                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4107



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MARK JAMES KONSAVICH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:05-cr-00019-gec)


Submitted:   April 5, 2007                    Decided:   May 9, 2007


Before TRAXLER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron L. Cook, Harrisonburg, Virginia, for Appellant.      John L.
Brownlee, United States Attorney, Jean B. Hudson, Assistant United
States   Attorney,  OFFICE   OF   THE  UNITED   STATES   ATTORNEY,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Mark James Konsavich appeals his 235-month prison sentence

resulting from his conviction for conspiracy to manufacture and

distribute methamphetamine in violation of 21 U.S.C. § 846 (2000).

Konsavich contends that the district court erred in applying a six-

level enhancement for creating a substantial risk of harm to the

life of a minor, U.S. Sentencing Guidelines Manual § 2D1.1(b)(6)(C)

(2005); applying a two-level enhancement for an offense involving

knowing importation of illegal chemicals, id. § 2D1.1(b)(4); and

rejecting a two-level reduction under the “safety valve” provision,

id. § 5C1.2(b). In addition, Konsavich argues that this Court has

made the Sentencing Guidelines effectively mandatory in violation

of the Sixth Amendment.

     Between September 2004 and March 2005, Konsavich was involved

in a conspiracy to manufacture and distribute methamphetamine at

various locations in Virginia, Pennsylvania, and the District of

Columbia.     From   September   through   early   November,   Konsavich,

Stephani Dawson, David Vandevander, and Samuel Russo purchased

methamphetamine from a source in Atlanta, Georgia and resold the

drugs in Washington, D.C. In mid-November, Dawson, Russo, and

Konsavich traveled to a Pennsylvania hotel, where Konsavich, who

had worked as a chemist, unsuccessfully attempted to manufacture

methamphetamine. Konsavich attributed his failure to the poor

quality of the red phosphorous used in the attempt.


                                    -2-
       On November 27, 2004, Konsavich, Dawson, and Russo moved into

the    home   of    Joseph       Leonard,      located       at   2208    Readus      Road    in

Edinburgh, Virginia. Leonard lived in the house with his two-year

old daughter. Konsavich lived at the Readus Road house until

Christmas. During that time, Konsavich arranged for a contact in

Canada to ship pharmaceutical-grade red phosphorous to a location

in Niagara Falls, Canada. Konsavich then had David Lounsbury, an

unindicted      coconspirator,           drive       to    Canada      and    pick    up     the

phosphorous, which Lounsbury gave to Dawson.

       During      his    time    at    Readus       Road,    Konsavich       attempted       to

manufacture methamphetamine between five and eleven separate times,

with an approximate yield of ten to twelve grams of methamphetamine

per attempt. While most of the attempts were conducted in an

outbuilding        approximately            twenty    to     thirty      yards     from      the

residence, at least one attempt took place inside the home, when

Leonard’s     daughter          was   not    present.      The    chemicals,         including

acetone, denatured alcohol, xylene, and camping fuel, were stored

in the outbuilding. Konsavich disposed of chemicals and washed

glassware and other equipment in the kitchen of the residence.

       In reviewing a post-Booker sentence of a district court, the

overall inquiry is whether the sentence is “within the statutorily

prescribed range and is reasonable.” United States v. Hughes, 401

F.3d   540,     547      (4th    Cir.   2005).       “As     always,     we   review      legal

questions, including the interpretation of the guidelines, de novo,


                                              -3-
while factual findings are reviewed for clear error.” United States

v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). Errors of either

law or fact may render a given sentence unreasonable. Id.

     The Guidelines provide that “[i]f the offense (I) involved the

manufacture    of       .    .   .    methamphetamine;             and    (ii)    created       a

substantial risk of harm to the life of a minor,” there is a six-

level sentencing enhancement. § 2D1.1(b)(6)(C). The commentary to

the Guidelines provides that in determining application of the

enhancement,      the       court    shall        consider:    (I)       the     quantity      of

chemicals or other hazardous substances and the manner of their

storage;   (ii)     the      manner        of   disposal      of    chemicals       or   other

hazardous substances; (iii) the duration of the offense and the

extent of the manufacturing; and (iv) “[t]he location of the

laboratory     (e.g.,        whether        the       laboratory     is    located       in     a

residential neighborhood or remote area), and the number of human

lives placed at substantial risk of harm.” Id. cmt. 20(A).

     Konsavich      argues          that    there       was   no    evidence       that       any

methamphetamine was cooked while the minor was present, and that

most of the cooking took place in an outbuilding adjacent to the

minor’s residence, where the chemicals were stored and locked.

Additionally, Konsavich notes that the district court did not

consider any of the application factors cited in the Guidelines.

     The record indicates that a minor was living in the Readus

Road residence while Konsavich stayed there. During that time,


                                                -4-
Konsavich     participated        in    cooking       methamphetamine       in     the

outbuilding,     approximately         twenty    to   thirty      yards    from    the

residence, as well as at least one time in the residence. There was

testimony that many volatile and toxic chemicals were stored in the

outbuilding, that the cooking process was dangerous, and that on

numerous occasions problems occurred during the cooking process,

including the release of an acidic orange gas and a fire that

burned down the outbuilding. In addition, there was testimony that

Konsavich     often      cooked      the    methamphetamine        while     smoking

cigarettes, despite the flammable nature of the chemicals involved

in the cooking process. Finally, the district court heard testimony

about   the    effects    of   the     chemicals      used   in    methamphetamine

production on children, including the possibility of chemical burns

and brain swelling.

