United States v. Evans

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 6 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 01-3345

BRUCE L. EVANS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 00-CR-40082-01-RDR)

Submitted on the briefs:

David J. Phillips, Federal Public Defender, District of Kansas; Melody Evans,
Assistant Federal Public Defender, Topeka, Kansas; for the Defendant-Appellant.

Eric F. Melgren United States Attorney, District of Kansas; James A. Brown,
Special Assistant United States Attorney, Topeka, Kansas; for the Plaintiff-
Appellee.

Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.

HENRY , Circuit Judge.
 The defendant Bruce Evans was convicted after a jury trial of five counts

relating to the manufacture of methamphetamine. 1 The district court sentenced

him to a total term of imprisonment of 135 months.

In this appeal, Mr. Evans challenges his conviction for creating a

substantial risk of harm to human life while attempting to manufacture

methamphetamine (a violation of 21 U.S.C. § 858) on two grounds. First he

argues that the statute is unconstitutionally vague. Second, he asserts that the

evidence is insufficient to support that conviction.

Mr. Evans also challenges the district court’s determination of his sentence.

He focuses on the provisions of the United States Sentencing Guidelines (USSG)

that relate to grouping counts of conviction for sentencing purposes. According

to Mr. Evans, the district court should have applied USSG § 2D1.10 rather than

1
In particular, the jury convicted Mr. Evans of: (1) manufacture of
methamphetamine (a violation of 21 U.S.C. § 841(a)(1)); (2) creating a
substantial risk to human life while attempting to manufacture methamphetamine
(a violation of 21 U.S.C. § 858); (3) two counts of possession listed chemicals
(ephedrine and pseudoephedrine) with intent to manufacture methamphetamine;
and (4) attempted manufacture of methamphetamine (a violation of 21 U.S.C. §
846). The first two charges and one of possession of listed chemical counts arose
out of conduct on August 13, 2000. The other possession of listed chemical count
and the § 846 charge for attempted manufacture of methamphetamine arose out of
conduct on October 16, 2000.
We note that at the time of Mr. Evans’s conviction, the offense of
possessing listed chemicals with the intent to manufacture methamphetamine was
set forth in 21 U.S.C. § 841(d)(1). See Rec. vol. I doc. 137 (Judgment filed Oct.
15, 2001) (describing the possession of listed chemical counts as violations of §
841(d)(1)). Currently, that offense is set forth in 21 U.S.C. § 841(c)(1).

-2-
USSG § 2D1.1.

Finally, Mr. Evans challenges the two counts of conviction arising out of

conduct on October 16, 2000. He contends that the evidence is insufficient to

establish proper venue in the District of Kansas.

We are not persuaded by Mr. Evans’s challenges to his § 858 conviction.

As applied to the facts of this case, we conclude that the statute is not

unconstitutionally vague. Additionally, we hold that, viewed in the light most

favorable to the government, the evidence is sufficient to support Mr. Evans’s

conviction under that statute. Similarly, we are not persuaded by Mr. Evans’s

challenge to the determination of his sentence under the grouping provisions of

the Guidelines.

However, we agree with Mr. Evans that, as to the two convictions arising

out of conduct on October 16, 2000, the government failed to establish by a

preponderance of the evidence that venue was proper in the District of Kansas.

Accordingly, we remand the case to the district court with instructions to vacate

those convictions and for further proceedings consistent with this opinion.

I. BACKGROUND

In August 2000, deputies with the Cherokee County, Kansas Sheriff’s

-3-
Department received information indicating that storage tanks on property outside

Mr. Evans’s residence contained anhydrous ammonia, a substance that, according

to government witnesses, is commonly used in manufacturing methamphetamine.

As a result, on August 12, 2000, Cherokee County Deputy Sheriff Terry Clugston

went to the residence and interviewed Mr. Evans. Mr. Evans permitted Deputy

Clugston to walk around the yard, and he showed him containers of acetone,

toluene, and starter fluid—chemicals that the government’s witnesses explained

are also used to produce methamphetamine.

