UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL KEVIN HARRIS,
Defendant - Appellant.
No. 06-5295
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY A. LYONS,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:05-cr-00019-3; 2:05-cr-00019-4)
Argued: February 1, 2008 Decided: March 14, 2008
Before MICHAEL and SHEDD, Circuit Judges, and Liam O’GRADY, United
States District Judge for the Eastern District of Virginia, sitting
by designation.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
ARGUED: Jonathan David Fittro, Clarksburg, West Virginia; Dorwin
John Wolfe, Elkins, West Virginia, for Appellants. Stephen Donald
Warner, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West
Virginia, for Appellee. ON BRIEF: Sharon L. Potter, United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Larry A. Lyons and Michael Kevin Harris both appeal their
convictions and sentences related to widespread methamphetamine
seizures in the Northern District of West Virginia, which
culminated in a federal grand jury investigation and a series of
indictments. Michael Kevin Harris pled guilty to perjury, in
violation of 18 U.S.C. § 1623 and was sentenced to fifty-seven (57)
months’ incarceration. Harris appeals his sentence claiming that
the district court erred in finding his perjury was “in respect to
a criminal offense”, triggering a cross reference to U.S.S.G. §
2X3.1. Larry A. Lyons pled guilty to aiding and abetting the
manufacture of methamphetamine, in violation of 18 U.S.C. §
841(a)(1) and (2). He appeals his sentence of one hundred (100)
months’ incarceration, contending that the district court
erroneously applied a sentencing enhancement pursuant to U.S.S.G.
§ 2D1.1(b)(8)(B). We vacate and remand the sentence of Larry Lyons
finding that the while the district court identified the four
factors to consider when imposing such an enhancement, it failed to
abide by the requirements of the Guidelines and consider each
individual factor in the context of this case. We affirm the
sentence of Michael Kevin Harris, finding sufficient evidence in
the record to support the district court’s application of the
U.S.S.G. § 2X3.1 cross reference during sentencing.
3
I.
On September 22, 2004 local police in Barbour County, West
Virginia discovered a methamphetamine laboratory in a trailer
behind the residence of Karl Kevin Hill on Mud Gut Road. This
discovery was the first seizure of a substantial methamphetamine
lab in Barbour County and led to the discovery and eradication of
numerous other methamphetamine labs over the next two years. As a
result of these seizures, a federal grand jury conducted an
investigation into the problem and returned a series of
indictments. During this investigation, Kevin Michael Harris was
called to testify concerning his knowledge of the methamphetamine
operation on Mud Gut Road. When testifying before the grand jury
on December 14, 2004, Harris denied having been to the Mud Gut Road
residence on more than one occasion. However, Harris had indeed
been to the residence on more than one occasion, and he
subsequently pled guilty to perjury related to this testimony on
November 7, 2005.
Meanwhile, on May 3, 2005, an off-duty sheriff’s deputy, Mr.
Lee Wright, was traveling on Isner Creek Road in Randolph County,
West Virginia, when he noticed Larry Lyons and co-defendant Billy
Leary get out of Lyons’ vehicle and walk across the road into the
nearby woods carrying a white trash bag. The deputy called for
assistance and then approached both Lyons and Leary after
announcing that he was a police deputy. Lyons cooperated and came
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towards the deputy with his hands up, while Leary absconded into
the woods, where he also discarded the white trash bag. The
responding deputy stopped Leary and recovered the white trash bag,
which contained chemicals and items that could be used to
manufacture methamphetamine including: a glass mason jar, a plastic
milk jug with two clear plastic hoses, a pound of salt, coffee
filters, and liquid fire. A glass container containing traces1 of
liquid methamphetamine was also found in the woods, as well as
methamphetamine manufacturing equipment in the back of Lyons’ car.
Lyons was subsequently indicted in regard to this incident and pled
guilty to aiding and abetting in the manufacturing of
methamphetamine.
II.
Harris challenges the district court’s finding that his
perjury was “in respect to a criminal offense”, triggering a cross
reference to U.S.S.G. § 2X3.1, accessory after the fact. We review
sentences for abuse of discretion. Gall v. United States, 128 S.
Ct. 586 (2007). We review the district court’s legal
interpretations of the sentencing guidelines de novo and a district
court’s factual findings for clear error. See United States v.
Green, 436 F.3d 449, 456 (4th Cir. 2006).
1
United States and the defendant stipulated in a plea
agreement that the amount of liquid containing methamphetamine in
the glass globe was greater than 50ml but less than 200ml.
5
Guideline § 2J1.3's cross reference to the guideline § 2X3.1,
accessory after the fact, applies anytime a defendant has committed
perjury in respect to a criminal offense. The cross reference to
§ 2X3.1 applies even if the defendant has not actually acted as an
accessory, but has attempted to assist another person to escape
punishment for an offense.” See United States v. Dickerson, 114
F.3d 464, 467 (4th Cir. 1997). We find the Second Circuit’s
interpretation of § 2X3.1 and the meaning of “in respect to a
criminal offense” in United States v. Suleiman, 208 F.3d 32 (2d
Cir. 2000), persuasive. Namely, we are persuaded that perjury “in
respect to a criminal offense” is not limited to false statements
given in response to a question referring to a specific criminal
offense. Id. at 39. Indeed, the purpose of the cross reference
is to treat more severely perjuries that risk an incomplete or an
inaccurate investigation before a grand jury. Id.
In this case, Harris was called to testify in a grand jury
investigation regarding his knowledge of the Mud Gut Road
methamphetamine investigation. Harris had ample notice that the
grand jury was investigating a criminal offense, and that his
statements, if false, could impede the progress or accuracy of such
an investigation. Upon review of the record, we find the facts
and circumstances sufficient to support the district court’s
determination that Harris’ perjury was “in respect to a criminal
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offense.” We therefore affirm Harris’ sentence and the application
of a cross reference to U.S.S.G. § 2X3.1, accessory after the fact.
III.
Lyons contends that the district court erroneously imposed
upon him a sentencing enhancement pursuant to U.S.S.G. §
2D1.1(b)(8)(B)2. “When reviewing the district court’s application
of the guidelines in regard to sentence enhancement, we review the
court’s findings of fact for clear error.” United States v.
Houchins, 364 F.3d 182, 187 (4th Cir. 2004); see also United States
v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Whether a
district court has properly found the existence of a substantial
risk of harm to human life or the environment within the meaning of
§ 2D1.1(b)(8)(B) is a mixed question of law and fact which we
review de novo. Id.; see also United States v. Layne, 324 F.3d
464, 468 (6th Cir. 2003).
Application Note 20 of U.S.S.G. § 2D1.1(b)(8)(B) identifies
four factors that a sentencing court is required to assess in
determining whether an offense created a substantial risk of harm
to human life or the environment.3 While earlier versions of
2
Formerly, U.S.S.G. § 2D.1.1(b)(6)(B).
3
Pursuant to Application Note 20 of § 2D1.1, the four factors
a court must consider are as follows: (i) the quantity of any
chemicals or hazardous or toxic substances found at the laboratory,
7
Application Note 20 provided only that a court “may” consider the
factors in determining applicability of the risk enhancement, the
note was amended in November 2001 to mandate that the four factors
“shall” be considered. Houchins, 364 F.3d 182, at 188. In order
to pass muster on appellate review, a sentencing court need not
find each factor satisfied to apply the sentencing enhancement at
hand, but it must consider the four Guideline factors and their
relevance to the individual circumstances of the case before
applying the enhancement. Houchins, 364 F.3d 182, at n.9.
Upon review of the record, it is clear that the district court
carefully identified the four factors that must be considered in
order to impose the substantial risk enhancement. In addition, the
district court discussed a previous evidentiary hearing, United
States v. Rose, in which the court found through expert testimony
that anytime methamphetamine is “cooked” there is a substantial
risk of harm to human life and the environment. However,
Application Note 20 requires something more, specifically that the
district court apply each factor to the facts of the case before it
to determine whether there is a substantial risk under §
and the manner in which the chemicals or substances were stored;
(ii) the manner in which hazardous or toxic substances were
disposed, and the likelihood of release into the environment of
hazardous or toxic substances; (iii) the duration of the offense,
and the extent of the manufacturing operation; (iv) the location of
the laboratory (e.g., whether the laboratory is located in a
residential neighborhood or remote area), and the number of human
lives placed at substantial risk of harm.
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2D1.1(b)(8)(B). The Guidelines mandate consideration of several
factors, such as the amount of chemicals found at the site, the
duration of the offense, and the location of the laboratory. While
the district court was welcome to consider the expert testimony
heard in the case of United States v. Rose, the Guidelines prohibit
the district court from reaching the automatic conclusion that in
every instance in which methamphetamine is “cooked”, there is a
substantial risk of harm to human life and the environment. Such
a generalized conclusion cannot be squared with the individualized
four factor inquiry that is required by the plain language of
Application Note 20 of the guideline. Therefore, finding that the
district court failed to apply the required factors for a
sentencing enhancement based on substantial risk, we vacate and
remand for further consideration of the factors under Application
Note 20, as they apply to the facts in this case.4
IV.
In conclusion, we find that the district court did not abuse
its discretion and was not clearly erroneous in finding that
4
Lyons makes an additional argument contending that the
district court erred in sentencing him to 100 months’ imprisonment,
while sentencing his co-defendant to probation. We will not
entertain claims in regard to a sentencing disparity of this kind,
thus Lyons’ claim merits no additional consideration. See United
States v. Khan, 161 F.3d 477, 500 (4th Cir. 2007); see also United
States v. Pyles, 482 F.3d 282, 290 (4th Cir. 2006).
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Harris’ perjury was “related to a criminal offense”, nor in its
subsequent application of the cross reference to U.S.S.G. § 2X3.1.
As such, we affirm Harris’ sentence.
In the case of Larry Lyons, we find that the district court
failed to abide by the requirements of U.S.S.G. § 2D1.1(b)(8)(B)
and Application Note 20, which mandates that the court shall
consider each of four individual factors when determining whether
an offense created a substantial risk of harm to human life.
Therefore, we vacate the district court’s imposition of a
sentencing enhancement and remand for further consideration of the
four factors as required by the statute.
AFFIRMED IN PART AND VACATED
AND REMANDED IN PART
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