                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5037


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JONATHAN WAYNE KEESEE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:10-cr-00047-JPJ-PMS-1)


Submitted:   June 11, 2012                 Decided:   December 5, 2012


Before GREGORY, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Jonathan Keesee appeals his convictions and 90-month-

plus-one-day       sentence     imposed      following        his   guilty     plea     to

offenses involving the manufacturing of methamphetamine.                           Keesee

contends that the district court clearly erred in finding that

his manufacturing of methamphetamine created a substantial risk

of harm to the life of a minor and that his sentences for both

manufacturing methamphetamine, 21 U.S.C. § 841(a)(1) (2006), and

manufacturing or attempting to manufacture methamphetamine in a

manner that creates a substantial risk of harm to human life, 21

U.S.C. § 858 (2006), violate the Double Jeopardy Clause.                           Keesee

also contends that the district court abused its discretion in

imposing its       sentence.          The   parties     were   directed       to   submit

supplemental briefing regarding whether application of the risk

of harm enhancement of USSG § 2D1.10(b)(1)(B), * in addition to

the consecutive sentence imposed pursuant to 21 U.S.C. § 860a

(2006), results in improper double counting.                   We affirm.

            Keesee      pled    guilty      to   four    of    five    counts      in   an

indictment       that   charged       him   with     conspiracy       to    manufacture

methamphetamine,        manufacture         of   methamphetamine,           creating     a

substantial      risk   of     harm    to    human    life     while       manufacturing


     *
          U.S.    Sentencing      Guidelines         Manual,    §     2D1.10(b)(1)(B)
(2010).



                                            2
methamphetamine,              and        the        manufacture,             distribution,                 and

possession         with           intent        to         manufacture             and         distribute

methamphetamine on premises in which an individual under the age

of 18 years was present and resided.

              At    sentencing,            Keesee          objected        to      the     recommended

enhancement        to    his      sentence          under       USSG     § 2D1.10(b)(1)(B)                 for

manufacturing           methamphetamine              in        a    manner         that        created      a

substantial risk of harm to the life of a minor.                                           He asserted

that    the   methamphetamine                 lab    was       small,     produced         only        eight

grams of methamphetamine, and that the minor children who lived

in   the   house        were      removed        during         the      gassing      phase       of       the

manufacturing.               He   presented          the    testimony         of     a    chemist          who

testified concerning the method of manufacturing used by Keesee,

and opined that there was insufficient evidence to support a

finding of a substantial risk of harm to the minors.

              After hearing evidence on the risk of harm issue, the

court      determined             that     the       Government              had     proven           by     a

preponderance           of    the    evidence,           that       the      “children,          that       is

minors,     were    residents            of    the       home      and    present         in    the     home

during the so-called cooking or cook process of the manufacture

of     methamphetamine             at    the        time.”             The      court          found       the

Government’s evidence more persuasive as to whether there was a

substantial        risk       of     harm       to       the       minors,      and       applied          the

enhancement.

                                                     3
            The    court    rejected     Keesee’s     request      for   a   below-

Guidelines sentence, finding that a within-Guidelines sentence

reflected the seriousness of the offense and its consideration

of the sentencing factors.              The court sentenced Keesee to 78

months of imprisonment on the conspiracy and the manufacturing

charges, and a consecutive sentence of 12 months and one day on

the manufacturing while creating a substantial risk of harm to a

minor charge, for a total sentence of 90 months and one day.

            Keesee first challenges the district court’s factual

finding that his method of manufacturing methamphetamine created

a substantial risk of harm to the life of a minor, warranting

the increased offense level under USSG § 2D1.10(b)(1)(B).                        In

determining       whether    this      enhancement    applies,       courts    may

consider:       (1) the quantity of chemicals found at the lab and

the manner of storage; (2) the manner in which the hazardous

substances were disposed of and the likelihood of release into

the environment; (3) the duration of the offense and the extent

of the manufacturing; and (4) the location of the lab and how

many   people     were   placed   at    substantial    risk   of    harm.     USSG

§ 2D1.10 cmt. n.1; United States v. Simpson, 334 F.3d 453 (5th

Cir. 2003).

            Keesee contends that the court failed to consider all

the factors and that the Government’s evidence was inconsistent

and insufficient to support the enhancement.              The district court

                                         4
found    that    the     facts   presented      at    trial    indicated          that    the

minors were residents of the home and were present during the

cooking    process,       but    not    during       the    gassing       stage    of     the

manufacture.       The court further credited the Government’s expert

and found that there was a substantial risk of fire based on the

manner     of     manufacturing         methamphetamine            used     by     Keesee.

Addressing the factors to consider in determining the amount of

risk,     the    court    focused      on   the      risk     of    fire     during       the

manufacturing, and the location of the methamphetamine lab in

the basement of the home, directly under the rooms in which the

minor children slept.

