[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT December 20, 2006 No. 06-10043 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 05-00183-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY RICHARD KINARD,
Defendant-Appellant.
________________________
No. 06-10482 ________________________
D. C. Docket No. 05-00183-CR-003-WHS
DENNY WARREN SCHMITZ,
Defendant-Appellant. _______________________
Appeals from the United States District Court for the Southern District of Alabama _________________________ (December 20, 2006)
Before ANDERSON and BARKETT, Circuit Judges, and GOLDBERG,* Judge.
PER CURIAM:
The appeals of Anthony Richard Kinard and Denny Warren Schmitz were
consolidated for oral argument because the appellants’ arrests and convictions arise
out of the same incident and both raise the same two issues on appeal. Kinard
appeals his conviction and 120-month sentence for conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846. Schmitz appeals his conviction
and 87-month sentence for possession of pseudoephedrine with intent to
manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1).
On appeal, Kinard and Schmitz argue (1) that the district court clearly erred
by finding that the search that resulted in their arrest did not violate the Fourth
Amendment to the United States Constitution,1 and (2) that the district court erred
in enhancing their offense levels under U.S.S.G. § 2D1.1(b)(6)(A), redesignated as
* Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation. 1 Both Kinard and Schmitz pled guilty, reserving the right to appeal the denial of their motion to suppress.
2 U.S.S.G. § 2D1.1(b)(8)(A) in 2006,2 for unlawfully discharging a hazardous
substance, to wit, anhydrous ammonia.
With reference to the motion to suppress, we have carefully reviewed the
record and find no reversible error in the district court’s denial of the motion after
an evidentiary hearing. We find no clear error in the district court’s factual findings
and no error in the district court’s application of the relevant law.
However, we agree with Kinard and Schmitz that the district court erred in
enhancing their offense levels under U.S.S.G. § 2D1.1(b)(8)(A) for unlawfully
discharging a hazardous substance. Section 2D1.1(b)(8)(A) provides a 2-level
enhancement if “the offense involved (I) an unlawful discharge, emission, or
release into the environment of a hazardous or toxic substance; or (ii) the unlawful
transportation, treatment, storage, or disposal of a hazardous waste.” Application
Note 19 states in part:
Subsection (b)(8)(A) applies if the conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. 6928(d); the Federal Water Pollution Control Act, 33 U.S.C. 1319(c); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9603(b); or 49 U.S.C. 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material).
2 Despite this change, the provision’s language remains the same. Accordingly, we will refer to U.S.S.G. § 2D1.1(b)(8)(A) for the remainder of this opinion.
3 U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1 cmt. n.19 (2006) (emphasis
added).
Kinard and Schmitz argue that in order to apply this enhancement, the
district court would have had to find that the release of anhydrous ammonia in this
case was unlawful in that it violated one of the four federal environmental statutes
listed in Application Note 19. Such application was improper here, they argue,
because the government presented no evidence and the district court made no
findings as to whether their offenses involved the release of anhydrous ammonia in
violation of one of these statutes.
At sentencing, Officer Wayne Goolsby from the Narcotics and Vice Section
of the Mobile County Sheriff’s Office testified that he was certified to train
personnel in cleaning up methamphetamine labs, was familiar with hazardous
materials associated with methamphetamine labs, and had personally responded to
approximately 400 labs in the course of his four-year career. However, he did not
visit the lab in this case, only reviewing reports and photographs, and speaking
with officers who were present that day. He also testified that he was unfamiliar
with federal disposal requirements for anhydrous ammonia. He noted that most of
the byproducts of cooking methamphetamine included materials that could be
purchased at any grocery store and that the materials were not, in and of
4 themselves, considered hazardous. Kinard and Schmitz argued that Officer
Goolsby’s testimony failed to show that they had violated one of the four
enumerated statutes in Application Note 19. The district court overruled their
objection, and applied the enhancement.
Although the Sentencing Guidelines are no longer mandatory after United
States v. Booker, 543 U.S. 220 (2005), district courts must continue to determine
the appropriate guidelines sentencing range under the law as they did prior to
Booker.3 Under that law, we must interpret the text of the Guidelines in light of the
corresponding Commentary and Application Notes, which “are binding on the
courts unless they contradict the plain meaning of the text of the Guidelines.”
United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir. 2006) (internal quotations
and citation omitted).
Section 2D1.1(b)(8)(A)’s two-level enhancement applies to offenses
involving either “(I) an unlawful discharge, emission, or release into the
environment of a hazardous or toxic substance; or (ii) the unlawful transportation,
treatment, storage, or disposal of a hazardous waste.” U.S. S ENTENCING
G UIDELINES M ANUAL § 2D1.1 (b)(8)(A) (2006) (emphasis added). The term
“unlawful” is defined in Application Note 19, which specifically states that the
3 We review a district court’s application of the guidelines to the facts de novo and all factual findings for clear error. United States v. Hromada, 49 F.3d 685, 688 (11th Cir. 1995).
