United States v. Kenneth Lee Green ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11506 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 3, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00116-WS-C-4
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
KENNETH LEE GREEN,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(November 3, 2011)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Kenneth Lee Green appeals his sentence of 412 months of imprisonment for
conspiring to manufacture over 500 grams of methamphetamine, 21 U.S.C.
§§ 841(a)(1), 846, attempting to manufacture over 50 grams of methamphetamine,
id. §§ 841(c)(2), 846, possessing a firearm in furtherance of a drug-trafficking
crime, 18 U.S.C. § 924(c)(1), and possessing an unregistered firearm, 26 U.S.C.
§ 5861(d). Green challenges the enhancement of his sentence for creating a
substantial risk to the life of a minor and for committing perjury. We affirm.
The district court did not clearly err by enhancing Green’s sentence for
creating a substantial risk to the life of his children. A defendant is subject to a
six-level increase of his offense level if his crime involved manufacturing
methamphetamine and “created a substantial risk of harm to the life of a minor.”
United States Sentencing Manual Guidelines § 2D1.1(b)(13)(D). Even if Green’s
children were not present during the manufacturing of methamphetamine, the
children faced a substantial risk of harm from volatile precursor materials that
Green had stored in a shed near his trailer and from noxious fumes that would
penetrate any porous surface inside his trailer where, according to a cohort, Green
manufactured methamphetamine about once a week. In fact, when officers entered
Green’s trailer, the smell of ammonia was so overwhelming that they broke doors
and windows to ventilate the trailer. Green had used screws to seal the doors and
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windows and, in so doing, blocked escape routes otherwise available to his
children in the event of an emergency. Green created conditions around his home
that were hazardous to the life of his children.
The district court also did not clearly err by enhancing Green’s sentence for
perjury. A defendant faces a two-level increase in his offense level if he
“willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the . . . prosecution” of his crime. Id.
§ 3C1.1. The district court was entitled to find that Green offered “false testimony
concerning a material matter with the willful intent” to mislead jurors about his
involvement in the manufacture of methamphetamine. United States v. Dunnigan,
507 U.S. 87, 94, 113 S. Ct. 1111, 1116 (1993). After law enforcement officers and
cohorts testified about Green’s possession of precursor materials and use of his
home to manufacture methamphetamine, Green testified incredibly that he was not
aware of the drug paraphernalia found in his bedroom, he did not allow
methamphetamine to be manufactured in his trailer, and he did not notice the smell
of ammonia in his trailer on the day of the search. Green argues that the district
court failed to “make a specific finding” of perjury, but the district court found
that Green’s false testimony “was designed to send the jury in a direction away
from the true facts of this case and . . . to mitigate Mr. Green’s role in the offense.”
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We AFFIRM Green’s sentence.
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