United States v. Tony Finch , 342 F. App'x 565 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 21, 2009
No. 08-17242 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00032-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY FINCH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 21, 2009)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Tony Finch appeals his sentence of 228 months of imprisonment for
conspiring to manufacture, to possess with intent to distribute, and to distribute a
quantity of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1). Finch challenges the
amount of methamphetamine attributed to him in the presentence investigation
report and the enhancement of his sentence for causing a substantial risk of harm to
a minor. We affirm.
I. BACKGROUND
On October 7, 2008, officers of the Sheriff’s Department of Bulloch County,
Georgia, went to Finch’s residence to investigate whether he had a car that had
been reported stolen. At the sight of the officers on Finch’s property, Victoria
Foley discarded a device used to smoke methamphetamine, and she and Marlena
Taylor fled. When Taylor was apprehended, she told officers that Finch and
Benjamin Roberts were inside the home. After one officer recalled that there was
an outstanding warrant to arrest Finch, officers entered the house and discovered
Finch asleep in a bedroom. The officers found Roberts and Julie Livingston in
another bedroom.
Officers secured Finch’s house and the surrounding property. The officers
entered a large storage building about 20 feet from Finch’s house and saw a bucket
of crushed pseudoephedrine tablets. After Finch refused to consent to a search of
his property, the officers obtained a search warrant. The officers returned to the
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storage building, where they found a white plastic bucket that contained several
coffee filters and a strainer; a refrigerated tank containing anhydrous ammonia; a
green backpack that contained packages of salt, funnels, liquid Heet, Liquid Fire
drain cleaner, and lithium batteries; a blue backpack that contained a strainer and
muratic acid; two Mason jars that had been used to manufacture
methamphetamine; two pump sprayers that emitted hydrochloric gas; and a silver
thermos that contained anhydrous ammonia. The officers next searched Finch’s
home and discovered several cans of starting fluid; a device used to smoke
methamphetamine; a digital scale; coffee filters; and Xanax tablets. The officers
seized 108.3 grams of methamphetamine from Finch’s property.
For the next several days, officers interviewed Finch and his cohorts about
the methamphetamine operation. Finch admitted that he had entered a conspiracy
to manufacture methamphetamine five months before his arrest. Finch stated that
the conspirators produced between 7 and 54 grams each week and he received 3.5
grams for his participation. Finch stated that he witnessed three members of the
conspiracy manufacture methamphetamine in a shed behind Glenn Shuman’s
property in Brooklet, Georgia. Finch said that the group produced as much as 80
grams of methamphetamine at each cook, and he had seen 80 grams of
methamphetamine at Shuman’s residence on October 5, 2008.
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Other cohorts described Finch’s role in the methamphetamine operation.
Roberts, Livingston, and Taylor admitted that they had lived with Finch and had
shared methamphetamine. Kelly Coesens told investigators that she and Finch
“used methamphetamine extensively” the weekend before his arrest. Foley, who
had been discovered outside Finch’s home, told officers that she had purchased
two grams of methamphetamine from Finch on two occasions and that Finch
supplied all the methamphetamine used by Taylor, Roberts, and Livingston. Foley
stated that Brian Dean, a member of the methamphetamine operation, and Taylor
had a two-year-old daughter who had been at Finch’s home the morning of
October 7, 2008. Foley also stated that she had transported Finch, Taylor, and
Taylor’s daughter to Shuman’s residence, where they obtained anhydrous ammonia
that the group brought to Finch’s residence in a silver thermos. Shuman admitted
that he and Finch had manufactured methamphetamine on two occasions and that
the silver thermos that had been discovered in the large storage building belonged
to Jason Thorne, another member of the conspiracy.
While Finch was incarcerated, he gave an inmate a telephone number to call
to order methamphetamine. After the inmate told authorities about the encounter,
federal agents arranged for the inmate to speak to Finch a second time. During
their second encounter, Finch advised the inmate to tell the female who answered
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the telephone to contact “JJ,” an alias for Thorne, to obtain methamphetamine.
Finch told the inmate that he had two tanks of anhydrous ammonia hidden near the
Ogeechee River.
Finch, Taylor, Thorne, and a codefendant were indicted for conspiring to
manufacture, possessing with intent to distribute, and distributing 50 grams or
more of methamphetamine or 500 grams or more of a mixture of a substance
containing a detectable amount of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(A)(viii). The government offered to recommend that Finch receive a three-
level reduction for acceptance of responsibility in exchange for his plea of guilty to
the lesser-included offense of conspiracy to manufacture, to possess with intent to
distribute, and to distribute a quantity of methamphetamine. Id. §§ 846, 841(a)(1).
Finch admitted, as part of the factual basis of the plea agreement, “that his plea of
guilty constitute[d] proof of the lesser included offense . . . without any drug
quantity threshold being alleged for penalty enhancing purposes.” The district
court accepted Finch’s plea of guilty.
The presentence investigation report attributed to Finch “a minimum of 350
grams of methamphetamine mixture.” The report based its calculation “on the
108.3 grams of methamphetamine mixture seized [from Finch’s property] on
October 7, 2007, and a historical quantity based on statements of codefendants,
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unindicted coconspirators, and witnesses.” The report provided a base offense
level of 30, United States Sentencing Guidelines § 2D1.1(c)(5) (Nov. 2007),
increased that level by six points because the decision to transport anhydrous
ammonia in a thermos created a substantial risk of harm to a minor, id. §
2D1.1(b)(10)(D), and decreased that level by three points for acceptance of
responsibility, id. § 3E1.1. The report provided a sentencing range between 235
and 293 months of imprisonment based on Finch’s criminal history of VI as a
career offender. Id. § 4B1.1. Because the statutory maximum sentence was 20
years, 21 U.S.C. § 841(b)(1)(C), the Sentencing Guidelines provided a sentence
between 235 and 240 months of imprisonment.
