United States v. Sauseda

Case: 08-51219 Document: 00511021098 Page: 1 Date Filed: 02/04/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 4, 2010

No. 08-51219 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee
v.

FRANKIE A SAUSEDA,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas

Before KING, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:
Frankie A. Sauseda challenges only his sentence, contending the district
court erred by applying the two-level enhancement under Sentencing Guideline
§ 2D1.1(b)(10)(A)(i) (for offense involving the unlawful discharge, emission, or
release of hazardous substance). CONVICTION AFFIRMED; SENTENCE
VACATED; REMANDED FOR RESENTENCING.
I.
On 23 June 2008, McGregor, Texas, Police Department Officers arrived at
Sauseda’s residence to execute a warrant. When the door was opened, the
Officers noticed a strong chemical odor. Sauseda and three others were ordered
to exit the residence.
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No. 08-51219

Officers from the McLennan County Sheriff’s Office then opened doors and
windows in the residence to allow for cross-ventilation. Due to the
overwhelming chemical odor, the Officers wore suits fitted with a self-contained
breathing apparatus. They searched the residence and discovered
pseudoephedrine pills, acetone, Epsom salt, camp fuel, brake fluid, meth oil,
drain cleaner, a hydrochloric acid (HCL) generator, scales, and other items used
to produce methamphetamine.
Sauseda pleaded guilty to aiding and abetting both attempting to
manufacture methamphetamine and possessing a chemical to manufacture it.
See 18 U.S.C. § 2 (accomplice liability); 21 U.S.C. §§ 841 (manufacture and
possession of controlled substance), 846 (attempt).
The presentence investigation report (PSR) assessed a base offense level
of 32. It recommended increasing it by two levels pursuant to Guideline
§ 2D1.1(b)(10)(A)(i) on the basis that the offense involved the unlawful
discharge, emission, or release of a hazardous substance. In support, the PSR
cited the strong odor emanating from the residence.
At sentencing, Sauseda objected to the enhancement. In response, the
Government presented the testimony of Investigator Lippe of the McLennan
County Sheriff’s Office, who testified about the strong odor emanating from the
residence. He also testified: the HCL generator found in Sauseda’s bedroom
was leaking hydrochloric gas; and, by a nearby bridge, Officers found trash bags
filled with materials used to manufacture methamphetamine. The district court
impliedly overruled Sauseda’s objection and sentenced him to, inter alia,
concurrent 168-month and 120-month terms of imprisonment.

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II.
Although post-Booker (2005), the Guidelines are advisory only, and an
ultimate sentence is reviewed for reasonableness under an abuse-of-discretion
standard, the district court must still properly calculate the guideline-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). In that respect, its application of the guidelines is reviewed
de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005).
Guideline § 2D1.1(b)(10)(A) (toxic-emission enhancement) states: the
base-offense level should be increased by two levels “[i]f the offense involved (i)
an unlawful discharge, emission, or release into the environment of a hazardous
or toxic substance; or (ii) the unlawful transportation, treatment, storage, or
disposal of a hazardous waste”. Application note 19 to § 2D1.1 provides that
subpart (b)(10)(A) applies
if the conduct for which the defendant is accountable
under § 1B1.3 (Relevant Conduct) involved any
discharge, emission, release, transportation, treatment,
storage, or disposal violation covered by the Resource
Conservation and Recovery Act [RCRA], 42 U.S.C.
§ 6928(d); the Federal Water Pollution Control Act, 33
U.S.C. § 1319(c); the Comprehensive Environmental
Response, Compensation, and Liability Act [CERCLA],
42 U.S.C. § 9603(b); or 49 U.S.C. § 5124 (relating to
violations of laws and regulations enforced by the
Department of Transportation with respect to the
transportation of hazardous material).

Guideline § 2D1.1(b)(10)(A) cmt. n.19.
Sauseda claims: for application of the toxic-emission enhancement, the
Government was required to prove he violated one of the listed statutes, but
instead only presented evidence that the Officers who entered the residence were

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No. 08-51219

overcome by a strong odor; and evidence of pungent fumes alone does not
establish that he unlawfully released a toxic substance.
Although several of our court’s unpublished opinions have touched on this
question, our court has never held in a published opinion what must be proven
to support a toxic-emission enhancement. In any event, although our
unpublished opinions are not entirely consistent, they hold, for the most part,
that the enhancement is not applicable unless the Government proves violation
of one of the listed statutes in application note 19. E.g., United States v.
Strackbein, 2009 WL 3092484, at *1 (5th Cir. 29 Sept. 2009) (holding, under
plain-error review, that enhancement applied because “the conduct involved . . .
storage covered by [CERCLA]”, due to the conduct involving the storage of
ammonia, and “[a]mmonia is listed in the hazardous material table of substances
regulated by CERCLA”); United States v. Harris, 193 F. App’x 333, 335 (5th Cir.
2006) (holding, under plain-error review, that enhancement applied because PSR
contained “sufficient indicia of reliability to support finding [defendant] had
stored the anhydrous ammonia”); United States v. Prejean, 172 F. App’x 568,
569 (5th Cir. 2006) (holding district court erred in applying toxic-emission
enhancement when record did not establish that defendant’s conduct was
proscribed by specific statutes listed in application note 19); United States v.
Royall, 71 F. App’x 442, 442 (5th Cir. 2003) (holding, “Although . . . the
Government argued that anhydrous ammonia is a hazardous material, there
was no evidence presented to the district court to support a finding that the
discharge . . . was ‘unlawful’”.); United States v. Stepan, 66 F. App’x 524 (5th Cir.
2003) (holding, under plain-error review, that, because anhydrous ammonia was
listed in hazardous substances table containing substances regulated under
CERCLA, its release was covered by CERCLA and thus merited an
enhancement pursuant to § 2D1.1(b)(5)(A)).

