* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### August 19, 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LANE LELAND LARSON, Defendant-Appellant. No. 04-4030 (D.C. No. 2:03-CR-383-PGC)

(Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.

Lane Leland Larson pled guilty to a one count indic tment, admitting he possessed 2.88 grams of pseudoephedrine with intentto manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846. At sentencing, the district court adjusted Mr. Lane’s base offense level pursuant to U.S.S.G. § 2D1.1(b)(5)(C) based on its finding that his offens e “created a substantial risk of-2-

harm to the life of a minor.” Mr. Larson maintains that we should vacate his sentence because the court’s use of § 2D1.1(b)(5)(C ) to enhance his sentence violates his Sixth Amendment right to have a jury d etermine beyond a reasonable doubt facts which support his sentence. We affirm. The initial presentence report (PSR) calculated Mr. Larson’s base offense level at 18 and recommended a three-point reduction for acceptance of responsibility. Aplt. Br. Attach. 4, at 4. It did not include a recommendation for an enhancement pursuant to § 2D1.1(b)(5)(C). Basedon a criminal history category of VI and a total offense level of 15, Mr. Larson’s applicable guidelines range was 41 to 51 months imprisonment. Id . at 15. The government objected to the initial PSR based on the lack of an enhancementfor “the manufacture of methamphetamine by the defendant [that] created a s ubstantial risk of harm to a minor pursuant to U.S.S.G. § 2D1.1(b)(5)(C).” Id . Attach. 5, at 1. “After receiving additional investigative materials , including cleanup information and crime scene photographs, and discus sing the application with counsel, the probation office agree[d] with the gov ernment,” and applied the enhancement. Id. The addition of this enhancement elevated Mr. La rson’s total offense level to 27, id . Attach. 6, at 4, resulting in an applicable guide line range1 The district court applied a two-level downward dep arture for exceptional

post-offense rehabilitative efforts, resulting in an offense level of 25 and a guideline range of 110-137. It sentenced Mr. Larso n to 110 months imprisonment. -3- of 130-162 months imprisonment. Id . at 15. 1 Mr. Larson objected to the enhancement, contending the government did not prov e by clear and convincing evidence that his offense conduct actually created a substantial risk of harm to his minor child. At sentencing, the government elicited testimony fr om Officer Mike Renckert, a law enforcement agent who participated in the investigation of Mr. Larson. Rec., vol. II at 7. Officer Renckert test ified that he was employed by Utah’s Adult Probation and Parole Office and in that capacity had gone to visit Mr. Larson, who resided with his parents. Id . Mr. Larson’s parents allowed the agents to enter their home and reported that their son was not there but that he resided in the basement. As Officer Renckert enter ed the stairway to the basement, he was confronted with what he described as a “metallic-type smell in the air” that “you can actually taste,” an odor typ ical to methamphetamine labs. Id. at 7-8. Mr. Larson crossed paths with Officer Renckert as the agent was coming down the stairs. Id . at 9. He told the agent his bedroom was the room on the right-hand side of the basement hallway. Id . Officer Renckert testified that he-4-

examined that room and there were no personal effec ts in it to show it was Mr. Larson’s. Id . The officer then witnessed Mr. Larson’s three ye ar old son coming down the hallway. Id. at 10. The little boy told Officer Renckert that “he spent the night with his father and that he was sleeping in the room to the left.” Id

. Officer Renckert entered the bedroom on the left-ha nd side of the hallway and observed various items indicative of methamphetamin e production including Red Devil Lye, muriatic acid, propane, acetone, a torch , a Coleman stove, a hotplate, and red phosphorous residue. Id . at 11-12, 43. He also noticed the lab was in close proximity to the home’s water heater and furn ace, creating a risk of combustion. Id . at 14. During Mr. Larsen’s testimony, he concede d that his son slept in the basement, but he maintained that his s on neither entered nor slept in the bedroom where the meth lab was located. Id . at 32-33. The district court held that the § 2D1.1(b)(5)(C) e nhancement was applicable to the defendant’s offense conduct. Id . at 43. The court based its decision on the following findings, applying a “cle ar and convincing” standard of proof: (1) Mr. Larson’s child believed that the roo m where the methamphetamine laboratory was located was his bedroom; (2) the ite ms found in that room were dangerous and could have attracted the child’s atte ntion; (3) even if the child did not sleep in the room with the methamphetamine labo ratory, he easily could have wandered into the room and found the dangerous subs tances; and (4) the vapors-5-

