UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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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