United States v. Chamness, John M.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1902
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN CHAMNESS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 30030—Jeanne E. Scott, Judge.
____________
ARGUED OCTOBER 27, 2005—DECIDED JANUARY 25, 2006
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Before RIPPLE, KANNE, and WOOD, Circuit Judges.
KANNE, Circuit Judge. John Chamness pled guilty
without the benefit of a written plea agreement to two
counts of knowingly attempting to manufacture a mix-
ture or substance containing methamphetamine, in vio-
lation of 21 U.S.C. §§ 841(a)(1) and 846. The presentence
investigation report, applying the November 1, 2004,
version of the United States Sentencing Guidelines, deter-
mined that Chamness had a total offense level of 32 and
a criminal history category of IV. This calculation, adopted
by the district court, included a three-level increase
in Chamness’s offense level pursuant to U.S.S.G.
§ 2D1.1(b)(6)(B) for creating a substantial risk of harm to
human life or the environment during his attempt to
2 No. 05-1902
manufacture methamphetamine. Chamness appeals the
enhancement. We affirm.
I. HISTORY
The basis of Chamness’s appeal centers around Count 2
of the indictment, so we recount only the facts relevant to
this count. On July 31, 2003, Deputy Chief Ron Burke
of the Taylorville, Illinois, police department was called to a
mobile home located in a trailer park. The trailer’s owner
had reported that people were attempting to enter it. Burke
and other officers arrived and met with the owner, who said
people were in the trailer, were manufacturing metham-
phetamine, and were threatening to harm him.
Burke was the first officer to enter the small trailer. He
smelled a strong odor of ether and saw a white fog that
“took up the whole entire living room/kitchen area.” He also
saw glass jars with tubes sticking out and containing a
white substance. At this point, people began to flee. Several
individuals, including Chamness, were caught, while others
escaped. Authorities suspected that the mobile home was
being used as a clandestine methamphetamine laboratory.
Therefore, in accordance with standards established by the
Drug Enforcement Administration, the police left the trailer
and arranged for a hazardous waste disposal team to secure
it. A later search of the laboratory revealed two glass jars
containing 923 milliliters of liquid that contained metham-
phetamine, one gallon of muriatic acid, a one gallon con-
tainer of Coleman stove fuel, peeled lithium batteries, an
operating air pump, and 26 ounces of salt.
Chamness pled guilty to two counts of attempting to
manufacture methamphetamine. At sentencing, the court
heard detailed testimony from Sanford Angelos, a DEA
forensic chemist. Angelos explained Chamness was engaged
in a second gassing of the liquid, in which hydrochloric acid
is used to extract methamphetamine left behind after the
No. 05-1902 3
completion of the first process. While the first stage of
cooking had produced approximately 90 grams of metham-
phetamine, there was no evidence that Chamness was
present during this first cook. The second gassing was able
to produce only two or three grams, although the second
gassing requires a higher level of expertise. Chamness
concedes he was involved in this second gassing stage.
The district court applied the three-level enhancement for
creating a substantial risk to human life, over Chamness’s
objection. The court discussed each of the required factors
in making this determination, and explained that it does
not give this enhancement in all methamphetamine cases.
The resulting sentencing range of imprisonment was 168 to
210 months, and the court sentenced Chamness to 168
months’ imprisonment on each count, to run concurrently.
II. ANALYSIS
We review the district court’s interpretation of the
Sentencing Guidelines de novo. United States v. Ewing, 129
F.3d 430, 434 (7th Cir. 1997) (citation omitted);
United States v. Wilson, 98 F.3d 281, 282 (7th Cir. 1996)
(citation omitted). However, we review its factual find-
ings underpinning the enhancement for clear error.
United States v. Blalock, 321 F.3d 686, 689-90 (7th Cir.
2003) (citation omitted); United States v. Johnson, 227 F.3d
807, 812-13 (7th Cir. 2000) (citations omitted). A finding of
fact is clearly erroneous only if, based upon the entire
record, we are “left with the definite and firm conviction
that a mistake has been committed.” Johnson, 227 F.3d at
813 (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)).
As an initial matter, we note the parties made no mention
of whether Chamness’s ultimate sentence was reasonable.
Although it was not mandatory for Chamness to be sen-
4 No. 05-1902
tenced in accordance with the Guidelines, sentencing courts
must continue to give consideration to them. See United
States v. Booker, 125 S. Ct. 757, 764-65 (2005). “The
Sentencing Reform Act requires resentencing when the
challenged sentence was ‘imposed as a result of an incorrect
application of the sentencing guidelines.’ ” United States v.
Scott, 405 F.3d 615, 617 (7th Cir. 2005) (quoting 18 U.S.C.
§ 3742(f)(1)). As we have stated, this provision survived
Booker. Id. (citing Booker, 125 S. Ct. at 764). Therefore,
“[a]n incorrect application of the guidelines requires
resentencing under the post-Booker sentencing regime.” Id.
