United States v. Foster Williams, III ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5148
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FOSTER GAY WILLIAMS, III,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:11-cr-00012-JPB-JSK-1)
Argued: October 25, 2012 Decided: March 25, 2013
Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a separate opinion concurring in the judgment.
ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Clarksburg, West Virginia, for Appellant. Stephen
Donald Warner, OFFICE OF THE UNITED STATES ATTORNEY, Elkins,
West Virginia, for Appellee. ON BRIEF: William J. Ihlenfeld,
II, United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Foster Gay Williams III ("Appellant
Williams") pleaded guilty to conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 846. At sentencing, the district court
applied a three-level enhancement pursuant to United States
Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(13)(C)(ii) (2010).
This enhancement applies when an offense involves the
manufacture of methamphetamine and creates a substantial risk of
harm to human life. Appellant Williams challenges the
application of this enhancement on the ground that he did not
endanger anyone other than himself while manufacturing
methamphetamine, and, therefore, the enhancement should not
apply in as much as to apply the enhancement in such a
circumstance would, in essence, make the enhancement applicable
in all methamphetamine manufacturing cases, thereby defeating
the purpose of an “enhancement.” Because we conclude that
Appellant Williams’ actions did, in fact, pose a substantial
risk of harm to the lives of others, and not simply his own, we
affirm.
I.
A.
Appellant Williams manufactured methamphetamine using
what is known as the “shake and bake” method. This increasingly
2
popular method of methamphetamine manufacture involves mixing an
assortment of common household chemicals—including Coleman fuel,
drain opener, ammonium nitrate (found in cold pack compresses),
lithium (found in batteries), and pseudoephedrine (found in
over-the-counter cold medication)—in a medium-sized plastic
bottle causing a series of chemical reactions to take place.
Once those reactions have taken place, the manufacturer creates
a gaseous mixture in a second bottle using either sulfuric or
muriatic acid. The second bottle has a hose attached to it,
which the manufacturer uses to spray the gas onto the liquid
which is contained in the first bottle. This process, known as
“smoking,” causes solid methamphetamine to precipitate. Once
the resulting solid is filtered, the process is complete.
Ultimately, this process takes roughly two hours and yields
approximately one and a half grams of methamphetamine.
Though simple, this method of methamphetamine
manufacture is very dangerous. 1 The Presentence Report (“PSR”)
notes that the mixture described above is “bomb-like” and
“capable of exploding or ‘blowing a hole’ wherein the mixture of
1
Indeed, Appellant Williams conceded as much at sentencing:
“THE COURT: You concede the manufacture of meth is in fact
dangerous? Mr. Kornbrath: I have to. I mean there’s chemicals
involved and it’s a process that could go wrong.” J.A. 36.
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this case.
3
chemicals and fire shoots out creating a flash fire.” J.A. 94.
Moreover, the shake and bake method “does not produce the
signature ‘chemical smell’ of a traditional methamphetamine lab,
therefore, persons within a close proximity have no warning that
they are in danger.” Id.
The district court concluded that Appellant Williams
manufactured methamphetamine using this method at two separate
locations: (1) his home—a trailer in Junior, West Virginia; and
(2) the Econo Lodge motel in Elkins, West Virginia.
1.
In late 2010, police in Junior, West Virginia, learned
from an informant that Appellant Williams was involved in the
manufacture of methamphetamine. On January 28, 2011, police
conducted surveillance on Appellant Williams’ single-wide
trailer. The trailer was in a remote area, 75-100 yards from
the nearest occupied residence. Police observed blankets
covering the windows of the trailer and smelled a strong
chemical odor coming from within.
On February 2, 2011, police executed a search warrant
at the trailer and found items typically used to manufacture and
ingest methamphetamine. Specifically, the items located at the
trailer were: a syringe on the coffee table, a box with four
additional syringes, burned foil, a smoking pipe made out of a
light bulb, three syringes on the bedroom dresser, various
4
syringes in the bathroom, a jar with a hose taped to the lid, a
can of Coleman fuel, a bottle of muriatic acid, batteries cut in
two, and rubber gloves. Outside the trailer, police found a
burn pile, an empty can of Coleman fuel, and rubber gloves.
