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United States v. Strackbein ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
September 29, 2009
No. 08-51045
Summary Calendar                    Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHAD ALAN STRACKBEIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 6:08-CR-75-ALL
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Chad Strackbein appeals the sentence imposed after his guilty-plea convic-
tion of attempted manufacture of methamphetamine and possession of a firearm
in relation to a drug-trafficking crime. He argues that the district court erred
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-51045
in adjusting his offense level under U.S.S.G. § 2D1.1(b)(10)(A)(ii), because the
government failed to prove that anhydrous ammonia is a “hazardous waste” or
that his storage of the substance in propane tanks was “unlawful.”
Strackbein did not argue, in the district court, that anhydrous ammonia
is not a hazardous waste or that his method of storage was not unlawful. Ac-
cordingly, we review only for plain error. See United States v. Sotelo,
    97 F.3d 782
    , 793 (5th Cir. 1996) (plain error review where appellant advances theory in
the district court different from that presented on appeal). To demonstrate plain
error, he must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States,
    129 S. Ct. 1423
    , 1429 (2009). If he
makes such a showing, this court has the discretion to correct the error, but only
if it seriously affects the fairness, integrity, or public reputation of judicial pro-
ceedings.
    Id.
    Subsection (b)(10)(A) of § 2D1.1 applies if the conduct involved any storage
covered by, inter alia, the Comprehensive Environmental Response, Compensa-
tion, and Liability Act (“CERCLA”),
    42 U.S.C. § 9603
    (b). § 2D1.1, comment.
(n.19). Ammonia is listed in the hazardous material table of substances regulat-
ed by CERCLA. United States v. Stepan, 66 F. App’x 524, 524 (5th Cir. 2003)
(citing
    49 C.F.R. § 172.101
    , App. A (Table)). In addition, the presentence report
(“PSR”) provides that anhydrous ammonia is a “toxic substance” and that
Strackbein had stored it in an “unapproved container.” Because Strackbein ad-
duced no evidence to rebut the PSR, the district court was free to adopt the PSR
and to rely on the factual findings contained therein. See United States v. Ra-
mirez,
    367 F.3d 274
    , 277 (5th Cir. 2004). The imposition of the adjustment thus
was not plain error. See Baker, 538 F.3d at 332.
Strackbein also contends that his sentence is substantively and procedur-
ally unreasonable. Although he moved for a downward departure, he did not ob-
ject to the sentence as unreasonable. Nor did he object to the court’s failure to
give reasons for imposing a within-guideline sentence. It is thus arguable that
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No. 08-51045
Strackbein’s challenge to the sentence is subject to plain-error review. See
United States v. Peltier,
    505 F.3d 389
    , 391-92 (5th Cir. 2007), cert. denied,
    128 S. Ct. 2959
     (2008). This court need not determine whether plain-error review is
mandated, however, because Strackbein is not entitled to relief even assuming
that he preserved his argument for review. See United States v. Rodriguez,
    523 F.3d 519
    , 525 (5th Cir.), cert. denied,
    129 S. Ct. 624
     (2008).
Although the Supreme Court has stated that a sentencing court “will nor-
mally” explain why it has rejected the defendant’s arguments, the Court did not
mandate that the sentencing court give reasons for rejecting a defendant’s spe-
cific arguments for a lower sentence. Rita v. United States,
    551 U.S. 338
    , 356
(2007). The judge is required only to “set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.”
    Id.
    Where the district court imposes a sentence within a properly-calculated
guideline range and gives proper weight to the guidelines and the
    18 U.S.C. § 3553
    (a) factors, this court will give great deference to the sentence and will in-
fer that the district court has considered all the factors for a fair sentence set
forth in the guidelines. United States v. Campos-Maldonado,
    531 F.3d 337
    , 338
(5th Cir.), cert. denied,
    129 S. Ct. 328
     (2008). Additionally, a sentence within a
properly-calculated guideline range is presumptively reasonable.
    Id.
    The district court asked Strackbein and his counsel for comments regard-
ing sentencing. The court also asked Strackbein about his addiction. After that
exchange, the court imposed the minimum sentence recommended by the guide-
lines. The record thus reveals that the court considered the mitigating factors
offered by Strackbein and chose its sentence with them in mind. The sentence
is not substantively or procedurally unreasonable.
The judgment of sentence is AFFIRMED.
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