United States v. David Richard Pinnow ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1466
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
David Richard Pinnow, *
*
Defendant - Appellant. *
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Submitted: September 25, 2006
Filed: December 1, 2006
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Before LOKEN, Chief Judge, BEAM and GRUENDER, Circuit Judges.
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LOKEN, Chief Judge.
In January 2004, Coralville, Iowa, police arrested David Pinnow after he loaded
chemicals and equipment used to manufacture methamphetamine into a taxi outside
his hotel. Police found additional precursor chemicals and equipment in his hotel
room and in a car he had rented. Pinnow pleaded guilty to attempting to manufacture
methamphetamine. His presentence investigation report (PSR) recommended a three-
level enhancement because the offense involved the manufacture of methamphetamine
and created a substantial risk of harm to human life or to the environment. See
U.S.S.G. § 2D1.1(b)(8)(B).1 The district court2 overruled Pinnow’s objection to the
enhancement and sentenced him to 175 months in prison, seven months above the
bottom of his advisory guidelines sentencing range of 168 to 210 months. Pinnow
appeals, challenging the enhancement and the reasonableness of his sentence. We
affirm.
I.
Paragraphs 5-15 of Pinnow’s PSR set forth a detailed summary of his offense
conduct. Paragraph 27 recommended the § 2D1.1(b)(8)(B) enhancement. Pinnow
objected to one sentence in paragraph 9 that is not material to this appeal. He also
objected to the drug quantity calculation, an objection that was resolved at sentencing
when the parties stipulated to a base offense level of 30. And he objected to the
enhancement recommended in paragraph 27. The following fact summary is taken
from portions of paragraphs 5-15 to which Pinnow did not object.
After Coralville police officers detected a strong odor of ether emanating from
a rental car parked at a local hotel and a police dog alerted to the presence of drugs in
the car, the police obtained a warrant and towed the vehicle. A subsequent search
uncovered burnt aluminum foil containing an unknown residue; a plastic pitcher
containing an unknown brown substance; an empty bottle of isopropyl alcohol; starter
fluid; a five gallon bucket with lid and plastic tubing; multiple valves, plugs, and
clamps; and receipts for the purchases of chemicals used in the manufacture of
methamphetamine. Hotel records associated the rental car with room 163. The
1
After its adoption effective December 16, 2003, this provision was moved from
§ 2D1.1(b)(6)(A) to § 2D1.1(b)(5)(B) to § 2D1.1(b)(6)(B) to its present location.
There has been no substantive change since Pinnow’s offense of conviction. See
U.S.S.G. App. C, amendments 608, 620, 667, 681.
2
The HONORABLE ROBERT W. PRATT, Chief Judge of the United States
District Court for the Southern District of Iowa.
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officers learned that Pinnow was staying in room 163 and had recently stayed at other
hotels in the Coralville area.
When police saw Pinnow put several packages in the trunk of a taxi and
hurriedly leave the hotel, they arrested him on outstanding warrants. A search of
Pinnow and his belongings yielded acetone, sulfuric acid, a gas mask, lithium
batteries, burnt aluminum foil, coffee filters, glass and plastic containers and tubing,
a digital scale, and a seven-gallon metal tank wrapped in plastic bags. Most
significantly, police found fourteen boxes of various over-the-counter cold
medications containing enough pseudoephedrine to manufacture 18.36 grams of actual
(pure) methamphetamine, and a white powder which, when tested, proved to be
enough crushed pseudoephedrine to manufacture 32.38 grams of actual
methamphetamine. A warrant search of Pinnow’s hotel room yielded aluminum foil,
one partially full and two empty bottles of isopropyl alcohol, store receipts listing
precursor chemicals, an empty container of a cold medicine containing
pseudoephedrine, and an unopened cold syrup containing pseudoephedrine. At his
change-of-plea hearing, Pinnow admitted that he acquired these items and crushed the
pseudoephedrine “in order to manufacture methamphetamine using what is known as
the lithium ammonium reduction method.”
At sentencing, the district court overruled Pinnow’s objection to the
§ 2D1.1(b)(8)(B) enhancement, explaining that the amounts and types of precursors
and the undisputed facts in the PSR “reveal the defendant traveling and living with a
veritable toxic waste dump that was dangerous to himself as well as others.” Turning
to the sentence to be imposed, the court noted that Pinnow possessed the necessary
precursors “and a very large quantity of pseudoephedrine pills,” that he has been a
“one-person crime spree” for the past 20 years, living in at least thirteen States, that
he “has abused alcohol, marijuana, cocaine, methamphetamine, Valium, and LSD,”
and that he has a “continued history of violent criminal behavior.” For these reasons,
and “taking into account all the factors under [18 U.S.C. § 3553(a)],” the court
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imposed a sentence of 175 months in prison, somewhat above the bottom of the
advisory guidelines range of 168-210 months.
II.
On appeal, Pinnow first argues that the district court erred in imposing the
three-level enhancement under § 2D1.1(b)(8)(B) because “his mere possession of
methamphetamine precursors and materials, did not create a substantial risk of harm
to human life or the environment.” We review de novo the application of the
substantial risk of harm standard to the undisputed facts summarized in the PSR. See
United States v. Underwood, 364 F.3d 956, 961, 969-70 (8th Cir. 2004); United States
v. Davidson, 409 F.3d 304, 313 (6th Cir. 2005); United States v. Houchins, 364 F.3d
182, 187 (4th Cir. 2004), vacated on other grounds, 543 U.S. 1104 (2005).
