United States v. Bart Underwood

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1543
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United States of America, *
*
Plaintiff - Appellee, *
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v. *
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Bart Edward Underwood, *
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Defendant - Appellant. *
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* Appeals from the United States
Nos. 03-2716/2901 * District Court for the Southern
_______________ * District of Iowa.
*
United States of America, *
*
Plaintiff - Appellee/ *
Cross-Appellant, *
*
v. *
*
Gayle Jean Steele, also known as *
Gayle Jean Gosnell, *
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Defendant - Appellant/ *
Cross-Appellee. *
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*
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 __________ *
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No. 03-1982 *
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United States of America, *
*
Plaintiff - Appellee, *
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v. *
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Duane Carl Carpenter, *
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Defendant - Appellant. *
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Submitted: March 8, 2004

Filed: April 22, 2004
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Before MURPHY, HEANEY, and SMITH, Circuit Judges.
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MURPHY, Circuit Judge.

Bart Underwood, Gayle Steele, and Duane Carpenter were each convicted of
conspiracy to manufacture methamphetamine. Carpenter was also convicted of
manufacturing methamphetamine, endangering human life during the manufacture
of methamphetamine, manufacturing methamphetamine within 1000 feet of a school,
felon in possession of a firearm, possession of a firearm in furtherance of a drug
trafficking crime, and possession of an unregistered short barreled shotgun. The

2
district court1 sentenced Underwood to 140 months, Steele to 262 months, and
Carpenter to life plus ten years. Underwood, Steele, and Carpenter appeal their
convictions. Steele and Carpenter also raise sentencing issues, and the United States
cross appeals the court's decision not to enhance Steele's sentence for endangering
human life. After studying the extensive record, we affirm the judgments of the
district court except for one of Carpenter's convictions which must be vacated
because of a double jeopardy issue.

I.

Bart Underwood, his girlfriend Gayle Steele, her brother Duane Carpenter, and
several others manufactured methamphetamine at Carpenter's residence in Council
Bluffs, Iowa. By August 2001, there were at least two to three one ounce
methamphetamine cooks a week at Carpenter's house. The cooks continued until the
defendants were apprehended by law enforcement in late November 2001. Carpenter
would exchange methamphetamine for precursor materials and equipment to use in
the cooks. He directed most of the cooks at the residence and possessed two firearms,
one that he carried while supervising the cooks and a sawed off shotgun that he kept
in the house to protect his methamphetamine operation. Steele and Underwood
frequented the house and regularly participated in the cooks by peeling lithium
batteries, popping pseudoephedrine pills from blister packages and crushing them,
and "bubbling" the methamphetamine during the final stages of production. They
also obtained chemicals and supplies for Carpenter's cooks and for their own. With
the assistance of Underwood, Steele occasionally conducted her own cooks using
Carpenter's equipment and then shared her batch with Carpenter.

1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.

3
 On November 27, 2001 law enforcement agents searched Carpenter's residence
pursuant to a warrant and uncovered the active methamphetamine lab on the second
floor. They also discovered methamphetamine production byproducts, precursor
chemicals, and equipment used to manufacture methamphetamine scattered
throughout the house. This included pseudoephedrine, sulfuric acid, starter fluid,
waste sludge materials containing anhydrous ammonia, and lithium. A single
kerosene heater with an open heating element sat in the second floor foyer as the sole
source of heat for the entire house; it was plugged into an extension cord running
from the house next door. Because chemical fumes pervaded the house, the police
ran a safety assessment and identified several potential hazards. There were apparent
dangers at the site presented by exposure to chemicals, the mixing of dangerous
chemicals such as hydrogen chloride gas and flammable fuel vapors, numerous
potential sources of open flames, and three large dogs running loose in the house.

Six people were apprehended in the house during the search. Steele and
Underwood were in a second floor bedroom, where waste from methamphetamine
cooks was found on a TV tray near the bed, including jars with residue, used coffee
filters, and salt. Christy O'Neal and Twyla Pike were found in another second floor
room, and Franklin Freese was in the attic. After a second sweep of the house, the
police discovered Carpenter in the attic with a loaded, unregistered short barrel
shotgun.

