United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 14, 2004
Charles R. Fulbruge III
Clerk
No. 03-10601
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES RUSSELL REASONER,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:02-CR-144-3-A)
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
James Russell Reasoner pleaded guilty pursuant to a written
plea agreement to distribution of a controlled substance. The pre-
sentence report (“PSR”) and its addenda, applying the 2002 version
of the Sentencing Guidelines, determined that Reasoner had a total
offense level of 35 and a criminal history category of I. This
calculation included a six-level increase in Reasoner’s offense
level pursuant to U.S.S.G. § 2D1.1(b)(5)(C) for creating a
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
substantial risk of harm to the life of a minor during Reasoner’s
manufacture of methamphetamine. Reasoner appeals the enhancement
and the district court’s denial of his third motion for a
continuance. We affirm the sentence and hold the district court
did not abuse its discretion in denying Reasoner’s third motion for
a continuance.
BACKGROUND
In August 2000, federal investigators received information
from a confidential informant that members of the Texas Aryan
Brotherhood (the “Aryan Brotherhood”) were distributing firearms
and methamphetamine in the Dallas-Fort Worth area. The information
also identified Reasoner, who was not a member of the Aryan
Brotherhood, as the Aryan Brotherhood’s methamphetamine
manufacturer and supplier.
To investigate this information, the authorities used the
services of an undercover officer who had infiltrated the Aryan
Brotherhood. This undercover officer eventually was led to
Reasoner’s apartment, located at 2200 Aden Road, No. 1411, in Fort
Worth to purchase methamphetamine. On the way to the apartment,
the undercover officer was told by a leader of the Aryan
Brotherhood “that Reasoner was the best source for methamphetamine
he had ever had,” and that the Aryan Brotherhood “helped Reasoner
start his methamphetamine lab with the needed chemicals.”
On August 28, 2001, the undercover officer purchased 19.45
grams of methamphetamine from Reasoner for $1,200.00. Before
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leaving the apartment, Reasoner told the undercover officer that he
could cook more methamphetamine for him if necessary. Reasoner
also said that he normally cooked four to five ounces of
methamphetamine “every few days.”
On August 30, 2001, the undercover officer met again at
Reasoner’s apartment. This time, the undercover officer purchased
25.97 grams of methamphetamine from Reasoner for $1,400.00.
On November 7, 2001, Reasoner was arrested in his apartment.
On December 5, 2002, the United States filed a one-count
superseding information, charging Reasoner with distribution of
less than 50 grams of methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). On December 6, 2002, Reasoner filed a
waiver of indictment, along with a plea agreement and a factual
resume. On that same date, Reasoner pleaded guilty to the single
count of the information.
The PSR held Reasoner accountable for 45.42 grams of
methamphetamine, resulting in a base offense level of 24. The PSR
also assessed a two-level enhancement based on the presence of a
firearm during one of Reasoner’s drug sales, bringing the adjusted
offense level to 26. The PSR then deducted three levels based on
Reasoner’s acceptance of responsibility, and calculated the final
offense level at 23. The PSR also contained a lengthy recitation
of other charges then pending against Reasoner in various state
courts, dating between 1999 and 2002. All of these charges dealt
with the manufacture, distribution, or possession of drugs. Based
3
on these other pending cases, the PSR suggested that an upward
departure might be warranted pursuant to U.S.S.G. §§ 5H1.9, 5K2.0,
5K2.21, and 1B1.4.
The United States objected to the PSR, arguing that the other
pending offenses should be treated as relevant conduct rather than
as a basis for a potential upward departure. In an Addendum to the
PSR, the probation officer accepted the government’s objection.
Taking the relevant conduct into account, the Addendum held
Reasoner responsible for 1,654 kilograms of methamphetamine, making
his base offense level 34. The Addendum also assessed a six-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(5)(C) because
Reasoner’s manufacturing of methamphetamine on November 7, 2001,
created a substantial risk of harm to the life of a minor. This
brought Reasoner’s adjusted offense level to 42, and after
deducting the three levels for acceptance of responsibility, fixed
his total offense level at 39.
