ok you may proceed from here today on behalf of michael owen who was sentenced to two hundred and fifty months for his methamphetamine offense which was for attempting to manufacture a small amount of methamphetamine and associated firearms  the primary focus of this appeal is the methamphetamine portion of that sentence which was one hundred and thirty months that one hundred and thirty months was primarily driven by a single guideline enhancement the substantial risk unhandsome and that enhancement increased mr owens offense level by eighteen levels which corresponded to an increase of one hundred and six months almost nine years the district judge based this unhandsome and on its theory that they used up one pot so called shake and bake meth lab that he had in his backpack created a substantial risk of harm to the life of a minor who was in the car with him when he was stopped by the police in our briefs there's a there was a significant of back and forth in the discussion about what exactly the term substantial risk signifies is mr owens position that that term must be something more than a small risk or some risk or remote risk or  possibility and that even taking into account the four factors that the commission directs judges to consider the factors are exhaustive we all agree and what i'm struggling with i guess going both ways is how you differentiate what is the threshold that creates a substantial risk so the district judge collier here go out that all the chemicals combined with being in a car close proximity to a child created a substantial risk why why isn't that and if not how do you draw the line in other words how do we come up with a clear line well i would look to the case law that has already been published by the sc the st case i would look to is davidson obviously mr owen relies heavily on davidson because in that case this court found that the risk was not sufficient that case teaches us that the presence alone of the existence of a meth necessarily create some or it can't be right but something else but what i struggle with with our cases is to be candid with use they're kind of all over the map so you've got a case the government's got a few cases we can go back and forth what's the line like how do we know when you cross the threshold for risk to substantial risk i think you can actually synthesize these cases spiced by being able to there is a line to be drawn and if you notice all of the case of the what is it before you explain what is that odor the existence of an older at the time when the lab is encountered by police or want to search is conducted there is an odor that odor indicates that there has been in recent past a volatile reaction that creates a gas there was no odor in this case and this is even after the backpack was thrown on the ground which is not that different from hitting a pothole there was nothing in that sludge that was going to create a reaction to create the odor that there was sludge in the bottom of that bottle and there was a lid on the bottle and the government's expert testified that in his experience he had not seen sludge that did not have lithium of some sort in it the other fact it's in the record is that lithium reacts with water it was not in a reactive state at the time that it was found which means that there was no water coming in contact with lithium at the time this lab was in the car with mr owen and  the minor wasn't happening the only way that it could have happened right but it but the district court judge found that all those elements were present at those given the existence of all those elements in the care and that it could combust some form which is also not proven it was there it was unknown form the only way that that could actually get to water was for it to float to the top of the sludge there is actually no fact in there no evidence in the record that this was possible for these unknown shaped lithium particles to float to the top of the what was in essence a solid to the top and then touch enough humility if there's as i'm sorry would do that there's evidence in the record that what that there's no lithium no the most evidence that was in the record was that the government experts assumed that there must be some left over on reactive lithium in the sludge right whenever there's no evidence about what form that lithium could possibly have been or how it could have floated to the top of what is a solid which is a slight if it could have done that it would have done that when it landed on the ground when he threw the backpack down why what makes you think well the only thing that judge the judge was able to imagine might happen to connect the lithium part of the particles to the humidity st of all i haven't gone to the humidity but the only way to do that would be for there to be a pothole the hit a pothole and and given that the actual at that didn't happen or we don't know how that happened what did happen is he threw the backpack down so there's been a jostling of this bottle but there was no reaction happening at the time that the lid was taken off there was no these really strike me as factual issues what the existence of the drugs were and what was the likelihood of explosion the those strikes me  record has resolved against your client by a large and the other thing is is it doesn't have to actually happen that's i think the nd part of that is and what he says is however because of the movement of the vehicle there was the possibility that some of the lithium would come to the surface and come into contact with moisture and so and i don't find that irrational always saying is there's a possibility of it and then he's saying the possibility of  pothole which you've just referenced and so it seems to me what we're struggling with is kind of where you're drawing the line in facts versus wall and it seems to me all of his findings are fa go question is what i think is the hard one which is taken all those facts does it equal substantial risk so in davidson the judge also engaged in some speculation and assumptions and reached factual conclusions that were speculative the judge said that he it was fair to assume the defendant in that case had not disposed properly wise it's speculation to say there's a possibility that's