint suppression motion, both Mr. and Mrs.
Davidson accepted plea offers from the government. The nearly identical plea agreements provided
that both Mr. and Mrs. Davidson would plead guilty to Counts One (attempting to manufacture
methamphetamine) and Six (possession of a stolen 1988 Chevrolet pickup truck which had traveled
in interstate commerce). In return, the government agreed to move to dismiss the remaining counts
and to make certain sentencing recommendations and a factual stipulation.3
       The probation office recommended that Mrs. Davidson be sentenced at Total Offense Level
30, Criminal History Category I, for a guideline range of 97 to 121 months’ imprisonment, followed
by 4 to 5 years of supervised release. This recommendation, based on the count with a higher
Adjusted Offense Level (Count One), began with a Base Offense Level of 30 due to the marijuana
equivalency of the substances involved. The probation office applied the two-level Firearm
Enhancement and the three-level Substantial-Risk-of-Harm Enhancement, but subtracted two levels
for Mrs. Davidson’s minor role in the offense under U.S.S.G. § 3B1.2(b). To this Adjusted Offense
Level of 33, the probation office applied a three-level downward adjustment for acceptance of
responsibility, resulting in a Total Offense Level of 30.
       In regard to Mr. Davidson, the probation office recommended that he be sentenced at Total
Offense Level 32, Criminal History Category I, for a guideline range of 121 to 151 months’
imprisonment, followed by 4 to 5 years of supervised release. As with Mrs. Davidson, Mr.
Davidson was found to have a Base Offense Level of 30 due to the marijuana equivalency of the
substances involved in Count One. The probation office applied the two-level Firearm Enhancement
and the three-level Substantial-Risk-of-Harm Enhancement. Unlike the case of Mrs. Davidson,
however, the probation office did not apply any adjustment for Mr. Davidson’s role in the offense
under § 3B1.2. This left Mr. Davidson with an Adjusted Offense Level of 35. The probation office
then applied a three-level downward adjustment for acceptance of responsibility, resulting in a Total
Offense Level of 32.
         Over the objections of both defendants, the district court sentenced Mr. and Mrs. Davidson
according to the probation office’s recommendations. The district court found, as a preliminary
matter, that the Davidsons’ plea agreements were not entered under Federal Rule of Criminal
Procedure 11(c)(1)(C), the rule binding the district court to a recommendation once it accepts the
plea agreement. Although the district judge did not state the applicable provision explicitly, this was
in effect a finding that the portions of the plea agreements addressing the Firearm Enhancement must
have been entered under Federal Rule of Criminal Procedure 11(c)(1)(B), the rule providing for plea
agreements that do not bind the district court. The district court then overruled the Davidsons’
objections to the application of the Firearm Enhancement and the Substantial-Risk-of-Harm
Enhancement, but did not separately address the government’s recommendation in the plea
agreement that the Firearm Enhancement not be applied to Mrs. Davidson. The district court found
that it was appropriate to allow Mrs. Davidson a minor role adjustment under § 3B1.2(b), but that
this adjustment did not prevent the application of the Substantial-Risk-of-Harm Enhancement to her


found inside [some of the] pill bottles” in the couple’s bedroom, R. 49 at 24, the methamphetamine lab in the loft of the
couple’s barn, R. 49 at 26, and the “four vehicles with obscured, altered or irregular VINs,” R. 49 at 28.
         3
         The portion of the agreement at issue in Mrs. Davidson’s appeal reads as follows:
        The defendant, Charles Davidson, admits ownership of the .3[8] caliber pistol located in the dresser.
        Based upon this admission the United States agrees and stipulates that the defendant, Debra
        Davidson, should not be assessed an additional enhancement for the presence of the firearm. The
        defendant, Charles Davidson, retains his right to contest any potential enhancement he would receive
        for the firearm. The United States agrees that other firearms not seized from the residence were not
        related to the crimes for which the defendants are entering pleas.
