1 The HONORABLE WILLIAM R. WILSON, JR ., United States District Judge for the Eastern District of Arkansas 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3050

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Michael Paul Patterson, *
* Defendant - Appellant. *

___________ Submitted: December 12, 2006 Filed: April 4, 2007

___________ Before LOKEN, Chief Judge, MURPHY and SHEPHERD, Circuit Judges.

___________ LOKEN, Chief Judge. Michael Patterson entered a conditional plea of guilty to an indictment that charged him with being a fe lon in possession of a firearm, attempting to manufacture methamphetamine, possessing a sawed-off s hotgun in furtherance of a drug offense, and manufacturing an unregistered firearm (a pipe bomb). The district court 1 sentenced Patterson to 207 months in pris on, applying a six-level enhancement for causing a substantial risk of harm to th e life of a minor in the commission of the methamphetamine manufacturing offense. Patterson appeals, challenging the denial-2- of his motion to suppress, the six-level e nhancement, and the reasonableness of his sentence. We affirm.

Suppression Issues. At the suppression hearing, Officers Brad Cartwright and Robert Roe testified that they went to the residence of Patterson and his girlfriend, Kendra Fletcher, for a “knock and talk” after receiving an anonymous tip that Patterson and Fletcher were manufacturi ng and dealing methamphetamine at that location. When Fletcher opened the door, Car twright said they were there to pick up a reported meth lab. Fletcher denied havi ng a meth lab but consented to a search of the residence, invited the officers in, a nd signed a consent-to-search form. The officers explained that she could revoke her consent at any time.

The officers and Fletcher passed through the kitchen and into the living room, where Patterson was visiting with a friend, Randy Bearden. Patterson asked what was going on; Cartwright identified himself and said he was investigating a report of a meth lab there. Patterson said, “Go aheadand search. I don’t mind. We don’t have anything to hide.” Cartwright saw a partia lly open closet door and asked Fletcher to turn on its light. When she did so, Cartwri ght saw in plain view a sawed-off shotgun and glass pipes for smoking methamphetamine. At this point, Fletcher said, “I don’t think this is right.” Cartwright asked Fletcher if she was revoking her consent to search. When Fletcher vac illated, Cartwright said they were stopping the search and would apply for a search warrant. Afte r checking everyone’s identification and learning that Patterson was a convicted fe lon, the officers arrested Patterson and Fletcher for possession of an illegal sawe d-off shotgun and drug paraphernalia. They allowed Bearden to leave.

Patterson was promptly taken to jail. Fletcher was not taken to jail until her mother came to pick up Fletche r’s three or four year old son, who also lived in the house. The residence was then secured while Cartwright and Roe applied for and obtained a search warrant. The warrant s earch uncovered multiple firearms, six grams-3- of methamphetamine, and a variety of chemicals and equipment used in the manufacture of methamphetamine. The pi pe bomb was found in Fletcher’s vehicle, where Patterson later admitted putting it.

Defense witnesses gave conflicting testimony at the suppression hearing. Fletcher testified that the officers pushed their way into the house and coerced her into signing a consent form she did not unders tand. Johnson Davis, Patterson’s former boss, testified that, when Patterson calle d to ask for advice during the encounter, Davis told Patterson he did not have to consent to a search of his home without a warrant, and Davis then heard a belligerent o fficer say, “You either are going [to] let us search it and if you make us go get a warrant you are going to have to leave the premises.” Patterson testified that OfficerCartwright looked in the closet without asking Patterson for consent. Fletcher’s mo ther testified that, when she came to pick up the child, an officer was “digging through stuff in the closet” while Fletcher was telling him to stop searching.

Crediting the officers’ testimony, the di strict court denied Patterson’s motion to suppress, finding that both Fletcher and Patterson consented to Cartwright’s search of the closet, where he found a sawed-off shotgun and drug paraphernalia that gave the officers probable cause to arrest Patterson and Fletcher and obtain a warrant to search the remainder of the residence and their vehicles.

On appeal, Patterson argues that the distri ct court violated the Supreme Court’s recent decision that “a warrantless search of a shared dwelling . . . over the express refusal of consent by a physically present resi dent cannot be justif ied . . . on the basis of consent given to the police by another resident.” Georgia v. Randolph , 126 S. Ct. 1515, 1526 (2006). Here, had the district court credited Patterson’s testimony that Officer Cartwright avoided asking Patterson fo r consent until after the closet search, we would need to construe and apply the Supreme Court’ s caveat that the police have no obligation “to take affirmative steps to find a potentially objecting co-tenant” when2 After its adoption effective December 16, 2000, this provision was moved from § 2D1.1(b)(6)(B) to § 2D1.1(b )(5)(C) to § 2D1.1(b)(6)(C) to its present location, all without substantive change. See U.S.S .G. App. C, amendments 608, 620, 667, 681.
-4- one co-tenant has consente d to the search. Randolph , 126 S. Ct. at 1527. But the district court did not credit Patterson’s testimony, instead finding that Patterson expressly consented to a search of the clos et. As that credibility finding is not clearly erroneous, Cartwright searched the closetwith the consent of both Fletcher and Patterson, uncovering probable cau se to arrest them both and to obtain a warrant to search the remainder of their residence. The motion to suppress was properly denied.

