United States v. Steffey , 352 F. App'x 763 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4786
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BENJAMIN RAY STEFFEY,
Defendant – Appellant.
No. 08-5214
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BILLY RAY FRANKLIN,
Defendant – Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge; William L. Osteen, Jr., District Judge.
(1:07-cr-00428-JAB-6; 1:07-cr-00428-WO-2)
Submitted: October 23, 2009 Decided: November 10, 2009
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, LAW OFFICES OF AMES CHAMBERLIN, Greensboro,
North Carolina; John C. Fischer, RANDOLPH & FISCHER, Winston
Salem, North Carolina, for Appellants. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Benjamin Ray Steffey pled guilty pursuant to a plea
agreement to one count of conspiracy to possess pseudoephedrine,
knowing and having reasonable cause to believe that it would be
used to manufacture methamphetamine, in violation of 21 U.S.C.
§ 846 (2006). After granting the Government’s motion for a
downward variance for substantial assistance under U.S.
Sentencing Guidelines Manual (“USSG”) § 5K1.1, p.s. (2007), the
district court sentenced Steffey to 28 months’ imprisonment.
Co-defendant Billy Ray Franklin pled guilty pursuant to a plea
agreement to conspiracy to manufacture and distribute 500 grams
or more of methamphetamine and conspiracy to possess
pseudoephedrine, knowing and having reasonable cause to believe
it would be used to manufacture methamphetamine, in violation of
21 U.S.C. §§ 841(b)(1)(A), 846 (2006). The district court
sentenced Franklin to a within-Guidelines sentence of 188
months’ imprisonment.
Steffey and Franklin timely appeal their sentences.
Steffey contends that the district court erred in refusing to
grant his request for a variance. Franklin contends that the
district court erred in enhancing his base offense level,
pursuant to USSG § 2D1.1(b)(10)(C)(ii), for a methamphetamine-
manufacturing offense that created a substantial risk of harm to
human life. We affirm.
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We review the sentence imposed by the district court
for abuse of discretion. Gall v. United States, 128 S. Ct. 586,
591 (2007). In conducting this review, we must first determine
that the court committed no significant procedural errors; if
the sentence is procedurally reasonable, we then consider its
substantive reasonableness, applying an abuse of discretion
standard. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). “Procedural errors include ‘failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence--including
an explanation for any deviation from the Guidelines range.’”
Id. (quoting Gall, 128 S. Ct. at 597).
Steffey requested a downward variance of two offense
levels, arguing that, had his Guidelines range been calculated
pursuant to USSG § 2D1.1 instead of USSG § 2D1.11, he would have
qualified for the two-level offense level reduction associated
with the USSG § 5C1.2 safety valve. Having considered the
parties’ arguments, the district court denied Steffey’s request
for a variance. In sentencing Steffey, the court followed the
necessary procedural steps, including treating the Guidelines as
advisory, weighing the relevant 18 U.S.C. § 3553(a) factors, and
calculating and considering the applicable Guideline range.
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Steffey’s base offense level was calculated pursuant to USSG
§ 2D1.11. Unlike USSG § 2D1.1, this section does not explicitly
provide for a two-level reduction if the defendant satisfies the
criteria of USSG § 5C1.2. USSG § 2D1.11; see United States v.
Saffo, 227 F.3d 1260, 1273 (10th Cir. 2000) (holding that, when
a defendant’s base offense level is calculated under USSG
§ 2D1.11, he is not eligible for the safety valve reduction
under USSG § 2D1.1); cf. USSG § 2D1.1(b)(11). Accordingly,
Steffey’s sentence is procedurally reasonable. Moreover, we
cannot say it was an abuse of discretion for the court to
decline to grant the two-level reduction. Hence, the sentence
was not substantively unreasonable.
Franklin contends that the district court erred in its
application of USSG § 2D1.1(b)(10)(C)(ii). Specifically, he
asserts that the methamphetamine-manufacturing activities in
which he participated did not present a “substantial” risk to
human life. We conclude that the district court properly
applied the enhancement.
The district court’s determination that the risk of
harm enhancement applies is a mixed question of fact and law
that is reviewed de novo when, as here, the facts are
undisputed. United States v. Houchins, 364 F.3d 182, 187
(4th Cir. 2004), vacated on other grounds, 543 U.S. 1104 (2005).
Section 2D1.1(b)(10)(C)(ii)(I) of the Sentencing Guidelines
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provides for a three-level increase in a defendant’s base
offense level if the offense involved the manufacture of
methamphetamine and created a substantial risk of harm to human
life. In determining whether a substantial risk was created, a
court should consider: (1) the quantity of any chemicals or
hazardous or toxic substances, and the manner in which such
items were stored; (2) the manner in which the substances were
disposed, and the likelihood of release into the environment;
(3) the duration of the offense, and the extent of the
manufacturing operation; and (4) the location of the laboratory.
USSG § 2D1.1, cmt. n.20(A); see Houchins, 364 F.3d at 187-90.
Here, law enforcement officials recovered from
properties used by Franklin a 1000-pound tank containing 700
gallons of a hazardous chemical, anhydrous ammonia, along with
other, smaller tanks and other chemicals and implements used in
the manufacturing of methamphetamine. Franklin, members of his
family, and various other people came and went on the
properties. As a result of its improper storage, the highly
pressurized 1000-pound tank, the second largest ever recovered
in the United States, was at risk of explosion and the people
coming and going on the properties were at risk of death or
injury. Further, a hazardous materials team was required to
clean up the properties and spent nine days draining the ammonia
from the 1000-pound tank. Under these circumstances, we
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conclude that the district court did not err in applying the
enhancement.
Accordingly, we affirm the judgments of 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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