            Keesee presented evidence that his one-pot method of

cooking     methamphetamine          used   Coleman        fuel,     which       was     less

flammable       than   the   other     three    starter      fluids       that    could    be

used.     He also presented evidence that the use of less water

decreased the hazardousness of the cooking process because, as

the Government’s chemist testified, “the more water, typically

the more reactive the lithium will be.”                      However, there was no

evidence that Keesee actually used less water than was used in

the Government’s experiments in which one of the twelve failed

experiments resulted in fire when using Coleman fuel.                               As the

district court noted, Keesee’s expert did not testify that there

was not a substantial risk of harm; rather, he testified that he



                                            5
could not state that there existed a substantial risk to human

life based on Keesee’s manufacturing process.

               The Government presented evidence that in controlled

experiments      conducted    by    the   Drug    Enforcement     Administration,

Coleman fuel resulted in bottle failure upon the reaction of

water    and    lithium,   which     then     caused     the   “contents   [of   the

bottle], including the flammable Coleman fuel, to be ejected and

igniting the surroundings.”           This testimony established that the

methamphetamine manufacturing method used by Keesee created a

risk of fire.       Further, although there was no actual fire during

the two times that Keesee cooked methamphetamine, this does not

mean that there was not a risk.                  See United States v. Bivens,

129 Fed. App’x 159, 165 (6th Cir. 2005) (“The guidelines do not

require the sentencing court to find that the . . . children

were actually harmed by the . . . production of methamphetamine,

. . . only that their lives were placed at substantial risk.”).

As the district court stated, “the likelihood of substantial

harm to minors who lived there through a fire occurring at the

home would still exist even if it had not occurred in the past.”

See United States v. Layne, 324 F.3d 464, 470-71 (6th Cir. 2003)

(explaining that enhancement for substantial risk of harm to

minors    was     “designed    to     address      the    inherent    dangers     of

methamphetamine       manufacturing”).              We     conclude    that      the

enhancement was supported by the evidence, and therefore not

                                          6
clearly erroneous. See United States v. Carter, 601 F.3d 252,

254 (4th Cir. 2010) (providing standard).

               Keesee        next    argues     that       his     conviction           for     both

manufacturing methamphetamine and manufacturing methamphetamine

in   a   manner       that     creates    a    substantial             risk    to     human    life

violates the Double Jeopardy Clause because the latter offense

includes all of the elements of the former.                             He argues that the

crime    of    manufacturing          methamphetamine             is    a     lesser     included

offense       of    the     crime    of   manufacturing           methamphetamine              in   a

manner that creates a substantial risk of harm to human life.

               The    Double        Jeopardy    Clause       of     the       Fifth     Amendment

protects criminal defendants from repeated prosecutions for the

same offense, Oregon v. Kennedy, 456 U.S. 667, 671 (1982), and

from     multiple         punishments        for     the     same       offense.              United

States v.          Martin,    523     F.3d     281,    290       (4th       Cir.    2008).          A

defendant may be convicted of two separate offenses arising from

a    single    act     if     each    charge       requires       proof       of    a   fact    not

essential to the other.                United States v. Dixon, 509 U.S. 688,

696 (1993).

               In Blockburger v. United States, 284 U.S. 299, 304

(1932), the Supreme Court held that, “where the same act or

transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there

are two offenses or only one, is whether each provision requires

                                                7
proof of a fact which the other does not.”                                   Albernaz v. United

States,   450       U.S.   333,         333    (1981).              Here,    the    manufacturing

count,    21    U.S.C.     §    841(a)(1),               proscribes         the    manufacturing,

distribution,         dispensing,              or        possession          with        intent     to

manufacture, distribute or dispense a controlled substance.                                        Id.

Section    858      penalizes        a    person             who,   “while     manufacturing         a

controlled substance [ ] or attempting to do so, or transporting

or causing to be transported materials, including chemicals, to

do so, creates a substantial risk of harm to human life.”                                           21

U.S.C. § 858.

               Each of these statutes requires proof of an element

that the other does not.                  Section 858 requires that the conduct

“create[] a substantial risk of harm to human life.”                                        Section

841 requires that the person actually manufacture, distribute,

dispense,      or    possess        a    controlled             substance.          We    conclude,

therefore, that the offenses are two separate crimes, and not a

crime and a lesser included offense.                               See Albernaz, 450 U.S. at

333; Blockburger, 284 U.S. at 304.

               Moreover,       we       note   that           21    U.S.C.    § 841(a)(1),         the

purported “lesser” offense, carries a greater penalty than the

purportedly      “greater”          offense,            21    U.S.C.    § 858.           Compare    21

U.S.C. § 841(b)(1)(A)-(C) (providing for maximum sentences of

twenty    years      to    life         imprisonment,               depending       on    the     drug



                                                    8
quantity), with 21 U.S.C. § 858 (providing a maximum sentence of

ten years).

