                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                         SEPTEMBER 10, 2009
                             No. 09-10048                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                     D. C. Docket No. 07-00032-CR-6

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JASON THORNE,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                           (September 10, 2009)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:
      Jason Thorne appeals his sentence of 220 months of imprisonment following

his plea of guilt to conspiracy to manufacture, possess with intent to distribute, and

distribute a quantity of methamphetamine. 21 U.S.C. §§ 841(a)(1), 846. Thorne

challenges the amount of methamphetamine attributed to him in the presentence

investigation report and the enhancement of his sentence for causing a substantial

risk of harm to a minor. We affirm.

                                 I. BACKGROUND

      On October 7, 2008, officers of the Sheriff’s Department of Bulloch County,

Georgia, went to the residence of Tony Finch to investigate whether he had a car

that had been reported stolen. At the sight of the officers on Finch’s property,

Victoria Foley discarded a device used to smoke methamphetamine, and she and

Marlena Taylor fled. After a search of the property, officers discovered evidence

that Finch was manufacturing methamphetamine in a large storage building about

20 feet from Finch’s house. The officers obtained a search warrant and discovered

in the storage building and Finch’s home precursor materials used to manufacture

methamphetamine and 108.3 grams of methamphetamine. Among the items

discovered in the storage building was a silver thermos that contained anhydrous

ammonia.

      For the next several days, officers interviewed Finch and his cohorts about



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the methamphetamine operation. Finch admitted that he had entered a conspiracy

to manufacture methamphetamine five months before his arrest and the

conspirators produced between 7 and 54 grams each week. Finch stated that he

had witnessed Thorne, Brian Dean, and another member of the conspiracy

manufacture methamphetamine in a shed behind Glenn Shuman’s property in

Brooklet, Georgia. Finch said that the group had produced as much as 80 grams of

methamphetamine at each cook, and he had seen 80 grams of methamphetamine at

Shuman’s residence on October 5, 2008. A federal inmate, Billy Joe Williams,

told authorities that he had purchased from Finch on at least twelve occasions

between 3.5 and 7 grams of methamphetamine.

       Other cohorts described Thorne’s role in the conspiracy. Victoria Foley,

who had been apprehended outside Finch’s home, told agents that Thorne had sold

her 2 grams of methamphetamine two or three times, Thorne had given her

methamphetamine on other occasions, and Thorne had offered to teach Foley to

manufacture methamphetamine. Foley stated that Dean and Taylor had a two-

year-old daughter who had been at Finch’s home the morning of October 7, 2008.

Foley also stated that she had transported Thorne, Finch, Taylor, and Taylor’s

daughter to Shuman’s residence, where they obtained anhydrous ammonia that the

group brought to Finch’s residence in a silver thermos.



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      Shuman was arrested in December 2007 with 88 grams of methamphetamine

in his possession. Shuman told investigators that he received methamphetamine

from Thorne as compensation for allowing him to stay at Shuman’s residence.

Shuman stated that Thorne and Dean had manufactured methamphetamine at

Shuman’s residence on two or three occasions and Thorne “always” supplied the

anhydrous ammonia for the methamphetamine cooks. Shuman also stated that the

silver thermos that had been discovered in the large storage building belonged to

Thorne.

      After Finch’s arrest, Thorne continued to distribute methamphetamine.

While Finch was incarcerated, he gave an inmate a telephone number to order

methamphetamine from Thorne. When federal agents later arrested Thorne, they

searched his car and discovered a duffle bag containing 32.1 grams of marijuana,

1.01 grams of methamphetamine packaged in three plastic bags, and a spoon and

several syringes with methamphetamine residue.

      Thorne, Finch, Taylor, and a codefendant were indicted for conspiring to

manufacture, possessing with intent to distribute, and distributing 50 grams or

more of methamphetamine or 500 grams or more of a mixture of a substance

containing a detectable amount of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1),

(b)(1)(A)(viii). Thorne executed a plea agreement with the government to plead



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guilty to the lesser-included offense of conspiracy to manufacture, possess with

intent to distribute, and distribute a quantity of methamphetamine. Id. §§ 846,

841(a)(1). As part of the agreement, Thorne agreed to waive his right to appeal his

sentence or challenge his sentence in a postconviction proceeding. The district

court accepted Thorne’s plea of guilty.

      The presentence investigation report attributed to Thorne “a minimum of

350 grams of methamphetamine mixture.” The report based its calculation “on the

108.3 grams of methamphetamine mixture seized [from Finch’s property] on

October 7, 2007; the 1.01 grams of methamphetamine seized [from Thorne] on

April 25, 2008; and a historical quantity based on statements of codefendants,

unindicted coconspirators, and witnesses.” The report provided a base offense

level of 30, United States Sentencing Guidelines § 2D1.1(c)(5) (Nov. 2007),

increased that level by six points because the decision to transport anhydrous

ammonia in a thermos created a substantial risk of harm to a minor, id. §

2D1.1(b)(10)(D), and decreased that level by three points for acceptance of

responsibility, id. § 3E1.1. The report provided a sentencing range between 235

and 293 months of imprisonment based on Thorne’s criminal history of VI as a

career offender. Id. § 4B1.1. Because the statutory maximum sentence was 20

years, 21 U.S.C. § 841(b)(1)(C), the Sentencing Guidelines provided a sentence



                                          5
between 235 and 240 months of imprisonment.

