                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4786


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

BENJAMIN RAY STEFFEY,

                  Defendant – Appellant.



                              No. 08-5214


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

BILLY RAY FRANKLIN,

                  Defendant – Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Durham.    James A. Beaty, Jr.,
Chief District Judge; William L. Osteen, Jr., District Judge.
(1:07-cr-00428-JAB-6; 1:07-cr-00428-WO-2)


Submitted:    October 23, 2009              Decided:   November 10, 2009


Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Ames C. Chamberlin, LAW OFFICES OF AMES CHAMBERLIN, Greensboro,
North Carolina; John C. Fischer, RANDOLPH & FISCHER, Winston
Salem, North Carolina, for Appellants.       Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Benjamin Ray Steffey pled guilty pursuant to a plea

agreement to one count of conspiracy to possess pseudoephedrine,

knowing and having reasonable cause to believe that it would be

used to manufacture methamphetamine, in violation of 21 U.S.C.

§ 846   (2006).         After    granting       the    Government’s     motion    for    a

downward      variance      for        substantial       assistance       under       U.S.

Sentencing Guidelines Manual (“USSG”) § 5K1.1, p.s. (2007), the

district    court     sentenced        Steffey    to    28    months’   imprisonment.

Co-defendant Billy Ray Franklin pled guilty pursuant to a plea

agreement to conspiracy to manufacture and distribute 500 grams

or   more      of     methamphetamine            and     conspiracy      to      possess

pseudoephedrine, knowing and having reasonable cause to believe

it would be used to manufacture methamphetamine, in violation of

21   U.S.C.    §§ 841(b)(1)(A),          846     (2006).       The    district        court

sentenced      Franklin     to     a    within-Guidelines         sentence       of    188

months’ imprisonment.

              Steffey    and     Franklin      timely    appeal      their   sentences.

Steffey contends that the district court erred in refusing to

grant his request for a variance.                      Franklin contends that the

district      court     erred    in     enhancing       his   base    offense     level,

pursuant to USSG § 2D1.1(b)(10)(C)(ii), for a methamphetamine-

manufacturing offense that created a substantial risk of harm to

human life.      We affirm.

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             We review the sentence imposed by the district court

for abuse of discretion.           Gall v. United States, 128 S. Ct. 586,

591 (2007).      In conducting this review, we must first determine

that the court committed no significant procedural errors; if

the sentence is procedurally reasonable, we then consider its

substantive     reasonableness,          applying     an    abuse    of    discretion

standard.     United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009).       “Procedural errors include ‘failing to calculate (or

improperly     calculating)        the    Guidelines        range,    treating    the

Guidelines     as     mandatory,    failing      to    consider      the    § 3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence--including

an explanation for any deviation from the Guidelines range.’”

Id. (quoting Gall, 128 S. Ct. at 597).

             Steffey requested a downward variance of two offense

levels, arguing that, had his Guidelines range been calculated

pursuant to USSG § 2D1.1 instead of USSG § 2D1.11, he would have

qualified for the two-level offense level reduction associated

with   the    USSG    § 5C1.2   safety     valve.          Having    considered   the

parties’ arguments, the district court denied Steffey’s request

for a variance.         In sentencing Steffey, the court followed the

necessary procedural steps, including treating the Guidelines as

advisory, weighing the relevant 18 U.S.C. § 3553(a) factors, and

calculating     and     considering       the   applicable      Guideline     range.

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Steffey’s base offense level was calculated pursuant to USSG

§ 2D1.11.       Unlike USSG § 2D1.1, this section does not explicitly

provide for a two-level reduction if the defendant satisfies the

criteria of USSG § 5C1.2.                     USSG § 2D1.11; see United States v.

Saffo, 227 F.3d 1260, 1273 (10th Cir. 2000) (holding that, when

a   defendant’s           base      offense      level     is     calculated       under     USSG

§ 2D1.11,      he    is       not     eligible    for      the    safety     valve    reduction

under    USSG       § 2D1.1);           cf.   USSG     § 2D1.1(b)(11).             Accordingly,

Steffey’s      sentence          is     procedurally       reasonable.          Moreover,     we

cannot    say    it       was     an     abuse   of    discretion      for     the    court    to

decline to grant the two-level reduction.                             Hence, the sentence

was not substantively unreasonable.

               Franklin contends that the district court erred in its

application         of    USSG      §    2D1.1(b)(10)(C)(ii).               Specifically,     he

asserts       that       the     methamphetamine-manufacturing                activities       in

which he participated did not present a “substantial” risk to

human    life.           We     conclude        that    the      district    court     properly

applied the enhancement.

               The district court’s determination that the risk of

harm enhancement applies is a mixed question of fact and law

that     is    reviewed          de      novo    when,      as     here,     the     facts    are

undisputed.              United       States     v.    Houchins,      364    F.3d     182,    187

(4th Cir. 2004), vacated on other grounds, 543 U.S. 1104 (2005).

Section       2D1.1(b)(10)(C)(ii)(I)                  of   the     Sentencing        Guidelines

                                                  5
provides       for     a    three-level        increase      in     a     defendant’s       base

offense        level       if   the    offense      involved        the       manufacture     of

methamphetamine and created a substantial risk of harm to human

life.     In determining whether a substantial risk was created, a

court    should        consider:       (1)    the   quantity       of    any     chemicals   or

hazardous       or     toxic      substances,       and   the     manner       in   which   such

items were stored; (2) the manner in which the substances were

disposed, and the likelihood of release into the environment;

(3)     the     duration        of    the     offense,      and    the        extent   of    the

manufacturing operation; and (4) the location of the laboratory.

USSG § 2D1.1, cmt. n.20(A); see Houchins, 364 F.3d at 187-90.

               Here,        law       enforcement         officials           recovered     from

properties used by Franklin a 1000-pound tank containing 700

gallons of a hazardous chemical, anhydrous ammonia, along with

other, smaller tanks and other chemicals and implements used in

the manufacturing of methamphetamine.                       Franklin, members of his

family,        and     various        other    people       came        and     went   on    the

properties.          As a result of its improper storage, the highly

pressurized 1000-pound tank, the second largest ever recovered

in the United States, was at risk of explosion and the people

coming and going on the properties were at risk of death or

injury.        Further, a hazardous materials team was required to

clean up the properties and spent nine days draining the ammonia

from     the     1000-pound          tank.       Under      these       circumstances,       we

                                                6
conclude that the district court did not err in applying the

enhancement.

            Accordingly, we affirm the judgments of the district

court.     We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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