Mr. Evans allowed Deputy Clugston inside the residence, where he lived

with his wife Karen Evans and their three minor children, ages thirteen, twelve,

and nine. There, Deputy Clugston observed a variety of glassware, chemicals,

and separating liquids on the kitchen floor. Concluding that he had discovered

evidence of a laboratory used to manufacture methamphetamine, Deputy Clugston

contacted the Kansas Bureau of Investigation. Law enforcement officials there

obtained a search warrant for Mr. Evans’s residence and property and, along with

Cherokee County deputy sheriffs, executed the warrant on the following day.

Tim Holsinger, a special agent with the Kansas Bureau of Investigation, directed

the search.

During the search of Mr. Evans’s property, Agent Holsinger discovered

thirteen storage tanks. At trial, the government introduced expert testimony

-4-
indicating that the tanks had once contained anhydrous ammonia. Agent

Holsinger also discovered a pile of empty acetone and alcohol containers that had

been burned.

When he initially entered the residence, Agent Holsinger noticed the odor

of anhydrous ammonia. On the kitchen floor, he observed jars, plastic containers,

and glassware holding a variety of liquids, tablets, and powders. He also

discovered funnels, filters, lithium batteries, digital scales, and empty pill bottles.

Additionally, Agent Holsinger found twenty-two firearms.

Chemists employed by the United States Drug Enforcement Agency (DEA)

tested many of the substances, and they explained their conclusions at trial. In

particular, a DEA chemist testified that liquids found in containers on the kitchen

floor contained sulfuric acid, toluene, xylene, methamphetamine, and

pseudoephedrine hydrochloride. Other containers in the kitchen and in other

rooms in the residence contained ephedrine and pseudoephedrine. The chemist

explained that many of the chemicals discovered in Mr. Evans’s residence and on

his property were either used in making methamphetamine or produced during the

manufacturing process.

Agent Holsinger also interviewed Mr. Evans. Agent Holsinger testified at

trial that, during this interview, Mr. Evans admitted manufacturing

methamphetamine at the residence for the previous six months. Mr. Evans also

-5-
acknowledged that he had used the tanks on his property to store anhydrous

ammonia, that he had traded methamphetamine in exchange for anhydrous

ammonia, and that he owned all of the items that the agents had discovered.

The government charged Mr. Evans and his wife with a variety of drug and

weapon-related offenses. Subsequently, on October 16, 2000, Agent Holsinger

and deputies from the Cherokee County sheriff’s department went to another

location—a trailer where Mr. Evans then resided—to arrest him and to serve

another warrant. When no one answered the door, the officers entered and

discovered Mr. Evans hiding under a blanket on a bed. Mr. Evans told the

officers that the trailer contained methamphetamine as well as a variety of items

used to manufacture it. The officers found glassware containing residue and

liquids, a Pyrex dish, filters, a funnel, acetone, a plastic beaker with cloudy

liquid, a paper bag with numerous empty packages of pseudoephedrine, and two

firearms.

The government filed a superseding indictment, adding charges arising out

of evidence discovered at the trailer. At trial, Mr. Evans did not contest the

government’s evidence that he had possessed listed chemicals and had

manufactured methamphetamine. However, Mr. Evans did contest the

government’s assertion that he had attempted to produce more than fifty grams of

the drug. Mr. Evans also challenged the weapons charges, arguing that the

-6-
weapons had no connection to the methamphetamine-related conduct.

Additionally, Mr. Evans contested the § 858 charge—contending that he had not

created a substantial risk to human life in the manner in which he had attempted

to manufacture methamphetamine. Finally, Mr. Evans asserted that his wife was

not at all responsible for manufacturing methamphetamine.

During trial, the district court granted Mr. Evans’s motion for a judgment

of acquittal on the conspiracy charge and one of the weapons charges. The jury

acquitted Mr. Evans of another weapons charge but convicted him on the

remaining counts.

After the jury returned its verdict, the district court concluded that the

evidence was not sufficient to establish that Mr. Evans had attempted to make

over fifty grams of methamphetamine. Accordingly, as to that charge, the court

held that Mr. Evans was guilty of the lesser included offense of intending to

manufacture methamphetamine in an unspecified amount, a violation of 21 U.S.C.

§ 841(a)(1).

For purposes of sentencing, the court grouped Mr. Evans’s convictions. It

sentenced him to a total term of imprisonment of 135 months.

