### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 16, 2003 THOMAS K. KAHN CLERK

* Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_______________________ No. 02-13414

_______________________ D. C. Docket No. 01-00087-CR-01-1 UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus GLENN MITCHELL FLORENCE, Defendant-Appe llant.

_________________________ Appeal from the United States District Court for the Southern D istrict of Georgia

_________________________ (June 16, 2003) Before EDMONDSON, Chief Judge, KRAVITCH and GIB SON * , Circuit Judges. KRAVITCH, Circuit Judge: This cas e present s an issue of first impress ion: whether U.S.S.G. §1 Florence was also indicted on one count of possession with intent to distribute more

than five grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), but after Florence pleaded guilty to conspiracyto distribute and possess, the government dismissed the possessionwith-intent-to-di

stribute count. 2 2D1.1(b)(5)(C), which provides for a six-level sentencin

g enh a ncement when t

he offense involved the manufacture of methamphe

tamine and cre

ated a substantial r

isk of harm t o the life of

a minor, requ

ires the sentencing c

ourt to identify a

specific minor placed a

t risk of harm.We conclude that it does not. Glenn Mitchell Florence

pleaded guilty to one count of conspiracy t

o distribute and to poss ess wi th in tent t o dis tribu te more than 5 0 grams of metham phetamine, in violation of 21 U.S.C. § 846. 1 The govern ment’s indict ment was based on Florenc e’s involvement,

with other individual s, in the manuf acture of met

hamph etam ine in a hotel room on July 14, 2001. Florence was present in the hotel room early

on July 14 but left around 3:00 P . M ., planning to return to the room later to pick up the finished product. At approxi

matel y 1:00 A . M ., the metha mphetamine

lab in the hotel room created a fire, which sp

read throughout the r

oom. The fire caused

other occupants of the hotel, including seve ral minors, to

evacuate their ro oms. I n addition, the fire activatedthe hotel’s sprinkler system, which caused water dam

age to nearby room

s. Florence’s pre-sentence inve stigation r eport (“PSI ”) recomm

ended a base offense level of 34 and a six- level enhancement under U.S.S .G. § 2D1. 1(b)(5)(C),3

which applies when the off ense involved the

manufacture

of metham

phetamine

and “created a substantial risk of harm to the life of a minor.” U.S.S. G. § 2D1.1(b)(5)(C). After expressing

some uncertai

nty about whethe

r to apply the six-level enhancement, the dist rict c ourt a dopt ed the PSI’s r ecomm endation , finding that Florence’s activities did create a substanti

al risk of harm

to minors. The

following facts supp orted t h e district court’s finding: t

he fire occurred at

1:00 A . M ., an hour when hotel guests are likely to be in their rooms; several rooms were occupied by familie s with children;

a youth group was staying at the hotel for a sports tournam ent; and a family with two young children had to be m

oved to a different

room as a result of the fire. The district court did not specifically identify the m

inors who were at

ris k of harm. After applying the § 2D1.1 (b)(5)( C) enhanceme nt, Florence’s

sentence range w

as 292 to 365 months’ im

prisonment. T

he district court se

ntenced F lorence to 292 months’ imprisonment. On appeal, Florenc e argues that the dis trict court erre

d in applying the

six-level enhancement

under § 2D1.1(b)( 5)(C) because the court failed t

o id entify a specif

ic minor place d at su bstan tial r isk o f harm. Florence also asserts that the government

was r equi red to prove the fac ts supporting the enhancement by a b urden of proof higherthan the preponderance-of -the-evidence sta

ndard applied by t

he district court. I.4

We review the district court’ s factual findings at sentencing for clea

r error, but

we review the distric

t court’s applica

tion of the sentencing gu idelines d e novo. United States v. Matos-Rodriguez , 188 F.3d 1300, 1309 (11th Cir. 1999). U.S.S.G. § 2D1.1(b)(5)(C) provides that “[i]f the offense (i) invo lved the manufacture of . . . methamphetam ine; and (ii) created a substantial risk of harm to the life of a minor . . . , increase [the offense level ] by 6 levels.” U.S.S.G. § 2D1.1(b)(5)(C). Florence argues on appeal that the language of § 2D1.1(b)(5)(C) required the district court to iden tif y a specific m

inor at risk before

imposing the enhancement. Al thou gh this court has not addressed this aspect of § 2D1.1(b)(5)(C), it has decidedthe application of si milar sentenc

ing enhancements. For example,U.S.S.G. § 3C1.2 allows for a sentencing enhancement when “the defendant recklessly cre ated

a substantial risk of de

ath or serious bodily

injury to another

person in the course o f fleeing from a law e

nforcement of

ficer.” U.S .S.G. § 3C1.2 . In United States v. Gonzalez , 71 F.3d 819 (11th Cir. 19 96), we upheld a district court’s imposition of an enhancement

under § 3C1.2 whe

n the distr ict court found that the “appella nt’s conduct exhib ited a reckless disrega rd for the safety

of the various person

s who residedon that street, as well as for the safety of t hose who might

otherwise be p resent on that street [when th e defendant fled from law enfo rcement officers].”5