Joint Appendix (“J.A.”) at 44, R. 71 at 4 (Mrs. Davidson’s plea agreement) (emphasis added).
Nos. 03-6544/6549 United States v. Davidson et al.                                                              Page 4


sentence.4 On the basis of these findings, the district court sentenced Mrs. Davidson to 97 months
of imprisonment followed by 4 years of supervised release, and Mr. Davidson to 121 months of
imprisonment followed by 4 years of supervised release. Both Mr. Davidson and Mrs. Davidson
were sentenced to the minimum terms of imprisonment possible under the district court’s Guidelines
calculations.
        Both Mr. and Mrs. Davidson appeal the district court’s decision to apply the Substantial-
Risk-of-Harm Enhancement. Mrs. Davidson also appeals district court’s characterization of the
portion of her plea agreement addressing the Firearm Enhancement as having been entered pursuant
to Rule 11(c)(1)(B), rather than Rule 11(c)(1)(C). On July 22, 2004, we granted the Davidsons’
request to allow supplemental briefing in response to the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004). However, before supplemental briefs were filed, we granted
the government’s request to continue supplemental briefing pending our decision in United States
v. Koch, 383 F.3d 436 (6th Cir. 2004) (en banc), overruled by Booker, 125 S. Ct. 738.
                                                  II. ANALYSIS
A. Jurisdiction
         The district court had jurisdiction under 18 U.S.C. § 3231 because both Mr. and Mrs.
Davidson were charged with violations of federal criminal law. As both defendants timely appealed
a final judgment of the district court, we have jurisdiction pursuant to 28 U.S.C. § 1291.
B. Sixth Amendment Claims
        In Booker, the Supreme Court concluded that the Sixth Amendment prevents federal judges
from making factual determinations that increase a defendant’s sentence on the basis of facts not
reflected in the jury’s verdict. Booker, 125 S. Ct. at 745-47, 756. The Court went on to conclude
that this constitutional holding required the invalidation of 18 U.S.C. §§ 3553(b)(1) and 3742(e),
“mak[ing] the Guidelines effectively advisory.” Id. at 757.
         Although the Davidsons did not raise Sixth Amendment claims in district court, we have
previously held that sentences imposed on the basis of unconstitutional judicial fact-finding satisfy
the plain-error test. See generally United States v. Oliver, 397 F.3d 369, 380-81 (6th Cir. 2005).
In this case, absent the judicial findings that Mrs. Davidson possessed a firearm in connection with
the attempt to manufacture methamphetamine, and that the attempt to manufacture
methamphetamine created a substantial risk of harm to human life or the environment, Mrs.
Davidson’s sentencing range would have been substantially lower. Her Total Offense Level would
have been   25, rather than 30, resulting in a sentencing range of 57-71 months, rather than 97-121
months.5 By imposing a sentence of 97 months, the district court sentenced Mrs. Davidson to an
additional 26 months of imprisonment beyond the 71 months authorized by the plea agreement
alone. Similarly, absent the judicial findings that Mr. Davidson possessed a firearm in connection
with the attempt to manufacture methamphetamine, and that the attempt to manufacture
methamphetamine created a substantial risk of harm to human life or the environment, Mr.

         4
           The district court found that it was “not appropriate” to apply the safety-valve provision, U.S.S.G. § 5C1.2,
to either defendant’s sentence. J.A. at 280, R. 85 at 54 (Sentencing Hr’g).
         5
           Moreover, without the district court’s finding that she possessed a firearm, Mrs. Davidson would have been
eligible for sentencing under the safety-valve provision, U.S.S.G. § 5C1.2, and the district court could accordingly have
sentenced her to less than the statutory-minimum sentence of 60 months. See U.S.S.G. § 5C1.2(a)(2) (requiring for
application of the safety-valve provision that “the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense”)
(emphasis added); 18 U.S.C. § 3553(f)(2); see also 21 U.S.C. § 841(b)(1)(B).