-7-
 I. DISCUSSION

A. Vagueness challenge to § 858

Mr. Evans first challenges his conviction under 21 U.S.C. § 858 on

vagueness grounds. He focuses on the statute’s prohibition of “creat[ing] a

substantial risk of harm to human life” while manufacturing or attempting to

manufacture a controlled dangerous substance. The district court rejected Mr.

Evan’s challenge. Because the constitutionality of a statute is a legal question,

we review its decision de novo. See United States v. Saffo, 227 F.3d 1260, 1267

(10th Cir. 2000).

Section 858 provides:

Whoever, while manufacturing a controlled substance in
violation of this subchapter, or attempting to do so, or
transporting or causing to be transported materials,
including chemicals, to do so, creates a substantial risk of
harm to human life shall be fined in accordance with Title
18, or imprisoned not more than 10 years, or both.

21 U.S.C. § 858 (emphasis added).

According to Mr. Evans, a person of ordinary intelligence would not

reasonably understand what specific conduct is prohibited by the statute. Thus,

he argues, it is unclear from the statute’s terms what sort of “risk to human life”

must be proved: the risk could be physical, emotional, or mental. It is also not

clear what persons are protected by the statute: conceivably, those who injure

-8-
themselves while manufacturing methamphetamine could be prosecuted. Finally,

it is unclear what kinds of acts are prohibited. Mr Evans notes that a “substantial

risk to human life” could be created by a variety of acts, including stealing

chemicals in order to manufacture methamphetamine, mixing chemicals, or (as the

government alleges here) carelessly storing them. Thus, he concludes, the statute

does not clearly identify prohibited conduct apart from merely manufacturing

methamphetamine.

Mr. Evans’s vagueness challenge is based upon the fundamental due

process principle that a statute must clearly define the conduct that it prohibits.

United States v. Reed, 114 F.3d 1067, 1069-70 (10th Cir. 1997) (citing Grayned

v. City of Rockford, 408 U.S. 104, 108-09 (1972)). That principle serves several

important values. Grayned, 408 U.S. at 108. “First, because we assume that man

is free to steer between lawful and unlawful conduct, we insist that laws give the

person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.” Id. Second, “[a] vague law

impermissibly delegates basic policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with the attendant dangers of

arbitrary and discriminatory application.” Id. at 108-09.

Nevertheless, as the district court recognized, there are significant

limitations on the application of these due process principles when the challenged

-9-
statute does not implicate First Amendment values. In that context, “[a]

vagueness challenge . . . cannot be aimed at the statute on its face but must be

limited to the to the application of the statute to the particular conduct charged.”

Reed, 114 F.3d at 1070; see also United States v. Evans, No. 00-40082-01-RDR,

2001 WL 1013322, at * 1 (D. Kan. Aug. 7, 2001) (“Vagueness challenges outside

the context of the First Amendment are to be examined in light of the facts of the

case, on an as-applied basis.”). That limitation is applicable here. Because Mr.

Evans has not argued that First Amendment interests are implicated, we must

assess his vagueness challenge to § 858 as applied to the facts of this case.

In that regard, the record reveals that the district court significantly limited

the scope of § 858’s “substantial risk to human life” provision in several

respects. First, the court granted a motion in limine filed by Mr. Evans, ruling

that the government could not satisfy the “substantial risk to human life” element

of the statute merely by proving that weapons were present at Mr. Evans’s

residence. Additionally, in instructing the jury on the elements of § 858, the court

informed the jury that the “substantial risk of harm” created by the defendant

must be “to a human life other than the defendant’s.” Rec. vol. I, doc. 106, no. 12

(Jury Instr., filed June 5, 2001). Moreover, the court informed the jury that the

risk to human life must have “originated from the process of manufacturing

methamphetamine or the storage, transportation or mixing of chemicals to

-10-
manufacture methamphetamine.” Id. Finally, the court explained that

“‘substantial’ means real and significantly large” and that “‘harm’ refers to

physical damage.” Id. 2

The district court’s definitions undermine Mr. Evans’s vagueness

challenge. Contrary to Mr. Evans’s suggestions, he was not subjected to

prosecution under § 858 for creating a danger to himself or for inflicting a mental

or emotional harm. Moreover, the evidence and the instructions to the jury rebut

Mr. Evans’s contention that, as applied here, “[t]he statute simply does not

distinguish prohibited conduct apart from the § 841 conduct of methamphetamine

manufacture.” Aplt’s Br. at 12. Instead, the government’s application of § 858

focused on the creation of physical danger arising out of the manufacture of

methamphetamine or the storage, transportation, or mixing of chemicals used to

produce the drug.

