* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 4 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-5199

v. (N.D. Oklahoma) CHRISTOPHER E. SWAN,

Defendant - Appellant. (D.C. No. 03-CR-72-H)

ORDER AND JUDGMENT *

Before TACHA, Chief Judge, ANDERSON and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Christopher E. Swan pled guilty to one count of vio lating the Lacey Act, 16 U.S.C. § 3372(a)(2)(A), and aiding and abetting, inviolation of 18 U.S.C. § 2(a).1 Paddlefish (Polyodon Spathula) is a species of fishwhich inhabits lakes,

rivers and streams in the Northern District of Oklahoma and surrounding areas. Paddlefish eggs are processed and sold as caviar. While it is considered an endangered species in certain states, the paddlefis h population is apparently making a recovery in Oklahoma. -2- He appeals the two-point upward departure he receiv ed at sentencing pursuant to United States Sentencing Commission, Guidelines Manual (“USSG”), §2Q2.1(b)(2)(B) (Nov. 2001) for creating “a signifi cant risk of infestation or disease transmission potentially harmful to humans” in connection with his receipt of paddlefish roe from other individuals. We affirm.

BACKGROUND Swan made arrangements with Jim Wever for Wever to obtain paddlefish

roe 1 in Oklahoma and deliver it to Swan in Arkansas, fo r a price of $25 per pound. Swan admitted that, at the time he made the se arrangements with Weaver, he knew it was illegal under Oklahoma law to take p addlefish roe out of Oklahoma, and he further admitted that he planned t o sell the roe to various buyers outside of Arkansas. Following an extensive investigation, Wever was fou nd guilty of poaching paddlefish roe, in violation of Okla. Stat. tit. 29 , § 6-303.1, which prohibits the possession of more than fifty pounds of unprocessedpaddlefish eggs or five pounds of processed eggs, as well as the transportation of paddlefish eggs,2 21 C.F.R. § 123.6 provides in pertinent part:

(a) Hazard analysis . Every processor shall conduct, or have conducted for it, a hazard analysis to determine wh ether there are food safety hazards that are reasonably likely to o ccur for each kind of fish and fishery product processed by that proce ssor and to (continued...) -3- processed or unprocessed, outside the state. Swan was subsequently indicted for violating, and aiding and abetting Wever in violati ng the Lacey Act, which makes it illegal “to import, export, transport, sell, rec eive, acquire, or purchase in interstate . . . commerce [] any fish or wildlife t aken, possessed, transported, or sold in violation of any law or regulation of any S tate.” 16 U.S.C. § 3372(a)(2)(A). Swan pled guilty. The probation office recommended in Swan’s presente nce report that he receive a two-point upward departure under USSG §2Q 2.1(b)(2)(B) because Swan’s offense “created a significant risk of infes tation or disease transmission potentially harmful to humans.” Swan objected, arg uing that he was “properly licensed” and was following applicable regulations when he processed the paddlefish eggs. R. Vol. 2, tab 1. At sentencing, the government presented testimony f rom Christopher J. Hurst, a United States Food and Drug Administrationinvestigator, that paddlefish roe is an item subject to United States Food and Drug Administration regulations concerning Hazard Analysis Critical Control Point (“HACCP”) plans. 2 He further2 (...continued)

identify the preventive measures that the processorcan apply to control those hazards. . . . (b) The HACCP plan . Every processor shall have and implement a written HACCP plan whenever a hazard analysis revea ls one or more food safety hazards that are reasonably likely to o ccur . . . .

3 21 C.F.R. § 123.6(g) states that “[f]ailure of a pr ocessor to have and implement a HACCP plan that complies with this sect ion whenever a HACCP plan is necessary . . . shall render the fish or fi shery products of that processor adulterated under [21 U.S.C. § 342(a)(4)].” -4- testified that Wever and his wife, Swan’s source fo r paddlefish roe, were considered processors of paddlefish roe, and as suc h would also be subject to HACCP regulations and required to have an HACCP plan. Hurst then testified that the Wevers’ failure to have an HACCP plan in e ffect for their processing of roe rendered the roe adulterated under the Food and Drug Administration Act, 21 U.S.C. § 342(a)(4). See 21 C.F.R. § 123.6(g). 3 Hurst also testified about the types of health hazards posed by improperly process ed paddlefish roe, including contamination by botulinum brucella and listeria mo nocytogenes. A second witness, Thomas McKay, also testified at S wan’s sentencing proceeding. McKay was an employee of the United St ates Fish and Wildlife Service in Edmond, Oklahoma, with responsibility fo r the northern district of Oklahoma. He testified that he was the supervising agent in the case against the Wevers and was familiar with their case. McKay tes tified that he considered the Wevers’ roe processing methods “unsanitary,” that “ they had no refrigeration4 While the count to which Swan pled guilty involved an attempt by the