A grand jury indicted Carpenter, Steele, Underwood, and O'Neal for conspiracy
to manufacture methamphetamine, in violation of 21 U.S.C. § 846, and for
manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Carpenter
was also indicted for felon in possession, possession of a firearm in furtherance of a
drug trafficking crime, and possession of a short barreled shotgun, in violation of 18
U.S.C. §§ 922(g)(1), 924(e)(1), 924(c)(1)(A), and 26 U.S.C. § 5861(d). A
superceding indictment later added charges against each defendant for manufacturing

4
drugs within 1000 feet of a school, and for endangering human life, in violation of 21
U.S.C. §§ 860 and 858.

Defendants filed several pretrial motions, including motions to suppress the
evidence found in the November search and for a Franks hearing. Their motions were
denied after a hearing.2 The court found that the defendants had not made a
substantial preliminary showing that the warrant affidavit contained false statements
made knowingly or intentionally or with reckless disregard for the truth. The court
also concluded that the warrant affidavit sufficiently showed probable cause because
it was based on information from a reliable informant and his tip was corroborated.

The trial of Carpenter, Steele, Underwood, and Freese began on September 20,
2002. Freese entered a guilty plea after four days. O'Neal had entered into a plea
agreement before trial and testified against the remaining defendants. The jury
returned guilty verdicts on October 8 against Steele, Underwood, and Carpenter for
conspiracy to manufacture methamphetamine, and it found each responsible for 500
grams or more of a mixture or substance containing methamphetamine. The jury also
convicted Carpenter of manufacturing methamphetamine, felon in possession of a
firearm, possession of a firearm in furtherance of a drug trafficking crime, possession
of an unregistered short barreled shotgun, endangering human life during the
manufacture of methamphetamine, and manufacturing methamphetamine within 1000
feet of a school. Underwood and Steele were found not guilty of manufacturing
methamphetamine, endangering human life during the manufacture of
methamphetamine, and manufacturing methamphetamine within 1000 feet of a
school. The district court denied defendants' motions for a new trial or judgments of
acquittal, and each defendant was sentenced in a separate proceeding.

2
The defendants also moved for dismissal, for election of counts, and for the
court to rule in limine on evidentiary issues regarding expert testimony, Fed. R. Evid.
404(b), and prior convictions.

5
 Underwood was sentenced to 140 months, and appeals his conviction. On his
appeal, he challenges the denial of his motion to suppress, sufficiency of the trial
evidence, denial of his posttrial motion for a new trial, and denial of requested jury
instructions.

Steele was sentenced to 262 months. At her sentencing hearing, the district
court denied her motions to compel the government to credit her substantial
assistance and for a mitigating role reduction. Because the court found her criminal
history category of III understated her prior offense conduct, it departed upward to
category IV.3 The district court applied an enhancement for firearm possession which
raised Steele's base offense level from 34 to 36, but it declined to apply an
enhancement for endangering human life. On her appeal, Steele contests the denial
of her suppression motion, the denial of a minor role adjustment, the enhancement for
firearm possession, and the increase in her criminal history category. The
government cross appeals, arguing that the district court should have applied a
sentencing enhancement to increase Steele's offense level for endangering human
life.4

Carpenter was sentenced to life imprisonment for his convictions of conspiracy,
manufacturing, felon in possession, and manufacturing within 1000 feet of a school;
concurrent sentences of ten years for possession of a short barreled shotgun and
endangering human life; and a consecutive term of ten years for possession of a

3
Steele's criminal history had been calculated at III by the probation officer who
assigned five criminal history points to her: three for two counts of second degree
murder and two for forgery.
4
Steele and Underwood had both been indicted for endangering human life
during the manufacturing of methamphetamine. The jury found them not guilty of
the charge, and the district court declined to apply a sentencing enhancement to either
for endangering human life. Although the government states it planned to appeal in
both cases, it only met the filing deadline in Steele's case.