After Reasoner’s plea, the district court scheduled his
sentencing for March 7, 2003. On February 24, 2003, Reasoner filed
a motion for continuance, reciting that he had received the
Addendum to the PSR holding him responsible for relevant conduct,
and that he needed “additional time to investigate and get the
substances tested to determine if there is material that is
included in the weight of the substance that should not be
included.” The district court granted the motion so that both
Reasoner and the government would “have sufficient time to be
4
prepared at the sentencing hearing to fully develop their
respective positions on the matters mentioned in the February 10,
2003, Addendum of the Probation Officer.” Sentencing was
rescheduled for April 25, 2003.
On April 23, 2003, Reasoner filed a second motion to continue
the sentencing because the “laboratory substance analysis has not
yet been completed.” The district court granted the motion “so
that the government and defendant both will have sufficient time to
be prepared at the sentencing hearing.” Sentencing was rescheduled
for May 16, 2003.
Reasoner objected to the Addendum, lodging several complaints
about the drug quantities used to calculate his offense level. He
also objected to the six-level enhancement for endangering a minor
alleging that “[w]ith the limited amount of dangerous material in
the apartment, only the defendant could have been at a substantial
risk of harm.”
Responding to Reasoner’s objections, a Second Addendum to the
PSR substantially reduced the quantity of drugs attributed to him.
This reduction took four levels off of Reasoner’s base offense
level, reducing it to 30. This made Reasoner’s total offense level
35. Combined with a Criminal History Category of I, this fixed
Reasoner’s sentencing range at 168 to 210 months.
On May 14, 2002, Reasoner filed a third motion for
continuance. In support of the motion, Reasoner stated the
following:
5
Defendant’s attorney was notified on May 13, that an
addendum to the presentence report was being prepared by
the probation office that could significantly impact the
defendant’s sentence. Defendant’s attorney will not have
time to properly consult with the Defendant prior to
May 16 nor will Defendant’s attorney be able to properly
prepare for the sentencing hearing.
The district court denied this motion.
Reasoner’s sentencing hearing was held on May 16, 2003. At
the start of the hearing, Reasoner’s attorney complained that he
had just received the Second Addendum to the PSR the day before the
hearing. Reasoner’s attorney acknowledged that the impact of the
Second Addendum was to “[reduce] the sentencing range for
[Reasoner] very significantly from the one that existed before.”
When pressed for a specific complaint, Reasoner’s attorney
responded that he had a problem with the finding concerning “96.13
net grams of a mixture containing methamphetamine.”
After conferring with the probation officer, the district
court determined that there was a mathematical error in the
calculation of the total amount, and that the actual total should
be 95.77 grams. Reasoner’s attorney agreed that this amended
figure was “consistent” with his calculations. Reasoner’s attorney
also questioned another drug calculation, alleging it was “waste
water.” After considering Reasoner’s evidence and argument on the
issue, the district court agreed with him, and reduced the amount
of drugs attributed to him. As to one disputed item, the district
court held that it “probably should be” reduced, but that instead
of calculating the reduction, “I think the best thing to do is just
6
eliminate [those] 24.32 grams . . . .” Specifically, the district
court amended the findings of the Second Addendum to the PSR as
follows:
In paragraph three on page 2 of the second addendum, I
find that the number 96.13 should be reduced to 71.45,
and that the number 192.26 should be reduced to 142.50.
In the paragraph that is immediately below the paragraph
four on that page, I find that the 384.26 should be
reduced to 334.5, and that the 860.26 should be reduced
to 810.5.
As the district court noted, these changes did not affect
Reasoner’s sentencing range. Reasoner’s attorney acknowledged that
the court’s rulings “took care of” all his objections.
Also during the sentencing hearing the district court heard
testimony addressing Reasoner’s objection to the six-level increase
for creating a substantial risk of harm to the life of a minor
during the manufacture of methamphetamine.