Several items found inside the trailer—including the light bulb,
the spoon, and the straw—tested positive for methamphetamine and
pseudoephedrine.
2.
On February 8, 2011, members of the West Virginia
State Police learned from an informant that Appellant Williams
was staying in Room 131 of the Econo Lodge motel in Elkins, West
Virginia. The informant also indicated that there was an active
warrant for Appellant Williams’ arrest. Later that day, three
state police officers traveled to the motel. When they arrived,
they confirmed that Appellant Williams was indeed staying at the
Econo Lodge, that he had been there for four days, and that he
was scheduled to check out later that day. The officers also
obtained a key to Appellant Williams’ room from the hotel clerk.
The officers then went to Appellant Williams’ room,
knocked on the door, and announced their presence. When no one
answered, they entered the room, only to find it unoccupied.
While in the motel room, one of the officers observed a backpack
in plain view. The officers also observed that the backpack was
5
partially open and that it contained a bottle connected to a
hose.
Police then exited the room and hid nearby, waiting
for Appellant Williams to return. When he did, he walked up to
the door and attempted to open it. Finding it locked, he
started walking toward the lobby. The officers interceded and
placed him under arrest. Following the arrest, the officers
asked Appellant Williams what was inside the room. Appellant
Williams stated that the motel room contained a backpack
containing items to manufacture methamphetamine. Despite this
admission, Appellant Williams denied ownership of the materials,
claiming they belonged to his girlfriend. Appellant Williams
was then taken into custody.
Thereafter, a certified lab technician arrived on the
scene. By that time, Appellant Williams had already been taken
to magistrate court, where he signed a written consent form
authorizing a search of the motel room. Pursuant to that
authorization, the technician proceeded to search the room.
During the search, the technician found all of the
materials necessary to manufacture methamphetamine.
Specifically, inside the backpack, the technician found: a hose
connected to a plastic bottle, a gallon of Coleman fuel, a quart
of hydrochloric acid, a lithium battery, drain opener, bottles,
hoses, and a Gatorade bottle that contained a white paste-like
6
substance. Lab reports later concluded that the white paste in
the Gatorade bottle was dissolved pseudoephedrine. 2 In addition
to the items found in the backpack, the technician found a one
pint bottle of clear liquid, a receipt for the purchase of
Coleman fuel, a box of sleeping pills, and instant ice
compressors. He also found three syringes and a spoon inside the
night stand. And, on February 8, Appellant Williams’ girlfriend
posted a picture to her Facebook account of her in the Econo
Lodge captioned “up partying all night long.” J.A. 110.
3.
In addition to the evidence found at the trailer and
the motel, the district court found that Appellant Williams
repeatedly purchased ingredients used to manufacture
methamphetamine. Specifically, Appellant Williams purchased
Coleman fuel and muriatic acid numerous times between December
26, 2010 and February 18, 2011. Appellant Williams also bought
pseudoephedrine on eleven occasions between December 10, 2010
and January 26, 2011.
B.
On April 19, 2011, a grand jury sitting in the
Northern District of West Virginia at Elkins returned an 18-
2
Pseudoephedrine is the active ingredient in over-the-
counter cold medication. As noted, it is also one of the main
ingredients in the manufacture of methamphetamine.
7
count indictment charging Appellant Williams with conspiracy to
manufacture methamphetamine in violation of 21 U.S.C. § 846, §
841(a)(1), and § 841(b)(1)(C); sixteen counts of possession of
materials to be used to manufacture methamphetamine in violation
of 21 U.S.C. § 843(a)(6) and § 843(d)(2); and one count of
maintaining a drug involved premises in violation of 21 U.S.C. §
856(a)(2). On June 3, 2011, Appellant Williams pleaded guilty
to a single count of conspiracy to manufacture methamphetamine.
In the PSR, the probation officer recommended a base
offense level of 28 3 with a three level decrease for acceptance
of responsibility and a three level enhancement pursuant to
U.S.S.G. § 2D1.1(b)(13)(C)(ii) for creating a substantial risk
of harm to human life. Importantly, in deciding to apply this
enhancement, the probation officer concluded that Appellant
Williams had manufactured methamphetamine at both the Econo
Lodge and the trailer. See J.A. 94 (“[T]he defendant and others
manufactured methamphetamine in a trailer located on his
parents’ property and also at the Econolodge hotel located in
Elkins, West Virginia.”). This calculation resulted in a total
recommended offense level of 28.