6
firearm in furtherance of a drug trafficking crime. He received enhancements for his
role as a leader in the conspiracy and for endangering human life, and he was
categorized as a career offender. He unsuccessfully sought a downward departure for
overstatement of his criminal history. On his appeal, Carpenter challenges the denial
of his suppression motion, the sufficiency of the evidence, and the constitutionality
of the endangerment statute. He also raises a double jeopardy issue based on his
convictions for manufacturing, manufacturing within 1000 feet of a school, and
endangering human life. As to his sentence, he appeals the leadership role
enhancement, the findings of drug quantity, and his designation as a career offender.

II.

A.

Defendants claim that their Fourth Amendment rights were violated by a search
under an invalid warrant. They contend that the district court erred by not
suppressing the evidence from the November search because no probable cause
existed for the search warrant since it was based on information from an unreliable
informant and a law enforcement official who misrepresented the underlying facts in
violation of Franks v. Delaware, 438 U.S. 154 (1978). The denial of a motion to
suppress is reviewed de novo with the underlying factual determinations reviewed for
clear error. United States v. Coleman, 349 F.3d 1077, 1083 (8th Cir. 2003).

A search warrant is valid under the Fourth Amendment if it establishes
probable cause. Probable cause exists, if under the totality of the circumstances, a
showing of facts can be made "'sufficient to create a fair probability that evidence of
a crime will be found in the place to be searched.'" United States v. Gabrio, 295 F.3d
880, 883 (8th Cir. 2002) (citing United States v. Wells, 223 F.3d 835, 838 (8th Cir.
2000)). Information from an informant may be sufficient to establish probable cause

7
"if the tip 'is corroborated by independent evidence.'" Id. at 883 (citing United States
v. Williams, 10 F.3d 590, 593 (8th Cir. 1993)).

Defendants assert that the search warrant did not support probable cause
because the affiant had relied on a confidential informant who was not credible and
on the fruits of a previous search later invalidated by a state court. They argue that
the informant was unreliable because he offered information only to decrease his own
culpability. We have recognized that informants are often motivated "in the hopes
of obtaining leniency with respect to their own situation [but] that does not
necessarily mean they are unreliable." Id. at 884. Here, the agent could assess the
informant's credibility because the information was provided in person. See id. at
883. The agent also corroborated the tip through his own investigation, which
confirmed the location of the house and verified the name and address provided by
the informant. See United States v. Williams, 10 F.3d 590, 594 (8th Cir. 1993). The
officer had also previously received tips from the police hotline and others about drug
related activities at the address. The district court did not err in denying the motion
to suppress because probable cause was shown by corroborated information from a
reliable informant.

Defendants also argue that the agent relied on the fruits of a previous illegal
search of Carpenter near Henderson, Iowa in September 2001. During the earlier
search, police found a .22 caliber pistol on Carpenter, as well as precursor materials
– pseudoephedrine and lithium batteries. Even without the fruits of this search,
probable cause existed to issue the warrant because the application relied on a number
of other sources, including the informant's tips, their corroboration, and the hotline
reports.

Defendants contend that the district court erred in denying their motion for a
Franks hearing and that the evidence should have been suppressed because the agent
violated Franks in obtaining the warrant. They claim that the agent actively

8
misrepresented his investigations, affirmatively indicated that the informant had
previously given reliable information when he had not, and omitted mentioning that
the earlier search of Carpenter had been suppressed in state court. We review the
denial of a request for a Franks hearing for abuse of discretion. Gabrio, 295 F.3d at
882.

A defendant is entitled to a Franks hearing if he makes a substantial
preliminary showing that a false statement was included in the warrant affidavit either
intentionally or with reckless disregard for the truth and the information was
necessary to the finding of probable cause. United States v. Fairchild, 122 F.3d 605,
610 (8th Cir. 1997). Since the defendants did not make a substantial preliminary
showing that a Franks violation had occurred, the district court did not abuse its
discretion by denying their motion for a Franks hearing.