Mark Thorne testified that he is a sergeant with the Fort
Worth Police Department and was the first officer to approach
Reasoner’s apartment on November 7, 2001. The apartment was
located in a complex with several hundred occupants. Sergeant
Thorne described the area around the apartment as “a very crowded
area.” Reasoner’s apartment was located at the top of a flight of
stairs. Just before he went up the stairs to knock on Reasoner’s
door, Sergeant Thorne saw a woman he estimated to be forty years
old pushing a stroller containing a baby and accompanied by a
four-year-old child at the bottom of those stairs.
Sergeant Thorne went up the stairs. As he knocked on the
7
door, he could smell fumes coming from inside the apartment. When
Reasoner opened the door to the apartment, the smell from inside
was so strong that Sergeant Thorne started coughing. Sergeant
Thorne had trouble talking to Reasoner because of the fumes.
Sergeant Thorne finally managed to ask Reasoner if there was a drug
lab operating in the apartment, and Reasoner admitted that there
was. Sergeant Thorne ordered Reasoner to sit down near the front
door while he made a check of the apartment to see if there were
any other people inside. Because of the intensity of the fumes in
the apartment, Sergeant Thorne tried, but failed, to hold his
breath as he searched the apartment. Sergeant Thorne saw a shotgun
or a long rifle inside the apartment. As he continued his search,
he was concerned that if there was anyone else in the apartment who
might discharge a weapon, the muzzle flash “would set this place
off.” In addition to causing him trouble breathing, the fumes in
the apartment made Sergeant Thorne’s eyes water and made him feel
his “health was in extreme danger.”
Dale Malugani is a Fort Worth Police Officer assigned to the
DEA Task Force. He was one of the officers who processed and
dismantled Reasoner’s drug lab. When he first entered the
apartment, the fumes inside were “very irritating.” The apartment
had to be ventilated by opening all of the doors and windows to let
the fumes out. Even after ventilation, Officer Malugani and the
other officers had to wear special protective clothing and other
8
gear to work inside the apartment.1
Based on his observations inside the apartment, Officer
Malugani discovered that Reasoner was using the “red phosphorous”
method to cook methamphetamine. He described the “red phosphorus”
method as being “far more dangerous” than the other methods used to
manufacture methamphetamine. Officer Malugani testified that
Reasoner’s method for manufacturing methamphetamine was “inherently
dangerous,” and that all such labs “were subject to possible
explosions.”
The government introduced photographs showing that Reasoner
had tried to vent the deadly phosphene gas through a tube into a
one gallon plastic container on the top shelf of a closet that
contained kitty litter. Among the dangers inherent in such a
make-shift ventilation system are that the phosphene can leak out
or that the system can become overloaded. The court asked Officer
Malugani if he had “ever heard of one of these labs exploding and
catching a building on fire?” Officer Malugani responded: “Yes,
sir, many. Yes, sir. They are very, very prone for explosion.”
Roy Gilfour testified that he is a neighborhood patrol officer
with the Fort Worth Police Department assigned to patrol the area
that included the apartment where Reasoner operated his drug lab.
Based on his knowledge of the area, Officer Gilfour told the court
1
Officer Malugani described this protective gear as follows: “We
have full suits that are chemical proof, booties, gloves, hood.”
He also described how the officers wore either an air tank or a
respirator “to keep from breathing the air.”
9
that the apartment where Reasoner operated his methamphetamine lab
was located “10 feet away from the apartment office building.”
Officer Gilfour also told the court that there is a playground and
swimming pool located “directly behind” the office. Based on his
knowledge of the apartments, Officer Gilfour indicated that
“there’s a large percentage of children” in the complex.
Reasoner presented testimony from Angela Springfield, the
Chief Toxicologist with the Tarrant County Medical Examiner’s
Office. She had reviewed police reports about Reasoner and his
November 7, 2001, arrest for operating his methamphetamine lab.
