United States v. Hargraves ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-50560
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELLY HARGRAVES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-160-2
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kelly Hargraves appeals his sentence for two counts of
attempting to manufacture methamphetamine. He contends that the
district court erred in applying the U.S.S.G. § 2D1.1(b)(6)(C)
enhancement to his sentence for creating a substantial risk of
harm to the life of a minor.
Section 2D1.1(b)(6)(C) provides that if an offense involved
the manufacture of methamphetamine and created a substantial risk
of harm to the life of a minor or incompetent, the offense level
*
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this opinion should not be published and is not precedent except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. 05-50560
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should be increased by six levels. The guideline’s commentary
instructs that in determining whether the offense created a
substantial risk of harm to human life or the environment, the
district court shall consider the following factors: (1) the
quantity of any chemicals or hazardous substances found at the
laboratory and the manner in which they were stored; (2) the
manner of disposal of the hazardous or toxic substances and the
likelihood of their release into the environment; (3) the
offense’s duration and the size of manufacturing operation; and
(4) the laboratory’s location (e.g., whether it was located in a
residential versus a remote area) and the number of human lives
enduring a substantial risk of harm. § 2D1.1(b)(6)(C), comment
(n.20(A)). A “minor” is defined as a person who has not yet
attained the age of 18. Id. at n.20(B); § 2A3.1, comment (n.1).
Contrary to Hargraves’s assertions, the presentence report
(PSR) and the factual basis, which the district court relied on
in applying the enhancement, clearly reflect that a minor was
present in the residence while Hargraves was manufacturing
methamphetamine. Hargraves’s own argument at the sentencing
hearing, that the minor was not present “during all the cooks,”
implies that the minor was present “during some of the cooks.”
The PSR further reflects that chemical materials were found
inside the residence and also in close proximity to the
residence. In light of the evidence before the district court,
it cannot be said that the district court clearly erred in
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applying the § 2D1.1(b)(6)(C) enhancement. Cf. United States v.
Simpson, 334 F.3d 453, 457-59 (5th Cir. 2003) (court did not
uphold enhancement because there was no evidence that a minor was
present during the time the defendant was involved in the
manufacturing process). Accordingly, Hargraves’s sentence is
AFFIRMED.