To prevail on a Franks challenge to a warrant, a defendant must first
demonstrate that the law enforcement official deliberately or recklessly included a
false statement or omitted a truthful statement from his warrant affidavit. Coleman,
349 F.3d at 1083. "Mere negligence on the part of law enforcement officers" does not
satisfy this initial requirement. United States v. Gibson, 123 F.3d 1121, 1124 (8th
Cir. 1997). Second, a defendant must show that if the offensive content in the
warrant affidavit is ignored, its remaining content "would be insufficient to establish
probable cause." Coleman, 349 F.3d at 1083.

Defendants cannot meet the first Franks requirement because they rely entirely
on their own accusations that the agent acted deliberately or recklessly. They point
to several minor discrepancies in the warrant affidavit, such as the listing of a
different address for Carpenter in a prior police report, but these minor differences do
not show deliberate or reckless falsehood. Id. at 1084. Stating that an informant has
not given false information even though he has never given information in the past
does not amount to a false or reckless omission of relevant information. Gibson, 123

9
F.3d at 1124. Defendants also charge that the agent falsely or recklessly omitted
information that the fruits of the earlier search had been suppressed by a state court.
While the agent did omit this information, the defendants have not demonstrated that
this was intentional rather than negligent. Id. at 1084-85. Thus, they have not shown
that the agent acted deliberately or recklessly in preparing the warrant application.
Even if the defendants could meet the first requirement, it would not undermine the
probable cause underlying the warrant, which was based on several untainted sources
of information. Because probable cause existed for the warrant and the defendants
have not shown a Franks violation, the district court did not err in denying the
suppression motion.

B.

Underwood and Carpenter assert that their convictions are not supported by the
evidence. Underwood challenges his conspiracy conviction and the attribution of 500
grams of methamphetamine to him because these findings were based solely on the
testimony of two witnesses. He contends that the government needs to corroborate
such testimony.5 Similarly, Carpenter challenges his convictions for conspiracy,
manufacturing within 1000 feet of a school, and endangerment to human life because
of alleged deficiencies in the testimony of witnesses. He argues that the testimony
of the government's cooperating witnesses is unbelievable on its face.

5
Underwood also argues that his motion for a new trial was improperly denied
by the district court for a similar reason and that the government's reliance on
unreliable witnesses warrants a new trial in the interests of justice. The district court's
denial of a new trial motion is reviewed for abuse of discretion. See United States v.
Munoz, 324 F.3d 987, 991 (8th Cir. 2003) (holding that a new trial should be granted
"only if the evidence weighs heavily enough against the verdict that a miscarriage of
justice may have occurred"). We cannot say that the district court abused its
discretion in denying Underwood's motion.

10
 Sufficiency of the evidence to support a jury verdict is reviewed de novo.
United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000). The facts are
viewed in the light most favorable to support the verdict, all reasonable inferences are
accepted, and reversal is only appropriate if no reasonable jury could have found the
defendant guilty. United States v. Stroh, 176 F.3d 439, 440 (8th Cir. 1999). While
corroborating evidence can support the testimony of witnesses, the cases relied on by
the defendants, see, e.g., United States v . Hulse, 198 F.3d. 665, 668 (8th Cir. 1999);
United States v. Del Toro-Aguilera, 138 F.3d 340, 342 (8th Cir. 1998), do not hold
that witness testimony must be corroborated. Rather, the credibility of witnesses is
for the jury to evaluate. See, e.g., United States v. Espino, 317 F.3d 788, 794 (8th
Cir. 2003); United States v. Mangine, 302 F.3d 819, 823 (8th Cir. 2002). Because
Underwood and Carpenter base their challenge to the sufficiency of the evidence
solely on witness credibility, they cannot prevail.

C.

