                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       March 2, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                 No. 05-40419
                               Summary Calendar



                          UNITED STATES OF AMERICA,

                             Plaintiff-Appellee,

                                    versus

                          DAVID JOSEPH DEFFEBO, JR.,

                             Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                          USDC No. 3:03-CR-8-1
                          --------------------

Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

     David Joseph Deffebo, Jr., appeals his conviction and sentence

for conspiracy       to   manufacture   and   distribute   methamphetamine,

possession of a firearm by an unlawful user of a controlled

substance,     and   maintaining    a   residence   for    the   purpose     of

manufacturing, distributing, or using methamphetamine.              He argues

that (1) the district court erred in denying him relief under

Franks v. Delaware, 438 U.S. 154 (1978); (2) the district court

clearly erred in its application of U.S.S.G. §§ 2D1.1 (b)(5)(C),


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                       No. 05-40419
                                            -2-

(c)(10) (2003); and (3) his sentence contravened United States v.

Booker, 125 S. Ct. 738 (2005).              We affirm.

     Our review of the record convinces us that Deffebo was not

entitled    to       relief   under     Franks    because      the     district   court

correctly found that any misstatements contained in the search

warrant’s supporting affidavit were the result of mere negligence

on the part of the affiant-officer and were not made either

intentionally or with reckless disregard for the truth. See United

States     v.    Alvarez,        127    F.3d     372,    373    (5th     Cir.     1997).

Consequently, the good-faith exception to the exclusionary rule is

applicable.      See id.

     We further hold that the six-gram quantity of methamphetamine

attributed to Deffebo was supported by statements made during his

co-defendant’s presentence interview and Deffebo’s post-arrest

interview. Therefore, the district court’s U.S.S.G. § 2D1.1(c)(10)

finding did not constitute clear error.                       See United States v.

Infante, 404 F.3d 376, 393-94 (5th Cir. 2005).

     Similarly, the evidence also supported the district court’s

U.S.S.G.    §        2D1.1(b)(5)(C)      finding      that     Deffebo    “created    a

substantial risk of harm to the life of a minor.”                           The trial

testimony       of     Felicia    Pendergraft      and       Officer     Thomas   Moore

established that Pendergraft and her minor child lived in the

apartment adjacent to that of Deffebo in their duplex; that one

morning Pendergraft awoke to an overwhelming smell of fingernail

polish remover, which prompted her to remove her daughter from the
                                No. 05-40419
                                     -3-

home; and that acetone, an ingredient in fingernail polish remover,

is emitted during the highly volatile red-phosphorus method of

methamphetamine manufacture.             From this testimony, it can be

inferred that Pendergraft’s minor child was indeed present in the

duplex during at least one of Deffebo’s red-phosphorous-method

cooks, thereby subjecting the child to a substantial risk of harm

to life.

      Finally, we note that post-Booker, “[t]he sentencing judge is

entitled to find by a preponderance of the evidence all the facts

relevant to the determination of a Guideline sentencing range and

all   facts   relevant   to   the   determination   of   a   non-Guidelines

sentence.”    United States v. Mares, 402 F.3d 511, 519 (5th Cir.),

cert.   denied,   126    S.   Ct.   43    (2005).   Therefore,    Deffebo’s

contention that the district court was precluded from enhancing his

sentence based on facts that had not been either admitted by him or

found beyond a reasonable doubt by his jury is untenable.

      AFFIRMED.