3
In so doing, the probation officer declined to accept the
parties stipulated base offense level of 26. However, as
discussed below, the district court ultimately utilized the
parties proposed offense level of 26.
8
At sentencing, Appellant Williams raised two
objections to the PSR. First, he objected to the PSR’s use of
the base level of 28. This objection was largely based on the
fact that the parties had previously stipulated to a base
offense level of 26. 4 The district court sustained this
objection and calculated Appellant Williams’ sentence using a
base offense level of 26.
Second, Appellant Williams argued the evidence was
insufficient to justify the application of the enhancement with
respect to the manufacture of methamphetamine at either the
trailer or the motel. As to the trailer, Appellant Williams
argued that the PSR mistakenly claimed that his trailer was
located immediately behind his family’s house. Instead,
Appellant Williams argued that the trailer was in a remote
location, 75 to 100 yards away from the nearest occupied
residence at the time. 5 The Government conceded this point.
4
The discrepancy between the stipulated base offense level
and the recommended base offense level in the PSR reflects the
fact that the parties agreed that some of the pseudoephedrine
was purchased for legal purposes while the probation officer
treated all of Appellant Williams’ pseudoephedrine purchases as
illegal.
5
There is a residence located approximately thirty yards
away from Appellant Williams’ trailer. However, it is only
occupied during the summer months and, therefore, was unoccupied
when the police uncovered evidence of methamphetamine
manufacturing.
9
Based on this concession, Appellant Williams argued that the
trailer was too remote for any methamphetamine manufacturing
conducted there to pose a risk to anyone other than himself. As
to the motel, Appellant Williams argued there was no factual
support for the claim that he manufactured methamphetamine
there. Instead, he asserted that the motel was simply used for
storage of the materials.
The district court overruled this objection and
applied the enhancement. In so doing, the district court noted,
“the presentence report is accepted and ordered filed and made a
part of the record herein.” J.A. 43. Accordingly, the district
court found that Appellant Williams’ total offense level was 26,
resulting in a recommended sentence of 120 – 150 months
imprisonment. The district court then sentenced Appellant
Williams to 120 months imprisonment. This appeal followed.
II.
A district court determines whether a sentencing
enhancement applies “based on a preponderance of the evidence
standard.” United States v. Blauvelt, 638 F.3d 281, 293 (4th
Cir. 2011). When reviewing a district court’s application of an
enhancement, we review conclusions of law de novo and findings
of fact for clear error. United States v. Houchins, 364 F.3d
182, 187 (4th Cir. 2004), vacated on other grounds, 543 U.S.
1104 (2005). “Whether a district court has properly found the
10
existence of a substantial risk of harm to human life or the
environment within the meaning of Guidelines § 2D1.1(b)(5)(B) is
a mixed question of law and fact which we review de novo.” Id.
(internal citations and quotation marks omitted).
III.
1.
The 2010 Sentencing Guidelines Manual, which was in
effect at the time of Appellant Williams’ sentencing, provides:
If the offense involved the manufacture of amphetamine
or methamphetamine and the offense created a
substantial risk of harm to (I) human life . . . ; or
(II) the environment, increase by 3 levels. If the
resulting offense level is less than level 27,
increase to level 27.
U.S.S.G. § 2D1.1(b)(13)(C)(ii). The relevant application note
provides as follows:
20. Substantial Risk of Harm Associated with the
Manufacture of Amphetamine and Methamphetamine.
(A) Factors to Consider. In determining, for
purposes of subsection (b)(13)(C)(ii) . . . , whether
the offense created a substantial risk of harm to
human life or the environment, the court shall include
consideration of the following factors:
(i) The quantity of any chemicals or hazardous
toxic substances found at the laboratory, and the
manner in which the substances were stored.
(ii) The manner in which hazardous or toxic
substances were disposed, and the likelihood of
release into the environment of hazardous or toxic
substances.
(iii) The duration of the offense, and the extent
of the manufacturing operation.
(iv) The location of the laboratory (e.g.,
whether the laboratory is located in a residential
11
neighborhood or a remote area), and the number of
human lives placed at substantial risk of harm.
