United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2003
__________________________ Charles R. Fulbruge III
Clerk
No. 02-10434
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY SIMPSON; PAUL MILLS,
Defendants-Appellants.
___________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
___________________________________________________
Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellants Tommy Simpson and Paul Mills were
convicted of conspiracy to manufacture, and possession with the
intent to distribute, 500 grams or more of methamphetamine. On
appeal, they contest the district court’s six-level sentence
enhancement under § 2D1.1(b)(5)(C) for causing a substantial risk
of harm to the life of a minor. We are convinced that the district
court erroneously applied the six-level enhancement to Paul Mills’s
sentence because there was neither evidence of the presence of a
minor during Mills’s participation in the conspiracy, nor evidence
indicating that danger to a minor was reasonably foreseeable to
him. We therefore reverse and remand for re-sentencing Mills on
this issue. We affirm the district court on all other issues
raised by defendant-appellants, and therefore affirm each
appellant’s conviction and Simpson’s sentence.1
I. FACTS AND PROCEEDINGS
Paul Mills supplied at least eighteen (18) 150-pound tanks of
anhydrous ammonia to methamphetamine cooks in the Dallas area
between April 2000 and April 2001. Twelve (12) of these tanks went
1
In his brief to this Court, Simpson argued that the district
court erred by applying the 2001 Sentencing Guidelines instead of
the 2000 version. At oral argument, however, Simpson’s counsel
expressly conceded the frivolousness of this argument. After
briefing, Simpson attempted to adopt both of Mills’s briefs in
their entirety. Where, as here, the Sentencing Guidelines legal
issue has underlying facts that differ between the parties, we
cannot allow Simpson to adopt Mills’s challenges pursuant to Fed.
R. App. P. 28(i). United States v. Solis, 299 F.3d 420, 447, n.90
(5th Cir. 2002) (finding that sentencing challenges cannot be
adopted under Rule 28(i), particularly challenges to the
application of the Sentencing Guidelines, because they are fact-
specific”); United States v. Morrow, 177 F.3d 272, 302, n.3 (5th
Cir. 1999) (same). Even if we were to allow Simpson to adopt the
legal arguments of Mills’s sentencing challenge, the record clearly
demonstrates that (1) Simpson was actively involved in the
methamphetamine production until the end of the conspiracy, (2) he
lived in Baldwin’s house until that time, and (3) he helped take
care of Baldwin and Quimby’s infant child. Thus, the danger to a
minor was certainly foreseeable to Simpson. Finally, during oral
argument Simpson contended for the first time that we should find
that the district court committed plain error in applying the six-
level enhancement to Simpson, because a child’s close proximity to
a methamphetamine laboratory should be insufficient to trigger the
enhancement provisions. Because we generally do not consider
points raised for the first time at oral argument, see United
States v. Ulloa, 94 F.3d 949, 952 (5th Cir. 1996), and because of
the reasons articulated infra, we decline to adopt Simpson’s overly
narrow interpretation of the six-level enhancement provision. As
a result, the record firmly supports application of §
2D1.1(b)(5)(C)’s six-level enhancement to Simpson’s sentence.
2
to Jerry Baldwin, the alleged ring-leader of the methamphetamine
manufacturing conspiracy. Mills personally delivered tanks of
ammonia to Baldwin and helped him store it in a hidden compartment
of a locked shed in the backyard of Baldwin’s residence. Baldwin
produced the methamphetamine in a recreational vehicle (RV) next to
his house, and Mills apparently witnessed this methamphetamine
production on at least one occasion.
The conspiracy ended when police and DEA agents raided
Baldwin’s house on May 24, 2001. Baldwin and Simpson were in the
shed in the backyard starting to manufacture methamphetamine when
the police executed their search warrant. A Dallas Police
Department officer testified that when they conducted the raid they
found Baldwin’s wife, Patty Quimby, in the house, which was
saturated with the smell of ammonia. With her was their infant
daughter, who was less than 30 days old. Regarding a search
conducted subsequent to the May 24 search, a DEA agent testified
that he discovered three tanks of ammonia in the hidden compartment
of the backyard shed.