Wevers to deliver some eighty-five pounds of proces sed paddlefish eggs and twenty-six pounds of unprocessed eggs to Swan in Arkansas, which delivery was foiled by Oklahoma game wardens acting in conjuncti on with the Arkansas Game and Fish Department, Swan admitted that he had purc hased processed paddlefish eggs from the Wevers on prior occasions. He was no t charged with those. -5- equipment,” and that the Wevers’ residence “was pre tty dirty.” Tr. of Sentencing Hr’g at 29-30, Appellant’s App. Vol. 1 at 79-80. I t is undisputed that the Wevers did not have an HACCP plan. Swan did, however, hav e an HACCP plan. After listening to the above testimony and hearing arguments from counsel for both sides, the district court found “that the United States has adduced evidence establishing by a preponderance of the evi dence that in fact such a risk [of infestation or disease] was created under these circumstances, therefore, the request that the offense level be further adjusted downward is denied.” Id. at 40. Swan was sentenced to four months’ imprisonment, fo llowed by three years of supervised release, and assessed a fine of $10,000. Swan argues that the district court erroneously imp osed the two–point enhancement under USSG §2Q2.1(b)(2)(B) because he s hould not be held accountable for the Wevers’ failure to have an HACC P plan, nor was there any evidence that the roe which he had received or whic h he planned to obtain from the Wevers was in fact harmful to humans. 4-6- DISCUSSION “We review de novo legal questions regarding the application of the sentencing guidelines. We review the district court’s factual findings for clear error, ‘giving due deference to the district court’ s application of the guidelines to the facts.’” United States v. Martinez , 342 F.3d 1203, 1205 (10th Cir. 2003) (quoting United States v. Brown , 314 F.3d 1216, 1222 (10th Cir.), cert. denied , 537 U.S. 1223 (2003)). Furthermore, “[w]e review f or clear error a district court’s factual findings in support of a sentence enhancement.” Id. at 1208; see 18 U.S.C. § 3742(e). As the government points out, USSG §1B1.3(a)(1)(B) provides that: specific offense characteristics . . . shall be det ermined on the basis of the following:

. . . (B) in the case of a jointly undertaken criminal ac tivity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reason ably foreseeable acts and omissions of others in further ance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. USSG § 1B1.3(a)(1)(B).-7-

Swan was convicted of violating the Lacey Act and a iding and abetting the Wevers in violating the Lacey Act, which, in turn, required a violation of Oklahoma law. Accordingly, the district court prop erly considered the Wevers’ conduct in processing the roe which they then trans ported to Swan. Furthermore, the Wevers’ roe is considered adulterated under app licable federal regulations and statutes, and, as such, would present a “significan t risk of infestation or disease transmission potentially harmful to humans.” See United States v. Blue Ribbon Smoked Fish, Inc. , 179 F. Supp. 2d 30, 44 (E.D.N.Y. 2001) (“Because the defendants’ HACCP plans are inadequate and do not c omply with the FDA regulations, the food [defendant] processes pursuant to them is adulterated as a matter of law, as defined by Section 342(a)(4) of t he FDCA.”). Swan argues that two other cases affirming a two-le vel enhancement under §2Q2.1(b)(2) are distinguishable because they both involved a Lacey Act violation where the state law violated was itself c learly designed to protect the public health. See United States v. Narte , 197 F.3d 959, 962 (9th Cir. 1999); United States v. Eyoum , 84 F.3d 1004, 1009 (7th Cir. 1996). Thus, he arg ues, the violations of state laws designed to protect the pu blic health “in and of themselves were sufficient for purposes of the enhancement.” Appellant’s Br. at5 Swan concedes that both the Narte and Eyoumcourts held that the

government need not prove that the particular food product involved was in fact harmful or diseased in order for the enhancement to apply. -8- 9. He argues that, by contrast, the Oklahoma law violated in this case is merely designed to protect paddlefish, not to further any human health safety goal. 5 Swan misperceives the basis for the district court’ s enhancement. He was convicted of violating the Lacey Act and aiding and abetting Wever in violating that act. As part of that course of conduct, Swan obtained and agreed to obtain paddlefish roe which was considered adulterated und er the Food and Drug Act. We cannot say that the district court erred in conc luding that receipt of adulterated roe to be sold to others would pose a s ignificant risk of disease transmission potentially harmful to humans. Furthe rmore, it is reasonable to read the Oklahoma law violated in this case, Okla. Stat. tit. 29, § 6-303.1, which regulates the possession and transportation of padd lefish eggs, as not exclusively protecting paddlefish and their eggs, but also prot ecting consumers of those eggs.

CONCLUSION For the foregoing reasons, we AFFIRM the sentence i mposed in this case.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge