United States v. Howell , 201 F. App'x 948 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4531
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGELA NAOMI HOWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-04-43)
Submitted: September 20, 2006 Decided: October 2, 2006
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. David James, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Angela Naomi Howell appeals the 151-month sentence she
received after she pled guilty to conspiracy to manufacture and
possess with intent to distribute methamphetamine, 21 U.S.C. § 846(2000). She contends on appeal that her attorney was ineffective
in failing to contest an enhancement for creation of a substantial
risk of harm to human life or the environment under U.S. Sentencing
Guidelines Manual § 2D1.1(b)(6)(B) (2004). We affirm.
Generally, claims of ineffective assistance of counsel
are not cognizable on direct appeal. To allow for adequate
development of a record, a defendant must bring this claim in a 28
U.S.C. § 2255 (2000) motion, unless the record conclusively
establishes ineffective assistance. United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999); United States v. King, 119 F.3d
290, 295 (4th Cir. 1997). In this case, the presentence report
included the information that Howell had participated in the
manufacturing of methamphetamine at three residences and a list of
the items and substances seized from each of the residences. A
partial list of these included: automobile brake part
cleaner/degreaser containing acetone and toluene; Heet automobile
gas line antifreeze/de-icer; hydrogen peroxide; a gallon of
methylethyl ketone; camp fuel; boxes of matches; large numbers of
allergy tablets; fifty-nine ounces of iodine; two eighteen-ounce
containers of lye; a gallon of muriatic acid; and red phosphorous.
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Howell and Barry McCoyle, a co-conspirator who manufactured
methamphetamine with Howell, gave statements after their arrest.
McCoyle stated that, after methamphetamine was manufactured, the
leftover liquids were usually poured down the washing machine drain
and the rest of the trash was taken to the dump. He said that, on
one occasion in 2002, when he and co-conspirator Andy Coleman made
methamphetamine, the trash was burned in the back yard. Howell
stated that, on another occasion when Coleman made methamphetamine
at McCoyle’s parents’ home, the waste materials were poured out
next to the driveway.
The dangers of methamphetamine laboratories to human life
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). Moreover, the record in Howell’s case established that
the conspirators released hazardous materials into the environment.
Consequently, we cannot say that the record conclusively
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demonstrates that Howell’s attorney was ineffective in failing to
challenge the enhancement under § 2D1.1(b)(6)(B).
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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