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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