(citation omitted); United States v. Skoczen, 405 F.3d 537,
548 (7th Cir. 2005) (“Even under an advisory regime, if a
district court makes a mistake in calculations under the
Guidelines, its judgment about a reasonable sentence would
presumably be affected by that error and thus (putting
aside the implications of plain error review) remand would
be required just as before.”). Chamness may have made a
valid tactical decision to focus all of his energies on appeal
on the risk to human life enhancement. In any event, as
explained later, we find Chamness’s sentence is reasonable
under the circumstances.
A. The Application of § 2D1.1(b)(6)(B)
Congress has found that the manufacture of methamphet-
amine “poses serious dangers to both human life and to the
environment,” and it is “unstable, volatile, and highly
combustible.” H.R. Rep. No. 106-878(I), at 22 (2000). As a
result, Congress enacted the Methamphetamine Anti-
Proliferation Act of 2000 (the “Act”), which provided that
the United States Sentencing Commission “shall . . .
increase the base offense level . . . by not less than 3 offense
levels above the applicable level in effect on the date of the
enactment of this Act” for any methamphetamine manufac-
turing offense that “created a substantial risk of harm to
human life.” Pub. L. No. 106-310, § 3612 (a)(2), 114 Stat.
No. 05-1902 5
1227, 1229 (2000). In response, the Commission added a
three-level increase in § 2D1.1(b)(6)(A), now found at
§ 2D1.1(b)(6)(B), see U.S.S.G. app. C, amends. 608, 620, 667,
which provides that if an offense involved the manufacture
of methamphetamine and created a substantial risk of harm
to human life (other than a minor or incompetent) or to the
environment, then the offense level should be increased by
three levels. Chamness now appeals the role this enhance-
ment played in the determination of his ultimate sentence.
While the Act did not define “substantial risk of harm,”
the relevant Guideline’s commentary lists the following
factors that a court must consider when determining the
existence of a substantial risk of harm:
(i) The quantity of any chemicals or hazardous or
toxic substances found at the laboratory, and the
manner in which the chemicals or substances were
stored.
(ii) The manner in which hazardous or toxic substances
were disposed, and the likelihood of release into the
environment of hazardous or toxic substances.
(iii) The duration of the offense, and the extent of the
manufacturing operation.
(iv) The location of the laboratory (e.g., whether the
laboratory is located in a residential neighborhood or a
remote area), and the number of human lives placed at
substantial risk of harm.
U.S.S.G. § 2D1.1, cmt. n. 20. We turn now to a review of
each of these factors.
1. Quantity of Chemicals or Hazardous or Toxic
Substances and the Manner of Storage
Chamness emphasizes he was found performing only
a second gassing of the methamphetamine, and not per-
6 No. 05-1902
forming the more dangerous initial production of metham-
phetamine that involves the use of anhydrous ammonia.
Therefore, the process in which he was engaged in did not
involve any ammonia, and only 3 grams of methamphet-
amine in total were being produced. However, a review of
the chemicals and hazardous or toxic substances found in
the trailer reveals the factor weighs in favor of applying the
enhancement.
The police discovered an operating laboratory upon
entering the trailer. Chamness was attempting to “gas
off” a liquid containing ether or Coleman fuel. Hydrochloric
gas is used during this process. Specifically, the police
recovered one gallon of muriatic acid, one gallon of Coleman
fuel (or ether), salt, and glass jars containing a liquid,
which in turn, contained methamphetamine.
Coleman fuel is flammable and can be explosive. United
States v. Layne, 324 F.3d 464, 470 (6th Cir. 2003); see also
United States v. Dick, 173 F. Supp. 2d 765, 767 (E.D. Tenn.
2001). Muriatic acid is toxic and can cause severe burns.
Layne, 324 F.3d at 470. The acid and salt are combined to
create hydrochloric acid, and the evidence before the district
court indicated such an acid is a strong irritant of the eyes,
mucous membranes, and skin. With respect to the metham-
phetamine itself, evidence before the court indicated that
police officers handling suspects at a laboratory, even for
very short periods of time, can become contaminated with
methamphetamine, and unknowingly carry this material
away from the scene and expose their own families. Perhaps
most importantly, ether was being burned at the time the
police entered the trailer, creating a white fog that engulfed
the trailer and created a strong odor. Burke testified he and
the other officers were forced to exit the trailer because in
his experience, continual contact (presumably in such a
confined space) with such a fog and odor would cause him
to become queasy and ill. There was also testimony that
exposure to ether can adversely affect a person’s health.
No. 05-1902 7
Taken together, this amounted to unrebutted evidence the
ether cloud was hazardous and/or toxic. Ether is highly
flammable as well. Ultimately, due to the presence of the
various chemicals and substances, a hazardous waste
disposal team was contacted to enter and dismantle the
laboratory, in accordance with standards established by the
Drug Enforcement Administration. While the manner of
storage is indeterminate in this case, we find that the
quantity of the chemicals and hazardous or toxic substances
was such that it militates in favor of applying
the enhancement. See Layne, 324 F.3d at 470 (finding
presence of similar chemicals capable of manufacturing a
couple of ounces of methamphetamine inherently dangerous
so as to weigh in favor of applying the enhancement).
