United States v. Morgan ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4322
RONALD LEE MORGAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-99-30)
Submitted: November 28, 2000
Decided: December 20, 2000
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jerry W. Kilgore, Christopher R. Nolen, SANDS, ANDERSON,
MARKS & MILLER, Richmond, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, S. Randall Ramseyer, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MORGAN
OPINION
PER CURIAM:
Ronald Lee Morgan was convicted by a jury of two counts of mak-
ing false statements on Mine, Safety, and Health Administration
forms, 18 U.S.C.A. § 1001 (West 2000). The district court imposed
a sentence of eighteen months imprisonment. Morgan appeals his sen-
tence, contending that the district court clearly erred in finding that
his offense involved the conscious or reckless risk of serious bodily
injury. See U.S. Sentencing Guidelines Manual § 2F1.1(b)(6)(A)
(1998). We affirm.
Beginning in 1978, Morgan worked as an inspector for the Mine,
Safety, and Health Administration in Virginia (MSHA). One of his
duties was to perform annual sampling of dust in coal mines over an
eight-hour period to determine the amount of respirable dust in the air
in the mine. Coal dust and silica dust in the air in coal mines may
cause pneumoconiosis (black lung disease) in miners. While mine
operators are required to conduct dust sampling every two months and
to send the sampling cassettes to the MSHA lab, the annual MSHA
samples are necessary to determine independently the dust level in the
mine at least once a year because mine operators have been known
to submit falsified dust samples. In 1994, the MSHA district manager
for Virginia instituted a policy requiring MSHA inspectors to travel
underground with the sampling units, to remain underground during
the eight-hour testing period to make sure that the sampling units are
in the proper places, to move around the area being inspected to
ensure that a representative sample is properly taken, and to bring the
units up at the end of the eight-hour period.
On May 13, 1997, Morgan was scheduled to perform the annual
dust sampling at Solus Coal Number One mine. Morgan’s official
inspection notes (MSHA Form 7000-10J) show that he went under-
ground at 6:30 a.m. and stayed underground until 2:30 p.m., perform-
ing various checks. He stated on his time and activity sheet (MSHA
Form 2000-60) that he was underground at the Solus mine for eight
hours on May 13, 1997. However, Buster Lamie, the mine foreman,
testified that Morgan did not go underground at 6:30. Instead, Lamie
said Morgan gave the dust pumps to him and the other miners with
UNITED STATES v. MORGAN 3
instructions as to where to place them. Lamie testified that Morgan
came underground after 8:00 a.m., spent a few hours underground
during the morning, and went back up before lunch, telling Lamie to
collect the dust pumps for him if he did not return. Lamie brought the
pumps to the surface at the end of the shift. Lamie testified that he
followed Morgan’s instructions, and that, as far as he knew, the
pumps were not tampered with, although he had been concerned that
the dust pumps were not sampled within two hours after they were
turned on underground, as they should have been.
In sentencing Morgan, the district court determined that, by failing
to conduct the dust sampling as he was required to do, Morgan had
created a reckless risk of serious bodily injury to the miners. The
court thus enhanced Morgan’s offense level by seven levels pursuant
to USSG § 2F1.1(b)(6)(A). The district court’s determination that the
defendant has recklessly created a risk of serious bodily injury is a
factual determination reviewed for clear error. United States v. Tur-
ner, 102 F.3d 1350, 1357-58 (4th Cir. 1996) (affirming enhancement
where mine owners made false statements on MSHA forms certifying
that miners had received required safety training).*
Morgan argues on appeal that his actions were not reckless because
he took steps to insure that the tests were done properly and because
there was no evidence that any actual risk or injury resulted or that
the lack of one sampling could cause serious bodily harm. His argu-
ment is based on the assumption that the miners to whom Morgan
entrusted the dust pumps placed and operated the pumps exactly as
he would have done throughout the eight-hour sampling period. But
MSHA has its own inspector conduct an annual inspection because it
has not always found mine personnel reliable in such matters in the
past. Consequently, for Morgan to rely on the miners to conduct the
sampling, even in part, was to create a risk that the test would be falsi-
fied or improperly done, and that, as a result, the miners would be
exposed to unacceptable levels of respirable dust during the following
year. Because he did not monitor the sampling as he should have
done, the results were unreliable. Moreover, even if the sampling was
actually done correctly, Morgan’s conduct created a risk that the tests
*When Turner was decided, the enhancement was prescribed in USSG
§ 2F1.1(b)(4)(A).
4 UNITED STATES v. MORGAN
would not be done correctly. The risk was recklessly created because
Morgan was well-informed about the risk, about the reasons for test-
ing by MSHA inspectors, and about the policy requiring his continu-
ous presence in the mine to properly conduct the sampling.
We therefore affirm the 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