                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUN 4 2004
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 03-5199
           v.                                           (N.D. Oklahoma)
 CHRISTOPHER E. SWAN,                                (D.C. No. 03-CR-72-H)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA, Chief Judge, ANDERSON and BALDOCK , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Christopher E. Swan pled guilty to one count of violating the Lacey Act, 16

U.S.C. § 3372(a)(2)(A), and aiding and abetting, in violation of 18 U.S.C. § 2(a).


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
He appeals the two-point upward departure he received at sentencing pursuant to

United States Sentencing Commission,    Guidelines Manual (“USSG”),

§2Q2.1(b)(2)(B) (Nov. 2001) for creating “a significant risk of infestation or

disease transmission potentially harmful to humans” in connection with his

receipt of paddlefish roe from other individuals. We affirm.



                                 BACKGROUND

      Swan made arrangements with Jim Wever for Wever to obtain paddlefish

roe 1 in Oklahoma and deliver it to Swan in Arkansas, for a price of $25 per

pound. Swan admitted that, at the time he made these arrangements with Weaver,

he knew it was illegal under Oklahoma law to take paddlefish roe out of

Oklahoma, and he further admitted that he planned to sell the roe to various

buyers outside of Arkansas.

      Following an extensive investigation, Wever was found guilty of poaching

paddlefish roe, in violation of Okla. Stat. tit. 29, § 6-303.1, which prohibits the

possession of more than fifty pounds of unprocessed paddlefish eggs or five

pounds of processed eggs, as well as the transportation of paddlefish eggs,


      1
        Paddlefish (Polyodon Spathula) is a species of fish which inhabits lakes,
rivers and streams in the Northern District of Oklahoma and surrounding areas.
Paddlefish eggs are processed and sold as caviar. While it is considered an
endangered species in certain states, the paddlefish population is apparently
making a recovery in Oklahoma.

                                         -2-
processed or unprocessed, outside the state. Swan was subsequently indicted for

violating, and aiding and abetting Wever in violating the Lacey Act, which makes

it illegal “to import, export, transport, sell, receive, acquire, or purchase in

interstate . . . commerce [] any fish or wildlife taken, possessed, transported, or

sold in violation of any law or regulation of any State.” 16 U.S.C.

§ 3372(a)(2)(A). Swan pled guilty.

      The probation office recommended in Swan’s presentence report that he

receive a two-point upward departure under USSG §2Q2.1(b)(2)(B) because

Swan’s offense “created a significant risk of infestation or disease transmission

potentially harmful to humans.” Swan objected, arguing that he was “properly

licensed” and was following applicable regulations when he processed the

paddlefish eggs. R. Vol. 2, tab 1.

      At sentencing, the government presented testimony from Christopher J.

Hurst, a United States Food and Drug Administration investigator, that paddlefish

roe is an item subject to United States Food and Drug Administration regulations

concerning Hazard Analysis Critical Control Point (“HACCP”) plans.        2
                                                                              He further


      2
          21 C.F.R. § 123.6 provides in pertinent part:

      (a) Hazard analysis. Every processor shall conduct, or have
      conducted for it, a hazard analysis to determine whether there are
      food safety hazards that are reasonably likely to occur for each kind
      of fish and fishery product processed by that processor and to
                                                                      (continued...)

                                           -3-
testified that Wever and his wife, Swan’s source for paddlefish roe, were

considered processors of paddlefish roe, and as such would also be subject to

HACCP regulations and required to have an HACCP plan. Hurst then testified

that the Wevers’ failure to have an HACCP plan in effect for their processing of

roe rendered the roe adulterated under the Food and Drug Administration Act, 21

U.S.C. § 342(a)(4).   See 21 C.F.R. § 123.6(g).   3
                                                      Hurst also testified about the

types of health hazards posed by improperly processed paddlefish roe, including

contamination by botulinum brucella and listeria monocytogenes.

      A second witness, Thomas McKay, also testified at Swan’s sentencing

proceeding. McKay was an employee of the United States Fish and Wildlife

Service in Edmond, Oklahoma, with responsibility for the northern district of

Oklahoma. He testified that he was the supervising agent in the case against the

Wevers and was familiar with their case. McKay testified that he considered the

Wevers’ roe processing methods “unsanitary,” that “they had no refrigeration

      2
       (...continued)
      identify the preventive measures that the processor can apply to
      control those hazards. . . .

      (b) The HACCP plan. Every processor shall have and implement a
      written HACCP plan whenever a hazard analysis reveals one or more
      food safety hazards that are reasonably likely to occur . . . .
      3
        21 C.F.R. § 123.6(g) states that “[f]ailure of a processor to have and
implement a HACCP plan that complies with this section whenever a HACCP
plan is necessary . . . shall render the fish or fishery products of that processor
adulterated under [21 U.S.C. § 342(a)(4)].”

                                          -4-
equipment,” and that the Wevers’ residence “was pretty dirty.” Tr. of Sentencing

Hr’g at 29-30, Appellant’s App. Vol. 1 at 79-80. It is undisputed that the Wevers

did not have an HACCP plan. Swan did, however, have an HACCP plan.

