                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0269n.06
                             Filed: April 8, 2005

                                       Nos. 03-6667/04-5044

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                                  )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )    On Appeal from the United States
                                                          )    District Court for the Eastern
RHONDA BIVENS; GREGORY BIVENS,                            )    District of Tennessee
                                                          )
       Defendants-Appellants.                             )




Before:        BOGGS, Chief Judge; and COOK and BRIGHT, Circuit Judges.*

               PER CURIAM. Gregory and Rhonda Bivens, husband and wife, appeal the

sentences imposed by the district court after they were convicted of conspiracy to manufacture

methamphetamine, and other related offenses. They claim that the district court erred in imposing

a sentencing enhancement based on the substantial risk of harm to the Bivenses’ children caused by

the Bivenses’ methamphetamine production, and also in denying Rhonda Bivens a reduction for

playing only a minor role in the conspiracy.           They also claim that their sentences are

unconstitutional in light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). For the

reasons that follow, we hold that the district court correctly applied the substantial risk enhancement




       *
        The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
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United States v. Bivens

to the Bivenses’ sentences and did not err in denying a mitigating role adjustment to Rhonda Bivens,

but remand for resentencing under the now-advisory United States Sentencing Guidelines.

                                                 I

       On April 3, 2003, the McMinn County, Tennessee, Sheriff’s Department executed a search

warrant at the Bivenses’ residence. The officers found Rhonda and Gregory present. The Bivenses’

two children were at school. The officers smelled a chemical odor associated with the manufacture

of methamphetamine.       Rhonda Bivens, smelling of chemicals, and under the influence of

methamphetamine, screamed at the officers and tried to fight them, forcing them to subdue her.

       Inside the house, in a room next to the children’s bedroom, the officers found, among other

things, digital scales, baggies, a propane torch, pill grinders, a methamphetamine recipe, 8.4 grams

of methamphetamine, and five firearms. Two of the guns were loaded and in an unlocked drawer,

although Rhonda Bivens claimed that the drawer was normally locked. This room was separated

from the children’s room by a boarded-up window.

       In a garage, fifty feet from the house, officers found large amounts of methamphetamine lab

components, including muriatic acid, iodine, book matches, coffee filters, propane, and acetone.

Seven “burn pits” were found throughout the yard, and twenty-five bags of garbage were found in

Gregory Bivens’s pickup truck.

       On August 4, 2003, Rhonda Bivens pleaded guilty to conspiracy to manufacture

methamphetamine on April 3, 2003, and possession of a firearm while using narcotics. On the same

date, Gregory Bivens pleaded guilty to those two counts, and also to two other counts: possessing

equipment and materials used in the manufacture of methamphetamine, and possessing a firearm

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United States v. Bivens

while a felon. Gregory Bivens admitted manufacturing methamphetamine on a regular basis,

although he claimed that the only part of the process that took place in the house was the crushing

of pills. Rhonda Bivens admitted helping her husband by purchasing chemicals and equipment.

Both defendants claimed that they only manufactured methamphetamine when the children were not

home.

        The Bivenses objected to the drug amounts attributed to them, and to the six-level

enhancement they received pursuant to United States Sentencing Guidelines Manual (“USSG”)

§2D1.1(b)(5)(C) for creating a substantial risk of harm to their children by manufacturing

methamphetamine. Rhonda Bivens also claimed she was entitled to a mitigating role adjustment

pursuant to USSG §3B1.2 because she played only a minimal to minor role in the conspiracy.

        At the sentencing hearing, DEA Special Agent Isom testified that approximately one pound

of methamphetamine could be produced from the chemicals found on the Bivenses’ premises. He

also testified about the inherent dangers of methamphetamine production, including the risk of

explosion and the deadly chemical gases produced during production, both of which, he testified,

are potentially harmful to children. He acknowledged, though, that he based his testimony on his

general knowledge of the methamphetamine production process and the reports of the officers who

arrested the Bivenses. He admitted that he had no personal knowledge of their particular laboratory

or methamphetamine production.

        Rhonda Bivens testified that her husband used a non-standard methamphetamine formula

that resulted in lower than usual yields (and therefore a lower drug quantity for sentencing

purposes), and that because of his poor math skills she had to help him compute the chemical

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United States v. Bivens

amounts needed for each cook. She also testified that the day they were arrested she had convinced

her husband to stop cooking methamphetamine, and that the bags of garbage in his truck were the

drug manufacturing items they intended to throw away. She attributed most of the lab components

found in the garage (which was kept locked, but with a hidden key nearby) to a third-party associate

of the Bivenses, and claimed that the children were never present when the drug was produced, or

when any manufacturing waste was burned or destroyed. She also claimed that the children were

not allowed in the room where pills were ground and the weapons and methamphetamine were

stored. Finally, she testified that the children were taken to hospital after the Bivenses’ arrest, and

that to her knowledge they did not test positive for methamphetamine.