Nos. 03-6544/6549 United States v. Davidson et al.                                               Page 5


Davidson’s sentencing range would have been substantially lower. His Total Offense Level would
have been 27, rather than 32, resulting in a sentencing range of 70-87 months, rather than 121-151
months. By imposing a sentence of 121 months, the district court sentenced Mr. Davidson to an
additional 34 months of imprisonment beyond the 87 months authorized by the plea agreement
alone. Given that both Mr. and Mrs. Davidson’s sentences exceed the range authorized by their plea
agreements, we must conclude that those sentences constitute plain error. Id. at 380-81. We are
accordingly required to vacate the Davidsons’ sentences and remand the cases to the district court.
C. Guidelines Calculations
        Even if there were no Sixth Amendment violations, we would still be required to reverse the
decision of the district court. As we have previously suggested, the sentencing structure set out by
the Booker remedial opinion cannot function absent appellate review of a district court’s Guidelines
calculations. See United States v. Chriswell, 401 F.3d 459, 463 (6th Cir. 2005) (“[T]he proper
interpretation of the various provisions of the Sentencing Guidelines remains vitally important for
this court.”). The clear Booker requirement that the district court “consider” the applicable
Guidelines range, Booker, 125 S. Ct. at 764, would otherwise be meaningless. Cf. United States v.
Scott, --- F.3d ---, No. 04-1053, 2005 WL 949040, at *1 (7th Cir. Apr. 25, 2005) (“An incorrect
application of the guidelines requires resentencing under the post-Booker sentencing regime.”);
United States v. Skoczen, --- F.3d ---, No. 03-1960, 2005 WL 949051, at *10 (7th Cir. Apr. 20, 2005)
(“Even under an advisory regime, if a district court makes a mistake in calculations under the
Guidelines, its judgment about a reasonable sentence would presumably be affected by that error
and thus (putting aside the implications of plain error review) remand would be required just as
before.”); United States v. Crosby, 397 F.3d 103, 111-112 (2d Cir. 2005) (“A judge cannot satisfy
this duty [to consider the Guidelines recommendation] by a general reference to the entirety of the
Guidelines Manual, followed by a decision to impose a ‘non-Guidelines sentence.’”). We continue,
in reviewing individual Guidelines determinations, to apply the standards of review we applied prior
to Booker. See Chriswell, 401 F.3d at 463; cf. United States v. Hughes, 401 F.3d 540, 556-57 (4th
Cir. 2005). Accordingly, for purposes of determining the Guidelines recommendation, we continue
to accept a district court’s factual finding that a defendant possessed a firearm during a drug crime
unless it is clearly erroneous, United States v. Solorio, 337 F.3d 580, 599 (6th Cir.), cert. denied, 540
U.S. 1063, 1067 (2003), but to subject a district court’s finding on a mixed question of law and fact
— such as the existence of a substantial risk of harm to human life under U.S.S.G. § 2D1.1(b)(5)(B)
— to de novo review. United States v. Layne, 324 F.3d 464, 468 (6th Cir.), cert. denied, 124 S. Ct.
270 (2003); see also Chriswell, 401 F.3d at 463.
        1. Characterization of Mrs. Davidson’s Plea Agreement Under Rule 11
        Prior to determining whether the district court erred in applying the Firearm Enhancement
to Mrs. Davidson’s sentence, we must determine whether the district court correctly concluded that
it was not bound by the government’s “stipulation” in Mrs. Davidson’s plea agreement. We review
de novo a district court’s application of the Federal Rules of Criminal Procedure. See United States
v. Burke, 345 F.3d 416, 421 (6th Cir. 2003), cert. denied, 124 S. Ct. 1731 (2004). As an initial
matter, we note that we are troubled by the plea agreement’s use of the phrases “[t]he United States
agrees that” and “the United States agrees and stipulates that” in reference to different portions of
the government’s sentencing recommendation. Joint Appendix (“J.A.”) at 44 (Mrs. Davidson’s Plea
Agreement) (emphasis added). Such a clear distinction in language could suggest to a defendant,
unlearned in the intricacies of federal sentencing law, that the government’s recommendation was
somehow binding on the court in regard to the portion of the plea agreement where the “and
stipulates” language was used. J.A. at 44 (Mrs. Davidson’s Plea Agreement).
