                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 06 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30250

              Plaintiff - Appellee,              D.C. No. 4:08-CR-00060-SEH-1

  v.
                                                 MEMORANDUM *
JAMES ADAM BOYKEN DAVISON,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                              Submitted May 4, 2010 **
                                Seattle, Washington

Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.***

       James Adam Boyken Davison (“Davison”) appeals his sentence to 106

months’ imprisonment following his guilty plea and conviction of attempting to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
manufacture methamphetamine within 1,000 feet of a university in violation of 21

U.S.C. §§ 841(a)(1) and 860(a). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      The conviction is not challenged; the sole appeal is to the sentence.1 The

district court did not err by finding, by clear and convincing evidence, that Davison

created a substantial risk of harm to the life of his eleven-month old son. See

USSG § 2D1.1(b)(10)(D). The district court addressed the four factors enumerated

in Guidelines Application Note 20(A), considered the particular characteristics of

Davison’s manufacturing operation, and employed the correct burden of proof.

See United States v. Staten, 466 F.3d 708, 716–18 & n.4 (9th Cir. 2006). Clear and

convincing evidence supports the district court’s finding that Davison’s son was

present in the apartment throughout the offense. Davison kept dangerous

chemicals in places to which his son had access, stored chemicals in a manner that

was not child-resistant, and disposed of dangerous materials in ordinary trash cans

and trash bags proximate to his son. Davison also covered a bathroom vent,

exposing his son to the dangers of toxic fumes. The government’s expert, Doctor


      1
         We review a district court’s interpretation of the United States Sentencing
Guidelines (“Guidelines”) de novo, its application of the Guidelines for abuse of
discretion, and its factual findings for clear error. United States v. Cruz-Gramajo,
570 F.3d 1162, 1167 (9th Cir. 2009).


                                          2
Nancy Maynard, testified to the serious risks that the presence of the toxic

chemicals used in and produced during methamphetamine manufacture pose to an

eleven-month old child. There was clear and convincing evidence that Davison’s

son had been exposed to these risks for at least two weeks. This evidence included

Davison’s statement to the police officers, statements in the parties’ Joint

Memorandum in Aid of Sentencing and Stipulated Facts, the quantity of chemicals

and discarded containers found in Davison’s apartment, and the progress that

Davison had made in manufacturing methamphetamine until apprehended. That

methamphetamine was found in a baby-food jar and that Davison’s son tested

positive for methamphetamine confirm the substantial risk of harm Davison’s

careless methamphetamine manufacture posed to his son. Those who would

manufacture methamphetamine with an infant child crawling underfoot and in the

presence of dangerous chemicals cannot validly challenge that they have placed the

child in serious danger.

      AFFIRMED.




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