                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4056


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KEITH PAUL,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.    David A. Faber,
Senior District Judge. (2:07-cr-00044-2)


Submitted:    September 30, 2009            Decided:   October 16, 2009


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Nicholas   S.   Preservati,   PRESERVATI   LAW    OFFICES,  PLLC,
Charleston, West Virginia, for Appellant.      Charles T. Miller,
United States Attorney, Monica L. Dillon, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a plea agreement, Keith Paul pled guilty

to     possession   of    chemicals      used        in     the    manufacture       of

methamphetamine and aiding and abetting the same, in violation

of 21 U.S.C. § 841(c)(2) (2006), 18 U.S.C. § 2 (2006).                              The

district court sentenced Paul to sixty months in prison.                         Paul

timely appealed.

            Paul    contends    on    appeal        that    the    district    court

improperly enhanced his offense level by six levels under U.S.

Sentencing       Guidelines      Manual            § 2D1.1(b)(10)(D)          (2008).

Appellate courts review a sentence for reasonableness, applying

an abuse of discretion standard.                   Gall v. United States, 552

U.S. 38, __, 128 S. Ct. 586, 591, 597 (2007); United States v.

Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.

476    (2008).      District    courts       are    obliged       to   make   factual

determinations      ultimately       supporting       the     calculation      of     a

defendant’s advisory guidelines range by a preponderance of the

evidence.     United States v. Jeffers, 570 F.3d 557, 570 (4th Cir.

2009).     A district court’s factual determinations are reviewed

for clear error and will be reversed only when the appellate

court is “left with the definite and firm conviction that a

mistake has been committed.”            United States v. Harvey, 532 F.3d

326,    336-37   (4th    Cir.   2008)    (internal         quotation     marks      and

citation omitted).

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               The federal sentencing guidelines require a six-level

increase       in   offense          level   “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.”            USSG § 2D1.1(b)(10)(D).             “Offense” is defined as

“the offense of conviction and all relevant conduct under USSG

§ 1B1.3 . . . , unless a different meaning is specified or is

otherwise clear from the context.”                         USSG § 1B1.1 cmt. n.1(H).

Application Note 20(A) to § 2D1.1 provides several factors for a

court     to   consider         in    determining     whether      a    § 2D1.1(b)(10)(D)

enhancement         is    warranted:          (1)    the    quantity      and    manner     of

storage of chemicals or hazardous or toxic substances found at

the laboratory; (2) the disposal method for the hazardous or

toxic substances and the likelihood of their release into the

environment; (3) the duration of the crime and extent of the

manufacturing operation; and (4) the location of the laboratory

and how many people it places at substantial risk of harm.                               USSG

§ 2D1.1 cmt. n.20(A).

               Paul argues that the district court erred by applying

the § 2D1.1(b)(10)(D) enhancement because there was no evidence

of   an   operational           methamphetamine       laboratory        and     no   evidence

that his activities created a substantial risk of harm to the

life of a minor.            He relies on his expert who issued a report

concluding that his review of the evidence did not indicate that

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Paul was manufacturing methamphetamine at the residence at the

time    of       his    arrest        and    that,         based     on       the    chemicals        and

equipment found at the Beech Avenue residence, methamphetamine

could not have been produced without additional materials.

                 However,          Paul’s    former         live-in       girlfriend            and   the

mother of two of his children testified that Paul repeatedly

manufactured methamphetamine in the Beech Avenue residence in

the    presence         of     children         and       disposed      of      excess      chemicals

through      a    hole       in    the    floor       covered      by     a    high   chair.          Her

testimony corroborated information from a confidential witness.

Further buttressing these claims, the officers who executed the

search warrant and arrested Paul detected strong odors that, in

their     experience,              were     associated        with        the       manufacture         of

methamphetamine.              Two children were home at this time:                               a two-

year-old and an infant.                      A search of the home also revealed

chemicals         and    equipment          consistent         with       the       manufacture         of

methamphetamine              in     various       locations         around          the    residence,

including in a room containing toys, children’s clothing, and a

twin bed.          There was an open container of chemicals in that

room.

                 “[M]any of the chemicals involved in the production of

methamphetamine              are    toxic,      inherently         dangerous,             and    pose    a

serious      risk       to    those       who    inhale      them.”            United      States       v.

Whited, 473 F.3d 295, 299 (6th Cir. 2007) (internal quotation

                                                      4
marks and citation omitted).                      Consequently, the officers who

handled the evidence in this case used protective gear and, as

required by federal regulations, relied on a hazardous waste

team to dispose of the materials.

            Despite Paul’s challenges to the credibility of his

former girlfriend, in light of the corroborating testimony of

the officers, the chemicals and other physical evidence found in

the residence, the danger posed by the chemicals used in the

manufacture of methamphetamine, and the presence of the children

in   the   residence,      we    find     that      the   district   court    did    not

clearly    err     by     applying      the       § 2D1.1(b)(10)(D)       enhancement;

accordingly,      we    conclude     that     Paul’s      sixty-month     sentence   is

reasonable.

            For    these       reasons,     we     affirm   Paul’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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