UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5112

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TONI LEA FROST,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. James P. Jones, Chief District

Judge. (CR-05-36-JPJ)

Submitted: July 31, 2006 Decided: August 23, 2006

Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Nancy Combs Dickenson, Lebanon, Virginia, for Appellant. John L.

Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant

United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Toni Lea Frost pled guilty to conspiracy to manufacture

methamphetamine, 21 U.S.C. § 846 (2000) (Count One); maintaining a

place for the manufacture of methamphetamine, 21 U.S.C.A.

§ 856(a)(1) (West Supp. 2006) (Count Eight); endangering human life

while manufacturing methamphetamine, 21 U.S.C. § 858 (2000) (Count

Nine); and possessing a firearm while being an unlawful user of a

controlled substance, 18 U.S.C. § 922(g)(3) (2000) (Count Ten).

Frost was sentenced to a term of 235 months imprisonment. She

appeals her sentence, contending that the district court plainly

erred in applying a six-level enhancement for creating a

substantial risk of harm to the life of a minor, U.S. Sentencing

Guidelines Manual § 2D1.10(b)(1)(B) (2005), because it resulted in

impermissible double counting. She also alleges Sixth Amendment

error under United States v. Booker, 543 U.S. 220 (2005), because

the facts underlying the enhancement were neither admitted by her

or proved beyond a reasonable doubt. We affirm.

On March 7, 2005, a confidential informant came to

Frost’s house to buy methamphetamine from her husband, Steven. The

Frosts had three children, the oldest of whom was fourteen, and

they shared their house with co-defendants Gary Shuttleworth and

Brian Slagle, as well as a friend, Nancy Poole, and her two

children, aged six and one-and-a-half. The confidential informant

observed Steven manufacturing methamphetamine in an outbuilding,
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accompanied by his fourteen-year-old son. Toni Frost and the

couple’s four-year-old son also came to the outbuilding briefly.

Because the methamphetamine batch was not ready, the confidential

informant returned later, and saw Steven Frost walking from the

house to the outbuilding with the finished methamphetamine in a

pyrex dish. Frost put some of the methamphetamine in a “makeshift

pipe made from a household lightbulb” and smoked it. Toni Frost

and her four-year-old son again came to the outbuilding while

Steven Frost sold a quantity of methamphetamine to the informant.

On May 9, 2005, Steven Frost and Shuttleworth were

arrested following the sale of 10.5 grams of methamphetamine to the

informant at a location away from the home. A search warrant was

then executed at the Frosts’ home. Items and substances used in

the manufacture of methamphetamine were seized, as well as numerous

firearms. Toni Frost and co-defendant Brian Slagle were arrested.

Statements provided by Steven and Toni Frost and Shuttleworth

indicated that Steven Frost manufactured approximately 1056 grams

of methamphetamine between April 2004 and March 2005. Toni Frost

assisted her husband by buying the precursor materials--cold pills

and matches--several times a week, as well as gallon jugs of iodine

less frequently.

The district court grouped all four counts together under

USSG § 3D1.2(b). The base offense level of 35 was derived from the

§ 858 offense (Count Nine) because it was the highest. See USSG
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§ 3D1.3(a). The district court added six levels because the

offense involved the manufacture of methamphetamine and created a

substantial risk of harm to the life of a minor. USSG

§ 2D1.10(b)(1)(B). The district court awarded Frost a three-level

adjustment for acceptance of responsibility, USSG § 3E1.1, making

the final offense level 38. The district court departed downward

from criminal history category II to category I. Frost’s advisory

guideline range was 235-293 months.

Frost initially objected to the enhancement for creating

a substantial risk of serious harm to the life of a minor, but she

withdrew her objection at the sentencing hearing. The district

court on its own inquired into the propriety of the enhancement,

and concluded that it did apply. Frost now argues that the

enhancement constituted impermissible double counting because the

risk of harm to the life of a minor addressed in the six-level

enhancement under § 2D1.10(b)(1)(B) was already accounted for by

her conviction under 21 U.S.C. § 858 and the three-level

enhancement that would apply under § 2D1.10(b)(1)(A) if no children

had been present. 

Whether impermissible double counting occurred is a legal

issue which is reviewed de novo. United States v. Rohwedder, 243

F.3d 423, 426-27 (8th Cir. 2001). Double counting is permissible

under the sentencing guidelines except where it is expressly

prohibited, United States v. Reevey, 364 F.3d 151, 158 (4th Cir.
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2004); see also United States v. Hughes, 401 F.3d 540, 558 (4th

Cir. 2005) (obstruction of justice adjustment is impermissible when

conduct resulting in enhancement is identical to conduct underlying

conviction). Title 18, § 858 criminalizes creating a substantial

risk of harm to “human life,” while § 2D1.10(b)(1)(B) provides an

enhancement specifically for creating a risk of harm to the lives

of minors or incompetents. A defendant could violate § 858 without

creating a risk to the life of a minor. Consequently, the district

court’s application of the enhancement did not constitute

impermissible double counting. See United States v. Williams, 954

F.2d 204, 206 (4th Cir. 1992) (enhancement for use of dangerous

weapon under USSG § 2A2.2(a) not impermissible double counting

because not all assaults that “involve” a dangerous weapon also

involve “use” of the weapon; enhancement reflects “graduated

adjustment scheme”). 

Frost next contends that application of the six-level

enhancement was plain error under Booker because the facts

supporting the enhancement were not admitted by her or proved

beyond a reasonable doubt. Frost is mistaken. After Booker, this

court continues to review for clear error the district court’s

factual findings relating to calculation of the advisory guideline

range. United States v. Hampton, 441 F.3d 284, 287 (4th Cir.

2006). Frost also argues that the evidence failed to establish by

a preponderance of the evidence that her activities created a
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substantial risk of harm to a minor. We are convinced, however,

that the district court did not plainly err in applying the

enhancement based on the government’s proffer of the risk of fire

or the release of phosphine gas posed by the process of

manufacturing methamphetamine, particularly since there was

evidence that some of the manufacturing may have taken place in the

house. The dangers of methamphetamine labs are well-documented.

See United States v. Florence, 333 F.3d 1290, 1292 (11th Cir. 2003)

(methamphetamine lab in hotel caused fire, evacuation); United

States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) (danger

associated with suspected methamphetamine lab sanctioned

warrantless search by police officers); United States v. Wilson,

865 F.2d 215, 216-17 (9th Cir. 1989) (officers’ fear of

methamphetamine lab explosion justified warrantless entry into

home); cf. United States v. Spinelli, 848 F.2d 26, 29-30 (2d Cir.

1988) (officers’ concern regarding volatile nature of

methamphetamine justified failure to comply with knock-and-announce

statute).

As required under Booker and Hughes, the district court

calculated the appropriate guideline range, considered the range in

conjunction with other relevant factors under the guidelines and 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and imposed a

sentence. Hughes, 401 F.3d at 546. The sentence should be

affirmed if it is “within the statutorily prescribed range . . .
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and is reasonable.” Id. at 546-47. Because the sentence was

within the correct advisory guideline range, and the district court

considered factors set out in § 3553(a), we conclude that Frost’s

sentence is reasonable.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED