United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10931
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL MILLS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-177-20-H
Before GARWOOD, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Paul Mills appeals his sentence following a remand to the
district court for resentencing. See United States v. Simpson, 334
F.3d 453 (5th Cir. 2003). Mills was convicted of conspiracy to
manufacture and distribute 500 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and was sentenced
*
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opinion should not be published and is not precedent except under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.
to 360 months’ confinement and sixty months’ supervised release.
We affirmed his conviction but remanded for resentencing, holding
that the district court erred by applying the six level sentence
enhancement under U.S.S.G. § 2D1.1(b)(5)(C). Simpson. We
indicated, however, that a three level enhancement under section
2D1.1(b)(5)(B) would be proper. Id. at 459. Following remand,
Mills was sentenced to 290 months’ confinement and sixty months’
supervised release. He now challenges the district court’s
imposition on remand of the three-level enhancement for creating a
substantial risk of harm to human life (other than a minor or
incompetent) or the environment during the manufacture of
methamphetamine. See U.S.S.G. § 2D1.1(b)(5)(B).
This court reviews the district court’s application of the
sentencing guidelines de novo and its findings of fact for clear
error. United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
“As long as a factual finding is plausible in light of the record
as a whole, it is not clearly erroneous.” Id.
As this case involves a conspiracy, relevant conduct for
application of the sentencing guidelines includes “all reasonably
foreseeable acts . . . of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).
Mills provided large quantities of anhydrous ammonia to other
members of the methamphetamine manufacturing conspiracy. Mills
repeatedly delivered the tanks of ammonia to a residential
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neighborhood, and his co-conspirators usually manufactured
methamphetamine in or near homes in residential neighborhoods.
Although Mills had been required to obtain special training and
certification to purchase tanks of anhydrous ammonia from
legitimate suppliers, he provided these tanks to his untrained co-
conspirators. We also note testimony in the record that on certain
occasions the methamphetamine manufacturing process actually caused
a fire, the release of a large quantity of ammonia into the
atmosphere, and even an explosion. Therefore, we conclude that the
district court did not clearly err in finding that a substantial
risk of harm to human life or the environment was reasonably
foreseeable to Mills. See U.S.S.G. § 2D1.1(b)(5)(B), comment.
(n.20(A)). See also Simpson at 459.
AFFIRMED.
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