Springfield testified that in the “red phosphorus” method of making
methamphetamine, one of three things can be used as a solvent:
acetone, ether, or Coleman Fuel. She did not know which one was
used here. Springfield was not able to tell what other “caustic
substances” may have been in the apartment. Springfield told the
court that the “main person at hazard was the cooker himself.” She
further opined that “unless the minor was within the apartment
itself during the [cooking] process, I don’t see that it is any
great hazard.” Springfield testified that the two primary dangers
of “red phosphorus” methamphetamine cooking are the release of
phosphene gas and the risk of an explosion. Springfield opined
that because the amounts of the chemicals reflected in the reports
were “within the limits that a homeowner would have,” there was no
substantial risk created by the lab. She conceded that a homeowner
would not be mixing and using the chemicals the way they were used
10
here. She said that she did not see anything in the reports to
indicate there was a open flame source of ignition in the
apartment. Based on this, she did not see “a great potential” for
an explosion “unless someone walks in with a match.”
At the conclusion of the evidence, the district court
overruled Reasoner’s objection, stating:
Now, on the risk of harm to the life of a minor, I don’t
think there’s any question that operating that
methamphetamine laboratory right in the middle of a large
apartment complex with people, and particularly children,
all around created a risk to the life of everybody in the
complex because of the possibility of a fire and
explosion that could set other units on fire that could
spread to other units, and that the fact that poisonous
gasses [] conceivably could – and more than just
conceivable, there’s certainly a rather strong
possibility that somebody would be exposed to those
gasses and in particular the children who might be going
up and down that stairway, knowing how children are, even
maybe playing at the top of that stairway from time to
time. So that in itself is a risk of harm to the life of
minors, but not as significant a risk as the risk of loss
of life as a result of a fire and explosion. So I’ll
overrule that objection.
The district court then sentenced Reasoner to 210 months’
imprisonment, three years’ supervised release, and a $100 special
assessment. Reasoner filed a timely notice of appeal.
DISCUSSION
I. Whether the district court erred in applying a six-level
enhancement to Reasoner’s sentence pursuant to U.S.S.G.
§ 2D1.1(b)(5)(C).
On appeal, Reasoner argues that the district court erred in
applying the § 2D1.1(b)(5)(C) six-level sentence enhancement to his
sentence. This Court reviews the application of the Sentencing
11
Guidelines de novo, and we review the sentencing court’s factual
findings for clear error. United States v. Simpson, 334 F.3d 453,
455-56 (5th Cir. 2003). A factual finding is not clearly erroneous
as long as it is plausible in light of the record taken as a whole.
Id. at 456.
Section 2D1.1(b)(5)(C) provides that if an offense involved
the manufacture of methamphetamine and created a substantial risk
of harm to the life of a minor or incompetent, the offense level
should be increased by six levels. Section 2D1.1(b)(5)(B) provides
that if an offense involved the manufacture of methamphetamine and
created a substantial risk of harm to human life (other than a
minor or incompetent) or to the environment, the offense level
should be increased by three levels. The guideline’s commentary
instructs that in determining whether the offense created a
substantial risk of harm to human life or the environment, the
district court shall consider the following factors: (1) the
quantity of any chemicals or hazardous substances found at the
laboratory and the manner in which they were stored; (2) the manner
of disposal of the hazardous or toxic substances and the likelihood
of their release into the environment; (3) the offense’s duration
and the size of the manufacturing operation; and (4) the
laboratory’s location (e.g., whether it is located in a residential
versus a remote area) and the number of human lives enduring a
substantial risk of harm. § 2D1.1(b)(5)(C), cmt. n.20(A). A
“minor” is defined as a person who has not yet attained the age of
12
18. Id. at n.20(B); § 2A3.1, cmt. n.1.
Reasoner argues that under the guideline factors, there was no
evidence of a substantial risk of harm to a minor.
Overall, the factors weigh in favor of the government’s case.
Under the first factor, according to county toxicologist
Springfield, the amount of chemicals found in Reasoner’s apartment
was small and within the limits of what a normal household would
contain, although the mixture of these toxic substances would not
likely be found in a normal household; and according to her
testimony, there was a risk of explosion or fire from a match or
open flame. Likewise, the arresting officer had to hold his breath
and the other officers wore protective clothing, indicating that
immediately upon entering the apartment the fumes were very strong.
