Submitted: June 12, 2013
Appeal from United States District Court for the Southern District of Iowa - Davenport
Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Joey Matthew Loesel pled guilty to conspiring to manufacture and distribute at least 50 grams of actual methamphetamine and 500 grams of a meth mixture or substance — in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The district court sentenced him to 180 months' imprisonment. He appeals, attacking a sentencing enhancement, his girlfriend's pseudoephedrine purchases attributed to him, and the evidence used to determine the guideline range. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Almost daily from 2005 to 2011, Loesel and his girlfriend used meth or tried to get it. They purchased pseudoephedrine (a drug used to make meth) from pharmacies, and delivered it to meth "cooks." Loesel assisted with meth production on a farm, in residential areas, and in a moving vehicle. A warranted search of the farm uncovered "a very large methamphetamine cooking site, " with three active meth labs. Chemicals, substances, and equipment for manufacturing meth were strewn "throughout the entire property." Corroding tanks stored anhydrous ammonia. Collectively, ten locations on the farm had over 10 grams of pure meth, and 3, 100 grams of meth mixtures used in the lithium-ammonia-reduction method. There were enough pseudoephedrine pills and empty packs to produce over 164 grams of pure meth.
Loesel entered a proffer agreement. The government could use information in it "to rebut any factual position taken by or on his behalf in connection with sentencing issues or for any other reason." At sentencing, he challenged an enhancement for causing substantial risk of harm to human life or the environment. He disputed attributing to him his girlfriend's pseudoephedrine purchases. He objected to the government introducing information from his proffer to support the drug quantity. The district court used the information, attributed the purchases to him, and imposed the enhancement.
Loesel believes he did not create a substantial risk of harm to human life or the environment under U.S.S.G. § 2D1.1(b)(13)(C)(ii), because of the meth farm's "rural location." This court reviews de novo "the application of the substantial risk of harm standard to the undisputed facts." United States v. Pinnow, 469 F.3d 1153, 1156 (8th Cir. 2006) (citations omitted). Factors to consider include: (1) the quantity of chemicals at the lab, and how they were stored; (2) how any "hazardous or toxic substances were disposed, " and their likely release into the environment; (3) the duration and extent of manufacturing; and (4) the lab's location, and the number of human lives placed at substantial risk of harm. U.S.S.G. § 2D1.1 cmt. n.20(A) (now cmt. n.18(B)); see United States v. Wells, 706 F.3d 908, 917 (8th Cir. 2013). Though courts must consider these factors, they can "take into account the dangers inherent in methamphetamine manufacturing." Pinnow, 469 F.3d at 1157.
Here, the factors favor enhancement. Under the first and second factors, the search revealed over 10 grams of pure meth, 3, 100 grams of meth mixtures, and evidence of enough pseudoephedrine to produce over 164 grams of pure meth. See United States v. Whited, 473 F.3d 296, 299-300 (6th Cir. 2007) (applying the enhancement for 1.23 grams of pure meth). The meth farm had three active meth labs. Numerous substances and chemicals – some in corroding tanks – and equipment used to produce meth were found throughout the entire property. These substances and chemicals are toxic and "can cause explosions and fires." Pinnow, 469 F.3d at 1156 (citation omitted).
As to the third and fourth factors, for years, in several locations, Loesel helped manufacture meth using the lithium-ammonia-reduction method. "The many risks to human life and to the environment from this method of manufacture are well known." Id. at 1157, citing United States v. Chamness, 435 F.3d 724, 727 (7th Cir. 2006), and United States v. Allen, 297 F.3d 790, 796 (8th Cir. 2002). It produces "toxic and often lethal waste." Id. at 1156 (citation omitted). Though the farm was remote, Loesel, his co-conspirators, the farm owner, and the officers who searched the farm were exposed to the meth labs. Even if the conspirators and owner "assumed the risk, " as Loesel asserts, they were nonetheless "human lives placed at substantial risk of harm." See U.S.S.G. § 2D1.1 cmt. n.20(A); cf. United States v. Davidson, 409 F.3d 304, 314 (6th Cir. 2005) (not applying the enhancement where the defendants tried once to make meth in a remote, locked barn, and the operation did not: involve "an unusually large quantity of hazardous materials"; exist "for an unusually long period of time"; or "actually result in the disposal of the materials in a way harmful to human life or the environment"). Also, manufacturing occurred in residential areas and in a moving vehicle, placing additional lives at substantial risk. Considering the scope of meth activity, the district court did not err in applying the enhancement. See Pinnow, 469 F.3d at 1157 (holding the offense created a substantial risk of harm where the defendant, "staying in various hotels, " possessed "a substantial quantity of pseudoephedrine, enough to manufacture fifty grams of pure meth, plus other chemicals and equipment used in the lithium ammoni[a] reduction method").
Loesel claims the district court should not have attributed to him his girlfriend's pseudoephedrine purchases, because they were not reasonably foreseeable to him. "The district court's drug quantity . . . determinations are factual findings . . . review[ed] for clear error, applying the preponderance-of-the-evidence standard." United States v. Walker, 688 F.3d 416, 420 (8th Cir. 2012). "Only if this court has a definite and firm conviction that a mistake has been made, will it ...