United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-3411

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Donald Keith Kroeger, *

* [PUBLISHED]

Appellant. *

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 Submitted: April 14, 2000

 Filed: October 13, 2000

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Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.

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HANSEN, Circuit Judge.

While responding to a fire at Donald Keith Kroeger’s residence, authorities

discovered a methamphetamine laboratory. After a jury trial, Kroeger was convicted

of manufacturing and attempting to manufacture methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1) and 846, and endangering human life while doing so, in violation

of 21 U.S.C. §§ 841(a)(1) and 858. The district court sentenced him to concurrent

terms of 240 months imprisonment and 5 years supervised release on the manufacturing

count, and 120 months imprisonment and 3 years supervised release on the

endangering-life count. Kroeger appeals his sentence, and we reverse for the reasons

discussed below.
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I

The presentence report (PSR) grouped the counts because they were closely

related, and determined the group’s offense level on the basis of the endangering-life

count because it was the more serious count. Applying U.S.S.G. § 2D1.10(a)(1), the

PSR calculated a base offense level of 35 by adding 3 to the level 32 specified in the

drug-quantity table, U.S.S.G. § 2D1.1(c)(4), for the 225.2 grams of methamphetamine

Kroeger possessed and was capable of producing. The PSR then applied a 2-level

enhancement under U.S.S.G. § 2D1.1(b)(5) because the offense involved the unlawful

discharge, emission, or release into the environment of hazardous or toxic substances,

or the unlawful transportation, treatment, storage, or disposal of hazardous waste. The

defendant was sentenced to 240 months of confinement which was near the midpoint

of the 210- to 262-month range for a level 37, criminal history category I offender.

Kroeger objected to using the endangering-life count to set the offense level for

the group, arguing that the group’s offense level should be set by the manufacturing

count because that count carried a greater maximum prison term. He also objected to

the application of the environmental-harm enhancement, contending that it constituted

double-counting and was unsupported by the facts. The district court overruled these

objections.

On appeal, Kroeger renews his arguments that the manufacturing count should

have set the offense level for the group and that the environmental-harm enhancement

should not have been applied. Although the government responds that these arguments

lack merit, it discloses a possible reason--not raised below or on appeal by

Kroeger–why the environmental-harm enhancement should not have been applied. We

focus on this issue.
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II

The base offense level for the endangering-life count was correctly calculated

under section 2D1.10(a)(1) by adding 3 to the offense level established by the drugquantity table in section 2D1.1. See United States v. Loos, 165 F.3d 504, 506-07 (7th

Cir. 1998), cert. denied, 525 U.S. 1169 (1999). The environmental-harm enhancement

found in section 2D1.1(b)(5) should not have been applied, however, because section

2D1.10(a)(1) directs only that the drug-quantity table be used and does not refer to the

rest of section 2D1.1. An instruction to use a particular table from another offense

Guideline refers only to the table, not to the entire offense Guideline, see U.S.S.G. §

1B1.5(b)(2), and this applies specifically to section 2D1.10(a)(1)’s reference to the

drug-quantity table, see id., comment. (n.1).

Kroeger’s failure to raise this argument below or on appeal does not prevent us

from considering it. See United States v. Miller, 152 F.3d 813, 815 (8th Cir. 1998).

When a district court errs, the error is clear under current law, and the error affects the

defendant’s substantial rights, we may exercise our discretion to remedy the error if it

seriously affects the fairness, integrity, or public reputation of judicial proceedings. See

United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc).

In light of the Guidelines provisions explored above, we are persuaded that the

district court erred and that the error was clear under current law (i.e., the Guidelines

themselves). We are aware of no case law interpreting section 1B1.5(b)(2) differently.

See, e.g., United States v. Laihben, 167 F.3d 1364, 1366 n.2 (11th Cir.), cert. denied,.

denied, 527 U.S. 1029 (1999); United States v. Cho, 136 F.3d 982, 984 (5th Cir.

1998). We also conclude that the error affected Kroeger’s substantial rights: when the

environmental-harm enhancement to the endangering-life count is removed, the offense

level is reduced from 37 to 35, and the resulting Guidelines imprisonment range is

reduced from 210-262 months to 168-210 months. Kroeger’s 240-month sentence thus

exceeds the maximum Guidelines sentence by 30 months. See United States v.
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Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (defendant’s “substantial rights were

clearly affected because, as he was sentenced, he would end up serving 17 more

months in prison than he might have served had he been sentenced absent the error”).