5 enhancement applies if the discharge, emission, release, transportation, treatment,
storage, or disposal occurred in violation of the Resource Conservation and
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT December 20, 2006 No. 06-10043 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 05-00183-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY RICHARD KINARD,
Defendant-Appellant.
________________________
No. 06-10482 ________________________
D. C. Docket No. 05-00183-CR-003-WHS
DENNY WARREN SCHMITZ,
Defendant-Appellant. _______________________
Appeals from the United States District Court for the Southern District of Alabama _________________________ (December 20, 2006)
Before ANDERSON and BARKETT, Circuit Judges, and GOLDBERG,* Judge.
PER CURIAM:
The appeals of Anthony Richard Kinard and Denny Warren Schmitz were
consolidated for oral argument because the appellants’ arrests and convictions arise
out of the same incident and both raise the same two issues on appeal. Kinard
appeals his conviction and 120-month sentence for conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846. Schmitz appeals his conviction
and 87-month sentence for possession of pseudoephedrine with intent to
manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1).
On appeal, Kinard and Schmitz argue (1) that the district court clearly erred
by finding that the search that resulted in their arrest did not violate the Fourth
Amendment to the United States Constitution,1 and (2) that the district court erred
in enhancing their offense levels under U.S.S.G. § 2D1.1(b)(6)(A), redesignated as
* Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation. 1 Both Kinard and Schmitz pled guilty, reserving the right to appeal the denial of their motion to suppress.
2 U.S.S.G. § 2D1.1(b)(8)(A) in 2006,2 for unlawfully discharging a hazardous
substance, to wit, anhydrous ammonia.
With reference to the motion to suppress, we have carefully reviewed the
record and find no reversible error in the district court’s denial of the motion after
an evidentiary hearing. We find no clear error in the district court’s factual findings
and no error in the district court’s application of the relevant law.
However, we agree with Kinard and Schmitz that the district court erred in
enhancing their offense levels under U.S.S.G. § 2D1.1(b)(8)(A) for unlawfully
discharging a hazardous substance. Section 2D1.1(b)(8)(A) provides a 2-level
enhancement if “the offense involved (I) an unlawful discharge, emission, or
release into the environment of a hazardous or toxic substance; or (ii) the unlawful
transportation, treatment, storage, or disposal of a hazardous waste.” Application
Note 19 states in part:
Subsection (b)(8)(A) applies if the conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. 6928(d); the Federal Water Pollution Control Act, 33 U.S.C. 1319(c); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9603(b); or 49 U.S.C. 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material).
2 Despite this change, the provision’s language remains the same. Accordingly, we will refer to U.S.S.G. § 2D1.1(b)(8)(A) for the remainder of this opinion.
3 U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1 cmt. n.19 (2006) (emphasis
added).
Kinard and Schmitz argue that in order to apply this enhancement, the
district court would have had to find that the release of anhydrous ammonia in this
case was unlawful in that it violated one of the four federal environmental statutes
listed in Application Note 19. Such application was improper here, they argue,
because the government presented no evidence and the district court made no
findings as to whether their offenses involved the release of anhydrous ammonia in
violation of one of these statutes.
At sentencing, Officer Wayne Goolsby from the Narcotics and Vice Section
of the Mobile County Sheriff’s Office testified that he was certified to train
personnel in cleaning up methamphetamine labs, was familiar with hazardous
materials associated with methamphetamine labs, and had personally responded to
approximately 400 labs in the course of his four-year career. However, he did not
visit the lab in this case, only reviewing reports and photographs, and speaking
with officers who were present that day. He also testified that he was unfamiliar
with federal disposal requirements for anhydrous ammonia. He noted that most of
the byproducts of cooking methamphetamine included materials that could be
purchased at any grocery store and that the materials were not, in and of
4 themselves, considered hazardous. Kinard and Schmitz argued that Officer
Goolsby’s testimony failed to show that they had violated one of the four
enumerated statutes in Application Note 19. The district court overruled their
objection, and applied the enhancement.
Although the Sentencing Guidelines are no longer mandatory after United
States v. Booker, 543 U.S. 220 (2005), district courts must continue to determine
the appropriate guidelines sentencing range under the law as they did prior to
Booker.3 Under that law, we must interpret the text of the Guidelines in light of the
corresponding Commentary and Application Notes, which “are binding on the
courts unless they contradict the plain meaning of the text of the Guidelines.”
