FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 21, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-17242

Non-Argument Calendar

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D. C. Docket No. 07-00032-CR-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TONY FINCH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(August 21, 2009)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Tony Finch appeals his sentence of 228 months of imprisonment for
conspiring to manufacture, to possess with intent to distribute, and to distribute a

quantity of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1). Finch challenges the

amount of methamphetamine attributed to him in the presentence investigation

report and the enhancement of his sentence for causing a substantial risk of harm to

a minor. We affirm.

I. BACKGROUND

On October 7, 2008, officers of the Sheriff’s Department of Bulloch County,

Georgia, went to Finch’s residence to investigate whether he had a car that had

been reported stolen. At the sight of the officers on Finch’s property, Victoria

Foley discarded a device used to smoke methamphetamine, and she and Marlena

Taylor fled. When Taylor was apprehended, she told officers that Finch and

Benjamin Roberts were inside the home. After one officer recalled that there was

an outstanding warrant to arrest Finch, officers entered the house and discovered

Finch asleep in a bedroom. The officers found Roberts and Julie Livingston in

another bedroom.

Officers secured Finch’s house and the surrounding property. The officers

entered a large storage building about 20 feet from Finch’s house and saw a bucket

of crushed pseudoephedrine tablets. After Finch refused to consent to a search of

his property, the officers obtained a search warrant. The officers returned to the

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storage building, where they found a white plastic bucket that contained several

coffee filters and a strainer; a refrigerated tank containing anhydrous ammonia; a

green backpack that contained packages of salt, funnels, liquid Heet, Liquid Fire

drain cleaner, and lithium batteries; a blue backpack that contained a strainer and

muratic acid; two Mason jars that had been used to manufacture

methamphetamine; two pump sprayers that emitted hydrochloric gas; and a silver

thermos that contained anhydrous ammonia. The officers next searched Finch’s

home and discovered several cans of starting fluid; a device used to smoke

methamphetamine; a digital scale; coffee filters; and Xanax tablets. The officers

seized 108.3 grams of methamphetamine from Finch’s property.

For the next several days, officers interviewed Finch and his cohorts about

the methamphetamine operation. Finch admitted that he had entered a conspiracy

to manufacture methamphetamine five months before his arrest. Finch stated that

the conspirators produced between 7 and 54 grams each week and he received 3.5

grams for his participation. Finch stated that he witnessed three members of the

conspiracy manufacture methamphetamine in a shed behind Glenn Shuman’s

property in Brooklet, Georgia. Finch said that the group produced as much as 80

grams of methamphetamine at each cook, and he had seen 80 grams of

methamphetamine at Shuman’s residence on October 5, 2008.

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Other cohorts described Finch’s role in the methamphetamine operation.

Roberts, Livingston, and Taylor admitted that they had lived with Finch and had

shared methamphetamine. Kelly Coesens told investigators that she and Finch

“used methamphetamine extensively” the weekend before his arrest. Foley, who

had been discovered outside Finch’s home, told officers that she had purchased

two grams of methamphetamine from Finch on two occasions and that Finch

supplied all the methamphetamine used by Taylor, Roberts, and Livingston. Foley

stated that Brian Dean, a member of the methamphetamine operation, and Taylor

had a two-year-old daughter who had been at Finch’s home the morning of

October 7, 2008. Foley also stated that she had transported Finch, Taylor, and

Taylor’s daughter to Shuman’s residence, where they obtained anhydrous ammonia

that the group brought to Finch’s residence in a silver thermos. Shuman admitted

that he and Finch had manufactured methamphetamine on two occasions and that

the silver thermos that had been discovered in the large storage building belonged

to Jason Thorne, another member of the conspiracy.

While Finch was incarcerated, he gave an inmate a telephone number to call

to order methamphetamine. After the inmate told authorities about the encounter,

federal agents arranged for the inmate to speak to Finch a second time. During

their second encounter, Finch advised the inmate to tell the female who answered

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the telephone to contact “JJ,” an alias for Thorne, to obtain methamphetamine.

Finch told the inmate that he had two tanks of anhydrous ammonia hidden near the

Ogeechee River.

Finch, Taylor, Thorne, and a codefendant were indicted for conspiring to

manufacture, possessing with intent to distribute, and distributing 50 grams or

more of methamphetamine or 500 grams or more of a mixture of a substance

containing a detectable amount of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1),

(b)(1)(A)(viii). The government offered to recommend that Finch receive a threelevel reduction for acceptance of responsibility in exchange for his plea of guilty to

the lesser-included offense of conspiracy to manufacture, to possess with intent to

distribute, and to distribute a quantity of methamphetamine. Id. §§ 846, 841(a)(1).

Finch admitted, as part of the factual basis of the plea agreement, “that his plea of

guilty constitute[d] proof of the lesser included offense . . . without any drug

quantity threshold being alleged for penalty enhancing purposes.” The district

court accepted Finch’s plea of guilty.

The presentence investigation report attributed to Finch “a minimum of 350

grams of methamphetamine mixture.” The report based its calculation “on the

108.3 grams of methamphetamine mixture seized [from Finch’s property] on

October 7, 2007, and a historical quantity based on statements of codefendants,

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unindicted coconspirators, and witnesses.” The report provided a base offense

level of 30, United States Sentencing Guidelines § 2D1.1(c)(5) (Nov. 2007),

increased that level by six points because the decision to transport anhydrous

ammonia in a thermos created a substantial risk of harm to a minor, id. §

2D1.1(b)(10)(D), and decreased that level by three points for acceptance of

responsibility, id. § 3E1.1. The report provided a sentencing range between 235

and 293 months of imprisonment based on Finch’s criminal history of VI as a

career offender. Id. § 4B1.1. Because the statutory maximum sentence was 20

years, 21 U.S.C. § 841(b)(1)(C), the Sentencing Guidelines provided a sentence

between 235 and 240 months of imprisonment.