      Thorne objected to the presentence report on two grounds. Thorne argued

that the report relied on unreliable sources to attribute to him 350 grams of

methamphetamine. Thorne also argued that there was no evidence to establish that

he did not intend to place Taylor’s two-year-old daughter at risk of harm because

he was unconscious in the front seat of Foley’s car when Foley transported the

anhydrous ammonia to Finch’s residence and that the six-level enhancement was

intended to apply when a minor is near a methamphetamine laboratory.

      At the sentencing hearing, the government presented evidence to respond to

Thorne’s objections. Victoria Foley testified that she transported Thorne, Finch,

Taylor, and Taylor’s two-year-old daughter to Shuman’s house, Thorne was awake

for part of the trip, and he was unconscious when the group returned to Finch’s

house with a thermos of anhydrous ammonia. Ross Butler, a forensic chemist,

testified that transporting anhydrous ammonia in a thermos or other unapproved

container was extremely dangerous because the substance must be kept at very low

temperatures and, if it exceeds negative 28 degrees, the substance could erode the

thermos or cause it to burst and emit toxic gas that could cause those exposed to

suffocate. Butler also testified that the various chemicals discovered in Finch’s

storage building were highly flammable and the inhalation of those chemicals



                                           6
could burn the respiratory system or cause death. Agent Kent Musey testified

about the methamphetamine seized from Finch’s residence and the statements by

Thorne’s cohorts attributing additional amounts of methamphetamine to Thorne.

      The district court overruled Thorne’s objections to the presentence report.

The court adopted the findings of the presentence report about the drug quantity

and the risk of harm to the child, and sentenced Thorne to 240 months of

imprisonment, “but because [Thorne had waived his right to appeal] and in an

abundance of caution . . . impose[d] a sentence of 220 months.”

                         II. STANDARDS OF REVIEW

      We review for clear error “a district court’s determination of the quantity of

drugs used to establish a base offense level[.]” United States v. Simpson, 228 F.3d

1294, 1298 (11th Cir. 2000). We also review for clear error findings of fact about

whether “the defendant’s actions placed a minor at risk.” United States v.

Florence, 333 F.3d 1290, 1293 (11th Cir. 2003).

                                III. DISCUSSION

      Thorne challenges his sentence on two grounds. First, Thorne argues that

only the 200 grams of methamphetamine seized from him and other members of

the conspiracy should be attributed to him. Second, Thorne argues that he is not

subject to a six-level enhancement because of his condition when the anhydrous



                                          7
ammonia was transported and because the transportation of anhydrous ammonia

was not sufficiently dangerous to place Taylor’s child at risk. The government

defends the decisions of the district court, but does not request that we enforce the

appeal waiver in Thorne’s plea agreement.

      The district court did not clearly err by attributing to Thorne 350 grams of

methamphetamine. The government presented reliable and specific evidence that

Thorne was responsible for more methamphetamine than that seized by law

enforcement. See United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).

In addition to the 108 grams seized from Finch’s residence, 88 grams seized from

Shuman at his arrest, and 1 gram seized from Thorne, cohorts testified that they

had purchased from Thorne and Finch at least 130 grams of methamphetamine and

Thorne had participated in two or three methamphetamine cooks at Glenn

Shuman’s residence that produced 80 grams of methamphetamine. See United

States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993) (“For sentencing purposes

a member of a drug conspiracy is liable for his own acts and the acts of others in

furtherance of the activity that the defendant agreed to undertake and that are

reasonably foreseeable in connection with that activity.” (citing U.S.S.G. §

1B1.3(a)(1)). Ample evidence supported the amount of methamphetamine

attributed to Thorne.



                                           8
       The district court also did not err by enhancing Thorne’s sentence for

creating a substantial risk of harm to the life of a minor. The district court was

entitled to credit testimony from Foley that she, Thorne, Finch, and Taylor

transported anhydrous ammonia in an unapproved container and in a vehicle

occupied by Taylor’s two-year-old daughter. See United States v. Lee, 68 F.3d

1267, 1275 (11th Cir. 1995). Based on Thorne’s role in the conspiracy, he was

aware of the purpose of the trip and Foley testified that Thorne was conscious

when Taylor’s daughter was placed in the vehicle. Based on the serious hazards

created by handling anhydrous ammonia, the district court did not clearly err by

finding that Thorne’s participation in that conduct exhibited a reckless disregard

for the safety of the child.

                                 IV. CONCLUSION

       Thorne’s sentence is AFFIRMED.




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