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These unpublished decisions, of course, are not binding on our court; they
are, however, persuasive. 5 TH C IR. R. 47.5; see also Ochoa Canales v.
Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007). Other persuasive authority
is found in published opinions by the Third, Ninth, and Eleventh Circuits; they
require proof of violation of one of the listed statutes in application note 19.
In United States v. Kinard, 472 F.3d 1294, 1296-98 (11th Cir. 2006),
defendant maintained the toxic-emission enhancement was improper because
the Government failed to present any evidence that defendant “unlawfully”
released anhydrous ammonia. Id. at 1296. Accordingly, the court reviewed the
evidence the Government presented at sentencing: testimony by an Officer
certified to train personnel in cleaning methamphetamine labs. Id. at 1296-97.
The testifying Officer had not visited defendant’s lab, but had reviewed
reports and photographs, and was unfamiliar with the disposal requirements for
anhydrous ammonia. Id. at 1297. The Eleventh Circuit held this evidence did
not establish violation of a listed statute in application note 19. Id. at 1297-98.
In United States v. Landmesser, 378 F.3d 308, 312-13 (3d Cir. 2004), the
Third Circuit addressed a similar enhancement, under § 2D1.12, concerning
toxic emissions. The language of § 2D1.12(b)(2) mirrors that of the Guideline at
issue here, § 2D1.1(b)(10)(A); and application note 3 to § 2D1.12(b)(2) references
the same statutory violations listed in application note 19 to § 2D1.1(b)(10).
The district court had found: defendant was responsible for the release of
anhydrous ammonia from a tank that gave rise to a vapor cloud over “an entire
area”; and, although this release was unlawful, it was not “unlawful with respect
to any specific statutory provisions . . . .” Id. at 312. The Third Circuit vacated
defendant’s sentence, holding: application note 3 to § 2D1.12(b)(2) required
finding violation of one of the listed statutes; and, because the district court
found defendant did not violate one of them, the enhancement should not have
been applied. Id. at 312-14.

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The Ninth Circuit upheld a toxic-emission enhancement when the
Government presented evidence showing violation of one of the listed statutes
in application note 19. In United States v. MacDonald, 339 F.3d 1080, 1083-84
(9th Cir. 2003), the court reviewed the evidence presented by the Government
at sentencing: expert testimony on RCRA’s coverage of certain materials as
hazardous waste. Further, the expert testified that “the evidence he found at
the production sites reflect[ed] the pouring of a listed hazardous chemical or
constituent onto the ground”, in violation of the RCRA. Id. (quotations omitted).
In the light of the plain language of application note 19, the primary
position taken in our court’s unpublished opinions, and these holdings by three
sister circuits, we hold: for the toxic-emission enhancement to be applicable, the
Government was required to prove, by a preponderance of the evidence, that
Sauseda violated one of the listed statutes in application note 19 to Guideline
§ 2D1.1(b)(10). See United States v. Lombardi, 138 F.3d 559, 562 (5th Cir. 1998)
(“It is well-established law in this Circuit that, generally, the burden of proof at
sentencing is a preponderance of the evidence.”). The Government did not meet
its burden.
In that regard, although it offered evidence that defendant’s offense
involved, inter alia, the emission of noxious fumes, the Government did not offer
evidence showing how an emission was unlawful. Restated, the Government
provided no evidence showing Sauseda was engaged in the disposal of hazardous
waste without permission, in violation of RCRA, 42 U.S.C. § 6928(d); nor did it
present evidence that water was polluted by the dumping of materials used in
the methamphetamine lab, in violation of the Federal Water Pollution Control
Act, 33 U.S.C. § 1319(c); nor did it offer evidence that Sauseda’s offense involved
the release of a “reportable quantity” of hydrochloric gas, in violation of
CERCLA, 42 U.S.C. § 9603(b)(3); nor did it provide evidence that the offense

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violated 49 U.S.C. § 5124. Accordingly, the district court erred in applying the
toxic-emission enhancement.
III.
For the foregoing reasons, Sauseda’s conviction is AFFIRMED; his
sentence is VACATED; and this matter is REMANDED for resentencing.

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