In section 3612 of the Methamphetamine Anti-Proliferation Act of 2000,
Congress directed the Sentencing Commission to amend the guidelines to provide an
enhancement of “not less than 3 offense levels” for “any offense relating to the
manufacture, attempt to manufacture, or conspiracy to manufacture amphetamine or
methamphetamine . . . if the offense created a substantial risk of harm to human life
. . . or the environment.” Pub. L. No. 106-310, § 3612, 114 Stat. 1228-29 (2000). The
legislative history explained:
[T]hese chemicals and substances [used to manufacture
methamphetamine] are utilized in a manufacturing process that is
unstable, volatile, and highly combustible. Even small amounts of these
chemicals, when mixed improperly, can cause explosions and fires. For
every one pound of methamphetamine that is produced, approximately
five pounds of toxic and often lethal waste products may be left behind
at the laboratory site, or disposed of in rivers, kitchen sinks, or sewage
systems in an effort to conceal evidence of illegal manufacturing. More
disturbing is that most of these laboratories are situated in residences,
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motels, trailers, and vans, and often times are operated in the presence of
children.
H.R. Rep. No. 106-878, pt. 1, at 22 (2000). The Sentencing Commission responded
by promulgating what is now § 2D1.1(b)(8)(B). Application Note 20(A) to § 2D1.1
provides that, in determining “whether the offense created a substantial risk of harm
to human life or the environment, the court shall include consideration of” the quantity
of chemicals and toxic substances found at the laboratory, the manner in which those
chemicals and substances were stored and disposed of, the duration of the offense, and
the extent and location of the manufacturing operation.
The plain language of both § 2D1.1(b)(8)(B) and its authorizing legislation
confirm that the substantial-risk-of-harm enhancement does not automatically apply
to every offense involving methamphetamine manufacture. A panel of the Ninth
Circuit has held that 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) “demand[s] inquiry into the details
of the particular case.” United States v. Staten, 466 F.3d 708, 716 (9th Cir. 2006). We
agree that the Note 20(A) factors may not be ignored and that the details of the
particular offense are important. But the Note 20(A) factors are not exclusive, and
Congress evidenced its intent that the Commission and sentencing courts take into
account the dangers inherent in methamphetamine manufacturing. Therefore, we
agree with the observation of the court in United States v. Dick, 173 F. Supp. 2d 765,
771 n.6 (E.D.Tenn. 2001), affirmed, United States v. Layne, 324 F.3d 464 (6th Cir.),
cert. denied, 540 U.S. 888 (2003):
Defendants argue [former] section 2D1.1(b)(6) creates a per se
enhancement . . . . For heavily populated areas . . . Defendants are
probably correct as a practical matter. Indeed, the legislative history of
the enhancement suggests as much. Still, the Court can conceive of
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circumstances in which the enhancement would not apply even in
heavily populated areas, although such scenarios may not be realistic.
In this case, at the time of his arrest, Pinnow was in possession of a substantial
quantity of pseudoephedrine, enough to manufacture fifty grams of pure
methamphetamine, plus other chemicals and equipment used in the lithium
ammonium reduction method of manufacture. The many risks to human life and to
the environment from this method of manufacture are well known. See, e.g., United
States v. Chamness, 435 F.3d 724, 727 (7th Cir. 2006); United States v. Allen, 297
F.3d 790, 796 (8th Cir. 2002). Though no active methamphetamine lab was
uncovered, the presence of burnt aluminum foil with an unknown residue, a plastic
pitcher containing an unknown brown substance, and empty isopropyl alcohol
containers was strong evidence of recent manufacture. Moreover, Pinnow admitted
that he possessed the precursors and equipment with the intent to manufacture
methamphetamine. His hurried departure from the hotel with dangerous chemicals
such as sulfuric acid, acetone, and starter fluid (which releases ether) is strong
evidence of an offender who neither stored nor disposed of his toxic possessions in
a safe manner. Compare Houchins, 364 F.3d at 188.
Finally, the items found in the hotel room, and the information that Pinnow had
been staying in various hotels in the area, are strong evidence that manufacturing had
been done, and would continue to be done, in urban areas where the substantial risk
of harm to human life and the environment is greater. On this record, taking into
account the factors enumerated in Application Note 20(A) as well as the dangers
inherent in methamphetamine manufacture by this method, we agree with the district
court that Pinnow’s methamphetamine manufacturing offense warranted imposition
of the § 2D1.1(b)(8)(B) enhancement because, unlike the peripheral defendants
acquitted of 18 U.S.C. § 858 charges in Underwood, 364 F.3d at 962 n.4 and 970, his
own actions created a substantial risk of harm to human life and the environment.
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III.
Pinnow next argues that his sentence is unreasonable. We disagree. The
district court expressly took into account the sentencing factors in 18 U.S.C. § 3553(a)
as well as the advisory guidelines range. Though recognizing that Pinnow has a
strong employment history as a crane operator, the court emphasized that he has
engaged in a twenty-year “crime spree” in thirteen States, has abused alcohol and
numerous drugs, and has a history of violent criminal behavior. In these
circumstances, the court was well within its discretion in imposing a sentence of 175
months in prison, which was a few months above the bottom of Pinnow’s advisory
guidelines range of 168-210 months but below the sentence the government urged the
court to impose. See United States v. Lazenby, 439 F.3d 928, 931-32 (8th Cir. 2006)
(standard of review).
The judgment of the district court is affirmed.
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