      Nonetheless, we must conclude that the district court was correct in determining that Mrs.
Davidson’s plea agreement was not entered under Rule 11(c)(1)(C). First, several statements during
Nos. 03-6544/6549 United States v. Davidson et al.                                                               Page 6


the Rule 11 hearing suggest that the parties and the district court understood the portion of the plea
agreement addressing the Firearm Enhancement to be a recommendation pursuant to Rule
11(c)(1)(B), which does not bind the district court, rather than an agreement pursuant to Rule
11(c)(1)(C), which binds the district court once it accepts the plea agreement. See, e.g., J.A. at 206,
Record (“R.”) 63 at 13 (Rearraignment) (statement by the Assistant U.S. Attorney (“AUSA”)
responsible for this case) (“The parties have entered into guideline recommendations and
calculations for the Court, understanding they’re only recommendations.”); J.A. at 214 , R. 63 at 21
(Rearraignment) (statement by the Court) (“Now, do you understand that until that process has been
followed [i.e., preparation of the PSR], until the reports have been prepared and until they have been
reviewed and any objections resolved, that it would be impossible for the Court or for your attorneys
to know exactly what the guideline range would be that would be called for in each case? Do you
each understand that?”); J.A. at 215-16, R. 63 at 22-23 (Rearraignment) (statement by the Court)
(“However, do [you] each understand that you would not have the right to withdraw your plea of
guilty on the grounds that your prediction or your attorney’s belief as to the guideline range might
prove to be inaccurate? Do you each understand that?) (emphasis added). Second, policy statements
in the U.S. Sentencing Guidelines make it clear that the Guidelines do not envision sentencing courts
being bound by factual stipulations in a plea agreement. U.S.S.G. § 6B1.4(d); United States v.
Treadway, 328 F.3d 878, 884 (6th Cir.), cert. denied, 124 S. Ct. 166 (2003); see also United States
v. Gaines, 888 F.2d 1122, 1123 (6th Cir. 1989). Third, Rule 11(c)(4) requires the district court to
“inform the defendant that to the extent the plea agreement is of the type specified in Rule
11(c)(1)(A) or (C), the agreed disposition will be included in the judgment,” but no such statement
regarding a Rule 11(c)(1)(C) plea appears in the record of this case. See FED. R. CRIM. P. 11(c)(4).
        In this case, a review of the rearraignment transcript suggests that both the district court and
the government believed that the plea agreement had been entered under Rule 11(c)(1)(B). By
contrast, the plea agreement itself was silent as to whether it was entered under Rule 11(c)(1)(B) or
Rule 11(c)(1)(C). Given the district court’s statements at the rearraignment hearing that the plea
agreement was nonbinding and not subject to withdrawal, and the absence of any explicit mention
of Rule 11(c)(1)(C) in either the plea agreement     or the rearraignment transcript, we conclude that
the plea was entered under Rule 11(c)(1)(B).6 In the future, however, we note that it would be good
practice for district judges, as a matter of course, to state explicitly on the record prior to accepting
a plea agreement containing a purported “stipulation” by the government whether they understand




         6
           We emphasize that we do not condone the behavior of the Assistant U.S. Attorney (“AUSA”) responsible for
this case at the district court. The AUSA’s behavior was, at a minimum, inconsistent with the spirit of the plea
agreement, in which the United States agreed to recommend to the district court that the Firearm Enhancement not be
applied against Mrs. Davidson. However, despite this representation, the United States did not object to the Presentence
Report (“PSR”) prepared in regard to Mrs. Davidson, did not request at sentencing that the district court reconsider the
probation office’s recommendation, and did not make any objection after the district court imposed a sentence clearly
contrary to the recommendation and stipulation in the plea agreement. J.A. at 227-293, R. 85 at 1-67 (Sentencing Hr’g);
see J.A. at 331, R. 70 (“Please be advised that the United States has no objections to the presentence report prepared on
the above-named defendant [Mrs. Davidson].”) (letter from the AUSA responsible for this case to the probation officer
responsible for Mrs. Davidson’s presentence report, dated October 22, 2003); J.A. at 270-76, R. 85 at 44-50 (Sentencing
Hr’g) (AUSA fails to say anything in support of Mrs. Davidson’s argument that the Firearm Enhancement should not
be applied to her); J.A. at 291, R. 85 at 65 (AUSA fails to object after the court applies the Firearm Enhancement to Mrs.
Davidson). Instead, the AUSA made a statement for the record that “it was never the United States’ position for [Mrs.
Davidson’s plea agreement] to be an 11.(c)(1)(C) plea,” J.A. at 282, R. 85 at 56 (Sentencing Hr’g) (statement of the
AUSA), and re-cross-examined Mr. Davidson in a manner which appears explicitly designed to emphasize Mrs.
Davidson’s connection to the gun. See J.A. at 243, R. 85 at 17 (Sentencing Hr’g) (Mr. Davidson Test.). In a situation
where the United States had obtained guilty pleas from two defendants only after it had “agree[d] and stipulate[d],” J.A.
at 44, R. 71 at 4 (Mrs. Davidson’s plea agreement); J.A. at 51, R. 72 at 4 (Mr. Davidson’s plea agreement), that Mrs.
Davidson should not be assessed the Firearm Enhancement, such acts and omissions fall far below the standard of
conduct expected of federal prosecutors.
Nos. 03-6544/6549 United States v. Davidson et al.                                                               Page 7


any portions of that agreement to be governed by Rule 11(c)(1)(C).7 Such a practice would help
ensure that no defendant is unfairly surprised by a district court’s decision not to accept a
“stipulation” by the prosecution.
         2. Application of Firearm Enhancement as to Mrs. Davidson
        For purposes of determining the Guidelines recommendation, the district court’s
determination that the Firearm Enhancement applied to Mrs. Davidson would not be error. As we
noted before the Booker decision, “[e]nhancement analysis under § 2D1.1(b)(1) has two parts.”
Solorio, 337 F.3d at 599. First, to meet its initial burden, the government must show “by a
preponderance of the evidence   that the defendant possessed the firearm” while committing a drug
trafficking offense. Id.8 Second, if the government is successful in meeting its initial burden, the
burden “shifts to the defendant to demonstrate that it was clearly improbable that the weapon was
connected to the offense.” Id. (internal quotations omitted). “Only if the defendant can make this
showing does the enhancement not apply.” Id.
         Reviewing for clear error, we do not believe it would be improper for the district court to
apply the Firearm Enhancement for purposes of determining the recommended Guidelines sentence.
Despite the stipulation in the plea agreement to the contrary, sufficient evidence existed to allow the
district court to conclude, for purposes of the now non-mandatory Guidelines recommendation, that
both prongs of the § 2D1.1(b)(1) test had been satisfied. In particular, Mr. Davidson’s testimony
at the sentencing hearing suggested that Mrs. Davidson may have used the gun for protection when
Mr. Davidson was not at home. Given the presence of large quantities of drugs on the couple’s
property, we cannot conclude that it was error for the district court to conclude that it was not
“clearly improbable” that the gun was connected to Mrs. Davidson’s drug possession offense.
Accordingly, on remand, it would not be error for the district court to apply the Firearm
Enhancement for purposes of determining the Guidelines recommendation.