       After hearing the above testimony, the district court made several findings. First, the court

reduced the amount of drugs attributable to the Bivenses in light of Rhonda Bivens’s testimony

about the low-yield formula. Second, the court concluded that both Rhonda and Gregory Bivens

should receive an enhancement for the substantial risk of harm to their children caused by their

manufacturing activities. The court applied each of the factors required by USSG §2D1.1 in order

to find substantial risk of harm, finding that the Bivenses possessed a large quantity of hazardous

chemicals, that the manufacturing activities took place over a long period of time, that some of the

items used to manufacture methamphetamine were located in the house in close proximity to the

children, that the Bivenses’ addiction to methamphetamine and use of a propane torch to smoke the

drug in the house added to the danger to the children, and that the close proximity to the house of

the garage lab created a danger to the children because of the fumes generated. Third, the court

found that Rhonda Bivens had not played a minor role in the conspiracy, given her admitted

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United States v. Bivens

involvement in the manufacturing process, her help in calculating the amount of chemicals needed,

and her profiting from the manufacture of finished methamphetamine.

       The district court calculated Rhonda Bivens’s guideline range to be 108-135 months, and

sentenced her to 108 months of imprisonment. The court calculated Gregory Bivens’s guideline

range to be 121 to 151 months, and sentenced him to 121 months of imprisonment.

       The Bivenses timely appealed. Gregory and Rhonda Bivens both appeal the imposition of

a six-level enhancement for putting their children at substantial risk of harm. Rhonda Bivens also

appeals the district court’s denial of her request for a reduction based on her claimed minor role in

the conspiracy. In addition, the Bivenses claim that their sentences are unconstitutional in light of

United States v. Booker.

                                                 II

       “Whether the district court properly found the existence of a substantial risk of harm to

human life or the environment within the meaning of [USSG] §2D1.1(b)(6)(A) is a mixed question

of law and fact, and, as such, it is subject to de novo review.” United States v. Layne, 324 F.3d 464,

468 (6th Cir. 2003).1 Although it is no longer mandatory that defendants be sentenced in accordance

with the United States Sentencing Guidelines, sentencing courts must continue to give consideration

to the Guidelines. See Booker, 125 S. Ct. at 757, 764-65. Thus, it remains an important part of our



       1
        The guidelines section then numbered 2D1(b)(6)(a), which referred to harm to both minors
and the environment, has subsequently been split into multiple sections dealing with the
environment, minors, and human life in general. In 2003, the section dealing with harm to minors
was §2D1.1(b)(5)(C). It has subsequently been moved to §2D1.1(b)(6)(C), with no changes to the
relevant text.

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United States v. Bivens

appellate review function to determine what the Guidelines would call for under the particular facts

and circumstances of a given case. United States v. Bruce, 396 F.3d 697, 711 (6th Cir. 2005). This

court must review the district court’s statutory construction and interpretation of the now-advisory

sentencing guidelines de novo. United States v. Chriswell, __ F.3d __, 2005 WL 627557, 2005 U.S.

App. LEXIS 4509, at *12 (6th Cir. Mar. 18, 2005) (citing United States v. Bazel, 80 F.3d 1140, 1141

(6th Cir. 1996)).

       In the 2003 edition of the Sentencing Guidelines, §2D1.1(b)(5)(C) stated that: “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. If the resulting offense level

is less than level 30, increase to level 30.” Application Note 20(A) to that section lists the following

factors that a court must consider when determining the existence of a substantial risk of harm:

       (i) The quantity of any chemicals or hazardous or toxic substances found at the
       laboratory, and the manner in which the chemicals or substances were stored.
       (ii) The manner in which hazardous or toxic substances were disposed, and the
       likelihood of release into the environment of hazardous or toxic substances.
       (iii) The duration of the offense, and the extent of the manufacturing operation.
       (iv) The location of the laboratory (e.g., whether the laboratory is located in a
       residential neighborhood or a remote area), and the number of human lives placed
       at substantial risk of harm.