Carpenter challenges his conviction for endangering human life during the
manufacture of methamphetamine on the basis that 21 U.S.C. § 858 is
unconstitutionally vague. He contends the words "harm to human life" do not place
a defendant on notice as to the conduct prohibited and can lead to arbitrary
enforcement. We review a challenge to a criminal statute's constitutionality de novo.
United States v. Koons, 300 F.3d 985, 990 (8th Cir. 2002). A criminal statute is
vague if persons of a "'common intelligence must necessarily guess at its meaning and
differ as to its application.'" United States v. Smith, 171 F.3d 617, 622-23 (8th Cir.
1999) (citing Planned Parenthood of Minn. v. Minnesota, 910 F.2d 479, 482 (8th Cir.
1990)). A statute gives fair warning if either on its face, or as construed, it made
reasonably clear at the relevant time that the defendant's conduct was criminal.
United States v. Lanier, 520 U.S. 259, 267 (1997).

11
 Here, Carpenter had adequate notice that his conduct was proscribed, and his
arrest and conviction were not arbitrary. While Carpenter argues that he had no
actual notice that he could be charged for endangerment to human life, actual notice
is not required. See United States v. Washam, 312 F.3d 926, 930 (8th Cir. 2002).
The plain reading of the statute indicates that Carpenter's activities fell within it. A
common interpretation of the words "substantial risk of harm to human life" suggests
not mental, emotional, or spiritual harm as Carpenter argues, but rather that the
activity engaged in increases the likelihood of imminent physical danger to humans.
The district court correctly used the plain meaning of the statutory language in its jury
instructions. The jury instructions defined the risk as originating from either the
process of manufacturing methamphetamine or the storage, transportation, or mixing
of chemicals used in methamphetamine production. The court's instructions limited
the risk to one that was real and significantly large, that created a potential for current
physical damage, and that endangered a person other than the defendant. Similar jury
instructions have been held constitutional. See, e.g., United States v. Evans, 318 F.3d
1011, 1016 (10th Cir. 2003); United States v. Jackson, 199 F. Supp. 2d 1081, 1087-88
(D. Kan. 2002). The district court did not clearly err or abuse its discretion in
instructing the jury, and the statute as construed and applied to Carpenter is not
unconstitutionally vague.6

6
Carpenter also challenges his convictions for endangerment and
manufacturing near a school on the grounds that the district court improperly allowed
the expert testimony of Special Agent Michael Mittan and Melvin Samples, a
surveyor with HGM Associates, Inc., who testified that Carpenter's house was within
1000 feet of a school. To prevail on this claim, Carpenter has to show not only that
a discovery rule was violated but also that the violation was prejudicial. United
States v. Kuenstler, 325 F.3d 1015, 1023 (8th Cir. 2003). Carpenter has not
established any prejudice.

12
 D.

Underwood claims that the district court erred by failing to instruct the jury on
multiple conspiracies. The denial of a request for a jury instruction is reviewed for
abuse of discretion. United States v. Gary, 341 F.3d 829, 834 (8th Cir. 2003).

Underwood contends that the district court abused its discretion in instructing
the jury. He claims that there were two different conspiracies: the one charged in the
indictment and a separate conspiracy between Underwood and Steele in which
methamphetamine was manufactured only to support Steele's drug habit. He argues
that the jury could have convicted him of a conspiracy with Steele rather than the
larger conspiracy charged in the indictment. He contends both conspiracies were
proven at trial and that the court should have given his requested instruction on
multiple conspiracies.

A single conspiracy may be proven where the defendants have a common
purpose and mutual assistance is provided by the members of the conspiracy. United
States v. Haren, 952 F.3d 190, 196 (8th Cir. 1992). In this case, there was sufficient
evidence to prove that Underwood knowingly and willingly gave mutual assistance
to the conspiracy charged in the indictment. Underwood knew his coconspirators,
stayed overnight at Carpenter's residence on several occasions, and participated in the
methamphetamine cooks by popping pseudoephedrine pills out of the packages,
crushing the pills, and peeling lithium batteries. The jury instructions given in this
case left open the possibility that the jury could find that Underwood was not a
member of the indicted conspiracy, see United States v. Hester, 140 F.3d 753, 757
(8th Cir. 1998), but the jury did not make such a finding. Given the record at trial,
the district court did not abuse its discretion in refusing to give Underwood's
proposed jury instruction.

