* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 13, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-51308

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROWDY WAYNE ROYALL, also known as

Rowdy Royall,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-02-CR-155-1

--------------------

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rowdy Wayne Royall appeals his guilty-plea conviction for

attempting to manufacture methamphetamine. Royall argues on

appeal that only violations of the federal statutes listed in

application note 19 to U.S.S.G. § 2D1.1 trigger the two-level

enhancement under U.S.S.G. § 2D1.1(b)(5)(A). He also argues for

the first time on appeal that he did not violate 49 U.S.C.

§ 5124, a statute listed in application note 19, because the
No. 02-51308

-2-

Government did not prove that he moved anhydrous ammonia in

interstate commerce. Royall’s legal arguments regarding the

operation and applicability of the application note presuppose

there was no error in the application of the enhancement itself. 

Because we find this premise to be false, we do not reach the

legal arguments presented by Royall with respect to the

application note.

The district court’s legal conclusions are reviewed de novo,

and its findings of fact are reviewed for clear error. United

States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993). Our

review of the record indicates that there was insufficient

evidence presented to the district court to support its

application of the enhancement under U.S.S.G. § 2D1.1(b)(5)(A). 

The enhancement is applicable under U.S.S.G. § 2D1.1(b)(5)(A)(i)

if the offense involved “an unlawful discharge, emission, or

release into the environment of a hazardous or toxic substance.” 

See U.S.S.G. § 2D1.1(b)(5)(A)(i). Although the presentencing

report contained evidence that there was a discharge, emission,

or release of ammonia fumes and the Government argued that

anhydrous ammonia is a hazardous material, there was no evidence

presented to the district court to support a finding that the

discharge, emission, or release of anhydrous ammonia in this case

was “unlawful.”

The enhancement is applicable under U.S.S.G.

§ 2D1.1(b)(5)(A)(ii) if the offense involved “an unlawful
No. 02-51308

-3-

transportation, treatment, storage, or disposal of a hazardous

waste.” See U.S.S.G. § 2D1.1(b)(5)(A)(ii). The Government

argued that Royall unlawfully transported and stored the

anhydrous ammonia in violation of federal and state laws,

including 49 U.S.C. § 5124, 42 U.S.C. § 6928, and Texas Health

and Safety Code § 504.001. The Government did not provide

sufficient evidence that a violation of any of these statutes

supported the enhancement, however, as it did not show that the

anhydrous ammonia in this case was a “hazardous waste.”

We note that, even if the anhydrous ammonia in this case was

a hazardous waste, the Government did not prove that the

transportation of anhydrous ammonia in this case was “unlawful”

under 49 U.S.C. § 5124. The Government argued that Royall

violated 49 U.S.C. § 5124 because Royall was transporting

anhydrous ammonia in violation of the Hazardous Materials Table

under 49 C.F.R. § 172.101. The table, however, does not speak to

the transportation of hazardous substances in passenger motor

vehicles.

Accordingly, as there was no evidence presented to the

district court to show that Royall’s actions were “unlawful”

under either part of the enhancement and because there was no

evidence presented to the district court that the anhydrous

ammonia in this case was a “hazardous waste” as required by the

second part of the enhancement, the district court’s finding that

the enhancement applied was clearly erroneous. Royall’s sentence
No. 02-51308

-4-

is vacated, and the case is remanded to the district court for

resentencing. 

VACATED AND REMANDED.