The district court considered each of these factors as follows:

       I have to look at the factors which are set out in Application Note 20 to Section 2D1.l
       on Page 134 of the guidelines book.
               One of those factors is the quantity of the chemicals, hazardous waste, or
       toxic substances found at the laboratory. Well, you’ve got a large quantity here . .
       ..
               The next is, as has been pointed out, the duration of the offense. Of course,
       there were children living here. And the duration is relatively long. You’re talking
       about five, about a five-month, six-month, five, six-month period from November

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United States v. Bivens

       to April. And so all of the time that during this time that they were making and using
       methamphetamine during this period of time, you had children living there. Some
       items, I think, it’s worthy of pointing out were stored in the house. You had some
       methamphetamine in the house . . . .
                And we do know, also, that the methamphetamine was being smoked and
       used in the house by the parents and using a torch to heat the pipe. That’s got to be,
       you know, I don’t know what kind of judgment somebody has using one of those
       methamphetamine torches at the same time that they’re smoking methamphetamine
       ....
                . . . And I think that then you have the methamphetamine being manufactured
       in, and it may well have been manufactured in the outbuilding in the garage, but, you
       know, that gas doesn’t stay in that garage, that gas gets out and floats out on the
       breezes. And we have that - I can almost take judicial notice, I think I’ve heard now
       evidence in hundreds of methamphetamine cases and many cases that involve a
       situation where people have smelled this stuff from a long way off. And I don’t
       think that’s any exception here. And I think it’s very likely that the children were
       able to smell this stuff being manufactured at one time or another, even if they
       weren’t there or even if the manufacturing wasn’t going on just at the very time that
       they happened to be there at the house. It’s very powerful stuff. And as one of the
       children in the other case that we’ll be dealing with here in a minute noticed, that
       stuff is really smelly, I think was the terminology used.
                And we have a situation here where Mrs. Bivens when the officers arrived
       basically was high on the stuff and attacked the officers. And so, you have, you
       know, I think that that’s a substantial risk to the children. This did occur in the
       morning, but the children were going to be coming home after school. What kind of
       a risk is there when the children come home and they find that their parents are high
       or just coming down from a high on methamphetamine. I think that it’s a substantial
       risk.
                And I think that for all of those reasons, it is appropriate to award the six
       levels here for the substantial risk of harm to the children under Section 2D 1.1
       (b)(5)(C) of the Federal Sentencing Guidelines.
                This doesn’t even include the burn pits in the backyard. There is no direct
       evidence here that the burn pits were actually used to burn waste from the
       methamphetamine manufacturing process, but I’ll bet they were. I think they were.
       There is no evidence, though of that. And we do know that there was all of that
       garbage in the back of the truck. So I think for all of those reasons that the six levels
       should be awarded.

(J.A. 174-77.) The Bivenses concede that the district court was correct in concluding that a large

quantity of chemicals were found, and that methamphetamine production had been ongoing for a

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United States v. Bivens

substantial period of time. They challenge, however, the district court’s findings regarding the

disposal of the chemicals and the proximity of the laboratory to the children. They claim that there

was no evidence before the court that the burn pits were used for anything other than burning

household garbage. And they argue that the evidence shows that the chemicals were stored, and

methamphetamine was manufactured, in the locked garage 50 feet from the house, and that no

evidence contradicts their assertions that they never cooked or used methamphetamine while the

children were present. They also object to the court’s use of an impermissible fifth risk factor,

namely the danger posed to the children by the Bivenses’ use of methamphetamine, as opposed to

the manufacture of methamphetamine.

        It is true that some of the district court’s analysis of the risk factors consists of musing on

the use of the burn pits, the inference from the fact that children in a different case testified that they

could smell chemicals during methamphetamine production to the conclusion that so too could the

Bivenses’ children, and concern about the risk posed by the Bivenses’ use of methamphetamine,

which is not, as the Bivenses, point out, one of the enumerated factors listed in §2D1.1(b)(5)(C).

The Guidelines do not require the sentencing court to find that the Bivenses’ children were actually

harmed by the Bivenses’ production of methamphetamine, however, only that their lives were

placed at substantial risk of harm. The district court’s inferences, based on the court’s familiarity

from other cases with the methamphetamine production process, about the likely use of the burn pits

to dispose of toxic waste from the manufacturing process, and the likelihood that odors from

methamphetamine production in the garage would reach the house fifty yards away are clearly

relevant to the court’s determination that the children were placed at risk. Relevant also are the

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United States v. Bivens

methamphetamine addiction of the Bivenses and the extremely poor judgment they exercised in

utilizing a blowtorch to smoke methamphetamine in the house. Central to the Bivenses’ argument

that they did not place their children at risk is their contention that they took extreme precautions

to protect the children from the dangers posed by the manufacturing process. As the district court

rightly noted, the credibility of that contention is severely undermined by the irresponsibility

demonstrated by the Bivenses in their other drug-related activities. Their claim to have restricted

the manufacturing process to the locked barn is also belied by the presence in the house of lab

components, such as pill-grinders, scales, and baggies, and of firearms and finished

methamphetamine. In short, the evidence before the district court demonstrates that the Bivenses

did indeed place their children at substantial risk of harm by manufacturing methamphetamine.

