United States v. Freddie Dale Young , 330 F. App'x 791 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 20, 2009
No. 08-14928 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 06-00225-CR-KOB-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDIE DALE YOUNG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 20, 2009)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Freddie Young appeals his 78-month sentence imposed upon resentencing
for (1) conspiracy to manufacture a mixture and substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
846; (2) manufacturing a mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and
(3) possessing a firearm while being an unlawful user of a controlled substance, in
violation of 18 U.S.C. § 922(g)(3).
On appeal, Young first argues that the district court erred in its finding that
he was responsible for at least ten grams of methamphetamine. Young contends
that the drug quantity finding was based on Investigator Brian Chaffin’s testimony,
which was hearsay, speculation, and inconsistent. Young argues that because he
was cooking methamphetamine for his own use, he could not have been cooking
methamphetamine as often as the district court found.
The district court’s determination of drug quantity is a finding of fact that we
review for clear error. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.
2005). Where a defendant is responsible for more than 10 but less than 20 grams
of methamphetamine, a base offense level of 18 is appropriate. U.S.S.G.
§ 2D1.1(a)(3)(c)(11) (2006).
“When a defendant objects to a factual finding that is used in calculating his
guideline sentence, such as drug amount, the government bears the burden of
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establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398
F.3d at 1296.
Where there is no drug seizure or the amount seized does not reflect
the scale of the offense, the court shall approximate the quantity of the
controlled substance. Moreover, in estimating the quantity of drugs
attributable to a defendant, a court may base its computation on
evidence showing the average frequency and amount of a defendant’s
drug sales over a given period of time. Thus, sentencing may be
based on fair, accurate, and conservative estimates of the quantity of
drugs attributable to a defendant.
Id. (internal citations and quotations omitted).
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error. The district court did not clearly err in holding Young
responsible for at least ten grams of methamphetamine. Chaffin testified that
Young stated that he would produce approximately three to four grams of
methamphetamine per cooking session. Chaffin stated that during the two weeks
preceding Young’s arrest, he received daily complaints that Young was making
methamphetamine. Moreover, Chaffin had been receiving complaints about
Young making methamphetamine for months prior to his arrest.
Though complaints alone are inadequate in reliably estimating drug quantity,
Young’s statement that he would produce approximately three to four grams of
methamphetamine per session makes it more likely than not that he produced at
least ten grams within the two weeks preceding his arrest. It is also worth noting
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that there was extensive circumstantial evidence of repeat methamphetamine
production, including bi-phase methamphetamine oil, a hot plate, iodine crystals,
match books, “HEET,” hydrogen peroxide, and acetone on Young’s premises.
Therefore, the district court did not clearly err in determining that Young was
responsible for at least 10 grams of methamphetamine.
Young next argues that the district court did not have a factual basis on
which to enhance his sentence pursuant to U.S.S.G. § 2D1.1(b)(8)(C) for his
mobile home methamphetamine laboratory creating a substantial risk of harm to
the life of a minor. Young concedes that methamphetamine laboratories are
inherently dangerous, but contends that the government failed to prove that he ran
his laboratory in a way that created a specific substantial risk of harm to the life of
a minor.
We review a district court’s factual findings for clear error and its
interpretation of the guidelines de novo. United States v. Taber, 497 F.3d 1177,
1179 (11th Cir. 2007), cert. denied, 128 S.Ct. 949 (2008). The Sentencing
Guidelines provide that “[i]f the offense (i) involved the manufacture of
amphetamine or methamphetamine; and (ii) created a substantial risk of harm to
the life of a minor or an incompetent, [the offense level should] increase by 6
levels. If the resulting offense level is less than level 30, increase to level 30.”
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U.S.S.G. § 2D1.1(b)(8)(C) (2006).
The district court did not clearly err in finding that Young’s actions placed a
minor at risk. A hazardous materials team was needed to clean up the property
because the materials constituted hazardous waste. Moreover, Young had two
children living in his mobile home, one of whom told Chaffin that he had to leave
the house because the smell was so bad. Finally, Chaffin estimated that between
six and eight children lived within 100 yards of Young’s mobile home. The
district court’s factual findings were not clearly erroneous, and it properly applied
the enhancement. In addition, because the district court stated that the sentencing
guidelines were advisory, any argument predicated upon improperly used judge-
found facts to enhance Young’s sentence fails.
Finally, Young argues that the harm to a minor enhancement resulted in an
unreasonable sentence because he had no prior criminal history. He questions how
it can be reasonable that he received a higher offense level increase under the
enhancement than a criminal recidivist defendant. He suggests that the Sentencing
Commission might be in a good position to set blanket policies regarding
offenders, but courts are in a better position “to fine tune” a reasonable sentence
for particular defendants.
We review the sentence imposed by the district court for reasonableness.
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United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Because Young’s
offense involved the manufacture of methamphetamine and created a substantial
risk of harm to the life of a minor, his offense level would normally be increased
by 6 levels, but because the resulting offense level was less than 30, the offense
level automatically was increased to 30, pursuant to U.S.S.G. § 2D1.1(b)(8)(C).
Here, the district court’s sentence was procedurally sound as the court
correctly calculated Young’s guideline range, treated the guidelines as advisory,
and considered the § 3553(a) factors. Additionally, the below-guidelines range
sentence is substantively reasonable. The district court chose to sentence Young
below the guideline range because the court found that it was unfair to raise
Young’s offense level to 30 instead of increasing it only by the 6 points he would
have received if he had a higher criminal history category. The district court went
on to note that his sentence was within the guideline range had he received only the
6-level increase for the harm to minor enhancement, rather than the automatic
offense level of 30 that was otherwise applicable. Therefore, the sentence Young
now requests is actually the sentence that he received. Accordingly, we affirm.
AFFIRMED.
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