13
 E.

Carpenter argues that his Fifth Amendment rights were violated when he was
tried and convicted on multiple counts for the same conduct. Multiplicity in charging
an offense is reviewed de novo. United States v. Okolie, 3 F.3d 287, 289 (8th Cir.
1993). Under the Fifth Amendment, a defendant is protected from being subject to
double jeopardy. Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003). Where each
offense requires proof of a different element, there is not a double jeopardy problem.
See Blockburger v. United States, 284 U.S. 299, 304 (1932) (holding that convictions
for separate counts arising out of the same narcotics sale did not constitute double
jeopardy because each count required proof of an additional fact that the other did
not). Carpenter argues that he cannot be convicted for manufacturing
methamphetamine, manufacturing within 1000 feet of a school, and endangering life
during the manufacture of methamphetamine because the manufacturing count is a
lesser included offense of either the endangerment count or the school proximity
count.

As the government conceded at oral argument, convictions under both 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 860 violate the double jeopardy clause because
one of the elements of § 860 is a violation of § 841(a)(1).7 See 21 U.S.C. § 860 (West

7
21 U.S.C. § 860 states:
Any person who violates section 841(a)(1) of this title or
section 856 of this title by distributing, possessing with
intent to distribute, or manufacturing a controlled
substance in or on, or within one thousand feet of, the real
property comprising a public or private elementary,
vocational, or secondary school or a public or private
college, junior college, or university, or a playground, or
housing facility owned by a public housing authority, or
within 100 feet of a public or private youth center, public
swimming pool, or video arcade facility, is (except as

14
2004); United States v. Freyre-Lazaro, 3 F.3d 1496, 1507 (8th Cir. 1993). A violation
of 21 U.S.C. § 841 is a lesser included offense of 21 U.S.C. § 860. Id. While a
defendant may be tried for lesser and greater offenses during the same trial, a
judgment of conviction and punishment for both violates the double jeopardy clause.
United States v. Jelinek, 57 F.3d 655, 660 (8th Cir. 1995). Because Carpenter was
convicted and sentenced on both counts, we must remand so the district court can
vacate both Carpenter's judgment of conviction and his sentence for the lesser offense
of manufacturing methamphetamine in violation of 21 U.S.C. § 841.8 Id.

F.

Steele and Carpenter each argue that the district court erred in sentencing in
respect to their roles in the offense. A district court's determination of a defendant's
role in the offense is reviewed for clear error. United States v. Bush, 352 F.3d 1177,
1181 (8th Cir. 2003).

provided in subsection (b) of this section) subject to (1)
twice the maximum punishment authorized by section
841(b) of this title; and (2) at least twice any term of
supervised release authorized by section 841(b) of this title
for a first offense.

8
At sentencing, the district court recognized that there could be a double
jeopardy challenge on appeal in respect to Carpenter's § 841 and § 860 convictions,
and it determined that the manufacturing conviction did not materially affect his life
sentence imposed for conspiracy, felon in possession, and manufacturing within 1000
feet of a school. The court stated explicitly that vacation of the manufacturing
conviction would not affect Carpenter's sentence on the other counts of conviction.

15
 Steele argues that she should have received a downward adjustment under §
3B1.2b for a minor role in the conspiracy. She points out that she was not named in
the search warrant, decontaminated after the search, implicated as a major player in
the trial testimony, or found with any drugs.9

A two level reduction for minor participation applies to a defendant "who is
less culpable than most other participants, but whose role could not be described as
minimal." United States Sentencing Guidelines Manual § 3B1.2(b) cmt. 5 (2003)
[USSG]. To prevail on her argument, Steele must demonstrate that she participated
less than others in the conspiracy. Bush, 352 F.3d at 1182. Here, the evidence
showed that Steele was deeply involved in the conspiracy and did not participate less
than most of the others. She was aware of the extent of the operation because she
frequented her brother's house where she stayed overnight on several occasions. She
not only participated in the methamphetamine cooks, but she operated her own. The
district court did not err in finding Steele not eligible for a minor participant
adjustment.