Finch objected to the presentence report on two grounds. Finch argued that
he was responsible for 108.3 grams of methamphetamine and the report relied on
unreliable sources to attribute to Finch an additional 241.7 grams of
methamphetamine. Finch also argued that there was no evidence to establish that
transporting the thermos of anhydrous ammonia put Taylor’s two-year-old
daughter at risk of harm and the six-level enhancement was intended to apply when
a minor is near a methamphetamine laboratory.
At the sentencing hearing, the government presented evidence to respond to
Finch’s objections. Victoria Foley testified that, after she transported Finch,
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Thorne, Taylor, and Taylor’s two-year-old daughter to Shuman’s house, the group
smoked methamphetamine, and they returned to Finch’s house with a thermos of
anhydrous ammonia. Ross Butler, a forensic chemist, testified that transporting
anhydrous ammonia in a thermos or other unapproved container is extremely
dangerous because the substance must be kept at very low temperatures and, if it
exceeds negative 28 degrees, the substance could erode the thermos or cause it to
burst and emit toxic gas that could cause those exposed to suffocate. Butler also
testified that the various chemicals discovered in Finch’s storage building were
highly flammable and the inhalation of those chemicals could burn the respiratory
system or cause death. Agent Kent Musey testified about the methamphetamine
seized from Finch’s residence and the statements by Finch’s cohorts attributing
additional amounts of methamphetamine to Finch.
The district court overruled Finch’s objections to the presentence report.
The district court ruled that the report provided a “fair analysis” about Finch’s
responsibility for 350 grams of methamphetamine. The court also ruled that, based
on the testimony about the volatility of anhydrous ammonia and its proximity to
Taylor’s child, “the six point[]” enhancement was “warranted.”
The district court warned Finch that he faced a “severe sentence” because he
“[had] never taken a proceeding seriously.” The court acknowledged that Finch
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was addicted to methamphetamine, and the court stated that the drug had “ruined”
Finch’s life and, “by [his] involvement as a manufacturer and distributor, [Finch]
[had] no doubt ruined the lives of others.” Based on “[a]ll the factors set forth in
18 U.S.C. 3553(a)[,] . . . Finch’s record and disregard, and aplomb . . . to continue
aiding and abetting drug distribution even after his arrest[,]” the district court
sentenced Finch to 240 months of imprisonment. “[B]ecause [Finch] entered a
plea and agreed to waive [his] appeal,” the district court “[took] 12 months off”
Finch’s sentence and imposed a term of 228 months of imprisonment.
II. STANDARDS OF REVIEW
We review for clear error “a district court’s determination of the quantity of
drugs used to establish a base offense level[.]” United States v. Simpson, 228 F.3d
1294, 1298 (11th Cir. 2000). We review de novo the application of the risk-to-a-
minor enhancement to a sentence. United States v. Florence, 333 F.3d 1290, 1292
(11th Cir. 2003). The district court may apply the enhancement when it finds “that
the defendant’s actions placed a minor at risk.” Id. at 1293.
III. DISCUSSION
Finch challenges his sentence on two grounds. First, Finch complains the
district court credited unreliable evidence to attribute to Finch more
methamphetamine than the amount seized from his residence. Second, Finch
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contends he is not entitled to a six-level enhancement because the transportation of
anhydrous ammonia was not sufficiently dangerous to place Taylor’s child at risk.
These arguments fail.
The district court did not clearly err by attributing to Finch 350 grams of
methamphetamine. The government presented reliable and specific evidence that
Finch was responsible for more methamphetamine than that discovered by law
enforcement. See United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).
In addition to the 108 grams seized from Finch’s residence, Finch admitted that
during the conspiracy he had participated in about 20 methamphetamine cooks that
produced between 7 and 54 grams, for which he received 70 grams of
methamphetamine; he had participated in methamphetamine cooks at Glenn
Shuman’s residence that produced 80 grams of methamphetamine; and he had
observed 80 grams of methamphetamine at Shuman’s residence two days before
the search of his house. See United States v. Ismond, 993 F.2d 1498, 1499 (11th
Cir. 1993) (“For sentencing purposes a member of a drug conspiracy is liable for
his own acts and the acts of others in furtherance of the activity that the defendant
agreed to undertake and that are reasonably foreseeable in connection with that
activity.” (citing U.S.S.G. § 1B1.3(a)(1)). Victoria Foley, Kelly Coesens, and
Glenn Shuman told authorities that Finch either sold or provided to them additional
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amounts of methamphetamine. Ample evidence supported the amount of
methamphetamine attributed to Finch.
The district court also did not err by enhancing Finch’s sentence for creating
a substantial risk of harm to the life of a minor. The district court was entitled to
credit testimony from Foley that she, Finch, Thorne, and Taylor transported
anhydrous ammonia in an unapproved container and in a vehicle occupied by
Taylor’s two-year-old daughter. See United States v. Lee, 68 F.3d 1267, 1275
(11th Cir. 1995). Based on the serious hazards created by handling anhydrous
ammonia, the district court did not err by finding that Finch’s participation in that
conduct exhibited a reckless disregard for the safety of the child.
IV. CONCLUSION
Finch’s sentence is AFFIRMED.
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