The Sentencing Enhancement. The advisory guidelines provide for a sixlevel enhancement if th e methamphetamine manufacturing offense created a substantial risk of harm to the life of a minor. See U.S.S.G. § 2D1.1(b)(8)(C). 2 At Patterson’s change-of-plea hearing, he admitted that the warrant search uncovered a propane bottle with torch, a can of butane fu el, a large quantity of 7% iodine tincture, a bottle of liquid fire, a bottle of peroxide , a bottle of lye, matchbooks, lighter fluid, and a beaker and a coffee pot containing liquids from which methamphetamine and pseudoephedrine were recovered.

At sentencing, Christy Sullivan, a forens ic chemist with the Arkansas State Crime Laboratory, testified that she phot ographed these chemicals and equipment during the warrant search and then tested some of the items at the lab. Sullivan testified that the items included a pint gla ss jar half full of a yellow liquid on top and a brown “reaction sludge” on th e bottom. When tested, the contents were found to contain methamphetamine, pseudoephedrine, phosphorus, iodine, and acid. Sullivan explained that the two layers of liquid mean t “they actually have finished the cook and are getting ready to extract out the methamphetamine.” In res ponse to a question by the court, Sullivan opined that a meth lab “of this nature” would constitute a serious danger to a minor:-5- Just the chemicals that are there, th e strong acids, the sulfuric acid, the bases that were found, all of those are skin irritants and can cause burns on the skin. Iodine, once it’s in the elemental form, is a danger to . . . just anyone because it’s a respiratory irritant. It actually will form acid in your lungs and decrease lung capac ity. All the chemicals are either carcinogenic or of some nature like that, like mutagenic, they can cause mutations and birth defects. Any time you have a strong acid or a base around a child, you have a danger becau se . . . most children don’t know not to bother things of that nature , especially unmarked, in unmarked containers.

Based upon this evidence, the district court overruled Patterson’s objection to the sixlevel enhancement, finding that “having thes e chemicals there did create a substantial risk of harm to a minor that’s three or four years old.”

On appeal, Patterson argues that the district court erred in applying this guidelines provision because the court at sentencing did not expressly apply Application Note 20(A) to § 2D1.1, whic h provides that “the court shall include consideration” of enumerated factors in determining whether an offense created a substantial risk of harm to human life or the environment. The Note 20(A) factors include the quantity of chemicals, the manner in which they were stored and disposed, the duration and extent of the manufacturing, the location of the laboratory (residential or remote), and the number of human lives placed at risk. We have recently noted that, while they are not exclusive, “the Note 20(A) factors may not be ignored and . . . the details of the particular offens e are important.” United States v. Pinnow , 469 F.3d 1153, 1157 (8th Cir. 2006).

In this case, the district court read th e text of § 2D1.1(b)(8)(C) at sentencing. Neither counsel nor the court referred to Application Note 20(A), but the testimonyof forensic analyst Sullivan, supported by Patterson’s admissions at the change-ofplea hearing, addressed “the details of the particular offense.” Her testimony specifically addressed the Note 20(A) factor s most relevant to endangering the life of3 We note that Application Note 20(A) applies to offenses described in § 2D1.1(b)(8)(B) as well as o ffenses described in § 2D1.1( b)(8)(C). No doubt for this reason, some of the Note 20(A) factors, su ch as the manner of ch emical disposal, the likelihood of release into the environment, the extent of the manufacturing operation, and the number of human lives endangered, are of little significance in determining whether a methamphetamine manufacturing offe nse created a substantial risk of harm to the life of a particular minor child.
-6- Fletcher’s young child -- the presence of an operating lab in a small duplex apartment in which the child was living, the nature of the chemicals that were present and the specific risks of harm they posed to the child, and the careless manner in which the chemicals were stored from the perspective of child safety. We decline to require a rote recitation of the Note 20(A) factors when, as here, the sentencing record makes clear that their substance has been adequately considered. 3 Moreover, were a rote recitation required, Patterson’ s failure to raise the issue at sentencing would mean review only for plain error. See generally United States v. Pirani , 406 F.3d 543, 549- 50 (8th Cir.) (en banc), cert. denied , 126 S. Ct. 266 (2005). Here, the alleged error was not plain. Nor did it affect Patterson’ s substantial rights because the legislative history of the enhancement confirms that it wa s intended to apply to this offense. See Pinnow , 469 F.3d at 1156-57.

Reasonableness of the Sentence. Finally, Patterson argues that the sentence is unreasonable because the district court felt unduly bound by the advisory guidelines and therefore “must have” based the sent ence on an unlawful presumption that a guidelines-range sentence is reasonable. Of course, the present law of this circuit is that a sentence within a properly de termined advisory guidelines range is presumptively reasonable, an issue the Supreme Court of the United States currently has under review. Whether or not a guidelines range sentence is presumptively reasonable under United States v. Booker , 543 U.S. 220 (2005), the guidelines range is clearly entitled to some consideration. Here, after correctly determining that range, the district court found no reason to go lo wer and sentenced Patterson to 87 months-7- in prison, the bottom of that range, plus a consecutive ten-year mandatory minimum sentence for being a felon in possession of a sawed-off shotgun in furtherance of his drug trafficking offense. After careful review of the sentencing record, including Patterson’s prior criminal history, we agree with the district court that this sentence is reasonable.

The judgment of the district court is affirmed.

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