     Given that some manufacture of methamphetamine took place

within a short distance of a house where a minor resided, and that

manufacture occurred at least once in the house, the district court

did not err in applying the enhancement. See, e.g., United States

v. Frost, No. 05-5112, 2006 WL 2433961, at *2 (4th Cir. Aug 23,

2006) (unpublished) (noting danger of methamphetamine cooking and

applying      enhancement      where       methamphetamine        was     cooked    in

outbuilding and possibly in residence); United States v. Bivens,

129 Fed. App’x 159, 165 (6th Cir. 2005) (noting likelihood that

chemical odors from methamphetamine production could reach house


                                           -5-
from shed fifty yards away). Even assuming that the minor was not

present during the methamphetamine production, Konsavich does not

claim that he was unaware that a minor resided at Readus Road. Cf.

United States v. Simpson, 334 F.3d 453, 454 (5th Cir. 2003)

(requiring presence of minor during defendant’s participation in

the conspiracy or evidence indicating that danger to minor was

reasonably foreseeable to defendant for six-level enhancement).

Konsavich’s claim that the enhancement should not apply because the

chemicals were all kept in the locked outbuilding is unavailing due

to the risk of explosion and the evidence that some manufacturing

materials were stored and disposed of in the residence. See Bivens,

129 Fed. App’x at 165 (“The[] [defendants’] claims [that they]

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.”).

     Although the district court did not explicitly discuss the

application factors, those factors support the enhancement. For

example, the district court discussed the outbuilding and its

proximity to the residence where a minor resided during at least

some of the manufacturing at issue in this case. This discussion

supports the conclusion that the location of the laboratory placed

a minor at risk. Moreover, there was testimony that numerous

caustic, volatile, and flammable chemicals were stored in the


                               -6-
outbuilding     thirty       yards      from    the    residence;      that   at    times

chemicals were disposed of in the residence’s kitchen; that the

manufacturing      was       a    hit-or-miss         process,     involving       impure

chemicals; and that Konsavich smoked cigarettes during the cooking

of the methamphetamine, cf. id. (noting poor judgment shown by

using blowtorch to cook methamphetamine inside home). Thus, all

four of the application factors support the enhancement, and we

affirm    the    application         of    the    six-level       enhancement       under

§ 2D1.1(b)(6)(C).

       Konsavich      objects      to     the    application      of   the    two-level

enhancement under § 2D1.1(b)(4) for manufacture of methamphetamine

from chemicals that the defendant knew were imported unlawfully.

Konsavich argues that there is no evidence in the record that he

knew     that   the    red       phosphorus       used   in      production    of     the

methamphetamine during the conspiracy was imported unlawfully. This

argument fails. The record demonstrates that Konsavich wanted to

obtain pharmaceutical-grade red phosphorous and arranged for a

contact in Canada to mail the phosphorous to a location in Canada,

where a coconspirator drove to pick up the phosphorous. Konsavich

suggested this arrangement to avoid the scrutiny arising from a

direct shipment of red phosphorous from Canada into the United

States. Accordingly, the district court did not clearly err in

concluding      that    Konsavich         manufactured     methamphetamine          using




                                            -7-
phosphorus that he knew had been imported unlawfully. We thus

affirm the two-level enhancement under § 2D1.1(b)(4).

     Though the district court did not rule on Konsavich’s request

for the application of the “safety valve” under § 5C1.2(b), this

failure did not prejudice Konsavich because he does not meet the

criteria for the application of the reduction. Under 18 U.S.C.

§ 3553(f) (2000), a court can only apply the safety-valve reduction

where a defendant, not later than the sentencing hearing, “has

truthfully provided to the Government all information and evidence

the defendant has concerning the offense.” There is no dispute that

Konsavich provided the Government with information relating to the

charged conspiracy. At trial, however, Konsavich continued to

maintain that he was an undercover Drug Enforcement Agent and that

he was manufacturing fake methamphetamine.

     To meet the truthful disclosure requirement, a defendant must

disclose truthfully “all he knows concerning both his involvement

and that of any co-conspirators.” United States v. Ivester, 75 F.3d

182, 184 (4th Cir. 1996). Because Konsavich was not truthful about

his own involvement in the charged conspiracy, he does not meet the

criteria for the safety valve reduction under § 5C1.2(b) of the

Guidelines and 18 U.S.C. § 3553(f). Any failure of the district

court to address this issue was harmless because Konsavich does not

meet the criteria for a safety-valve reduction.




                               -8-
       Finally,    Konsavich   argues   that   despite     United   States   v.

Booker, 543 U.S. 220 (2005), this Court has imposed the Guidelines

as effectively mandatory in violation of the Sixth Amendment. In

Moreland, however, this Court held that a sentence that is outside

the Guidelines range will be affirmed so long as it is reasonable.

See 437 F.3d at 433-34. Thus, the Guidelines are not effectively

mandatory in this Circuit and Konsavich’s argument fails.

       Accordingly, we affirm Konsavich’s 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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