that were accumulating from the lab could have pose d a risk of an explosion in the basement of the home. Id . at 42-44. Mr. Larson contends the district court’s applicatio n of the enhancement to his sentence constitutes a violation of Blakely v. Washington , 124 S. Ct. 2531 (2004), because the Sixth Amendment requires any fa ct that increases a defendant’s penalty beyond the statutory maximum to be proved to a jury beyond a reasonable doubt. Subsequent to briefing in the instant appeal, the Supreme Court extended Blakelyto the federal sentencing guidelines, holding the Sixth Amendment requires that “[a]ny fact (other than a p rior conviction) which is necessary to support a sentence exceeding the maxim um authorized by the facts established by a plea of guilty or a jury verdict m ust be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker , 125 S. Ct. 738, 756 (2005). To remedy the guidelines’ Sixth Amendment violation, the Court made the guidelines advisory in all cases. Id . at 757. In addition, the Court expressly stated that its “remedial interpretation of the Sentencing Act” must be applied “to all cases on direct review.” Id . at 769. Because Mr. Larson did not raise his Sixth Amendment argument in the district court, we review his claim for plain error . F ED . R. C RIM
. P. 52(b); see also United States v. Dazey , 403 F.3d 1147, 1173-74 (10th Cir. 2005). To establish plain error, Mr. Larson must demonstrate there was (1) error (2) that is-6-

plain and (3) that affected his substantial rights. United States v. Cotton , 535 U.S. 625, 631 (2002); United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005). If he satisfies his burden of establis hing the first three prongs of the plain error test, we may exercise our discretion to correct the error if it “seriously affect[ed] the fairness, integrity or public reputation of the judicial proceedings.” Johnson v. United States, 520 U.S. 461, 469-70 (1997) (quoting United States v. Olano , 507 U.S. 725, 736 (1993)); Gonzalez-Huerta , 403 F.3d at 732. We conduct plain error analysis “less rigidly when rev iewing a potential constitutional error.” Dazey , 403 F.3d at 1174 (quoting United States v. James , 257 F.3d 1173, 1182 (10th Cir. 2001)). It is clear after Booker that Mr. Larson’s Sixth Amendment rights were violated when his sentence was increased based on f acts found by the judge. It is well established that constitutional Bookererror satisfies the first two criteria for plain error review. Id. at 1174-75. Our analysis turns, then, on the thir d and fourth criteria. An error that violates a defendant’s substantial ri ghts “must have been prejudicial: It must have affected the outcome of t he district court proceedings.” Olano , 507 U.S. at 734. Mr. Larson bears the burden of establishing prejudice under the Olano test. Gonzalez-Huerta , 403 F.3d at 733. He must show “a reasonable probability that, but for [the error cla imed], the result of the-7-

proceeding would have been different.” United States v. Dominguez Benitez , 124 S. Ct. 2333, 2339 (2004). In a case involving cons titutional Bookererror, we have held that a defendant may satisfy the burden i n at least two ways: First, if the defendant shows a reasonable probabil ity that a jury applying a reasonable doubt standard would not have found the same material facts that a judge found by a preponderance of the eviden ce, then the defendant successfully demonstrates that the error below affe cted his substantial rights . . . . Second, a defendant may show that t he district court’s error affected his substantial rights by demonstrating a reasonable probability that, under the specific facts of his case as analy zed under the sentencing factors of 18 U.S.C. § 3553(a), the district court judge would reasonably impose a sentence outside the Guidelines range. Dazey , 403 F.3d at 1175 (footnote omitted). Before the district court, Mr. Larson did not intro duce any affirmative evidence which supports either of these contentions . Indeed, he did not controvert the agent’s testimony that his son was i n close proximity to toxic and potentially lethal substances when the agents arriv ed to investigate the methamphetamine laboratory. Moreover, it is undisp uted that Mr. Larson’s son generally spent time in the basement where there wa s a risk of an explosion due to the vapors that were accumulating from the methamph etamine laboratory. These facts alone defeat the contention that a jury apply ing a reasonable doubt standard would not have found the same material facts the ju dge found by clear and convincing evidence. Mr. Larson also points to nothing in the record indicating that the district court would reasonably impose a s entence outside the guideline-8-

range. As a result, we conclude that judicial fact -finding did not affect Mr. Larson’s substantial rights under the third prong o f the plain error test. Even assuming Mr. Larson could show that the senten cing error affected his substantial rights, he has not met his “burden of persuading us that the error seriously affected the fairness, integrity, or publ ic reputation of judicial proceedings,” United States v. Mozee , 405 F.3d 1082, 1091 (10th Cir. 2005), thereby failing to satisfy the fourth prong of plai n error review. In the context of a constitutional Bookererror, “the question before us is whether a revers al and remand for resentencing by the district court undera discretionary guidelines regime would advance the fairness, integrity, or pu blic reputation of the courts.” Id. It cannot be said that sentencing a defendant in accordance with a guideline range supported by facts he testified to at the sen tencing hearing would undermine the fairness, integrity, or public reputation of the courts. For the aforementioned reasons, we AFFIRM

. SUBMITTED FOR THE COURT Stephanie K. Seymour Circuit Judge