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United States v. Owen

United States Court of Appeals, Sixth Circuit

October 10, 2019

United States of America, Plaintiff-Appellee,
v.
Michael Owen, Defendant-Appellant.

          Argued: June 20, 2019

          Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 1:12-cr-00138-1-Curtis L. Collier, District Judge.

         ARGUED:

          Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Brian Samuelson, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

         ON BRIEF:

          Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Brian Samuelson, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, Jay Woods, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.

          Before: MERRITT, THAPAR, and READLER, Circuit Judges

          OPINION

          CHAD A. READLER, CIRCUIT JUDGE.

         Methamphetamine may not be manufactured without governmental authorization. 21 U.S.C. § 841(a)(1); 21 U.S.C. § 843(a)(6). Congress has regulated this practice in part to curb the unauthorized distribution of methamphetamine, which has a "detrimental effect on [our] health and general welfare." 21 U.S.C. § 801(2). Yet equally detrimental, in many respects, is the process for manufacturing methamphetamine, which itself can have potentially hazardous consequences, if not done under appropriate conditions. See Hazards Of Illicit Methamphetamine Production And Efforts At Reduction: Data From The Hazardous Substances Emergency Events Surveillance System, U.S. Dept. Health and Human Services, Public Health Reports 126 (supp. 1), 121-22 (2011). As the "illegal production of meth[amphetamine] often involves use of volatile chemicals and makeshift equipment, these sites can be extremely dangerous." Id. Among the dangers is the risk that, during and after the manufacturing process, the ingredients and equipment will explode or otherwise catch fire. Id.

         Reflecting those concerns, the Sentencing Guidelines impose a sentencing enhancement on one who, in illegally manufacturing methamphetamine, creates a risk of harm to others. U.S.S.G. § 2D1.1(b)(14)(C). That enhancement is especially potent when a defendant's manufacturing presented "a substantial risk of harm to the life of a minor." U.S.S.G. § 2D1.1(b)(14)(D) (emphasis added). Crafting that Guidelines section was one thing, but applying it can be quite another. After all, given the various ways in which illegal methamphetamine manufacturing takes place, courts often have some interpretative work to do in assessing whether the conduct at issue rises to the level of creating a "substantial risk to the life of a minor." In our mind, two principal considerations help inform whether a defendant's manufacturing satisfies the "substantial risk" threshold: (1) the likelihood the conduct at issue risks harm to a minor; and (2) how serious that harm might be, should the risk come to pass.

         We are asked to apply those considerations to a defendant who, while riding in a vehicle with a seven-year-old child, transported equipment that had been used to manufacture methamphetamine. In that setting, the equipment presented a modest risk of combustion, and thus a modest risk of injuring the minor. By the same token, any combustion would have been devastating to the minor, if not fatal. In this close case, we agree with the district court that, on balance, the likelihood of substantial injury to the child in the vehicle should the equipment combust constitutes a "substantial risk of harm to the life of a minor." We accordingly AFFIRM the judgment of the district court.

         I. FACTS AND PROCEDURAL HISTORY

         Officer Ryan Patterson stopped a vehicle with four passengers, one of whom was seven years old. Another passenger, defendant Michael Owen, exited the vehicle while holding a black bag, and attempted to flee. Patterson gave chase. When he did, Owen returned to the vehicle and retrieved a short-barreled shotgun. He then fired at Patterson. Simultaneously, Patterson, who was not hit by Owen's shot, tased Owen. Owen dropped the shotgun and attempted to flee to a wooded area. At some point during his attempted flight, Owen also dropped the bag he was carrying. Ultimately, Patterson detained and arrested Owen, and recovered the bag.

         Following an initial search of the bag, officers called in Officer Ryan Wilkey, who was trained in methamphetamine investigations. From the contents in the bag, Wilkey identified a clear plastic bottle containing "white sludge" covered with a copper-colored film. He also found lighter fluid, tubing, coffee filters, lithium batteries, a white powder, and a container of white pellets. Recognizing the dangers this collection of items presented, Wilkey moved the bottle away from the other chemicals, and then unscrewed the bottle's cap to release any pressure. A methamphetamine task force was later called in to neutralize and dismantle the remaining items. The task force then pH tested several chemicals, and discovered both strong acids and bases.

         For this conduct, Owen was indicted and charged with six counts:

• Count One, attempt to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), & 846.
• Count Two, possession of equipment, chemicals, products, and materials that may be used in the manufacture of methamphetamine, in violation of 21 U.S.C. § 843(a)(6).
• Count Three, using, carrying, and discharging a firearm in relation to the drug trafficking crimes alleged in Counts One and Two, in violation of 18 U.S.C. § 924(c)(1)(A)
• Count Four, possessing and discharging a firearm during and in furtherance of the drug trafficking offenses charged in Counts One and Two, in violation of 18 U.S.C. § 924(c)(1)(A).
• Count Five, being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ ...

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