Finally, we deem it appropriate to exercise our discretionary reversal power in

these circumstances. See id. (reversing because 17-month sentencing error seriously

affected fairness of sentencing proceedings); United States v. Marsanico, 61 F.3d 666,

668 (8th Cir. 1995) (reversing because not correcting 21-month sentencing error would

result in miscarriage of justice). While it is understandable that the district court

overlooked this issue--neither the parties nor the probation officer who prepared the

PSR brought it to the court’s attention--justice requires that Kroeger be resentenced

under a correct application of the Guidelines. See United States v. Lamb, 207 F.3d

1006, 1009 (7th Cir. 2000) (“No one spelled out for the district judge’s benefit how

[this guideline] works, and it is hard to blame the judge for not [applying it] on his own.

But the application of this guideline is straightforward and has a direct effect on [the

defendant’s] sentence, so we deem the oversight plain error.”).

III

In view of our decision to reverse and remand the case on the basis that the

environmental-harm enhancement was misapplied, we need not reach Kroeger’s

arguments that its application constituted impermissible double-counting and was

factually unsupported. See United States v. Brown, 33 F.3d 1002, 1005 (8th Cir.

1994). We do reach his argument regarding which count should set the offense level

for the group, however, and find it to be without merit.

Kroeger argues that the group’s offense level should be set by the manufacturing

count because it carries a greater maximum term of imprisonment (life) than does the

endangering-life count (10 years). See 21 U.S.C. §§ 841(b)(1)(A)(viii) and 858. He

relies exclusively on United States v. Brinton, 139 F.3d 718 (9th Cir. 1998), in which
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the defendant was convicted of a variety of charges, including the same type of

manufacturing and endangering-life offenses present in the instant case. The Ninth

Circuit held that, in grouping the counts, the offense level for the group should be set

by the manufacturing count because it carried the greater statutory maximum sentence

and thus had “the potential to produce the highest offense level.” See id. at 722.

We reject Kroeger’s argument, and the Ninth Circuit’s approach, because both

rest on an erroneous understanding of the Guidelines. When counts are grouped, the

“most serious” of the grouped counts sets the offense level for the group. But the most

serious count is not the count with the greatest available maximum statutory term of

imprisonment; it is the count with the highest offense level. See U.S.S.G. § 3D1.3(a)

(most serious count is one with “the highest offense level of the counts in the Group”)

& comment. (n.2) (when counts are grouped, “the highest offense level of the counts

in the group is used”); United States v. Whatley, 133 F.3d 601, 607 (8th Cir.) (when

counts are grouped, count with highest offense level sets offense level for group), cert.

denied, 524 U.S. 940, 945 (1998); United States v. Nguyen, 46 F.3d 781, 783 (8thCir.

1995) (same).

In concluding that the count with the greatest statutory maximum sentence had

the potential to produce the highest offense level, the Brinton court went astray: the

statutory maximum may cap the Guidelines imprisonment range, but it has no effect on

the offense level. The Ninth Circuit’s analysis also overlooked the fact that when a

defendant is sentenced on multiple counts, the statutory maximum for any one count

does not cap the total punishment he can receive. See U.S.S.G. § 5G1.2 & comment.;

United States v. Ervasti, 201 F.3d 1029, 1045-46 (8th Cir. 2000).

The district court correctly concluded that the endangering-life count was the

more serious of the grouped counts and correctly used it to set the offense level for the

group. Even after subtracting the environmental-harm enhancement from the
1We express no opinion as to whether the environmental-harm enhancement

could be applied to the manufacturing count, because the issue is not before us. We

merely note that it would not change the most-serious-count analysis because, if the

enhancement were applied, the manufacturing count’s offense level would be 34, which

is still less than the endangering-life count’s offense level of 35.

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endangering-life count’s offense calculations, that count remains the more serious count

and sets the group’s offense level.1

IV

For the reasons set forth above, we reverse the sentence imposed by the district

court, and we remand for resentencing consistent with this opinion.

A true copy.

Attest:

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