Despite the presence of ammonia tanks in Baldwin’s shed after
May 24, the evidence makes clear that Mills’s participation in the
conspiracy ceased no later than April 11, 2001. A wiretap and
surveillance of Baldwin’s home began on or about that date, but DEA
agents testified that Mills participated in none of the calls, and
was not observed by the surveillance cameras during this phase of
the investigation. Baldwin himself testified that he had been
3
unable to contact Mills after the beginning of April, presumably
because Mills had taken an advance payment from Baldwin but had
failed to deliver any ammonia thereafter.
Baldwin also testified that, in addition to his newly born
daughter, he is the father of several other children, including a
six-year old; and transcripts of two phone conversations
substantiate this testimony.2 There is no direct evidence,
however, that the six-year old or any child other than the newborn
was living in Baldwin’s house, or had even visited the house,
during the term of Mills’s involvement in the conspiracy. Neither
is there any evidence that Mills had encountered Quimby personally,
that he was aware of her pregnancy, or that he knew of the birth of
her and Baldwin’s daughter subsequent to his last participation in
the conspiracy.
II. ANALYSIS
A. STANDARD OF REVIEW
We review the district court’s interpretation or application
of the Sentencing Guidelines de novo, but review factual findings
2
The government filed a motion to supplement the record
shortly before oral argument in this case, which consisted of
transcripts of two telephone conversations between Baldwin and
Quimby. We implicitly granted this motion when we considered the
content of the motion in connection with oral argument. Although
the district court accepted into evidence the CDs on which these
conversations were recorded, their content was never explicitly
considered by the sentencing court. Moreover, we find them
insufficient to show that the presence of a minor was reasonably
foreseeable to Mills.
4
for clear error.3 “As long as a factual finding is plausible in
light of the record as a whole, it is not clearly erroneous.”4
B. MILLS’S SENTENCE ENHANCEMENT UNDER § 2D1.1(b)(5)(C)
The Sentencing Guidelines (the “Guidelines”) contain two
related enhancement provisions that are potentially applicable to
the methamphetamine offense at issue here: (1) § 2D1.1(b)(5)(B)
which specifies a three-level enhancement for creating a
“substantial risk of harm to (I) human life other than a life
described in subdivision (C); or (II) the environment;”5 and (2) §
2D1.1(b)(5)(C) which specifies a six-level enhancement for creating
a “substantial risk of harm to the life of a minor or an
incompetent.”6 If the facts support applying both provisions, only
the greater enhancement applies.
According to the Guidelines’s commentary, courts “shall”
consider four factors in determining whether either of these
enhancements apply: (1) the quality of chemicals and substances
found at the laboratory, and the manner in which they were stored;
(2) the manner in which these materials were disposed, and the
likelihood of release of such toxic substances into the
environment; (3) the duration of the offense and extent of the
3
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
4
Id.
5
United States Sentencing Guidelines Manual (“USSG Manual”) §
2D1.1(b)(5)(B) (2002).
6
USSG Manual § 2D1.1(b)(5)(C).
5
manufacturing operation; and (4) the location of the laboratory
(whether in a residential or remote area) and the number of human
lives placed at substantial risk of harm.7
These factors do not indicate, however, the quantity of
evidence that is necessary to distinguish subsection (B) from
subsection (C). For example, the fourth factor, which is the one
most relevant to our inquiry, only instructs courts to consider how
many lives are at stake and whether the lab is in a residential
area. Finding that lives are endangered, however, does nothing to
distinguish the three-level enhancement for causing a substantial
risk to any human life from the six-level enhancement for causing
a substantial risk to the life of a minor.
Presumably, to merit the greater enhancement of subsection
(C), it also would be necessary to establish specifically that at
least one of the lives at risk is that of a minor or an
incompetent, not just lives of human beings generally. Otherwise,
if the applicability of the six-level enhancement were triggered
simply by evidence of endangerment to human lives, it would
potentially make superfluous the three-level enhancement, which
would be applicable on the basis of the exact same evidence. To
7
USSG Manual § 2D1.1, cmt. n. 20. In a Rule 28j letter filed
April 18, 2003, the government drew attention to a recent Sixth
Circuit case analyzing § 2D1.1(b)(5)(B) and applying the factors
listed above to conclude that the three-level enhancement applied.
United States v. Layne, 324 F.3d 464, 468-71 (6th Cir. 2003).
Layne, however, did not discuss the six-level enhancement of §
2D1.1(b)(5)(C) that we address today.
