United States v. Massey

79 F. App'x 832
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 29, 2003
DocketNo. 02-5594
StatusPublished
Cited by6 cases

This text of 79 F. App'x 832 (United States v. Massey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Massey, 79 F. App'x 832 (6th Cir. 2003).

Opinion

LAWSON, District Judge.

The defendant, Scott Massey, appeals his sentence for manufacturing 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine. Massey argues that the district court erred when it increased his offense level on the basis of U.S.S.G. § 2Dl.l(b)(6)(B) (Dec. 16, 2000 Supp.), which calls for an enhancement when the offense “created a substantial risk of harm to the life of a minor.” The methamphetamine was manufactured in a shed attached to a residence that housed a daycare center. We find that Massey’s relevant conduct placed him squarely within the scope of this section of the Sentencing Guidelines, and we therefore affirm Massey’s sentence.

[833]*833I.

The defendant’s conviction was based on his guilty plea entered on December 28, 2001, at which time Massey admitted to purchasing Sudafed tablets that he knew would be used by his co-defendant, Wade Beard, for manufacturing methamphetamine. At the plea hearing, the assistant United States attorney represented to the court that evidence discovered during the execution of a search warrant at Beard’s residence on March 11, 2001 constituted the equipment and ingredients for a methamphetamine manufacturing operation. Massey admitted that he was present that day when methamphetamine was manufactured. The defendant suggests that these statements make up the only proof in the record of his role in the operation, and his limited involvement as shown by his admissions is not sufficient to prove that he created a substantial risk of harm to minor children.

However, the district court conducted a sentencing hearing on April 19, 2002 at which police officer Shawn Palmer testified. He stated that he was on routine patrol in Union City, Tennessee on March 11, 2001 when, at approximately 2:30 a.m., he smelled the odor of hydrogen chloride gas emanating from the Beard residence. In the yard, he observed a clear, plastic bottle containing a smoky liquid that was emitting hydrogen chloride gas odors. Palmer knocked at the door but got no response, so off he went to obtain a search warrant.

He returned with the warrant at 5:30 a.m. that same morning and, once again, his knocks on the door of the residence aroused no one. Palmer and his compatriots forcibly entered the residence and saw that the front door was barricaded. They observed Wade Beard laying face-down in one bedroom, and the defendant, Scott Massey, was spread-eagle, face-down on the floor of another bedroom. The officers discovered a shed built onto the house that was locked from the inside. After they breached the door and let the thick hydrogen chloride gas vapors vent, they found stored there starter fluid containing ether, bottles of Heet (a substance containing methanol), empty bottles previously used to generate hydrogen chloride gas, and other supplies used in the manufacture of methamphetamine. Chemical spills were on the floor of the shed. They found towels and coffee filters that smelled strongly of ether and ammonia. No coffee maker was found in the shed or the attached house. Also found and seized from the shed were lithium batteries that had been torn apart to extract the metal, three gallons of anhydrous ammonia, numerous blister packs containing ephedrine and pseudoephedrine, twenty-two ounces of ether, one gallon of hydrochloric acid, and lithium metal.

Containers smelling of anhydrous ammonia were found in Massey’s vehicle. The officers also discovered on the premises a propane-type tank that contained anhydrous ammonia, which exploded when the brass valve failed during an attempt to move it. They found a hydrochloride gas generator in the front yard. There was a bottle of Liquid Fire, which contains strong acid, under the sink, and the officers found a semiautomatic pistol under Wade Beard’s bed.

Palmer testified that the wall separating the shed and the house contained a hole that had been cut to allow access directly into the house. The hole was covered by a red sleeping bag. When Palmer pulled the sleeping bag away, he was able to crawl through the hole into an area of the house where children had played, as evidenced by playhouses and toys lined around the room. Stacy Beard was not at the residence at the time of the search, but she was located later that morning and [834]*834admitted to conducting a daycare center at the house.

Parents who left their children at Stacy Beard’s daycare center testified that they often smelled strong potpourri scents, as well as “funny odors” in the house at various times. One parent said that the odor smelled like a chemical substance and that her son often had respiratory infections. Another child told his mother that he had spoken to Wade Beard through a hole in the wall. Another parent confirmed that she had seen Scott Massey at the premises.

The 2000 edition of the Sentencing Guideline Manual and the December 16, 2000 Supplement were used to determine the sentence. The district court found that the base level for Massey’s violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) was 12 according to U.S.S.G. § 2Dl.l(c)(14), because Massey admitted responsibility for two ounces of methamphetamine. The base level was increased by two levels to 14 because the offense involved the unlawful emission of a toxic substance. See U.S.S.G. § 201.1(b)(5).1 The district court then applied Section 2Dl.l(b)(6)(B),2 which called for an increase in the offense level to 30 whenever the offense conduct created a substantial risk of harm to minor children. The court overruled the defendant’s objection to this increase after hearing the testimony. The court found that there were substantial amounts of supplies stored on the premises, a gas generator was found in the yard expelling toxic gas into the environment, and the laboratory was located in a residential neighborhood in a home used as a daycare center. The court concluded:

It seems clear to me that this is exactly the kind of case that the ... Sentencing Commission and the Senate had in mind when they created the enhancement for a methamphetamine lab creating a substantial risk of harm to human life or the environment.
Now, Mr. Massey’s situation is somewhat less egregious than the Beards’ because Mr. Massey didn’t run the daycare center. It was not his house. He had, perhaps, less obligation to these children than the Beards did. But that makes no difference in my conclusion because he was in on the cook. The cook created a substantial risk of harm to the occupants of the house or the children who stayed there. So the enhancement is proper for him as well.

J.A. at 141.

The offense level of 30 was reduced by three levels for acceptance of responsibility. Massey’s criminal record placed him in Category II. The resulting sentencing range was 78 to 97 months. The district court sentenced Massey to 78 months in custody, to be followed by four years of supervised release. Massey filed a timely appeal.

II.

The district court’s factual findings at a sentencing proceeding are reviewed for clear error, and its application of the Sentencing Guidelines to those facts is reviewed de novo. United States v. Butler, 297 F.3d 505, 516 (6th Cir.2002),

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Bluebook (online)
79 F. App'x 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-massey-ca6-2003.