FILED
NOT FOR PUBLICATION MAY 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30250
Plaintiff - Appellee, D.C. No. 4:08-CR-00060-SEH-1
v.
MEMORANDUM *
JAMES ADAM BOYKEN DAVISON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted May 4, 2010 **
Seattle, Washington
Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.***
James Adam Boyken Davison (“Davison”) appeals his sentence to 106
months’ imprisonment following his guilty plea and conviction of attempting to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
manufacture methamphetamine within 1,000 feet of a university in violation of 21
U.S.C. §§ 841(a)(1) and 860(a). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The conviction is not challenged; the sole appeal is to the sentence.1 The
district court did not err by finding, by clear and convincing evidence, that Davison
created a substantial risk of harm to the life of his eleven-month old son. See
USSG § 2D1.1(b)(10)(D). The district court addressed the four factors enumerated
in Guidelines Application Note 20(A), considered the particular characteristics of
Davison’s manufacturing operation, and employed the correct burden of proof.
See United States v. Staten, 466 F.3d 708, 716–18 & n.4 (9th Cir. 2006). Clear and
convincing evidence supports the district court’s finding that Davison’s son was
present in the apartment throughout the offense. Davison kept dangerous
chemicals in places to which his son had access, stored chemicals in a manner that
was not child-resistant, and disposed of dangerous materials in ordinary trash cans
and trash bags proximate to his son. Davison also covered a bathroom vent,
exposing his son to the dangers of toxic fumes. The government’s expert, Doctor
1
We review a district court’s interpretation of the United States Sentencing
Guidelines (“Guidelines”) de novo, its application of the Guidelines for abuse of
discretion, and its factual findings for clear error. United States v. Cruz-Gramajo,
570 F.3d 1162, 1167 (9th Cir. 2009).
2
Nancy Maynard, testified to the serious risks that the presence of the toxic
chemicals used in and produced during methamphetamine manufacture pose to an
eleven-month old child. There was clear and convincing evidence that Davison’s
son had been exposed to these risks for at least two weeks. This evidence included
Davison’s statement to the police officers, statements in the parties’ Joint
Memorandum in Aid of Sentencing and Stipulated Facts, the quantity of chemicals
and discarded containers found in Davison’s apartment, and the progress that
Davison had made in manufacturing methamphetamine until apprehended. That
methamphetamine was found in a baby-food jar and that Davison’s son tested
positive for methamphetamine confirm the substantial risk of harm Davison’s
careless methamphetamine manufacture posed to his son. Those who would
manufacture methamphetamine with an infant child crawling underfoot and in the
presence of dangerous chemicals cannot validly challenge that they have placed the
child in serious danger.
AFFIRMED.
3