United States v. Frost , 195 F. App'x 156 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONI LEA FROST,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-05-36-JPJ)
Submitted: July 31, 2006 Decided: August 23, 2006
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nancy Combs Dickenson, Lebanon, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Toni Lea Frost pled guilty to conspiracy to manufacture
methamphetamine, 21 U.S.C. § 846 (2000) (Count One); maintaining a
place for the manufacture of methamphetamine, 21 U.S.C.A.
§ 856(a)(1) (West Supp. 2006) (Count Eight); endangering human life
while manufacturing methamphetamine, 21 U.S.C. § 858 (2000) (Count
Nine); and possessing a firearm while being an unlawful user of a
controlled substance, 18 U.S.C. § 922(g)(3) (2000) (Count Ten).
Frost was sentenced to a term of 235 months imprisonment. She
appeals her sentence, contending that the district court plainly
erred in applying a six-level enhancement for creating a
substantial risk of harm to the life of a minor, U.S. Sentencing
Guidelines Manual § 2D1.10(b)(1)(B) (2005), because it resulted in
impermissible double counting. She also alleges Sixth Amendment
error under United States v. Booker, 543 U.S. 220 (2005), because
the facts underlying the enhancement were neither admitted by her
or proved beyond a reasonable doubt. We affirm.
On March 7, 2005, a confidential informant came to
Frost’s house to buy methamphetamine from her husband, Steven. The
Frosts had three children, the oldest of whom was fourteen, and
they shared their house with co-defendants Gary Shuttleworth and
Brian Slagle, as well as a friend, Nancy Poole, and her two
children, aged six and one-and-a-half. The confidential informant
observed Steven manufacturing methamphetamine in an outbuilding,
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accompanied by his fourteen-year-old son. Toni Frost and the
couple’s four-year-old son also came to the outbuilding briefly.
Because the methamphetamine batch was not ready, the confidential
informant returned later, and saw Steven Frost walking from the
house to the outbuilding with the finished methamphetamine in a
pyrex dish. Frost put some of the methamphetamine in a “makeshift
pipe made from a household lightbulb” and smoked it. Toni Frost
and her four-year-old son again came to the outbuilding while
Steven Frost sold a quantity of methamphetamine to the informant.
On May 9, 2005, Steven Frost and Shuttleworth were
arrested following the sale of 10.5 grams of methamphetamine to the
informant at a location away from the home. A search warrant was
then executed at the Frosts’ home. Items and substances used in
the manufacture of methamphetamine were seized, as well as numerous
firearms. Toni Frost and co-defendant Brian Slagle were arrested.
Statements provided by Steven and Toni Frost and Shuttleworth
indicated that Steven Frost manufactured approximately 1056 grams
of methamphetamine between April 2004 and March 2005. Toni Frost
assisted her husband by buying the precursor materials--cold pills
and matches--several times a week, as well as gallon jugs of iodine
less frequently.
The district court grouped all four counts together under
USSG § 3D1.2(b). The base offense level of 35 was derived from the
§ 858 offense (Count Nine) because it was the highest. See USSG
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§ 3D1.3(a). The district court added six levels because the
offense involved the manufacture of methamphetamine and created a
substantial risk of harm to the life of a minor. USSG
§ 2D1.10(b)(1)(B). The district court awarded Frost a three-level
adjustment for acceptance of responsibility, USSG § 3E1.1, making
the final offense level 38. The district court departed downward
from criminal history category II to category I. Frost’s advisory
guideline range was 235-293 months.
Frost initially objected to the enhancement for creating
a substantial risk of serious harm to the life of a minor, but she
withdrew her objection at the sentencing hearing. The district
court on its own inquired into the propriety of the enhancement,
and concluded that it did apply. Frost now argues that the
enhancement constituted impermissible double counting because the
risk of harm to the life of a minor addressed in the six-level
enhancement under § 2D1.10(b)(1)(B) was already accounted for by
her conviction under 21 U.S.C. § 858 and the three-level
enhancement that would apply under § 2D1.10(b)(1)(A) if no children
had been present.
Whether impermissible double counting occurred is a legal
issue which is reviewed de novo. United States v. Rohwedder, 243
F.3d 423, 426-27 (8th Cir. 2001). Double counting is permissible
under the sentencing guidelines except where it is expressly
prohibited, United States v. Reevey, 364 F.3d 151, 158 (4th Cir.
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2004); see also United States v. Hughes, 401 F.3d 540, 558 (4th
Cir. 2005) (obstruction of justice adjustment is impermissible when
conduct resulting in enhancement is identical to conduct underlying
conviction). Title 18, § 858 criminalizes creating a substantial
risk of harm to “human life,” while § 2D1.10(b)(1)(B) provides an
enhancement specifically for creating a risk of harm to the lives
of minors or incompetents. A defendant could violate § 858 without
creating a risk to the life of a minor. Consequently, the district
court’s application of the enhancement did not constitute
impermissible double counting. See United States v. Williams, 954
F.2d 204, 206 (4th Cir. 1992) (enhancement for use of dangerous
weapon under USSG § 2A2.2(a) not impermissible double counting
because not all assaults that “involve” a dangerous weapon also
involve “use” of the weapon; enhancement reflects “graduated
adjustment scheme”).
Frost next contends that application of the six-level
enhancement was plain error under Booker because the facts
supporting the enhancement were not admitted by her or proved
beyond a reasonable doubt. Frost is mistaken. After Booker, this
court continues to review for clear error the district court’s
factual findings relating to calculation of the advisory guideline
range. United States v. Hampton, 441 F.3d 284, 287 (4th Cir.
2006). Frost also argues that the evidence failed to establish by
a preponderance of the evidence that her activities created a
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substantial risk of harm to a minor. We are convinced, however,
that the district court did not plainly err in applying the
enhancement based on the government’s proffer of the risk of fire
or the release of phosphine gas posed by the process of
manufacturing methamphetamine, particularly since there was
evidence that some of the manufacturing may have taken place in the
house. The dangers of methamphetamine labs are well-documented.
See United States v. Florence, 333 F.3d 1290, 1292 (11th Cir. 2003)
(methamphetamine lab in hotel caused fire, evacuation); United
States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) (danger
associated with suspected methamphetamine lab sanctioned
warrantless search by police officers); United States v. Wilson,
865 F.2d 215, 216-17 (9th Cir. 1989) (officers’ fear of
methamphetamine lab explosion justified warrantless entry into
home); cf. United States v. Spinelli, 848 F.2d 26, 29-30 (2d Cir.
1988) (officers’ concern regarding volatile nature of
methamphetamine justified failure to comply with knock-and-announce
statute).
As required under Booker and Hughes, the district court
calculated the appropriate guideline range, considered the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and imposed a
sentence. Hughes, 401 F.3d at 546. The sentence should be
affirmed if it is “within the statutorily prescribed range . . .
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and is reasonable.” Id. at 546-47. Because the sentence was
within the correct advisory guideline range, and the district court
considered factors set out in § 3553(a), we conclude that Frost’s
sentence is reasonable.
We therefore affirm the sentence imposed by the district
court. 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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