Mr. Evans’s argument is further undermined by the specific arguments that

the parties advanced at trial. In particular, in arguing that it had established a §

2
The court instructed the jury that the government had to prove the
following elements beyond a reasonable doubt in order to convict Mr. Evans of
violating § 858: (1) that he “manufactured or attempted to manufacture
methamphetamine in the District of Kansas on or about the 12th day of August
2000;” (2) that, while doing so, he “created a substantial risk of harm to a human
life other than [his own]”; and (3) that “the risk originated from the process of
manufacturing methamphetamine or the storage, transportation or mixing of
chemicals to manufacture methamphetamine.” Rec. vol. I doc. 106, no. 12.

-11-
858 violation, the government focused on the way in which Mr. Evans had stored

the chemicals. Inside the residence, the government noted, “[t]he chemicals in

the kitchen were not on shelves, they were not on counters. They were on the

floor where anybody, anybody could have walked up and stuck their finger in or

drank it, anybody who didn’t know better.” Rec. vol. XIV, at 352 (Trial Tr.,

dated June 5, 2001). The government added that the storage tanks outside the

residence were not fenced in and were not placed in a locked storage shed,

“despite the obvious risks that they posed.” Id. Then, the government reminded

the jury that there were minor children living in the Evans’s residence and cited

testimony from a government chemist regarding the dangers of anhydrous

ammonia and several of the chemicals found on the kitchen floor. See id. at 401.

(“[W]hen is the last time you trusted a 9, 11, or 12 year-old with a whole bunch of

dangerous chemicals, especially anhydrous? When is the last time you stored

them on your kitchen floor? The fact is that by keeping these things out in the

open and by using them to manufacture methamphetamine, [Mr. Evans] created a

substantial risk, a significantly large risk of harm defined as physical harm to

human life.”). In response, Mr. Evans’s counsel argued that the chemicals in

question were legal to possess, that the government had presented no evidence

that there were any particular risks presented by the process of mixing these

chemicals together, and that there was also no evidence that anyone had been

-12-
actually injured as a result of the manner in which Mr. Evans stored the

chemicals.

These arguments evince neither a lack of clarity about key statutory terms

nor a risk that those terms would be applied on an ad hoc or subjective basis,

“with the attendant dangers of arbitrary and discriminatory application.”

Grayned, 408 U.S. at 109. Instead, as applied by the district court and the parties

in this case, the terms of § 858 allowed the jury to resolve a factual dispute by

applying a reasonably clear standard—whether Mr. Evans’s storage of the

chemicals on the kitchen floor and in unfenced tanks outside the residence created

a risk of physical injury to other people, particularly his three minor children.

That conclusion is further supported by cases from other jurisdictions

rejecting vagueness challenges to statutes containing similar terms. For example,

in Panther v. Hames, 991 F.2d 576 (9th Cir. 1993), the Ninth Circuit held that the

term “substantial risk” in an Alaska statute concerning criminally negligent

homicide did not violate due process. Similarly, in State v. Anspach, 627 N.W.2d

227, 231-233 (Iowa 2001), the court rejected a challenge to a child endangerment

statute that held an adult culpable for knowingly acting “in a manner that creates

a substantial risk to a . . . minor’s physical, mental or emotional health or safety.”

Id. at 232. The court noted that “[t]he phrase substantial risk . . . has been

heavily defined in other contexts and enjoys a fairly ascertainable meaning.” Id.;

-13-
see also State v. Mahurin, 799 S.W. 2d 840, 842 (Mo. 1990) (en banc) (rejecting

challenge to a child endangerment statute and reasoning that “[t]he words

‘substantial risk’ have a plain and ordinary meaning cognizable by a person of

ordinary intelligence”). 3 We agree.

Accordingly, we conclude that the district court properly rejected Mr.

Evans’s vagueness challenge to § 858, as applied to the facts of this case. Here, §

858 provided Mr. Evans with fair warning of the prohibited conduct and did not

present an undue risk of arbitrary or discriminatory enforcement.