6
give effect to the Sentencing Commission’s purpose in two different
enhancement provisions for the dangers caused by methamphetamine
production, we must conclude that the six-level enhancement of
subsection (C) has to be based on specific evidence of a risk of
harm to at least one minor or incompetent.
The Pre-Sentence Report (“PSR”), on which the district court
relied in applying the enhancement, took the position that Mills
participated in the conspiracy from April 2000 until its final day,
May 24, 2001, and recommended § 2D1.1(b)(5)(C)’s six-level
enhancement because Mills “was involved in a jointly undertaken
criminal activity with Jerry Baldwin and Patricia Arlene Quimby
that endangered the life of a minor,” specifically “cook[ing]
methamphetamine in or near their residence, endangering the lives
not only of unsuspecting neighbors, but the codefendants’ infant
child” (emphasis added). In neither the PSR nor the transcript of
the sentencing hearing is there mention of any other minor. The
PSR and the district court relied entirely on the Baldwins’ newborn
daughter.
On appeal, the government reverses its earlier district court
position, arguing for the first time that the enhancement of
Mills’s sentence was proper because (1) Mills’s delivered anhydrous
ammonia to homes in residential areas and (2) Baldwin, who received
twelve of the tanks of ammonia from Mills, was the father of
another minor child in addition to the infant named in the PSR.
The government conceded, however, that the infant was born after
7
Mills stopped dealing with Baldwin, and that no other child was
considered by the probation department in preparing Mills’s PSR or
by the district court in sentencing him.
Neither the government’s contentions nor the PSR’s factual
conclusions are sufficient to prove the presence of a minor while
Mill was involved. First, although Baldwin testified that he is
the father of a six year old, there is no record evidence that this
child was present during the period of Mills’s involvement, and the
available evidence strongly suggests that this child never lived at
Baldwin’s residence during the relevant period. Even though two
telephone conversation transcripts proffered by the government
after sentencing indicate that a young child of Baldwin’s named
Brittney was present at his house, these conversations took place
well after Mills’s participation in the conspiracy ended, and their
substance confirms that even then Brittney was not living at
Baldwin’s house.8 The PSR never mentions this child in its
findings, and there is no indication that the district court was
aware of or considered the presence of this child in its sentencing
calculus. There is simply no clear evidence that this child was
ever present during the period of Mills’s involvement in the
conspiracy.
8
The conversations took place on May 12 and 20, 2001, at least
a month after Mills’s stopped delivering tanks to Baldwin’s
residence. The conversations also contain references strongly
suggesting that Brittney did not live at the house. Patty Quimby,
Baldwin’s wife, stated that Brittney “don’t go back until five
[pm],” and “she’s only here for the weekend.”
8
Furthermore, despite the PSR’s conclusional statement that
Mills participated in the conspiracy until May 24, 2001, there is
a surfeit of testimonial evidence that Mills’s contact with Baldwin
had ceased altogether weeks before the birth of Quimby and
Baldwin’s baby. Baldwin testified that he had been unable to
contact Mills at any time during the six weeks preceding the May 24
end of the conspiracy, and law enforcement officers confirmed that
Mills was not identified as a participant on either the wire taps
or the surveillance camera during their entire investigation, which
began on April 10, 2001. Absent any evidence to the contrary,
Mill’s total absence of contact with the conspiracy or the
conspirators is sufficient to confirm that he had stopped
delivering ammonia to Baldwin well before the birth of Baldwin’s
baby.
It is true that, in the context of jointly undertaken criminal
activity, Baldwin and Quimby’s actions in furtherance of the
conspiracy could be imputed to Mills for purposes of guilt in the
conspiracy. In contrast, for sentencing purposes, the Guidelines
specify that base offense levels and specific offense
characteristics must be determined on the basis of “all reasonably
foreseeable acts and omissions of others in furtherance
of...jointly undertaken criminal activity.”9 The commentary to this
section explains further that “a defendant is accountable for the
9
USSG Manual § 1B1.3(a)(1)(B)(emphasis added).