not speculation that's just reality a possibility that you hit a pothole is reality of course it's real that you could know the possibility that some of the lithium would come to the surface you're saying it did in that doesn't mean you're saying the risk cast to be a certainty if you're saying it has to be  he's saying there's a possibility of data map possibility ultimately is what posed a substantial risk does that make sense i mean it does make sense what i would say is that we're talking about the physical properties of chemicals that can actually be measured and proven by an expert and in this case the experts examples of the kinds of things that were dangerous in cars in fact involved a volatile process it was an ongoing shake reaction that was occurring in cars are you saying in an active lab in a car can never poses stanch no risk no i'm sorry that's the line i'd like to draw and then draw the line there is an inactive lab in a car where there is a volatile dangerous poisonous gas present either we know that because an odor is present or because as in the th circuit case in finch the defendants were transmitting do you have a case for that proposition that the odor ask to be present for it to be a substantial risk i do not have a case although all of the cases that are pointed to in our briefs can be organized in a way that draw that line each one involved in order there is not one case odor is that proving recency that that the many fact manufacturing happened recently that's why there's an order and so there's a timing issue i would say that that probably is the way that that's viewed it either was happening at the time that the lab was apprehended and were very soon before that gender saying that the che micals are more likely to explode the closer it is to the actual cooking or making manufacturing and the longer it goes the less likely to try to stand with the risk the i believe that the way that the analysis goes and it's often not very detailed but i think the idea is that this way we know that reactions have been taken place on these premises or in the space where there are children present or likely be present and we don't have that here we know there's cameras you know those that we know these materials were used to manufacture yes based on the accident happened in the car it happened somewhere else yes and judge the judge actually specifically finds that the reaction was complete because it had happened already it was completely true and the evidence is there was  no odor or they got in the car but what can i ask another question about the odor of story so with the converse be true that women ever there's an odor there's a substantial risk because that seems like a risky line for defendants well it has been true i would say that if i were reading the cases and i were deciding whether i was going to transport my meth lab and it says that there's an odor i wouldn't transport my own matlab if it's still smell it's about having the you know the law but the reality is is to correct me if i'm wrong and this i remember from long ago but at most of these labs where they're at homes so just once we draw this line i just want to understand the ramifications there usually isn't over  even if it's not a recent cook the odor permeates at some point you so isn't that dana i don't want to say dangerous but isn't that going to pose a problem in future cases for defendants where almost always they're going to get hit with this if children are around i would say that that has already been the case and that this is a different situation where in a car that sort of changes the analysis here because we know that it was well we don't know how long it was but it could have been a very short period of time and he's transporting something that it's not an inactive state but judge collier thought the car added to risk versus cutting geddes true though he did that the only way he could do that if you if you if you read his analysis very carefully and i'm sure you have there that the only way he's able to decide at the present the fact that he was in the cars what created the risk that was different was to have a hit a pothole and to have him also the proximity to each child yet he says because of the movement of the vehicle there was a chance and then he says and there was also possibility of the car hitting the pothole or juggled the bottle in some way  he also talks about in here somewhere what judge regular just referenced which is the closeness of the occupants but i still believe that the answer that question has to be that we do know that even if we're talking about movement of the vehicle that that backpack was thrown to the ground and so that there was movement of that lab in the city that's an actual ality instead of possibility and we're just dealing with whether there is a risk or not whether it actually occur then i would turn to davidson again and i would point out that it is that you really like the one of the one of which i don't like as well so let me ask your question about it so i mean my mind is to say there's two things going on here there's one what's the likelihood there's an explosion and two if there are there is an accident if there is what's the likelihood that a child was hurt and the problem with this case is that the lab is right next to the child in a car if anything wrong with that lab that child dies i can see that but that would be my sussm davidson wasn't the lab locked away in a barn somewhere and was what was the rest of it was a risk to children from the placement of the drug devices in davidson well wasn't it so it wasn't about children in that case it was just people arm people so what the judge said was that the distance of the padlock created a pot higher possibly a possibility of risk because it could lock someone in or lock someone out in the case of an explosion and this court said that that kind of speculation was inappropriate because there was no evidence that that actually happened well that's where i was going about going to a bar that was at a bar and it was not in a real basically yeah it was a lab located in a locked barn loft in a remote location is relatively speaking one of the hazardous possible types of illegal map manufacturing operations we agree