            Additionally,              §   858   applies     only       to    a    person     who,

“while manufacturing a controlled substance in violation of this

subchapter, or attempting to do so . . . creates a substantial

risk of harm to human life” and provides for a sentence of up to

ten years.           Because it is necessary to have violated another

statute    in       “this    subchapter”         in    order      to     be       convicted    of

violating       §     858,   we        conclude       that    Congress            intended    for

additional and cumulative punishment for these two offenses, see

Missouri v. Hunter, 459 U.S. 359, 367 (1983); Albernaz, 450 U.S.

at 341 (explaining that it is presumed that Congress legislates

with an awareness of other statutes and an awareness of the

Blockburger         rule),       and       therefore       find    no    Double        Jeopardy

violation.

            Finally, Keesee also contends that the district court

abused its discretion in sentencing him to a total term of 90

months    and       one   day,    the      middle     of   the    applicable         Guidelines

range, after stating that a sentence “at the lower end of th[e

78 to 97 month] range” was appropriate.                                As to this issue,

Keesee argues that the court failed to consider Application Note

22 to USSG § 2D1.1, which requires the court, when imposing a

consecutive sentence pursuant to 21 U.S.C. § 860a, to determine

the “‘total punishment’ and divide the sentence on the judgment

                                                 9
form between the sentence attributable to the underlying drug

conduct    and   the     sentence       attributable         to       21   U.S.C.    §    860a.”

USSG § 2D1.1 cmt. n.22; see United States v. Green, 436 F.3d

449, 459-60 (4th Cir. 2006).                      He contends that his sentence

should be vacated and his case remanded for resentencing.

            We    review      a    sentence       under      a       deferential     abuse    of

discretion standard.              Gall v. United States, 552 U.S. 38, 51

(2007).     This    court         may   presume       that       a    sentence     within    the

properly calculated Guidelines range is reasonable.                                      Rita v.

United    States,      551    U.S.      338,    351     (2007).            Section       3553(a)

provides    that,        in       addition      to     considering           the     standard

sentencing factors, the court must consider the sentencing range

for the offenses of conviction and also “any pertinent policy

statement    issued      by       the   Sentencing        Commission.”              18    U.S.C.

§ 3553(a)(4), (5).

            The district court found that a sentence within the

calculated 78 to 97 month Guidelines range was appropriate in

light of the seriousness of the offense, the dangerousness of

manufacturing methamphetamine, and the need for deterrence.                                  The

district court also acknowledged that it was required to impose

a consecutive sentence for the § 860a charge.

            In imposing sentence, the court, in accordance with

the   directive     in   Application           Note    22,       stated     that    the    total

sentence was to be 90 months and one day.                             The court then broke

                                             10
that sentence down into the 78-month term for the drug charge

and     the     consecutive          12-month-plus-one-day             term     for    the

endangerment offense.               Although the court had previously noted

that a sentence at the low end of the Guidelines range was

appropriate,       the       government     argues      that   this    statement      might

well have been in reference to the sentence for the underlying

drug charges, for which the court sentenced Keesee at the bottom

of the advisory Guideline range.                        In any event, the district

court’s statement is, at best for Keesee’s position, ambiguous.

Given     the     presumption         of     reasonableness          accorded    within-

Guidelines       sentences       like      the    one    at    issue    here,   we    find

Keesee’s reliance on an ambiguous phrase plucked from a full

sentencing proceeding insufficient to warrant relief.

              After reviewing the supplemental briefs, we conclude

that there was no reversible error in the application of both

the risk of harm enhancement and the consecutive sentence under

§ 860a.         “The    Sentencing      Commission         plainly     understands     the

concept of double counting, and expressly forbids it where it is

not intended.”           United States v. Williams, 954 F.2d 204, 208

(4th Cir. 1992).             Thus, it is presumed that “double counting is

proper    where        not     expressly     prohibited        by     the   Guidelines.”

United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010).

              Applying        the    greatest        applicable        enhancement     for

Keesee’s specific offense characteristics related to the drug

                                             11
offenses results in an increase in Keesee’s offense level to

level     30,     based     on     the        fact       that     his     manufacturing         of

methamphetamine created a substantial risk of harm to the life

of a minor.        USSG § 2D1.1(b)(10)(D).                     Nowhere do the Guidelines

prohibit the application of the § 2D1.1(b)(10)(D) enhancement

for risk of loss in combination with the consecutive sentence

imposed pursuant to 21 U.S.C. § 860a.

            Moreover,         the        consecutive            sentence      imposed        under

§ 860a    did     not     result       in     a   greater        sentence.          Rather,     as

directed in Application Note 22, the court first determined the

total     sentence      for      all     of       Keesee’s       convictions,         and     then

divided that sentence between the drug charge (78 months) and

the consecutive term under § 860a (12 months plus one day).                                    See

USSG § 2D1.1 cmt. n.22; Green, 436 F.3d at 459-60.                                  We conclude

that there was no plain error by the district court in applying

both the risk of harm enhancement and the consecutive sentence.

See     United    States      v.       Olano,          507   U.S.     725,    732-37        (1993)

(providing standard).

            Accordingly,            we      affirm           Keesee’s      convictions         and

sentence.        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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