United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir. 2006) (internal quotations
and citation omitted).
Section 2D1.1(b)(8)(A)’s two-level enhancement applies to offenses
involving either “(I) an unlawful discharge, emission, or release into the
environment of a hazardous or toxic substance; or (ii) the unlawful transportation,
treatment, storage, or disposal of a hazardous waste.” U.S. S ENTENCING
G UIDELINES M ANUAL § 2D1.1 (b)(8)(A) (2006) (emphasis added). The term
“unlawful” is defined in Application Note 19, which specifically states that the
3 We review a district court’s application of the guidelines to the facts de novo and all factual findings for clear error. United States v. Hromada, 49 F.3d 685, 688 (11th Cir. 1995).
5 enhancement applies if the discharge, emission, release, transportation, treatment,
storage, or disposal occurred in violation of the Resource Conservation and
Recovery Act, 42 U.S.C. § 6928(d), the Federal Water Pollution Control Act, 33
U.S.C. § 1319(c), the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. § 9603(b), or 49 U.S.C. § 5124.
To apply the enhancement where no such statutory violation has been found
would render the limitations imposed in the Application Note “essentially
meaningless,” because the enhancement would apply to all conduct causing
anhydrous ammonia to be released into the environment. See United States v.
Landmesser, 378 F.3d 308, 313 (3d Cir. 2004) (holding that the application of
U.S.S.G. § 2D1.12(b)(2), which is identical in all pertinent parts to the provision at
issue here, required the district court to find a violation of one of the environmental
statutes listed in the corresponding Application Note).
Further, the language of the Application Note explicitly limits the situations
in which the enhancement applies. The Note states that the enhancement “applies if
the conduct for which the defendant is accountable . . . involved any discharge,
emission, release, transportation, treatment, storage, or disposal violation covered
by” the listed statutes. U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1 cmt. n.19
(2006) (emphasis added). Nothing in this language indicates that the list of
6 environmental statutes is not comprehensive and exclusive. See also Landmesser,
378 F.3d at 313 n.8 (finding the language of U.S. S ENTENCING G UIDELINES
M ANUAL § 2D1.12, cmt. n.3 was comprehensive and excluded any unlisted
statutes). Using the principle of expressio unius est exclusio alterius as an aid to
our construction of the enhancement, United States v. Camacho-Ibarquen, 410 F.3d
1307, 1312 (11th Cir. 2005), we conclude that the application of the enhancement
is limited to offenses that involve violations of the four enumerated statutes listed
in Application Note 19. See also Landmesser, 378 F.3d at 313 n.8; United States v.
MacDonald, 339 F.3d 1080, 1081-84 (9th Cir. 2003) (holding that the precursor to
U.S.S.G. § 2D1.1(b)(8)(A) “is triggered by a disposal or discharge of a waste
‘covered’ by [an environmental statute listed in the application note], whether it be
a listed or characteristic waste”); United States v. Stepan, 66 Fed.Appx. 524 (5th
Cir. 2003) (holding that the “two level increase [set forth in the precursor to
U.S.S.G. § 2D1.1(b)(8)(A)] applies to any discharge, emission, or storage violation
covered by certain federal statutes”).4 The government bears the burden of
4 We note that, in contrast to the Third, Ninth, and Fifth Circuits in Landmesser, MacDonald, and Stepan, respectively, the Eighth and Fourth Circuits affirmed applications of the U.S.S.G. § 2D1.1(b)(5)(A)(ii) enhancement, which was the precursor to U.S.S.G. § 2D1.1(b)(8)(A), for the unlawful storage of anhydrous ammonia without ever analyzing whether a statutory violation was a prerequisite. United States v. Gramling, 417 F.3d 891, 896 (3d Cir. 2005); United States v. West, 98 Fed. Appx. 259, 260 (4th Cir. 2004). However, in upholding the enhancement, the courts were not asked to address and did not explicitly rule on whether the application of the enhancement required that the defendants’ conduct violated one of the enumerated statutes. Nor did the courts find that the defendants in those cases actually did
7 establishing by a preponderance of the evidence the facts necessary to support a
sentencing enhancement, and the district court must “ensure that the prosecution
meets this standard [by exercising its fact-finding function] before adding months
or years onto a defendant’s prison sentence.” United States v. Askew, 193 F.3d
1181, 1183 (11th Cir. 1999).
Accordingly, we affirm Kinard’s and Schmitz’s convictions, but vacate their
sentences and remand for resentencing consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
violate one of the enumerated federal statutes. None of the statutes were ever mentioned in the courts’ opinions. Accordingly, we decline to follow the holdings set forth by the Eighth and Fourth Circuits in Gramling and West.