United States v. Jonathan Keesee , 498 F. App'x 297 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN WAYNE KEESEE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:10-cr-00047-JPJ-PMS-1)
Submitted: June 11, 2012 Decided: December 5, 2012
Before GREGORY, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Keesee appeals his convictions and 90-month-
plus-one-day sentence imposed following his guilty plea to
offenses involving the manufacturing of methamphetamine. Keesee
contends that the district court clearly erred in finding that
his manufacturing of methamphetamine created a substantial risk
of harm to the life of a minor and that his sentences for both
manufacturing methamphetamine, 21 U.S.C. § 841(a)(1) (2006), and
manufacturing or attempting to manufacture methamphetamine in a
manner that creates a substantial risk of harm to human life, 21
U.S.C. § 858 (2006), violate the Double Jeopardy Clause. Keesee
also contends that the district court abused its discretion in
imposing its sentence. The parties were directed to submit
supplemental briefing regarding whether application of the risk
of harm enhancement of USSG § 2D1.10(b)(1)(B), * in addition to
the consecutive sentence imposed pursuant to 21 U.S.C. § 860a
(2006), results in improper double counting. We affirm.
Keesee pled guilty to four of five counts in an
indictment that charged him with conspiracy to manufacture
methamphetamine, manufacture of methamphetamine, creating a
substantial risk of harm to human life while manufacturing
*
U.S. Sentencing Guidelines Manual, § 2D1.10(b)(1)(B)
(2010).
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methamphetamine, and the manufacture, distribution, and
possession with intent to manufacture and distribute
methamphetamine on premises in which an individual under the age
of 18 years was present and resided.
At sentencing, Keesee objected to the recommended
enhancement to his sentence under USSG § 2D1.10(b)(1)(B) for
manufacturing methamphetamine in a manner that created a
substantial risk of harm to the life of a minor. He asserted
that the methamphetamine lab was small, produced only eight
grams of methamphetamine, and that the minor children who lived
in the house were removed during the gassing phase of the
manufacturing. He presented the testimony of a chemist who
testified concerning the method of manufacturing used by Keesee,
and opined that there was insufficient evidence to support a
finding of a substantial risk of harm to the minors.
After hearing evidence on the risk of harm issue, the
court determined that the Government had proven by a
preponderance of the evidence, that the “children, that is
minors, were residents of the home and present in the home
during the so-called cooking or cook process of the manufacture
of methamphetamine at the time.” The court found the
Government’s evidence more persuasive as to whether there was a
substantial risk of harm to the minors, and applied the
enhancement.
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The court rejected Keesee’s request for a below-
Guidelines sentence, finding that a within-Guidelines sentence
reflected the seriousness of the offense and its consideration
of the sentencing factors. The court sentenced Keesee to 78
months of imprisonment on the conspiracy and the manufacturing
charges, and a consecutive sentence of 12 months and one day on
the manufacturing while creating a substantial risk of harm to a
minor charge, for a total sentence of 90 months and one day.
Keesee first challenges the district court’s factual
finding that his method of manufacturing methamphetamine created
a substantial risk of harm to the life of a minor, warranting
the increased offense level under USSG § 2D1.10(b)(1)(B). In
determining whether this enhancement applies, courts may
consider: (1) the quantity of chemicals found at the lab and
the manner of storage; (2) the manner in which the hazardous
substances were disposed of and the likelihood of release into
the environment; (3) the duration of the offense and the extent
of the manufacturing; and (4) the location of the lab and how
many people were placed at substantial risk of harm. USSG
§ 2D1.10 cmt. n.1; United States v. Simpson, 334 F.3d 453 (5th
Cir. 2003).
Keesee contends that the court failed to consider all
the factors and that the Government’s evidence was inconsistent
and insufficient to support the enhancement. The district court
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found that the facts presented at trial indicated that the
minors were residents of the home and were present during the
cooking process, but not during the gassing stage of the
manufacture. The court further credited the Government’s expert
and found that there was a substantial risk of fire based on the
manner of manufacturing methamphetamine used by Keesee.
Addressing the factors to consider in determining the amount of
risk, the court focused on the risk of fire during the
manufacturing, and the location of the methamphetamine lab in
the basement of the home, directly under the rooms in which the
minor children slept.
Keesee presented evidence that his one-pot method of
cooking methamphetamine used Coleman fuel, which was less
flammable than the other three starter fluids that could be
used. He also presented evidence that the use of less water
decreased the hazardousness of the cooking process because, as
the Government’s chemist testified, “the more water, typically
the more reactive the lithium will be.” However, there was no
evidence that Keesee actually used less water than was used in
the Government’s experiments in which one of the twelve failed
experiments resulted in fire when using Coleman fuel. As the
district court noted, Keesee’s expert did not testify that there
was not a substantial risk of harm; rather, he testified that he
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could not state that there existed a substantial risk to human
life based on Keesee’s manufacturing process.
The Government presented evidence that in controlled
experiments conducted by the Drug Enforcement Administration,
Coleman fuel resulted in bottle failure upon the reaction of
water and lithium, which then caused the “contents [of the
bottle], including the flammable Coleman fuel, to be ejected and
igniting the surroundings.” This testimony established that the
methamphetamine manufacturing method used by Keesee created a
risk of fire. Further, although there was no actual fire during
the two times that Keesee cooked methamphetamine, this does not
mean that there was not a risk. See United States v. Bivens,
129 Fed. App’x 159, 165 (6th Cir. 2005) (“The guidelines do not
require the sentencing court to find that the . . . children
were actually harmed by the . . . production of methamphetamine,
. . . only that their lives were placed at substantial risk.”).
As the district court stated, “the likelihood of substantial
harm to minors who lived there through a fire occurring at the
home would still exist even if it had not occurred in the past.”
See United States v. Layne, 324 F.3d 464, 470-71 (6th Cir. 2003)
(explaining that enhancement for substantial risk of harm to
minors was “designed to address the inherent dangers of
methamphetamine manufacturing”). We conclude that the
enhancement was supported by the evidence, and therefore not
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clearly erroneous. See United States v. Carter, 601 F.3d 252,
254 (4th Cir. 2010) (providing standard).
Keesee next argues that his conviction for both
manufacturing methamphetamine and manufacturing methamphetamine
in a manner that creates a substantial risk to human life
violates the Double Jeopardy Clause because the latter offense
includes all of the elements of the former. He argues that the
crime of manufacturing methamphetamine is a lesser included
offense of the crime of manufacturing methamphetamine in a
manner that creates a substantial risk of harm to human life.
The Double Jeopardy Clause of the Fifth Amendment
protects criminal defendants from repeated prosecutions for the
same offense, Oregon v. Kennedy, 456 U.S. 667, 671 (1982), and
from multiple punishments for the same offense. United
States v. Martin, 523 F.3d 281, 290 (4th Cir. 2008). A
defendant may be convicted of two separate offenses arising from
a single act if each charge requires proof of a fact not
essential to the other. United States v. Dixon, 509 U.S. 688,
696 (1993).
In Blockburger v. United States, 284 U.S. 299, 304
(1932), the Supreme Court held that, “where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires
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proof of a fact which the other does not.” Albernaz v. United
States, 450 U.S. 333, 333 (1981). Here, the manufacturing
count, 21 U.S.C. § 841(a)(1), proscribes the manufacturing,
distribution, dispensing, or possession with intent to
manufacture, distribute or dispense a controlled substance. Id.Section 858 penalizes a person who, “while manufacturing a
controlled substance [ ] or attempting to do so, or transporting
or causing to be transported materials, including chemicals, to
do so, creates a substantial risk of harm to human life.” 21
U.S.C. § 858.
Each of these statutes requires proof of an element
that the other does not. Section 858 requires that the conduct
“create[] a substantial risk of harm to human life.” Section
841 requires that the person actually manufacture, distribute,
dispense, or possess a controlled substance. We conclude,
therefore, that the offenses are two separate crimes, and not a
crime and a lesser included offense. See Albernaz, 450 U.S. at
333; Blockburger, 284 U.S. at 304.
Moreover, we note that 21 U.S.C. § 841(a)(1), the
purported “lesser” offense, carries a greater penalty than the
purportedly “greater” offense, 21 U.S.C. § 858. Compare 21
U.S.C. § 841(b)(1)(A)-(C) (providing for maximum sentences of
twenty years to life imprisonment, depending on the drug
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quantity), with 21 U.S.C. § 858 (providing a maximum sentence of
ten years).
Additionally, § 858 applies only to a person who,
“while manufacturing a controlled substance in violation of this
subchapter, or attempting to do so . . . creates a substantial
risk of harm to human life” and provides for a sentence of up to
ten years. Because it is necessary to have violated another
statute in “this subchapter” in order to be convicted of
violating § 858, we conclude that Congress intended for
additional and cumulative punishment for these two offenses, see
Missouri v. Hunter, 459 U.S. 359, 367 (1983); Albernaz, 450 U.S.
at 341 (explaining that it is presumed that Congress legislates
with an awareness of other statutes and an awareness of the
Blockburger rule), and therefore find no Double Jeopardy
violation.
Finally, Keesee also contends that the district court
abused its discretion in sentencing him to a total term of 90
months and one day, the middle of the applicable Guidelines
range, after stating that a sentence “at the lower end of th[e
78 to 97 month] range” was appropriate. As to this issue,
Keesee argues that the court failed to consider Application Note
22 to USSG § 2D1.1, which requires the court, when imposing a
consecutive sentence pursuant to 21 U.S.C. § 860a, to determine
the “‘total punishment’ and divide the sentence on the judgment
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form between the sentence attributable to the underlying drug
conduct and the sentence attributable to 21 U.S.C. § 860a.”
USSG § 2D1.1 cmt. n.22; see United States v. Green, 436 F.3d
449, 459-60 (4th Cir. 2006). He contends that his sentence
should be vacated and his case remanded for resentencing.
We review a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This court may presume that a sentence within the
properly calculated Guidelines range is reasonable. Rita v.
United States, 551 U.S. 338, 351 (2007). Section 3553(a)
provides that, in addition to considering the standard
sentencing factors, the court must consider the sentencing range
for the offenses of conviction and also “any pertinent policy
statement issued by the Sentencing Commission.” 18 U.S.C.
§ 3553(a)(4), (5).
The district court found that a sentence within the
calculated 78 to 97 month Guidelines range was appropriate in
light of the seriousness of the offense, the dangerousness of
manufacturing methamphetamine, and the need for deterrence. The
district court also acknowledged that it was required to impose
a consecutive sentence for the § 860a charge.
In imposing sentence, the court, in accordance with
the directive in Application Note 22, stated that the total
sentence was to be 90 months and one day. The court then broke
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that sentence down into the 78-month term for the drug charge
and the consecutive 12-month-plus-one-day term for the
endangerment offense. Although the court had previously noted
that a sentence at the low end of the Guidelines range was
appropriate, the government argues that this statement might
well have been in reference to the sentence for the underlying
drug charges, for which the court sentenced Keesee at the bottom
of the advisory Guideline range. In any event, the district
court’s statement is, at best for Keesee’s position, ambiguous.
Given the presumption of reasonableness accorded within-
Guidelines sentences like the one at issue here, we find
Keesee’s reliance on an ambiguous phrase plucked from a full
sentencing proceeding insufficient to warrant relief.
After reviewing the supplemental briefs, we conclude
that there was no reversible error in the application of both
the risk of harm enhancement and the consecutive sentence under
§ 860a. “The Sentencing Commission plainly understands the
concept of double counting, and expressly forbids it where it is
not intended.” United States v. Williams, 954 F.2d 204, 208
(4th Cir. 1992). Thus, it is presumed that “double counting is
proper where not expressly prohibited by the Guidelines.”
United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010).
Applying the greatest applicable enhancement for
Keesee’s specific offense characteristics related to the drug
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offenses results in an increase in Keesee’s offense level to
level 30, based on the fact that his manufacturing of
methamphetamine created a substantial risk of harm to the life
of a minor. USSG § 2D1.1(b)(10)(D). Nowhere do the Guidelines
prohibit the application of the § 2D1.1(b)(10)(D) enhancement
for risk of loss in combination with the consecutive sentence
imposed pursuant to 21 U.S.C. § 860a.
Moreover, the consecutive sentence imposed under
§ 860a did not result in a greater sentence. Rather, as
directed in Application Note 22, the court first determined the
total sentence for all of Keesee’s convictions, and then
divided that sentence between the drug charge (78 months) and
the consecutive term under § 860a (12 months plus one day). See
USSG § 2D1.1 cmt. n.22; Green, 436 F.3d at 459-60. We conclude
that there was no plain error by the district court in applying
both the risk of harm enhancement and the consecutive sentence.
See United States v. Olano, 507 U.S. 725, 732-37 (1993)
(providing standard).
Accordingly, we affirm Keesee’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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