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

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No. 06-3050

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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. *

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Submitted: December 12, 2006

Filed: April 4, 2007

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

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LOKEN, Chief Judge.

Michael Patterson entered a conditional plea of guilty to an indictment that

charged him with being a felon in possession of a firearm, attempting to manufacture

methamphetamine, possessing a sawed-off shotgun in furtherance of a drug offense,

and manufacturing an unregistered firearm (a pipe bomb). The district court1

sentenced Patterson to 207 months in prison, applying a six-level enhancement for

causing a substantial risk of harm to the life of a minor in the commission of the

methamphetamine manufacturing offense. Patterson appeals, challenging the denial
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of his motion to suppress, the six-level enhancement, 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 manufacturing and dealing methamphetamine at that

location. When Fletcher opened the door, Cartwright said they were there to pick up

a reported meth lab. Fletcher denied having a meth lab but consented to a search of

the residence, invited the officers in, and 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 ahead and search. I don’t mind. We don’t have

anything to hide.” Cartwright saw a partially open closet door and asked Fletcher to

turn on its light. When she did so, Cartwright 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 vacillated, Cartwright said they were stopping the search and

would apply for a search warrant. After checking everyone’s identification and

learning that Patterson was a convicted felon, the officers arrested Patterson and

Fletcher for possession of an illegal sawed-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 Fletcher’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 search uncovered multiple firearms, six grams
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of methamphetamine, and a variety of chemicals and equipment used in the

manufacture of methamphetamine. The pipe 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 understand. Johnson Davis, Patterson’s former

boss, testified that, when Patterson called 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 officer 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 Officer Cartwright looked in the closet without

asking Patterson for consent. Fletcher’s mother 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 district 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 district 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 resident cannot be justified . . . 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 for 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” when
2

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.

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one co-tenant has consented 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 closet. As that credibility finding is not clearly

erroneous, Cartwright searched the closet with the consent of both Fletcher and

Patterson, uncovering probable cause 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 the 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 fuel, 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 forensic chemist with the Arkansas State

Crime Laboratory, testified that she photographed 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 glass jar half full of a yellow liquid on top and

a brown “reaction sludge” on the bottom. When tested, the contents were found to

contain methamphetamine, pseudoephedrine, phosphorus, iodine, and acid. Sullivan

explained that the two layers of liquid meant “they actually have finished the cook and

are getting ready to extract out the methamphetamine.” In response to a question by

the court, Sullivan opined that a meth lab “of this nature” would constitute a serious

danger to a minor: 
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Just the chemicals that are there, the 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 capacity. All the chemicals are either

carcinogenic or of some nature like that, like mutagenic, they can cause

mutations and birth defects. Anytime you have a strong acid or a base

around a child, you have a danger because . . . 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 these 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, which 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 offense are important.” United States v. Pinnow, 469

F.3d 1153, 1157 (8th Cir. 2006).

In this case, the district court read the text of § 2D1.1(b)(8)(C) at sentencing.

Neither counsel nor the court referred to Application Note 20(A), but the testimony

of 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) factors most relevant to endangering the life of
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We note that Application Note 20(A) applies to offenses described in

§ 2D1.1(b)(8)(B) as well as offenses described in § 2D1.1(b)(8)(C). No doubt for this

reason, some of the Note 20(A) factors, such as the manner of chemical 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 offense created a substantial risk of harm

to the life of a particular minor child.

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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 was 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 sentence 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 determined 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 lower and sentenced Patterson to 87 months
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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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