The Honorable Catherine D. Perry, United States District Judge for the Eastern 1

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-3338

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Mark T. Abbott, * [UNPUBLISHED]

*

Appellant. *

___________

 Submitted: January 7, 1998

 Filed: January 12, 1998

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Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.

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PER CURIAM.

Mark T. Abbott appeals the 240-month sentence imposed by the district court1

after he pleaded guilty to conspiring to distribute methamphetamine in violation of 21

U.S.C. § 846. For reversal, Abbott argues that the district court erred by attributing 3

to 10 kilograms of methamphetamine to him; increasing his base offense level for

creating a substantial risk of serious bodily harm to another in the course of fleeing

from a law enforcement officer, pursuant to U.S. Sentencing Guidelines Manual
-2-

§ 3C1.2 (1997); and assessing 3 rather than 2 criminal history points for a prior

conviction. We affirm.

A Drug Enforcement Administration (DEA) agent testified at sentencing that the

portion of the overall conspiracy in which Abbott was involved was responsible for

approximately 10 pounds of methamphetamine. As a co-conspirator, Abbott was

responsible for that entire amount. See U.S. Sentencing Guidelines Manual

§ 1B1.3(a)(1)(B) (1997) (co-conspirator responsible for all reasonably foreseeable acts

of other co-conspirators taken in furtherance of conspiracy); United States v.

Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc). Moreover, the DEA agent

testified that Abbott personally distributed slightly less than 4 kilograms (or 8.8

pounds) of methamphetamine. Based on the DEA agent&s testimony, which the district

court credited, we do not believe the court clearly erred in finding Abbott responsible

for 3 to 10 kilograms of methamphetamine. See United States v. Adipietro, 983 F.2d

1468, 1472 (8th Cir. 1993) (standard of review).

We likewise reject Abbott&s argument that the district court clearly erred in

applying a 2-level increase pursuant to section 3C1.2. See United States v. Sykes, 4

F.3d 697, 700 (8th Cir. 1993) (standard of review). At sentencing, evidence was

presented that after Abbott had failed to appear for his initial sentencing hearing, a

cooperating individual informed officers that Abbott was traveling in a blue pick-up

truck--which the officers ascertained Abbott owned--pulling a trailer. An officer who

passed the truck on the road attempted to intercept it. The driver slammed on his

brakes, drove into a ditch, and fled on foot, leaving the vehicle running. Abbott was

later apprehended. During a subsequent inventory search of the trailer, two officers

were overcome by anhydrous ammonia fumes; both deputies experienced dizziness and

headaches, and one experienced tightness in his chest. We agree with the district court

that Abbott&s actions of abandoning a running vehicle containing a dangerous liquid

chemical caused a substantial risk of bodily harm. Cf. United States v. Luna, 21 F.3d
-3-

874, 885 (9th Cir. 1994) (§ 3C1.2 enhancement proper when defendant ran stop signs

and abandoned still-running car in residential area).

Finally, because we conclude that the district court did not err in determining the

drug quantity or in applying the reckless-endangerment enhancement, we decline to

review Abbott&s argument that the district court erred in assessing 3 rather than 2

criminal history points. Abbott&s 240-month sentence represents a downward departure

from the applicable Guidelines range, regardless of his criminal history score. See

United States v. Patterson, 20 F.3d 801, 808 (8th Cir.), cert. denied, 513 U.S. 845

(1994). Abbott&s Guidelines range with the disputed point was 324 to 405 months; the

range without the disputed point was 292 to 365 months. See U.S. Sentencing

Guidelines Manual, Ch.5, Pt. A (1997) (sentencing table).

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.