U.S.S.G. § 2D1.1(b)(13)(C)(ii) cmt. n. 20. While a district
court must consider all four factors, it need not find that all
are met in order to apply the enhancement. See Houchins, 364
F.3d at 188 n.9.
Applying these factors in this case, the district
court found:
I am going to find that the enhancement does apply by
a preponderance of the evidence. There’s no question
we had cooking, as that term is loosely used, the
preparation of meth at the trailer, which was somewhat
secluded but as I read the application notes, the
cooking doesn’t have to take place for there to be the
enhancement. The application note instructs the Court
to look at the chemicals that were present, the manner
in which they were stored, also to look at the
duration of the offense and apparently based on the—at
least the part at the trailer, it was going on for
some period of time. The location of the laboratory;
certainly one was in a remote area; the other was in a
position, not laboratory, but where the—place where
the chemicals were stored was in a location, being the
motel room, which placed a number of human lives at a
substantial risk of harm.
J.A. 43.
Further, at sentencing, the court engaged in the
following discussion with Appellant Williams’ counsel:
THE COURT: I understand your objection but the
guideline actually reads: “Created a substantial risk
of harm to human life.” It doesn’t say others and/or
the environment.
Appellant Counsel: Right. Human Life. We have a meth
addict who’s making meth.
12
THE COURT: He’s human.
J.A. 37. Thus, per the reasoning of the district court, because
Appellant Williams is “human” and because he endangered his own
life by manufacturing methamphetamine, the enhancement should
apply.
2.
On appeal, Appellant Williams argues that there is
insufficient evidence to support the application of the
enhancement either as to the trailer or the Econo Lodge. With
regard to the trailer, he asserts that, given its remote
location, he was the only “human life” endangered and that the
district court thus erred in finding that danger to the
manufacturer is sufficient to justify the application of the
enhancement. With regard to the Econo Lodge, Appellant Williams
contends that he never manufactured methamphetamine there and
that, instead, he merely used the motel room for storage.
Accordingly, he asserts the enhancement cannot apply.
We agree with Appellant Williams that the district
court erred in finding that the enhancement applies simply
because Appellant Williams endangered his own life. To broadly
construe the phrase “human life” to include situations where the
defendant is the only person endangered would impermissibly turn
the enhancement into a de facto minimum sentence in all
methamphetamine manufacturing cases, as every person who
13
manufactures methamphetamine places themselves at a substantial
risk of harm. See United States v. Staten, 466 F.3d 708, 716
(9th Cir. 2006). This would violate the spirit of the
enhancement, which is to be applied only in extraordinary
factual circumstances. See United States v. Pinnow, 469 F.3d
1153, 1156-57 (8th Cir. 2006) (“[A] district court ‘may not rest
application of the enhancement on facts that are necessarily
common to most or every manufacture’ because analysis of the
mandatory factors in Application Note 20(a) ‘demands an inquiry
into the details of a particular case.’”)(quoting Staten, 466
F.3d at 716).
However, because we find the evidence at the motel
sufficient to justify the application of the enhancement, we
affirm on that basis.
An evaluation of the four factors relevant to the
U.S.S.G. § 2D1.1.(b)(13)(C)(ii) enhancement demonstrates that
Appellant Williams’ methamphetamine manufacturing activities at
the Econo Lodge posed a substantial risk of harm to human life.
a. Quantity of Chemicals or Hazardous or Toxic
Substances and Manner of Storage
Appellant Williams contends this factor weighs against
application because all of the chemicals found at the motel
could fit inside a backpack. However, this does not necessarily
weigh against application of the enhancement. First, because
14
the entire shake and bake process of manufacturing
methamphetamine takes place inside a medium-sized soda bottle,
this method does not require a manufacturer to possess a large
volume of materials. Nevertheless, this method of manufacture
is highly dangerous.
Additionally, many of the substances found in the
motel create serious hazards if not carefully stored. See
United States v. Whited, 473 F.3d 296, 299 (6th Cir. 2007)
(“[M]any of the chemicals involved in the production of
methamphetamine are toxic, inherently dangerous, highly
flammable, and pose a serious risk to those who inhale them.”)
(citations and internal quotation marks omitted); United States
v. Chamness, 435 F.3d 724, 727 (7th Cir. 2006) (“Coleman fuel is
flammable and can be explosive. Muriatic acid is toxic and can
cause severe burns. The acid and salt are combined to create
hydrochloric acid, and the evidence before the district court
indicated such an acid is a strong irritant of the eyes, mucous
membranes, and skin.”) (internal citations omitted); United
States v. Layne, 324 F.3d 464, 470 (6th Cir. 2003) (“Acetone,
Coleman fuel, and red phosphorus are flammable and can be
explosive. Muriatic gas is a toxin that can cause severe
burns.”); United States v. Dick, 173 F. Supp. 2d 765, 767 (E.D.
Tenn. 2001) (“Campstove fuel is both flammable and explosive.”).
15
Moreover, as the probation officer noted in the PSR,
Appellant Williams stored these dangerous materials “in an
uncontrolled manner and in and/or around areas accessible to
other unsuspecting individuals.” J.A. 93. Thus, this factor
weighs in favor of applying the enhancement.
b. Manner of Disposal and Likelihood of Release Into
Environment
There was no evidence as to the manner of disposal of
the materials at the motel. Thus, this factor is indeterminate.
c. Duration of the Offense and Extent of the
Manufacturing Operation
Appellant Williams contends this factor weighs against
applying the enhancement because manufacturing did not take
place at the motel. He further contends that the district court
did not make a finding to the contrary. Rather, he asserts the
district court found that the motel was only used for storage.
While the district court did not expressly indicate at
sentencing that Appellant Williams manufactured methamphetamine
at both the motel and the trailer, the PSR did. J.A. 94 (“As
previously noted, the defendant and others manufactured
methamphetamine in a trailer located on his parents’ property
and also at the Econolodge hotel in Elkins, West Virginia.”).
As noted, the district court accepted the PSR and made it a part
16
of the record in this case. 6 Because Appellant Williams failed
to demonstrate otherwise, we may treat the finding in the PSR as
a finding of fact by the district court. See United States v.
Randall, 171 F.3d 195, 210-11 (4th Cir. 1999) (“If the district
court relies on information in the presentence report (PSR) in
making findings, the defendant bears the burden of establishing
that the information relied on by the district court in making
its findings is incorrect; mere objections are insufficient.”).
Here, there is ample evidence to support this finding.
As noted, law enforcement found all of the materials necessary
to manufacture methamphetamine using the shake and bake method
(i.e. hoses, glass and plastic bottles, Coleman Fuel,
hydrochloric acid, a lithium battery, drain opener, and
dissolved pseudoephedrine) in Appellant Williams’ motel room.
6
Specifically, at the sentencing hearing, the district
court adopted the findings of the PSR in open court.
Additionally, in its Statement of Reasons, the district court
similarly indicated that it was adopting the PSR. Finally, at
sentencing, the district court overruled Appellant Williams’
objection to the application of the enhancement, which was based
on Appellant Williams contention that manufacturing did not take
place at the motel. Thus, the district court properly adopted
the factual findings of the PSR. See United States v. Walker,
29 F.3d 908, 912 (4th Cir. 1994) (“It is self-evident that, in
expressly overruling Walker’s objections to the PSR, the court
was in fact adopting the controverted PSR findings.”)
Notably, the only two other areas of disagreement with the
PSR (i.e. the PSR’s use of a base offense level of 28 and the
PSR’s findings as to the location of the trailer) were either
stipulated or conceded by the parties.
17
Additionally, police uncovered three syringes and a spoon in the
motel room and Appellant Williams’ girlfriend posted a picture
to Facebook with the caption “up partying all night long.” The
Facebook post is particularly relevant here, because Appellant
Williams pled guilty to conspiracy and because Appellant
Williams admitted to police officers that the backpack in the
motel room contained items to manufacture methamphetamine and
that his girlfriend was staying in the motel room with him.