2. Manner of Disposal and Likelihood of Release into
the Environment
The government concedes, as it must, that it did not
introduce any evidence concerning how Chamness disposed
(or intended to dispose) of any hazardous or toxic chemicals.
Nor was there any evidence introduced upon which the
court could have evaluated the likelihood of release into the
environment of hazardous or toxic substances. Therefore,
this factor is indeterminate. See United States v. Davidson,
409 F.3d 304, 313-14 (6th Cir. 2005) (“In regard to the
second factor, . . . an absence of evidence of plans for proper
disposal is not itself sufficient to make the second factor
weigh in favor of applying the enhancement.”) (citing Layne,
324 F.3d at 470).
3. Duration of the Offense and the Extent of the Manu-
facturing Operation
Chamness’s entire argument on this factor is as follows.
“The third factor (the duration of the offense) must weigh
against the enhancement since the evidence showed
8 No. 05-1902
Mr. Chamness was only involved in the second re-gassing
stage of manufacturing which is only one short step in the
process. There is no evidence that he ever was involved
in an extensive cooking operation.” First, we note the
argument is simply a cursory legal analysis, one that con-
tains not one factual or legal citation. Second, Chamness’s
argument completely ignores the second part of the factor,
which concerns the extent of the manufacturing process.
This part of the factor, of course, does not concern the
extent of Chamness’s involvement in the manufactur-
ing process, as his argument suggests; rather, the rele-
vant inquiry concerns the extent of the manufacturing
process itself.
In this case, the evidence clearly demonstrated that the
extent of the manufacturing process was significant. For
example, the undisputed evidence was that the manufactur-
ing operation exhibited “a level of sophistication [law
enforcement personnel] normally don’t see.” Upon enter-
ing the trailer, the police found tubing attached to both
an operating pump and to one of the glass jars of liquid
located on the kitchen counter. The government’s expert
witness testified this particular method of gassing off
the ether solution to extract the methamphetamine is
not only efficient, but also rare, as it has only been found in
five percent of clandestine laboratories. The witness further
testified that only 30 percent of methamphetamine manu-
facturers are sophisticated enough to perform a second
gassing of the liquid mixture. We agree with the govern-
ment that the manufacturing operation’s level of sophistica-
tion is evidence that the operation’s extent was consider-
able. While the evidence may be lacking with respect to the
duration of the offense, and this may weigh in favor of
Chamness, we find the second part of this factor signifi-
cantly outweighs any benefit Chamness might enjoy.
No. 05-1902 9
4. Location of the Laboratory and the Number of
Human Lives Placed at a Substantial Risk of Harm
The location of the trailer was within a mobile home
trailer park. Details are sketchy as to the specifics of
the trailer park (i.e., the number and proximity of other
trailers). However, Chamness does not dispute the find-
ing of the district court that the area was a residential area,
as opposed to a remote one, a distinction that is at least
relevant. See Layne, 324 F.3d at 471 (“The Guidelines make
the distinction between ‘residential neighborhood’ and
‘remote area’ relevant, if not important.”). But given the
lack of evidence regarding any further details, this part of
the factor does not weigh heavily against Chamness.
However, the second part of this factor concerns the
number of lives placed at a substantial risk of harm. The
Guidelines do not require the sentencing court to find
that these individuals were actually harmed by the manu-
facturing operation; rather, the court only needed to find
that their lives were placed at substantial risk of harm.
First, there were several people at a risk of some type of
harm, namely Chamness, the police officers who arrived on
the scene, the staff of the laboratory who cleaned up the
site, the owner of the trailer who called police, and
Chamness’s cohorts, which includes those who fled and
those who were apprehended. We further find these lives
were placed at a substantial risk of harm. As detailed
above, ether was being burned and was present in the air.
There certainly was an inhalation risk to these individuals.
Also, some of the chemicals and hazardous or toxic sub-
stances were flammable and/or explosive. Given their close
proximity within the trailer and their proximity to the
actual gassing operation, the individuals were placed at a
substantial risk of harm, namely serious injuries from an
explosion or a fire.
10 No. 05-1902
B. Reasonableness of Sentence
Finally, as alluded to earlier, Chamness does not
argue that his prison sentence was unreasonable. A sen-
tence within a properly calculated guideline range, as is the
case here, is presumptively reasonable, United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and Chamness
does not identify any factor under 18 U.S.C. § 3553(a) that
might allow us to conclude that the district court was
obligated to impose a lower sentence. Therefore, Chamness
does not rebut the presumption that his Guidelines sen-
tence was reasonable. See id.
III. CONCLUSION
Viewing the first, third, and fourth factors together,
we find the laboratory placed numerous people at sub-
stantial risk of serious harm. Chamness’s sentence was
reasonable, and his sentence is AFFIRMED.
No. 05-1902 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-25-06