3
As Mr. Evans observes, the fact that a particular statute contains a mens
rea element may militate against a finding of vagueness. See, e.g.,Village of
Hoffman Estates v. Flipside, Village of Hoffman Estates, Inc., 455 U.S. 489, 499
(1982) (“[T]he Court has recognized that a scienter requirement may mitigate a
law’s vagueness, especially with respect to the adequacy of notice to the
complainant that his conduct is proscribed.”); United States v. Gaudreau, 860
F.2d 357, 360 (10th Cir.1988) (“[A] scienter requirement may mitigate a criminal
law’s vagueness by ensuring that it punishes only those who are aware their
conduct is unlawful.”) (citing Screws v. United States, 325 U.S. 91, 101-04
(1945) (plurality opinion)); Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law § 2.3, at 130 (1986) (“Not infrequently the Supreme Court, in
passing upon a statute claimed to be unconstitutional for vagueness, has
concluded that the statute gives fair warning because scienter is an element of the
offense.”). Here, the district court did not read a particular scienter requirement
into § 858, and the parties do not argue that such a requirement exists.
Nevertheless, we agree with the district court that lack of a mens rea
element in the instructions here does not render the statute unduly vague as
applied. As noted above, the district court’s definitions of key terms, the
evidence presented at trial, and the focused arguments of the parties establish that
§ 858 did not violate due process vagueness standards.

-14-
 B. Sufficiency of evidence supporting § 858 conviction

Mr. Evans also argues that, even if § 858 is not void for vagueness, the

evidence is still insufficient to support his conviction under that statute. In

support of that argument, he observes that chemicals that he possessed (excluding

methamphetamine) were legal substances with innocent purposes (such as

maintaining farm machinery and painting). He adds that the most dangerous

chemical, anhydrous ammonia, was stored outside the residence. As a result, he

contends, there is insufficient evidence that he created a substantial risk to anyone

but himself.

We examine challenges to the sufficiency of the evidence de novo, viewing

all evidence and drawing all reasonable inferences in the light most favorable to

the government. United States v. Oliver, 278 F.3d 1035, 1043 (10th Cir. 2001).

We limit our inquiry to determining whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted). In reviewing the

evidence, we do not weigh conflicting evidence or consider witness credibility, as

these duties are delegated exclusively to the jury. United States v.

Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). Instead, “[w]e presume that

the jury’s findings in evaluating the credibility of each witness are correct.”

Tapia v. Tansy, 926 F.2d 1554, 1562 (10th Cir. 1991).

-15-
 In light of these standards, we conclude that the evidence is sufficient to

support Mr. Evans’s § 858 conviction. As noted above, Agent Holsinger testified

that Mr. Evans’s kitchen floor contained numerous containers of chemicals and

that tanks outside the residence had contained anhydrous ammonia. Agent

Holsinger also testified that he smelled ammonia when he first entered the

residence on August 13, 2000. A DEA chemist identified two of the substances in

the containers of the kitchen floor as sulferic acid and toluene. She explained that

toluene is flammable, may be fatal if swallowed or inhaled, and should be kept

away from eyes, skin, and clothing. The chemist also testified about the serious

health risks of exposure to ammonia, including mucous membrane burns,

respiratory irritation, skin irritation, and eye irritation. Viewed in the light most

favorable to the government, a jury could reasonably conclude that Mr. Evans’s

manufacture and attempted manufacture of methamphetamine created a

substantial risk of injury to the other occupants of the household.

C. Application of USSG § 2D1.10

Mr. Evans contends that the district court erred in applying the Sentencing

Guidelines to determine his sentence. He maintains that the court should have

applied USSG § 2D1.1 rather than § 2D1.10. A brief review of the district

court’s methodology is necessary to understand Mr. Evans’s argument.

-16-
 Mr. Evans was convicted of five offenses: (1) manufacture of

methamphetamine on August 13, 2000 (statutory maximum: 20 years); (2)

possession of a listed chemical on August 13, 2000 with intent to manufacture

methamphetamine (statutory maximum: 20 years); (3) creating substantial risk of

harm to human life while manufacturing and attempting to manufacture

methamphetamine (statutory maximum: 10 years); (4) attempted manufacture of

methamphetamine; (statutory sentence: not less than 5 years and not more than 40

years); and (5) possession of a listed chemical on October 16, 2000 with intent to

manufacture methamphetamine, a violation of 21 U.S.C. § 841(d) (statutory

maximum: 20 years).