Moreover, several of the items found in the motel room contained
pseudoephedrine residue, evincing their use in the manufacture
of methamphetamine. This evidence is more than sufficient to
sustain a finding that Appellant Williams manufactured
methamphetamine at the motel. Therefore, this factor weighs in
favor of applying the enhancement.
d. Location of the Laboratory and Number of Human Lives
Placed at Substantial Risk of Harm
By manufacturing methamphetamine at a motel, Appellant
Williams placed a number of human lives at risk. Appellant
Williams concedes as much. See J.A. at 41-42 (Appellant
Counsel: “I concede, if there was meth manufactured in a hotel
room [the enhancement] applies because there’s people right next
door[.]”) Thus, this factor weighs strongly in favor of
applying the enhancement.
18
Moreover, even if we were to agree with Appellant
Williams and conclude that the district court did not make a
factual finding that manufacturing took place at the motel, we
would nonetheless affirm the judgment of the district court
solely based on the fact that Appellant Williams stored
hazardous chemicals in the motel room. Here, Appellant Williams
had all of the materials necessary to manufacture
methamphetamine in his motel room, including Coleman fuel and
sulfuric acid. As noted, both items can be hazardous if handled
improperly. Despite this, Appellant Williams brought these
items into a motel room that was occupied by an untold number of
unsuspecting people. This fact alone supports the conclusion
that Appellant Williams’ actions created a substantial risk of
harm to human life.
In reaching this conclusion, we reject Appellant
Williams’ contention that the existence of a laboratory at the
motel is a necessary pre-requisite to the operation of the
enhancement. The only pre-requisites listed in the text of
U.S.S.G. § 2D1.b(13)(C)(ii) are (i) the offense must involve the
manufacture of methamphetamine and (ii) the offense must pose a
substantial risk of harm to human life or the environment. The
guideline contains no indication that it must be the manufacture
of methamphetamine itself that causes a substantial risk of harm
to human life, leaving open the possibility that storage of
19
hazardous chemicals in a dangerous manner could justify the
application of the enhancement.
Moreover, while the fourth factor references “the
location of the laboratory,” it also commands a court to
consider “the number of human lives placed at a substantial risk
of harm” without any requirement that the risk of harm be posed
by the manufacturing of methamphetamine. Thus, we agree with
the district court insofar as the court concluded that a finding
that methamphetamine was manufactured at the motel was
unnecessary to the application of the enhancement. See J.A. 43
(“[A]s I read the application notes, the cooking doesn’t have to
take place for there to be the enhancement.”).
IV.
Thus, based on the relevant factors to be considered
in applying the U.S.S.G. § 2D1.1(b)(13)(C)(ii) sentencing
enhancement, we conclude that the evidence at the motel supports
the district court’s conclusion that Appellant Williams’
methamphetamine manufacturing activities posed a substantial
risk of harm to human life. Accordingly, the enhancement was
properly applied.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
20
GREGORY, Circuit Judge, concurring:
I concur in the judgment, but write separately to emphasize
that, in my view, the enhancement properly applies based on the
only reason clearly provided by the district court: that
Williams placed a number of human lives at a substantial risk of
harm by bringing dangerous chemicals into a public motel room
and storing them there. As the majority notes, these chemicals
are hazardous if not stored properly, and yet, Williams chose to
bring them into the motel room, placing them within reach of at
least one other drug user, and exposing an untold number of
other motel guests and employees to a substantial risk of harm.
The majority goes on to conclude that the enhancement is
also supported because the presentence report stated that
methamphetamine was manufactured in the motel room. That fact,
however, was vigorously disputed by Williams, and immediately
after hearing his objection, the district court appeared to
agree with his contention that the motel room was merely a place
where chemicals were stored. In explaining its reasons for
applying the enhancement, the court referred to the motel room
as “not [the] laboratory” but “the place where chemicals were
stored.” J.A. 43. Although the district court went on to adopt
the presentence report, I would hesitate before assuming that
every fact in a report is adopted by the district court, no
matter how contradictory the court’s open court statements.
21
Indeed, no one contends that the district court, after referring
to the trailer as located “in a remote area,” J.A. 43, adopted
the presentence report’s erroneous finding that it was located
immediately behind Williams’s family’s house.
If this case hinged on whether or not methamphetamine was
manufactured in the motel room, I would prefer to remand to
allow the district court to clarify its factual findings. But
because I agree with the majority that the enhancement would
apply even assuming the district court did not find that
methamphetamine was manufactured in the motel room, I concur.
22