so that was the defendant's argument and we read your time is up in his coffin if you want to finish the answer to that question that question yes answer yes absolutely i would say that in the context of a one pot in a vehicle mr owens last presented the least the least amount of safety hazard as any that you've seen in any of the cases because there was no active process going on and there was no odor before you sit down i'm sorry can i make your judge merit to give any questions no that's ok thank you very much you may proceed thank you may please the court my name is brian samuelson and i represent the united states here is the best evidence to support the substantial risk of harm in him spent the court heard expert testimony that there was a ask about that because you all i agree that that occurred you all use the word as does the district court explosion that there was a risk of explosion there was just a risk of fire right not explosion or was there actually a risk of explosion and who testified that there was a risk of explosion i think i think it is probably better characterized as a risk of fire this is next to other flammable and hazardous chemicals i think the inference the court was making there was if there is a fire next to light or food and drink cleaner and other dangerous chemicals that are open and unsafe that you know what where does a fire could the risk is coming from the fire that's correct that's correct and so let's assume there's there's this possibility and there's a risk of fire so that means there's a risk to the mine where do you draw the line like what makes it substantial like ok i get that there's a red ask why is it a substantial risk i think a few factors amount to a substantial risk one is that it is not just a remote possibility of fire the experts said there's a distinct possibility of fire from this like this is this do you ever do you have any cases for the proposition similar facts where there was a fire or did the expert testified a specific instances the expert was aware of where there was a fire because i don't recall that either so the closest fact i think we have in the record tweet you're asking about is the expert says the the normal way to neutralize these types of labs so they don't blow up on their own is to take them out and do a controlled burn so that certainly indicates that there is a risk that the us one more question about that because i thought the officer worried about well of course with this method there are several different risks or risk coming from several different directions so officer wilkie when he arrives at the scene he separates the lab from the other chemicals in case a flash occurs he removes the cap because one danger is that pressures might be building up in this lab and then a separate meth task force arrives to neutralize and take the level way to be has made it now it's true that we don't know exactly what what that process entailed we don't know if  involved a controlled burn we know involved at least a ph test but there was some action taken to to take this lab away and deal with it and dispose of it but what do you make of the fact that the point your friend on their side makes hanson doesn't apply it just says that whatever risk there was did not actually come to pass in this situation so how do you draw the line what is how do we draw a clear line as to what's the difference between a risk of harm and a substantial us i think the exercise is probably too fact specific to have a clear bright line on the one hand we have cases like davidson where the lab with locked in remote barn loft far from people or other houses on the other hand we have on the other side lined with cases like merrill where you know there was an ongoing reaction was just exposing kids to dangerous chemicals in this case falls on that side of the line it looks very similar to cases like methamphetamine but there was no reaction that would produce methamphetamine going you mean you agree with your friend that there was an odor in those cases no your honor in those cases there is no indication in those cases that there was an order in the expert in this case said you know a lack of odor doesn't mean this lab is safe in some cases like like why did where to find it was found in a motel room with a minor in a math lab and finish methamphetamine the court look to the o to say ok that's evidence that the meth lab was doing something dangerous while they while the child was in the room but here we have other evidence of that we have an expert to says at the point this fact there was was found the methamphetamine lab has all these dangerous chemicals mixed in such a way that presents an actual danger so so i don't think the odor is dispositive nor have these cases required in order to to apply and i had sort of looked at it as a two part test one with the likelihood of explosion fire and then two if that happens what's likelihood of injuring someone and i thought on the likelihood of injuring someone child here the scale is pretty high and it's sort of medium low maybe on the other factor are those the two factors we should be looking at is there or is there something else that should be in the mix no i think that's right your honor and certainly the court looks at the fact that any fire in a moving vehicle especially a fire next to other dangerous chemicals would be very very dangerous for any occupant particularly a child in this  car so so i do think you know it's not just how many chemicals there are but also how dangerous they are and the fact that there are a small amount of chemicals needs to be considered in the context that if there was a fire if there there was something went rather than the yes your honor and i don't i don't think it does necessarily favor one party or the other i think that's a factual issue that the district court needs to make a factual finding on in the st instance here the district court heard the testimony of the expert he heard that there was this possibility of a fire he learned about you know the nature of these chemicals and how they were mixed and he made a factual finding that there was a possibility of a fire and that would be very dangerous in a in a car so i think it's a factual matter that the district court has