On the first, second, fourth and fifth of these offenses, the district court

imposed terms of imprisonment of 135 months. On the third offense (the § 858

conviction) the court imposed a sentence of 120 months. The court ordered the

sentences to run concurrently.

The district court’s determination of the sentence was based on the

grouping rules of the Sentencing Guidelines. In particular, under § 3D1.2, the

court concluded that all the counts of conviction involved substantially the same

harm and should therefore be grouped together into a single count for sentencing

purposes.

Nevertheless, even though the counts of conviction involved the same

-17-
harm, two different guidelines applied: (1) USSG § 2D1.1, commonly referred to

as the Drug Quantity Table; and (2) USSG § 2D1.10. The district court applied

the first of these guidelines, the Drug Quantity Table, to all the counts except the

§ 858 conviction. The Drug Quantity Table establishes offense levels based on

the type of drug involved and the quantity for which the defendant is responsible.

Here, based on the amount of methamphetamine involved—165.5 grams—the

district court determined that the offense level was thirty-two. The district court

applied the second applicable guideline, § 2D1.10, to the § 858 conviction.

Section 2D1.10(a)(1) establishes an offense level of three plus the offense level

provided in § 2D1.1. Because the district court determined that the offense level

under § 2D1.1 (based on the total amount of methamphetamine involved) was

thirty-two, the court set the offense level for Mr.Evans’s § 858 conviction at

thirty five (32 plus 3).

The district court then applied a specific provision of the Guideline’s

grouping rules—§ 3D1.3(b)—to determine which of these two offense levels

should be applied to the entire group of Mr. Evans’s convictions. Section

3D1.3(b) provides:

In the case of counts grouped together pursuant to
§3D1.2(d), the offense level applicable to a Group is the
offense level corresponding to the aggregated quantity,
determined in accordance with Chapter Two and Parts A,
B and C of Chapter Three. When the counts involve
offenses of the same general type to which different

-18-
 guidelines apply, apply the offense guideline that produces
the highest offense level.

(emphasis supplied). Because § 2D1.10 produced the highest offense level

(thirty-five rather than thirty-two), the district court concluded that § 2D1.10

should be applied to Mr. Evans’s grouped counts and that the offense level for the

grouped counts should be thirty-five. The district court then applied that offense

level to Mr. Evans’s criminal history category (I) and obtained a Guideline range

for the grouped counts.

In this appeal, Mr. Evans argues that the district court erred in applying §

2D1.10 to establish an offense level of thirty-five and that the court should have

established an offense level of thirty-two under USSG § 2D.1.1. He maintains

that thirty-five is not an appropriate offense level to use because § 858 has a

statutory maximum sentence of 10 years (120 months). He maintains that if one

uses an offense level of 35, as did the district court, then the sentencing range for

a defendant with a criminal history category of I is 168 to 210 months, well in

excess of the ten year cap set by the statute.

In support of this reasoning, Mr. Evans cites a Ninth Circuit case, United

States v. Brinton, 139 F.3d 718 (9th Cir. 1998). There, in applying the grouping

provisions of the guidelines, the court stated that the sentencing judge should

apply the guideline with “the potential to produce the highest offense level.” Id.

-19-
at 722. By the “potential” to produce the highest offense level, the Ninth Circuit

apparently meant the offense with the highest statutory maximum. See id. (citing

the statutory maximums and concluding that the offense with the highest statutory

maximums should be used).

In response to Mr. Evans’s argument, the government cites an Eighth

Circuit case that expressly rejects the Ninth Circuit’s reasoning in Brinton. In

United States v. Kroeger, 229 F.3d 700 (8th Cir. 2000), the court concluded that

the Ninth Circuit’s decision was based on an incorrect reading of the Guidelines:

When counts are grouped, the “most serious” of the
grouped counts sets the offense level for the group. But
the most serious count is not the count with the greatest
available maximum statutory term of imprisonment; it is
the count with the highest offense level.
In concluding that the count with the greatest
statutory maximum sentence had the potential to produce
the highest offense level, the Brinton court went astray:
the statutory maximum may cap the Guidelines
imprisonment range, but it has no effect on the offense
level. The Ninth Circuit’s analysis also overlooked the fact
that when a defendant is sentenced on multiple counts, the
statutory maximum for any one count does not cap the
total punishment he can receive.