9
conduct (acts and omissions) of others that was both: (i) in
furtherance of the jointly undertaken criminal activity; and (ii)
reasonably foreseeable in connection with that criminal activity.”10
Thus, the acts of the co-conspirators after Mills ceased
involvement in the conspiracy may not be imputed to him for
sentencing purposes unless such acts were reasonably foreseeable.11
Because the Guidelines are careful not to attribute
unforeseeable acts of co-conspirators to a defendant for sentencing
purposes, this same approach must apply to the even more
individualized task of sentence enhancement. If acts taken in
furtherance of a conspiracy cannot be attributed to a defendant
unless they are reasonably foreseeable to him, surely the discrete
conditions in which such acts occur should not be attributed to the
defendant unless they too were reasonably foreseeable to him.
In the instant case, not only is the record devoid of evidence
of any minor’s presence during the span of Mills’s active
10
Id. cmt. n.2.
11
The probation officer apparently contacted the Sentencing
Commission and reported that he was informed that specific offense
characteristics, such as this six-level enhancement, should be
applied to all participants in a conspiracy regardless of their
role. On the basis of this communication, the district court
applied the six-level enhancement to Mills. Such second-hand
communication between a parole officer and someone on the staff of
the Commission is incompetent authority and neither supports the
sentencing court’s decision nor binds us. Furthermore, the advice
itself does not necessarily conflict with our interpretation. We
only conclude that, in accordance with the Guidelines, the
circumstances meriting the enhancement first must be reasonably
foreseeable to a participant in a conspiracy.
10
involvement in the conspiracy, but there is also a dearth of
evidence to support the conclusion that Mills could have reasonably
foreseen that his participation would endanger the life of a
particular minor. To survive, such an enhancement would require a
showing either that Mills knew Baldwin’s wife was pregnant and
nearing delivery or that he could have reasonably foreseen that an
infant or a child would be present in the house. But it was
impossible that Mills could have foreseen that the infant would be
present during his period of involvement, because Baldwin’s wife
had not yet had the child. Neither is there clear evidence that
Baldwin’s other child was living at the house during Mills’s
involvement, or even that she had been a visitor in the house when
he made a delivery. Indeed, the telephone transcripts provided by
the government only appear to establish that this older child
visited the home on weekends in May 2001, after Mills’s
participation had ceased.
Furthermore, the government failed to adduce any evidence to
indicate that Mills could have known that Baldwin’s wife was
pregnant and would soon bear a child. As noted, Mills merely
delivered tanks of ammonia to Baldwin and helped him store the
tanks in a shed in the backyard of the property. Although there is
evidence that Mills witnessed the production of methamphetamine on
one occasion, that took place in an RV in proximity to the house,
not in it. There is no evidence that on any of these occasions
Mills ever interacted with Baldwin’s wife or was ever in Baldwin’s
11
house.
In contrast, the substantial risk of harm that Mills was
causing to human life generally was reasonably foreseeable to him.
Baldwin’s property to which Mills repeatedly delivered tanks of
ammonia was located in a residential neighborhood, so he was
endangering Baldwin’s immediate neighbors. It was also reasonably
foreseeable to Mills that Baldwin’s use of this ammonia to
manufacture methamphetamine would endanger the local environment.
As a result, § 2D1.1(b)(5)(B)’s three-level enhancement would have
been sustainable under these factual circumstances.
To summarize, Mills had stopped delivering ammonia to Baldwin
weeks before his and Quimby’s daughter was born and before any
other child was shown to have been present. There is no record
evidence suggesting that Mills could have reasonably foreseen the
presence of children in Baldwin’s house, the RV, or the shed.
Because, for sentencing purposes, Mills is only responsible for
those acts of Quimby and Baldwin’s that were reasonably foreseeable
to him, he only merits sentence enhancement if the conditions
necessary for enhancement were also reasonably foreseeable. There
is no suggestion in the record that Mills ever interacted with
Quimby or entered Baldwin’s house during his participation in the
conspiracy. Consequently, it was not reasonably foreseeable to
Mills that his participation could constitute a substantial risk of
harm to the life of any particular, identifiable minor.
III. CONCLUSION
12
For the foregoing reasons, we reverse the sentencing court’s
assessment of the six-level enhancement in calculating Mills’s
sentence, and we vacate Mills’s sentence. We affirm all other
rulings of the district court.
AFFIRMED in part; REVERSED in part; Mills’s sentence VACATED; and
the case REMANDED for resentencing Mills.
13