discretion to make finding were not sufficient evidence to support a finding that this could result in a fire that would be clear that's not the case here given the experts testimony and what we know about these kind of labs in the inherent dangers of thinking chemicals do you agree that we view the car with the with the cat as the lab in other words a lab is oftentimes a physical space in a building yes your honor it is it's certainly this in his mind takes the context into account and it takes into account that the fact that there was this particular lab in a car and that's the environment where this danger was was present yes it and we know that this is the type of danger that congress was worried about when it when it inactive this enhanced when it's said that it was worried because even small amounts of chemicals post serious dangers when manufacturing meant to me and that's exactly the situation we have here admittedly small amounts of chemicals posing serious dangers to to a minor in proximity the what would be a situation where there was a risk but not a substantial risk well of course the example we have is davidson that any meth lab poses inherent risks to people that might be about but that lab was was locked away it was remote it was not next to any people or buildings or but that isn't the task just whether the mathlab is close to people or children and if it is we imply we enhance men and if not we don't i mean that's a proximity point and i take your point it's a valid one but it seems to me the the end result of that absent something else being at work is any time it's close it's a substantial risk and any time it's far or locked away or it's just a risk yes or i can imagine exceptions to that general rule i do think it is probably a general rule because meth labs are inherently dangerous and bringing those in proximity with a person is dangerous if for example the lab was was in a professional environment and had industrial safety equipment and safety showers and protective clothing and hoods and whatever maybe that is not a substantial risk to to somebody in that lab or if the defendant was merely picking out chemicals with the intention of making meth later from from wal mart and brought brought his kid along maybe that doesn't pose a substantial risk just just placing those chemicals in a shopping cart because nothing's been mixed when it imposed the sentence it credited owens argument that he has a mental illness it explained that it couldn't determine what their mental illness was or what the diagnosis was and then awaited against other relevant factors including the severity of the france which is it was very very serious indeed for deterrence and the need to protect the public given his long history of criminal history so the court has accepted the finest mental illnesses it's discussed the limitations of that finding in his way that factor against other factors and that's a proper exercise of discretion that that's the court weighing in and accepting in knowledge in this argument and that's a proper exercise  of discretion so that the bottom line with the sentence is that owen was convicted of a drug offense in which he knew the life of a child and he was convicted of a firearms offense in which he shot at a police officer in that context the bottom of the guidelines sense is not unreasonable and i i urge this court were firm thank you counsel i'd just like to go through the cases and the factors that did take it over the line from a risk to substantial risk in lane the neighbor smelled fumes and why did the officer smelled a chemical odor which is what took it over the line there from just proximity in paradise more parodies how you pronounce it the officer smelled punching fumes strong toxic fumes in finch the carcase that the government relies heavily on there wasn't a few i will i will concede that it is not always a few but in that case it was a poisonous gas being transported in an unapproved container through which it could corrode and actually be poisonous to the child because it was not being carried in the proper manner it was a thermos i believe and  poisonous gas that was being carried in the car willingly in pinkerton we actually don't know what materials were in the car whether there was few or gas or anything being transported so i would say that even though in those cases there is something more in the form of the fumes or a poisonous gas of the likelihood of another explosion or evidence that manufacturing had occurred previously it's evidence that there's a lot there  has very recently been an ongoing active volatile process that could cause a fire and mistrust it's sort of it's the little bit the lottery is not that there was evidence there wasn't any factoring in the presence of the other people or minor yes i would say that that's what it's viewed at mr owen is not saying you have to draw the line at these things what he's suggesting is that whatever the line is it does not encompass what he did in this case when there is no evidence of any active process at the time that the lad was in the car or even around any children i guess i would say there's just nothing like that here and this it's not it's you can do this on the facts given that in other cases there's been some kind of line to be drawn as just a part no it's it has to be something more than that and then some risk and opportunity even if we accept all of the facts and even if we accept that there was a possibility of fire if this lithium touched humidity which mr owen questions even owen asked for a sense of fifteen years so whatever what he asked for will keep him in prison for another seven years determination of how long to send someone to prison should not be based on someone's mental illness and whether they can be homeless or not if at the end of this fifteen years the government decides that he's a danger to you know as a practical matter on the street you know is almost worth well he does have a mother who did who is willing to take him in and has taken him in the past and it shouldn't come to pass that at the end of his time in prison fifteen years the government decides that he's a danger and can't function then this case will take the case under advisement you may call the next case