Gonzalez , 71 F.3d at 837 (em phasis added). In Gonzalez , the dis trict court did not identify any specific person who was placed at a substantial risk of ha

rm. On appea

l,

our court determined tha

t imposing the § 3C1 .2 enhanceme ntwas proper based

on a finding that the defendant’s actions placed at substantial risk of harm pe rsons residing

on the street or pers ons who potentially could be present

on the street. See id. Thus, Gonzalez indicates that a district cour t does not have to identify

any specific pe

rson placed at risk whe

n it imposes an en

hancement under

§ 3C1.2. Although § 3C1.2 and § 2D1.1(

b)(5)(C) deal with

different offenses and factual situations, Gonzalez ’s analysis is appli cable. Section 3C 1.2 applies an enhancement for creating a substanti

al risk of death or

serious injury

to “another person.” U.S.S.G. § 3C1.2. Likewise, § 2D1.1(b) (5)(C) uses the generi c term “a minor.” U.S.S.G. § 2D1.1(b ) (5)(C). In Gonzalez , we did not requir e the district court

to identify the specific “person” at risk of death o r serious injury. See Go nzalez , 71 F.3d at 837. Similarl y, we hold that the distr ict court in

this case was not

required to identif

y the specific “minor” at risk of harm before a pplying § 2D1.1(b)(5)(C). The district cour

t’s find ings that minors were staying at the hotel where Flore nce was manufacturing methamphetam ine and that the fire occurred at approximately

1:00 A . M ., an hour when hot e l guests are norm

ally in their ro oms, justify the application of

§ 2D1.1(b)(5)(C). Florence’s activities created a substantial6

risk of harm to the life of th e minors who were staying at the h otel. Our holding does not relieve a district court of its obligation to make findings regarding the presence of m

inors when it applies

§ 2D1.1(

b)(5)(C ). Section 2D1.1(b)(5)(C) applies a six-level enhance ment if the off

ense “create

d asubstantial risk of harm to the life of a minor.” U.S. S.G. § 2D1.1(b)(5)(C)( ii). Se ction 2D1.1(b)(5)(B) , by compa rison, applies only

a three-level enh

ancement if th

e same offense “created a substantial risk of harm to (I) human life othe

r than a life described in subdivision (C).” U .S.S.G. § 2D 1 .1(b)(5)(B)(i i). Because the sentencing guidelines distinguish between “human life” and “the life of a minor,” a district court applying § 2D1.1(b)(5)(C

) must determ

ine whether

the offense created a substantial risk of harm to t

he life of a mi

n or. Although the dist

rict court is not req

uired to identify a specific mi

nor, it must stil

l make a finding that the defe ndant’s actions placeda minor at risk. Here, the district court m

ade such a finding

when it found that minors were staying at

the hotel and that the fire create d a substantial risk of

harm to at least some of these minors. Therefore, because we c onclude that § 2D1.1(b)(5)(C) does not require a district court t o ident ify a specific minor at risk and

because the distric

t court found tha t Floren ce’s actions placed minors at risk of harm, we conclude that the district court did not err in applying the six-level enhancement to Florence’s sentence.7 II. For the first time on appeal, Florence also argues that even if we find that evidence supported the applica tion of § 2D1.1(b)(5)(C), the district court should have required the government t

o prove the facts suppo

rting the enhancement by a burden of proof higher than preponderance of the evidence. BecauseFlorence did not ra ise this issue before the district court, we review for plain error. See United States v. Humphrey , 164 F.3d 585, 587 (1 1th Cir. 1999). “‘Before an appellate

court can correc

t an error not

raised at trial,

there must be ( 1) error, (2) that is plain, a nd (3) that affect[ s] substantial rights . . . . If all three conditions are met, an

appellate court m

ay then exercise its discretion to notice a f orf eitederror, but only

if (4) the error seriously affe cts the fairness,

integrity, or public reputation of judicial proceedings.’” United States v. S watzie , 228 F.3d 1278, 1281 (11th Cir. 2000) (qu oting Johnson v. United Sta te s , 520 U .S. 461, 466–67 (1997)). Florence argues that the district court should have a pplied a more stringe nt burden of proof bec a use the application of the § 2D1.1(b)(5) (C) enhancem ent dramatically

increased his sente

nce. Although ot

h er circuits have concluded that a higherburden of proof m ay be required

whe n the application of a sent encing enhancement

signific antly increa ses a defen dant’s sentence, see , e.g. , United States2 Florence asserts that his sentencing range would have been 151 to 188 months without

the § 2D1.1(b)(5)(C) enhancement. Florence, however, assumes that the district court would not have applied the three-level enhancement under § 2D1.1(b)(5)(B). Dur ing sentencing, the district court noted that it “wrestled with whether this enhancement should be at three levels or six levels” and decided to apply the six-level enhancement after determining that the g uidelines did not require the identification of a specific, named minor. Thus, had the district court not applied the § 2D1.1(b)(5)(C) enhancement, it would have applied the three-level enhancement under § 2D1.1(b)(5)(B). 8 v. Restrepo , 946 F.2d 654, 659 (9th Cir. 1991) ( en banc), we find that the applica tion of the § 2D1.1(b)(5) (C) enhancem ent did not

sign ificantly in crease Flor ence’s sentence. Florence’s sentencing range with the § 2D1.1(b)(5)(C) enhancement was 292 to 365 months’ imprisonment, and the district co urt imp osed a 292 months’ sentence. Had the district court applied the three-level enhanc ement under § 2D1.1(b)(5)(B) instead of the § 2D1.1(b)(5 )(C) enhanc ement, Floren ce’s sentencing range would have bee

n 210 to 262 months’ imprisonme nt. 2 Moreover, our p recede nt states that “ the government’ s burden of proof [in establishing

the applicability

of a sentencing enhance

ment ] is the preponderance

of the evidence standard.” Gonzalez , 71 F.3d at 836. Florence concedes that the district court app lied the preponderance of the evidence standard. Therefore, Florence i s unable to establish any

error, let alone plain error, by the district court in regards to the burden of proof requ ired to es tablish the facts supporting the application of § 2D1.1(b)(5)(C). For the foregoing reas ons, we AFFIRM.