Carpenter challenges the district court's enhancement of his sentence under
USSG § 3B1.1 for being an organizer or leader in the conspiracy. He alleges that he
did not manage anyone and that other individuals simply used the methamphetamine
lab for their own cooks. Under § 3B1.1, a defendant's offense level can be increased
by four levels if he was an organizer or leader of a criminal activity involving five or
more participants. A defendant who did not directly control the other conspirators
may still receive an enhancement for being a leader or organizer. United States v.
Logan, 54 F.3d 452, 456 (8th Cir. 1995). Here, the district court applied the
enhancement based on all the evidence, including the number of people involved in
the conspiracy, the activity that took place in Carpenter's house, evidence that

9
Steele also argues that her Eighth Amendment rights have been violated, but
she made an insufficient showing to merit discussion of this claim.

16
Carpenter directed the cooks and directed others to get precursors or bury sludge in
the backyard. The district court did not err by finding Carpenter was a leader in the
conspiracy.

G.

Carpenter raises two additional sentencing issues: that the district court erred
in its calculation of drug quantity and erred by treating him as a career offender.

According to Carpenter, the district court erred in calculating the drug quantity
by overestimating the efficiency of the methamphetamine laboratory and the quantity
of the precursor materials used. He contends that his cooks only produced a yield of
15% from the precursor materials, rather than the 30% yield found by the district
court. The correct efficiency finding would have lowered the drug quantity he says
and would have resulted in a 2 level reduction in his base offense level. A district
court's findings of fact regarding the quantity of drugs attributed to the defendant is
reviewed for clear error. United States v. Maggard, 156 F.3d 843, 848 (8th Cir.
1998). District courts determine the drug quantity attributable to the defendant by a
preponderance of the evidence and make credibility decisions in the process. United
States v. Johnston, 353 F.3d 617, 625 (8th Cir. 2003) (per curiam). The district court
heard the evidence and found the drug quantities had been proven by a preponderance
of evidence. Its reliance on trial testimony and the jury's credibility findings in its
determination of drug quantity was not clear error.

Finally, Carpenter contends that he is not a career offender under USSG §
4B1.1 because his Iowa conviction for "going armed with intent" is not a crime of
violence. Under § 4B1.1, a defendant is a career offender if "the instant offense of
conviction is a felony that is either a crime of violence or a controlled substance
offense" and he "has at least two prior felony convictions of either a crime of violence
or a controlled substance offense." USSG § 4B1.1. We have already determined that

17
an Iowa conviction for going armed with intent qualifies as a crime of violence for
sentencing purposes and can be used in determining whether a defendant is a career
offender. See United States v. Gomez-Hernandez, 300 F.3d 974, 980 (8th Cir. 2002).
Because Carpenter's Iowa conviction was for a crime of violence, the court did not
error in finding him a career offender for sentencing purposes.

H.

Steele challenges her sentence on several grounds. First, she argues that the
district court erred by applying a two level enhancement for possession of a
dangerous weapon under USSG § 2D1.1(b)(1) because the evidence did not show a
sufficient nexus between the firearm and the conspiracy or that she had constructive
possession of the firearm. We review de novo a district court's application of the
guidelines to the facts and its findings for clear error. United States v. Willey, 350
F.3d 736, 739 (2003). Section 2D1.1(b)(1) provides for a two level increase in the
offense level for possession of a dangerous weapon. This adjustment is to be applied
"unless it is clearly improbable that the weapon was connected with the offense."
USSG § 2D1.1 at cmt. n.3.