There was no evidence presented concerning the method of storage.
Under the second factor, Officer Magulani testified that Reasoner’s
method of disposal of the dangerous fumes using a container of
kitty litter was unsafe due to the possibility of leaks or
overload. And although Reasoner factually contested the
government’s evidence, there was sufficient evidence for the court
to factually find that Reasoner’s method of making methamphetamine
was inherently dangerous and created a substantial risk of fire or
explosion. Under the third factor, Reasoner presented
Springfield’s testimony indicating the size of the operation was
small, but the government presented testimony to the contrary
indicating an undercover officer had purchased methamphetamine
13
manufactured in Reasoner’s apartment in late August 2001, and
Reasoner had indicated he could manufacture five ounces every few
days. Finally, under the fourth factor, Sergeant Thorne testified
that the lab was located in a highly populated residential area,
where many people, including minors, would be exposed to any harm
caused by the lab.
Reasoner cites Simpson, the only published opinion in the
Fifth Circuit addressing this provision, and argues that the
government did not prove that his actions would endanger the life
of a particular minor. In Simpson, appellant Paul Mills supplied
tanks of anhydrous ammonia to methamphetamine cooks. 334 F.3d at
455. He was convicted of “conspiracy to manufacture, and
possession with the intent to distribute, 500 grams or more of
methamphetamine.” Id. at 454. One of the locations to which Mills
delivered the tanks was a recreational vehicle parked next to a
cook’s residence. Id. at 455. The Court found that Mills had stop
delivering supplies to that cook before the child at issue was born
and therefore no children were present in the cook’s house during
the time Mills supplied the tanks and there was no other evidence
concerning the presence of children where Mill’s delivered tanks.
Id. The Court then considered the guideline factors, which apply
both to subsection (C), which provides for a six-level enhancement
if there is a substantial risk of harm to minors, and subsection
(B), which provides for a three-level enhancement if there is a
substantial risk of harm to any human life or the environment. Id.
14
at 456; see § 2D1.1(b)(5)(B) & (C). The Court held that to
distinguish the two subsections, “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.” Id. at 456. The Court
determined that because the minor indicated by the government was
not present at the cook’s house during the time Mills delivered
supplies to the cook, Mills could not have reasonably foreseen that
there would be a substantial risk of harm to the “the life of a
particular minor.”2 Id. at 456-59. However, the Court found that
subsection (B) would apply to Mills because there was a reasonably
foreseeable substantial risk of harm to residents of the cook’s
neighborhood, as well as to the environment. Id. at 459.
In the present case there is ample evidence in the record to
demonstrate both that specific children (the baby in the stroller
and the four-year-old child) and children in general (the “large
percentage” of children who lived in the complex) were exposed to
the risks created by Reasoner’s methamphetamine lab. Accordingly,
the holding in Simpson does not bolster Reasoner’s argument. In
fact, in Simpson, this Court noted the following about the general
risks of a methamphetamine laboratory being operated in a
residential neighborhood:
[T]he substantial risk of harm that Mills was creating to
human life generally was reasonably foreseeable to him.
[The cook’s] property to which Mills repeatedly delivered
2
“Reasonable foreseeability” was examined by the Court only
because Mills was being charged as a co-conspirator. See Simpson,
334 F.3d at 458.
15
tanks of ammonia was located in a residential
neighborhood, so he was endangering [the cook’s]
immediate neighbors. It was also reasonably foreseeable
to Mills that [the cook’s] use of this ammonia to
manufacture methamphetamine would endanger the local
environment.
Id. at 459. All that was missing in Simpson was proof that the
presence of a minor was reasonably foreseeable to Mills. Here,
Reasoner operated his lab in an apartment complex with a “high
percentage” of children as residents. Just as Mills in Simpson was
found to be endangering the lab operator’s neighbors, Reasoner was
endangering the occupants of the apartment complex – which included
the baby in the stroller, the four-year-old child, and the “high
percentage” of children who lived near Reasoner. Simpson’s missing
link is present here, and its holding thus provides no reason to
overturn the district court’s imposition of the enhancement.