         3. Substantial-Risk-of-Harm Enhancement
         Both Mr. and Mrs. Davidson assert that the district court erred in applying the Substantial-
Risk-of-Harm Enhancement to their sentences. As the same methamphetamine lab was involved
in both convictions, we discuss the claims of Mr. and Mrs. Davidson together. In determining
whether the Substantial-Risk-of-Harm Enhancement can be applied in calculating the Guidelines
recommendation, we must consider de novo the four factors set out in Comment 20 to § 2D1.1.
These can be summarized as: (i) quantity of hazardous materials and manner in which they were
stored; (ii) manner of disposal of hazardous materials and likelihood of release into the environment;
(iii) duration and extent of the manufacturing operation; and (iv) location of the lab and the number
of lives placed in “substantial risk of harm.” See U.S.S.G. § 2D1.1, cmt. 20.
       The district court found that the first and third factors did not suggest that the enhancement
should be applied, as there was neither a large quantity of material nor evidence that the lab had
been in operation for any extended period of time (this was apparently the first manufacturing




         7
          We are not presented with, and accordingly do not address, a question as to the effect of Booker on Rule
11(c)(1)(C) pleas more generally.
         8
          This “[p]ossession may be actual or constructive.” United States v. Solorio, 337 F.3d 580, 599 (6th Cir.), cert.
denied, 540 U.S. 1063, 1067 (2003). “To establish constructive possession, the government must show that the
defendant had ownership, dominion, or control over the firearm or dominion over the premises where the firearm is
located.” Id. (internal quotations and brackets omitted).
Nos. 03-6544/6549 United States v. Davidson et al.                                                         Page 8


attempt).9 However, the court found that second and fourth factors did suggest that the enhancement
should be applied. In regard to the second factor, the district court noted that there was no evidence
of any plans for proper disposal of the materials and concluded that it was “fair for the Court to
assume” that this meant the materials would not be disposed of in an environmentally safe manner.
J.A. at 279, R. 85 at 53 (Sentencing Hr’g). In regard to the fourth factor, the court acknowledged
that the lab was in a remote area, distant from the couple’s residence and from any other residence.
Nonetheless, the district court concluded that a significant number of lives were placed at substantial
risk of harm because the lab area of the barn was padlocked, which “gives rise to the fact that if there
was a problem that someone could be locked inside or locked outside that could prevent or could
not provide assistance if it were needed,” and the officers on the hazardous materials team “had to
go into a very hazardous situation.” J.A. at 280, R. 85 at 54 (Sentencing Hr’g).
       We disagree with the district court. In regard to the second factor, our decision in Layne
teaches that an absence of evidence of plans for proper disposal is not itself sufficient to make the
second factor weigh in favor of applying the enhancement. See Layne, 324 F.3d at 470. In Layne,
we noted:
       A law enforcement officer testified that, in laboratories such as this one, the
       methamphetamine producers usually dispose of waste through drains in the
       apartment. It is not clear, however, that this occurred here. Although it seems likely
       that Defendants disposed of hazardous chemicals via the drains in the apartment, it
       is not clear what impact such disposal would have had on the environment.
       Accordingly, this factor is indeterminate.
Id. (emphases added). We read Layne as suggesting that, in the absence of any evidence suggesting
that hazardous materials were actually disposed of in an improper manner, it is not appropriate for
the district court to speculate that they would be.
         In regard to the fourth factor, the Davidsons argue that a methamphetamine lab located in
a locked barn loft in a remote location is, relatively speaking, one of the least hazardous possible
types of illegal methamphetamine manufacturing operations. We agree. The methamphetamine lab
in this case was clearly less dangerous to human life than the lab involved in Layne, where we did
affirm a Substantial-Risk-of-Harm Enhancement. See id. at 474. In Layne, we described the
location of the lab involved as follows:
       The laboratory was in Dick’s apartment, which itself is in a large apartment complex
       in a densely settled area near a number of other apartment complexes. Dick’s
       apartment is within an eight-unit structure. At the time the search warrant was
       executed — while Defendants manufactured methamphetamine — the other seven
       units were occupied. An elementary school is housed nearby, and a creek flows
       through the apartment complex and empties into the Tennessee River.