      After listening to the above testimony and hearing arguments from counsel

for both sides, the district court found “that the United States has adduced

evidence establishing by a preponderance of the evidence that in fact such a risk

[of infestation or disease] was created under these circumstances, therefore, the

request that the offense level be further adjusted downward is denied.”   Id. at 40.

Swan was sentenced to four months’ imprisonment, followed by three years of

supervised release, and assessed a fine of $10,000.

      Swan argues that the district court erroneously imposed the two–point

enhancement under USSG §2Q2.1(b)(2)(B) because he should not be held

accountable for the Wevers’ failure to have an HACCP plan, nor was there any

evidence that the roe which he had received or which he planned to obtain from

the Wevers was in fact harmful to humans.     4




      4
       While the count to which Swan pled guilty involved an attempt by the
Wevers to deliver some eighty-five pounds of processed paddlefish eggs and
twenty-six pounds of unprocessed eggs to Swan in Arkansas, which delivery was
foiled by Oklahoma game wardens acting in conjunction with the Arkansas Game
and Fish Department, Swan admitted that he had purchased processed paddlefish
eggs from the Wevers on prior occasions. He was not charged with those.

                                            -5-
                                    DISCUSSION

       “We review de novo legal questions regarding the application of the

sentencing guidelines. We review the district court’s factual findings for clear

error, ‘giving due deference to the district court’s application of the guidelines to

the facts.’”   United States v. Martinez , 342 F.3d 1203, 1205 (10th Cir. 2003)

(quoting United States v. Brown , 314 F.3d 1216, 1222 (10th Cir.),     cert. denied ,

537 U.S. 1223 (2003)). Furthermore, “[w]e review for clear error a district

court’s factual findings in support of a sentence enhancement.”      Id. at 1208; see

18 U.S.C. § 3742(e).

       As the government points out, USSG §1B1.3(a)(1)(B) provides that:

       specific offense characteristics . . . shall be determined on the basis
       of the following:

                                           ...

               (B) in the case of a jointly undertaken criminal activity
               (a criminal plan, scheme, endeavor, or enterprise
               undertaken by the defendant in concert with others,
               whether or not charged as a conspiracy), all reasonably
               foreseeable acts and omissions of others in furtherance
               of the jointly undertaken criminal activity,

       that occurred during the commission of the offense of conviction, in
       preparation for that offense, or in the course of attempting to avoid
       detection or responsibility for that offense.

USSG § 1B1.3(a)(1)(B).




                                           -6-
       Swan was convicted of violating the Lacey Act and aiding and abetting the

Wevers in violating the Lacey Act, which, in turn, required a violation of

Oklahoma law. Accordingly, the district court properly considered the Wevers’

conduct in processing the roe which they then transported to Swan. Furthermore,

the Wevers’ roe is considered adulterated under applicable federal regulations and

statutes, and, as such, would present a “significant risk of infestation or disease

transmission potentially harmful to humans.”     See United States v. Blue Ribbon

Smoked Fish, Inc. , 179 F. Supp. 2d 30, 44 (E.D.N.Y. 2001) (“Because the

defendants’ HACCP plans are inadequate and do not comply with the FDA

regulations, the food [defendant] processes pursuant to them is adulterated as a

matter of law, as defined by Section 342(a)(4) of the FDCA.”).

       Swan argues that two other cases affirming a two-level enhancement under

§2Q2.1(b)(2) are distinguishable because they both involved a Lacey Act

violation where the state law violated was itself clearly designed to protect the

public health.   See United States v. Narte , 197 F.3d 959, 962 (9th Cir. 1999);

United States v. Eyoum , 84 F.3d 1004, 1009 (7th Cir. 1996). Thus, he argues, the

violations of state laws designed to protect the public health “in and of

themselves were sufficient for purposes of the enhancement.” Appellant’s Br. at




                                           -7-
9. He argues that, by contrast, the Oklahoma law violated in this case is merely

designed to protect paddlefish, not to further any human health safety goal.   5



       Swan misperceives the basis for the district court’s enhancement. He was

convicted of violating the Lacey Act and aiding and abetting Wever in violating

that act. As part of that course of conduct, Swan obtained and agreed to obtain

paddlefish roe which was considered adulterated under the Food and Drug Act.

We cannot say that the district court erred in concluding that receipt of

adulterated roe to be sold to others would pose a significant risk of disease

transmission potentially harmful to humans. Furthermore, it is reasonable to read

the Oklahoma law violated in this case, Okla. Stat. tit. 29, § 6-303.1, which

regulates the possession and transportation of paddlefish eggs, as not exclusively

protecting paddlefish and their eggs, but also protecting consumers of those eggs.



                                    CONCLUSION

       For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge



      Swan concedes that both the Narte and Eyoum courts held that the
       5

government need not prove that the particular food product involved was in fact
harmful or diseased in order for the enhancement to apply.

                                            -8-