Additionally, this case is similar to the Eleventh Circuit
case addressing § 2D1.1(b)(5)(C), United States v. Florence, 333
F.3d 1290 (11th Cir. 2003). Florence was involved in the
manufacture of methamphetamine in one room of a hotel that
contained many other rooms occupied by minors. Id. at 1292. The
methamphetamine lab caught fire at 1:00 a.m., causing many of the
hotel’s occupants, including minors, to evacuate. Id. Florence
appealed the enhancement of his sentence for the offense pursuant
§ 2D1.1(b)(5)(C), arguing that the district court failed to
identify a particular minor who was placed in substantial risk of
harm. Id. The court held that the district court did not have to
16
identify a particular minor, and that the district court’s findings
that minors were staying at the hotel and that the fire occurred at
1:00 a.m. when guests would likely be in their rooms justified the
application of § 2D1.1(b)(5)(C) to Florence’s sentence. Id. at
1293. The court further determined that even though a particular
minor need not be specified, the district court still must make a
finding that a minor was placed at risk by the defendant’s actions.
Id.
Unlike Simpson, Florence is factually similar to Reasoner’s
situation because it involved danger to unnamed but yet specific
minors in neighboring hotel rooms, just as Reasoner’s lab involved
danger to unnamed but specific minors in the stairway and in nearby
apartments. See id. at 1292. However, Florence is distinguishable
because a fire that caused the evacuation of many minors actually
occurred in Florence. See id. In Reasoner’s case, there was no
fire; but based on the evidence presented, it was not clear error
for the district court to find that the danger of fire or explosion
existed.
Accordingly, the district court did not err in enhancing
Reasoner’s sentence under Section 2D1.1(b)(5)(C) because Reasoner’s
offense involved the manufacture of methamphetamine and created a
substantial specific risk of harm to the life of the baby in the
stroller and the child at the stairway near his apartment, and a
general risk of harm to the minor children in the apartment
complex. Therefore, the sentence is affirmed.
17
II. Whether the district court abused its discretion in denying
Reasoner’s motion for continuance.
Reasoner also argues that the district court erred in denying
his third unopposed motion to continue sentencing. Reasoner argues
that he lacked time to prepare and present evidence concerning the
need to retest the items containing methamphetamine that were
listed on the Second Addendum to the PSR.
Review of the denial of a motion for a continuance is for an
abuse of discretion that results in serious prejudice. United
States v. Pollani, 146 F.3d 269, 272 (5th Cir. 1998).
Reasoner’s sentence was reduced in the Second Addendum to the
PSR because the items found in Reasoner’s lab were tested for the
amount of methamphetamine contained in each, and the actual amount
found in some of the items was lower than that listed in the
original PSR. At sentencing, Reasoner argued that he wished to
have the items retested to determine if the drug amounts should be
further reduced. In response to Reasoner’s objections to the
second addendum at sentencing, the court reduced one amount of
methamphetamine due to a mathematical error and eliminated another
amount of methamphetamine due to the possible inclusion of
wastewater.
Reasoner asserts that he cannot demonstrate how he was harmed
by the denial of his motion to continue because all of the items
were not retested as he requested. He offers no proof that the lab
test was incorrect, other than the fact that his sentence was
18
reduced in the Second Addendum to the PSR due to erroneous amounts
of methamphetamine. Reasoner has not offered any evidence
demonstrating which items should be retested or how he would
benefit at all from retesting. Therefore, he has not shown that
serious prejudice resulted from the district court’s denial of his
motion to continue. Accordingly, the district court did not abuse
its discretion in denying the motion.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, for the reasons set forth above, we
affirm Reasoner’s sentence and hold that the district court did not
abuse its discretion in denying Reasoner’s third motion for
continuance.
AFFIRMED.
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United States v. Reasoner
Combined Opinion