Id. at 471. The lab operated by the Davidsons did not pose nearly so severe a danger as a lab in a
densely populated residential area.
        We also disagree with the district court’s conclusion that the presence of a padlock on the
door to the barn loft increased, rather than decreased, the risk to human life involved. First, had the
lab not been locked, there would have been a substantial risk to curious children or passersby who
might decide to explore the barn loft. Second, there is no evidence to suggest that the loft was ever
locked while someone was inside the lab working with the hazardous materials. Accordingly, the


       9
           The district court did not explicitly address the manner in which the substances were stored.
Nos. 03-6544/6549 United States v. Davidson et al.                                            Page 9


presence of a padlock militates against the application of the Substantial-Risk-of-Harm
Enhancement.
        While all methamphetamine production operations pose some risk, a locked barn loft in a
remote location is one of the (relatively) safer places a person could set up an illegal
methamphetamine lab. There is no indication in the record that this operation involved an unusually
large quantity of hazardous materials, existed for an unusually long period of time, or actually
resulted in the disposal of the materials in a way harmful to human life or the environment. Neither
the language of § 2D1.1(b)(5)(B) nor its commentary suggests that the Substantial-Risk-of-Harm
Enhancement should be applied any time methamphetamine is manufactured in anything less than
professional laboratory conditions. We conclude that, on remand, it would be error for the district
court to apply the Substantial-Risk-of-Harm Enhancement for purposes of determining the
recommended Guidelines sentence.
                                       III. CONCLUSION
        We conclude that, pursuant to Booker, the district court plainly erred in applying the Firearm
Enhancement and the Substantial-Risk-of-Harm Enhancement, on the basis of judge-found facts,
as part of the (formerly mandatory) Guidelines sentencing system. Moreover, we conclude that the
Substantial-Risk-of-Harm Enhancement cannot properly be applied, on the facts of this case, for
purposes of determining the recommended Guidelines sentence. Accordingly, we VACATE the
sentences of both Mr. and Mrs. Davidson and REMAND the cases to the district court for further
proceedings consistent with this opinion and with the Supreme Court’s decision in Booker.
Nos. 03-6544/6549 United States v. Davidson et al.                                        Page 10


                                    _____________________
                                       CONCURRENCE
                                    _____________________
         JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in all of Judge Moore’s
opinion except for footnote 6. Footnote 6 appears to impose a duty on federal prosecutors to
reiterate a recommendation in a plea agreement at every possible step in the proceeding, even when
the recommendation is inconsistent with the true facts. Ideally, a recommendation that the district
court not apply a particular enhancement should be based on an expectation that the court will find
that facts supporting the enhancement do not exist. Sometimes, however, the government’s
information is imperfect, and either the presentence report or evidence at the sentencing hearing
reveals an inconsistency between the true facts and the factual findings necessary to support a
decision that an enhancement does not apply. Here, while we do not know what information the
parties had when they entered into the plea agreement, we know that both the presentence report and
evidence at the sentencing hearing support application of the firearm enhancement to Mrs. Davidson.
In this type of situation, a prosecutor’s vigorous advocacy of factual findings that do not comport
with reality is itself problematic. Moreover, a prosecutor can adhere to a recommendation of a plea
agreement without repeating its terms at every opportunity. The district court was of course fully
aware of the terms of the plea agreement and was required to make its findings based on the record.
All the parties knew this, and the prosecutor had to make a judgment call about an appropriate
course of conduct, given the circumstances. I cannot say that the prosecutor here chose wrongly.