The district court did not err in applying the enhancement to Steele because the
government demonstrated by a preponderance of evidence that it was reasonably
foreseeable that the firearm would be used in the course of the conspiracy and that
Steele constructively possessed the firearm. At the sentencing hearing, Freese
testified that he had seen a gun at Steele's house and that Carpenter would go there
to bubble methamphetamine. While Steele argued that the gun in her home was for
her personal protection, it was nevertheless foreseeable that it could be used in
relation to the drug manufacturing in which the conspirators were involved. From the
evidence presented, it is not clearly improbable that the weapon was connected with
her offense.

18
 Second, Steele argues that the district court improperly departed upward to
increase her criminal history category. A district court's sentencing departure is
reviewed de novo, and its factual findings for clear error. Willey, 350 F.3d at 739.
An upward departure based on criminal history may be warranted "if reliable
information indicates that the defendant's criminal history category substantially
under-represents the seriousness of the defendant's criminal history or the likelihood
that the defendant will commit other crimes." USSG § 4A1.3. The district court
found that criminal history category III substantially underrepresented the seriousness
of Steele's criminal history. Steele has been a recidivist criminal since 1978 and had
several juvenile adjudications for which she had not received any criminal history
points, but which can be considered as a basis for departure under USSG § 4A1.2.
The district court could have increased her criminal history level based on her
juvenile adjudications alone, and it was also entitled to consider the nature of her
adult convictions which included two convictions for second degree murder. The
district court did not err by its upward departure.

The government cross appeals Steele's sentence, arguing that the district court
should have enhanced Steele's offense level under USSG § 2D1.1(b)(5)(B) because
the methamphetamine lab in Carpenter's house created a substantial risk to human
life. It contends that Steele should have received an enhancement because the
methamphetamine lab was in a house in an urban residential neighborhood, the
defendants stored noxious chemicals haphazardly, and the evident risk of harm to
human life in these circumstances was reasonably foreseeable to Steele.

We review de novo a district court's application of the guidelines to the facts
and its findings for clear error. Willey, 350 F.3d at 739. Under USSG §
2D1.1(b)(5)(B), a sentence is to be enhanced by three levels if the defendant was
engaged in the manufacture of methamphetamine and created a substantial risk of
harm to human life. Under a reasonable doubt standard the jury had found Steele not

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guilty of endangering human life, but the standard of proof for application of a
sentencing enhancement is preponderance of the evidence.

The district court found the enhancement was not appropriate in Steele's case
after considering the arguments presented. The guidelines suggest consideration of
several factors in deciding whether to apply the enhancement: (1) quantity of
chemicals found and the manner of their storage; (2) disposal of the hazardous
chemicals; (3) duration and extent of the manufacturing operation; and (4) location
of the laboratory. The record shows that the methamphetamine lab was in Carpenter's
house, but is not clear how regularly Steele was there or if she was familiar with all
of the conditions in the house. There was also evidence that the most dangerous part
of the methamphetamine production – the mixing of anhydrous ammonia with lithium
strips – was done by Carpenter away from the house in public places and without
Steele's presence or assistance. Finally, we recognize that the district court heard all
the testimony at trial and made its finding based on its opportunity to assess the
testimony given in front of it. We conclude that it did not err by its decision not to
apply the enhancement to Steele.

III.

For the foregoing reasons, we affirm the convictions of Carpenter, Steele, and
Underwood for conspiracy to manufacture methamphetamine; as well as Carpenter's
convictions for manufacturing methamphetamine within 1000 feet of a school,
endangering human life during the manufacture of methamphetamine, felon in
possession of a firearm, possession of a firearm in furtherance of a drug trafficking
crime, and possession of an unregistered short barreled shotgun. We affirm the
sentence imposed on Steele and deny the government's cross appeal.

We remand Carpenter's conviction for manufacturing methamphetamine in
violation of 21 U.S.C. § 841, for the district court to vacate it on double jeopardy

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grounds as a lesser included offense of 21 U.S.C. § 860. We affirm Carpenter's
sentence except for the sentence imposed for manufacturing methamphetamine which
should be excised from the judgment on remand.

Except for the remanded count, we affirm the judgment of the district court.
______________________________

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