Kroeger, 229 F.3d at 703 (citations omitted and emphasis added).

We agree with the reasoning of the Eighth Circuit The relevant section of

the grouping provision of the Guidelines directs the district court to apply the

Guideline with the highest offense level, see USSG § 3D1.3(b) (stating that

“[w]hen the counts involve offenses of the same general type to which different

-20-
guidelines apply, apply the offense guideline that produces the highest offense

level”). Here, the district court properly interpreted § 3D1.3(b) by selecting the

guideline that produced the higher offense level—USSG § 2D1.10, which

established an offense level of thirty-five. Accordingly, we find no error in the

district court’s application of the Guidelines. 4

D. Sufficiency of evidence of proper venue

Finally, Mr. Evans argues that the district court erred in denying his motion

for a judgment of acquittal on counts six and seven of the indictment. Those

counts (attempted manufacture of methamphetamine and possession of ephedrine

and pseudoephedrine with the intent to manufacture methamphetamine) concern

the evidence discovered by law enforcement agents at Mr. Evans’s trailer on

October 16, 2000. Mr. Evans contends that the prosecution never proved that the

trailer was located in the District of Kansas, and that, as a result, the evidence is

4
We also note that at one point in his argument Mr. Evans suggests that
the district court exceeded the statutory maximum—120 months—in sentencing
Mr. Evans on the § 858 conviction. That is not the case. As noted above, the
court sentenced Mr. Evans to 120 months on the § 858 conviction. Other counts
of conviction involved greater maximum sentences, and the fact that Mr. Evans’s
total sentence was higher than 120 months resulted from his conviction for these
other offenses, as well as a proper application of the grouping provisions of the
Guidelines. Like the Ninth Circuit’s reasoning in Brinton, Mr. Evans’s argument
overlooks “the fact that when a defendant is sentenced on multiple counts, the
statutory maximum for any one count does not cap the total punishment he can
receive.” Kroeger, 229 F.3d at 703.

-21-
insufficient to establish venue as to these two counts.

As a general rule, our review of challenges to evidence of proper venue is

quite deferential. “The standard of review for whether venue lies in a particular

district is whether, viewing the evidence in the light most favorable to the

Government and making all reasonable inferences and credibility choices in favor

of the finder of fact, the Government proved by a preponderance of direct or

circumstantial evidence that the crimes charged occurred within the district.”

United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985). Thus, the question

before us is whether, viewing the evidence in the light most favorable to the

government, a reasonable juror could have concluded by a preponderance of the

evidence that the trailer in which Mr. Evans was residing on October 16, 2000

was located in the District of Kansas.

Our review of the record indicates that the prosecutor told the jury in his

opening statement that “[o]n October 16, 2000, Agent Holsinger went to the

Evanses’ new residence in a trailer in Chetopa in Cherokee County, Kansas. The

Evanses were living at this trailer that was parked on the property there.” Rec.

vol. X, at 20. (Trial Tr., dated May 24, 2001).

In spite of the prosecutor’s description, the record before us provides no

indication that the jury ever heard any direct evidence as to where the trailer was

located. Indeed, the only testimony explaining how law enforcement agents came

-22-
to the trailer was provided by Agent Holsinger. He stated that, on October 16,

2000, he went to the trailer accompanied by another agent and one or two deputy

sheriffs from Cherokee County, Kansas. However, neither Agent Holsinger nor

any other witness identified by the government provided any testimony about a

specific location.

In objecting to Mr. Evans’s motion for a judgment of acquittal, the

government argued that there was sufficient circumstantial evidence in the record

to establish by a preponderance of the evidence that the trailer was in Kansas. In

particular, the government stated that “[f]rom the first lab, the jury knew that the

Evanses resided in Cherokee County, Kansas, and could have reasonably inferred,

from the presence of Cherokee County sheriff’s deputies at the second lab, that it

was also in Cherokee County, Kansas.” Rec. vol. I, doc. 124, at 3. (Gov’t Resp.,

dated June 27, 2001). The government did acknowledge that “no specific

evidence relating to the exact location of the Evans’ trailer was elicited from

Agent Holsinger on direct examination by the government.” Id. at 2.