       Rhonda Bivens also argues that the very existence of the enhancement for substantial risk

of harm to minors is unconstitutional because it (a) constitutes cruel and unusual punishment in

violation of the Eight Amendment because it results in disparate treatment of defendants accused

of possessing different drugs, and (b) violates the Equal Protection Clause, because it discriminates

against parents. Neither claim has merit. In Layne, we rejected a similar Eighth Amendment

argument that a sentence issued under then §2D1.1(b)(6)(A) violated the Constitution “merely

because it is disproportionate to the sentences received by others who committed the same or similar

crimes.” 324 F.3d at 474. The equal protection argument fails because the sentencing enhancement

at issue does not penalize the defendants for being parents; it simply penalizes them for exposing

their children to criminal activities. The enhancement is not limited to parents, nor is the risk of

harm limited to a defendant’s offspring. See, e.g., United States v. Massey, 79 Fed. Appx. 832, 837

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United States v. Bivens

(6th Cir. 2003) (unpublished) (affirming application of substantial-risk enhancement when

methamphetamine was manufactured in a shed attached to a residence that housed a day care center).

Although it is probably true as a purely statistical matter that parents manufacturing

methamphetamine are more likely than non-parents to have children present, this fact alone does not

constitute evidence that parents are unlawfully discriminated against by the challenged

enhancement.

                                                III

       Rhonda Bivens argues that she was only a minor participant in the conspiracy to manufacture

methamphetamine, and was therefore entitled to at least a two-level decrease in her offense level

pursuant to USSG §3B1.2(b). She claims that no evidence was presented that she aided her

husband’s manufacture of methamphetamine after December 2002. She claims that the couple were

estranged between December 2002 and their arrest in April 2003, but that their straitened

circumstances forced them to remain in the same household.

       A defendant bears the burden of proving by a preponderance of the evidence she played a

mitigating or minor role. United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001). The

determination of whether a defendant qualifies for a mitigating-role reduction is “heavily dependent

upon the facts of the particular case.” USSG §3B1.2, comment. (n.3). As such, the district court’s

ruling on the issue is reviewed for clear error. United States v. Campbell, 279 F.3d 392, 396 (6th

Cir. 2002). Where more than one person is involved in an offense, §3B1.2(b) provides for a

two-level reduction “[i]f the defendant was a minor participant in any criminal activity.” A minor

participant is one “who is less culpable than most other participants, but whose role could not be

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United States v. Bivens

described as minimal.” USSG §3B1.2(b), comment. (n.5). A “minimal participant” is someone

“who plays a minimal role in concerted activity,” one who is “plainly among the least culpable of

those involved in the conduct of a group.” Id., comment. (n.4). “[T]he defendant’s lack of

knowledge or understanding of the scope and structure of the enterprise and of the activities of

others is indicative of a role as a minimal participant.” Ibid.

       As described in the commentary to USSG §3B1.2, whether or not a defendant is a “minor

participant” in a conspiracy depends upon factors such as her involvement relative to the other

participants, her knowledge of the scope of the activity, her understanding of the nature of the

jointly-undertaken offense, and her culpability with respect to the conduct that forms the basis of

her particular offense level. “‘[T]he salient issue is the role the defendant played in relation to the

activity for which the court held him or her accountable.’” Campbell, 279 F.3d at 396 (quoting

United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001)). In addition, “we have held that

downward departures under §3B1.2 are available only to a party who is ‘less culpable than most

other participants’ and ‘substantially less culpable than the average participant.’” Ibid. (quoting

United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir. 1993)). In this case, the district court found that

Rhonda Bivens took an active and regular role in the purchase of raw materials to be used in the

manufacture of methamphetamine. She knew and understood the recipe that she and her husband

used to manufacture methamphetamine, and she computed the necessary chemical amounts in order

to mix the formula correctly. The district court found that she had therefore played a significant role

in the manufacturing enterprise. In addition, the court found that not only had she profited from the

manufacture of the drug through the sales made by her husband and the amounts she consumed for

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United States v. Bivens

personal use, her drug habit may even have been the driving force behind the whole operation.

Finally, as the government points out, Rhonda Bivens’s claims that the children were never present

during methamphetamine manufacturing imply that she was always aware when her husband was

manufacturing the drug and when he was using it. She even claimed to know which components

found in the garage were attributable to her husband and which belonged to an associate. In short,

the record demonstrates that Rhonda Bivens had extensive knowledge of her husband’s

methamphetamine activity, and played a key and necessary role in the production of

methamphetamine at her residence. Considering these facts, the court did not clearly err in denying

Rhonda Bivens a mitigating role reduction.

                                                IV

       The Bivenses’ final claim is that their sentences were unconstitutional in light of United

States v. Booker. In United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), we held that remand of

a pre-Booker sentence is required absent “clear and specific evidence that the district court would

not have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines

regime.” See id. at 529-30. Accordingly, we VACATE the sentences of Rhonda Bivens and

Gregory Bivens and REMAND their cases to the district court for resentencing in light of Booker.




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