Finch objected to the presentence report on two grounds. Finch argued that

he was responsible for 108.3 grams of methamphetamine and the report relied on

unreliable sources to attribute to Finch an additional 241.7 grams of

methamphetamine. Finch also argued that there was no evidence to establish that

transporting the thermos of anhydrous ammonia put Taylor’s two-year-old

daughter at risk of harm and the six-level enhancement was intended to apply when

a minor is near a methamphetamine laboratory.

At the sentencing hearing, the government presented evidence to respond to

Finch’s objections. Victoria Foley testified that, after she transported Finch,

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Thorne, Taylor, and Taylor’s two-year-old daughter to Shuman’s house, the group

smoked methamphetamine, and they returned to Finch’s house with a thermos of

anhydrous ammonia. Ross Butler, a forensic chemist, testified that transporting

anhydrous ammonia in a thermos or other unapproved container is extremely

dangerous because the substance must be kept at very low temperatures and, if it

exceeds negative 28 degrees, the substance could erode the thermos or cause it to

burst and emit toxic gas that could cause those exposed to suffocate. Butler also

testified that the various chemicals discovered in Finch’s storage building were

highly flammable and the inhalation of those chemicals could burn the respiratory

system or cause death. Agent Kent Musey testified about the methamphetamine

seized from Finch’s residence and the statements by Finch’s cohorts attributing

additional amounts of methamphetamine to Finch.

The district court overruled Finch’s objections to the presentence report.

The district court ruled that the report provided a “fair analysis” about Finch’s

responsibility for 350 grams of methamphetamine. The court also ruled that, based

on the testimony about the volatility of anhydrous ammonia and its proximity to

Taylor’s child, “the six point[]” enhancement was “warranted.”

The district court warned Finch that he faced a “severe sentence” because he

“[had] never taken a proceeding seriously.” The court acknowledged that Finch

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was addicted to methamphetamine, and the court stated that the drug had “ruined”

Finch’s life and, “by [his] involvement as a manufacturer and distributor, [Finch]

[had] no doubt ruined the lives of others.” Based on “[a]ll the factors set forth in

18 U.S.C. 3553(a)[,] . . . Finch’s record and disregard, and aplomb . . . to continue

aiding and abetting drug distribution even after his arrest[,]” the district court

sentenced Finch to 240 months of imprisonment. “[B]ecause [Finch] entered a

plea and agreed to waive [his] appeal,” the district court “[took] 12 months off”

Finch’s sentence and imposed a term of 228 months of imprisonment.

II. STANDARDS OF REVIEW

We review for clear error “a district court’s determination of the quantity of

drugs used to establish a base offense level[.]” United States v. Simpson, 228 F.3d

1294, 1298 (11th Cir. 2000). We review de novo the application of the risk-to-aminor enhancement to a sentence. United States v. Florence, 333 F.3d 1290, 1292

(11th Cir. 2003). The district court may apply the enhancement when it finds “that

the defendant’s actions placed a minor at risk.” Id. at 1293.

III. DISCUSSION

Finch challenges his sentence on two grounds. First, Finch complains the

district court credited unreliable evidence to attribute to Finch more

methamphetamine than the amount seized from his residence. Second, Finch

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contends he is not entitled to a six-level enhancement because the transportation of

anhydrous ammonia was not sufficiently dangerous to place Taylor’s child at risk.

These arguments fail.

The district court did not clearly err by attributing to Finch 350 grams of

methamphetamine. The government presented reliable and specific evidence that

Finch was responsible for more methamphetamine than that discovered by law

enforcement. See United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).

In addition to the 108 grams seized from Finch’s residence, Finch admitted that

during the conspiracy he had participated in about 20 methamphetamine cooks that

produced between 7 and 54 grams, for which he received 70 grams of

methamphetamine; he had participated in methamphetamine cooks at Glenn

Shuman’s residence that produced 80 grams of methamphetamine; and he had

observed 80 grams of methamphetamine at Shuman’s residence two days before

the search of his house. See United States v. Ismond, 993 F.2d 1498, 1499 (11th

Cir. 1993) (“For sentencing purposes a member of a drug conspiracy is liable for

his own acts and the acts of others in furtherance of the activity that the defendant

agreed to undertake and that are reasonably foreseeable in connection with that

activity.” (citing U.S.S.G. § 1B1.3(a)(1)). Victoria Foley, Kelly Coesens, and

Glenn Shuman told authorities that Finch either sold or provided to them additional

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amounts of methamphetamine. Ample evidence supported the amount of

methamphetamine attributed to Finch.

The district court also did not err by enhancing Finch’s sentence for creating

a substantial risk of harm to the life of a minor. The district court was entitled to

credit testimony from Foley that she, Finch, Thorne, and Taylor transported

anhydrous ammonia in an unapproved container and in a vehicle occupied by

Taylor’s two-year-old daughter. See United States v. Lee, 68 F.3d 1267, 1275

(11th Cir. 1995). Based on the serious hazards created by handling anhydrous

ammonia, the district court did not err by finding that Finch’s participation in that

conduct exhibited a reckless disregard for the safety of the child.

IV. CONCLUSION

Finch’s sentence is AFFIRMED.

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