In denying Mr. Evans’s motion for a judgment of acquittal, the district

court accepted the government’s characterization of this circumstantial evidence,

stating that the fact that Cherokee County, Kansas deputy sheriffs accompanied

Agent Holsinger to the trailer on October 16, 2000 established that the trailer was

located in Kansas:

-23-
 The evidence further established that Cherokee County
[Kansas] law enforcement officers and an agent of the
Kansas Bureau of Investigation arrested the defendant and
searched his property again on or about October 16, 2000
at a different location. There was no evidence that law
enforcement officers from any other state investigated the
charges in this case. In October, the officers found more
methamphetamine related materials in a trailer in which
the defendant appeared to be living. They also found the
defendant’s Kansas driver’s license. The government has
represented, without rebuttal, that the materials which
were sent away for lab analysis were marked with stickers
indicating “Cherokee County, Ks” and notations relating
to this case. The lab analysis for all the suspected drug
materials that were collected were referred back to an
agent of the Kansas Bureau of Investigation. For the
above-stated reasons, we believe a juror could reasonably
infer from the whole of the evidence, including the actions
and involvement of the Kansas law enforcement officers
in October (when the events charged in Counts 6 and 7
occurred) that the crimes occurred in the District of
Kansas.

Evans, 2001 WL 1013322 at * 3.

In our view, the entirely circumstantial evidence cited by the government

and the district court is insufficient to establish, even by a preponderance of the

evidence and viewed in the light most favorable to government, that the trailer

was located in the District of Kansas. In effect, the district court applied a

presumption that law enforcement officers of a particular jurisdiction act within

that jurisdiction. It may well be true that in most cases deputy sheriffs and other

law enforcement officials—like the ones that searched Mr. Evans’s property on

October 16, 2000— act within the boundaries of the jurisdiction that employs

-24-
them. However, the district court did not cite, nor are we aware of, any rule of

law that establishes such a presumption.

Indeed, this circuit has rejected the government’s attempts to rely on

presumptions to establish proper venue. See Jenkins v. United States, 392 F.2d

303, 306 (10th Cir. 1968) (concluding that “[a] presumption suitable to support

venue in Kansas . . . did not arise from appellant’s possession in Oklahoma of

property recently stolen in Kansas . . . in the absence of proof that he was in

Kansas at any pertinent time. There is not a sufficient relationship between the

fact of possession in Oklahoma and the circumstance sought to be

presumed—receiving and possessing [property] in Kansas”). Moreover, several

state courts have expressly refused to adopt the presumption that the government

seeks to apply here. See Sutherland v. Commonwealth, 368 S.E.2d 295, 297 (Va.

Ct. App. 1988) (“The mere fact that police of a certain jurisdiction investigate a

crime cannot support an inference that the crime occurred within their

jurisdiction.”); Black v. State, 645 S.W.2d 789, 791 (Tex. Crim. App. 1983)

(concluding that testimony that police officers worked for a certain police

department was insufficient to establish venue); People v. Manley, 552 N.E.2d

1351, 1353 (Ill. App. Ct. 1990) (stating that “the only indication in the stipulation

that Macon County was involved was the statement that the seizure of the

contraband evidence at the scene of the crime was made by Decatur police

-25-
officers” and that “[t]hat, of itself, was insufficient to prove venue”).

Accordingly, we conclude that the evidence is insufficient to establish by a

preponderance of the evidence that the offenses set forth in counts six and seven

of the indictment occurred in the district of Kansas. Accordingly, we will remand

this case to the district court with instructions to vacate Mr. Evans’s convictions

on those counts and for further proceedings consistent with this opinion.

III. CONCLUSION

We AFFIRM Mr. Evans’s conviction under 21 U.S.C. § 858. We further

conclude that the district court properly applied the grouping provisions of the

Guidelines. However, the government failed to offer sufficient evidence to

establish that the offenses charged in counts six and seven of the indictment

occurred in the District of Kansas. Accordingly, we REMAND this case to the

district court with instructions to VACATE those convictions and for further

proceedings consistent with this opinion.

-26-