United States v. Carney

* Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 6, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40151
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
DAVIS WAYNE CARNEY, also known as “God”
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas, Sherman
4:03-CR-84-1
--------------------
Before REAVLEY, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Davis Wayne Carney (“Carney”) appeals the district
court’s determination that the six-level enhancement for causing
a substantial risk of harm to the life of a minor while producing
methamphetamine, pursuant to U.S.S.G. § 2D1.1(b)(5)(C), applied
to his conduct. We reverse and remand for further proceedings
consistent with this opinion.
I. INTRODUCTION

-- 1 of 7 --

Carney pled guilty to count 1 and count 8 of a 21-count
indictment against him and 17 other co-defendants. Count 1
charged Carney with conspiracy to manufacture, distribute or
possess with intent to manufacture, distribute or dispense 500
grams or more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. § 846.
Count 8 charged Carney with knowingly using, carrying or
possessing a firearm during, in relation to, and in furtherance
of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1).
The district court found that Carney’s total offense level
was 35, representing an initial base offense level of 32, with a
three-level reduction for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1(a) and (b), and a six-level enhancement for
causing a substantial risk of harm to the life of a minor
pursuant to U.S.S.G. § 2D1.1(b)(5)(C).
II. STATEMENT OF THE FACTS
Carney admits that he illegally manufactured methamphetamine
(“meth”). At the time of his arrest, on May 24, 2001, he was
living outside of Whitesboro, Texas, along with his wife and his
four young children. When the police arrived on that day to
execute a search warrant and to arrest him, Carney, after seeing
the police, grabbed his three-year-old son and entered his
storage building/shed. Moments later, Carney emerged without a
fight and surrendered to police.

-- 2 of 7 --

The storage shed contained paraphernalia used to “cook”
methamphetamine, including two Hydrogen Chloride (“HCl”)
generators inside of a trash bag, a jar containing a cloudy
liquid (later determined to be methamphetamine in the later
stages of production), 3.3 grams of methamphetamine, and tools or
equipment commonly used for the production of methamphetamine.
The police also found two rifles, a revolver and a part of a
semiautomatic or automatic pistol in the shed.
An HCl generator emits HCl gas, which can be fatal to humans
when inhaled in concentrated amounts. A “generator” is a bottle
containing sulfuric acid and salt, with a hose that emits gas
used to produce powder methamphetamine. The HCl generators had
been used, at a different location, within the previous 24 hours
and had been “capped off” before being placed in a trash bag for
disposal. Nevertheless, Sergeant Whitney, the police officer who
initially searched the shed, testified that the two HCl
generators were still reacting and emitting some gas, even though
they had been “capped off.”
Additionally, Sergeant Whitney testified that the jar found
in the shed contained meth that was crystallizing. At that stage
of production, a dangerous gas is generated in the air.
Furthermore, he testified that the dangerous gas emitted during
meth production can permeate walls and textiles and cause injury
as much as a month later.
When he searched the shed, Sergeant Whitney wore an

-- 3 of 7 --

1 “If the offense (i) involved the manufacture of
amphetamine or
methamphetamine; and (ii) created a substantial risk of harm to
the life of a minor or an incompetent, increase by 6 levels.”
U.S.S.G. § 2D1.1(b)(5)(C).
artificial personal respirator for precaution because the odor of
HCl gas was present. However, the police did not conduct any
tests to determine the concentration of HCl gas in the air inside
of the shed, nor was there any testimony as to the degree of
danger or type of harm that existed in the shed.
III. DISCUSSION
A. Standard of Review
We review legal conclusions related to the application of
the sentencing guidelines de novo. United States v. Huerta, 182
F.3d 361, 364 (5th Cir. 1999).
B. Discussion
Section 2D1.1(b)(5)(C) of the United States Sentencing
Guidelines provides for an increase of six offense levels when
the defendant engaged in the manufacture of methamphetamine and
created a substantial risk of harm to the life of a minor.1
Carney argues that the phrase “harm to the life of a minor”
contemplates serious harm, not just any harm. The district court
found, and the government argues on appeal, that the words “to
the life” in the guidelines are inconsequential surplusage, and
that the enhancement applies whenever the manufacture of
methamphetamine creates a substantial risk of any harm to a
minor.

-- 4 of 7 --

2 Section 3612(a)(2)(B) of the Methamphetamine Anti-
Proliferation Act of 2000, Pub. L. 106-310.
At the sentencing hearing, the district judge said:
... it appears to me that it requires simply a risk of
harm. Not a risk to the life of the minor, but a risk of
harm. I don’t know why they put the words “to the life.”
They could have just said “substantial risk of harm to a
minor.”
The district court erred by simply dismissing the words “to
the life” when interpreting the guideline. Congress chose these
specific words and we must assume that Congress and the
Sentencing Commission included the same for a reason.
When construing a criminal statute, we “must follow the
plain and unambiguous meaning of the statutory language.” United
States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). Moreover, “a
statute must, if possible, be construed in such fashion that
every word has some operative effect.” Id. (citations omitted).
If Congress had intended for § 2D1.1(b)(5)(C) to apply
whenever the manufacture of methamphetamine caused a substantial
risk of any type of harm to a minor, then it would have passed a
law that said “substantial risk of harm to a minor.” However,
Congress did not do so. Instead, it passed a law that requires a
substantial risk of harm to the life of a minor.2 The inclusion
of the words “to the life” indicates that Congress wanted to
punish situations in which children faced a substantial risk of
serious harm, as opposed to any type of harm. Harm “to the life
of a minor” suggests a type of harm that could cause death or a

-- 5 of 7 --

3 The legislative history for the Methamphetamine Anti-
Proliferation Act of 2000 indicates that Congress was concerned
with more serious exposure to meth laboratories than that which
occurred in the instant case. The House Judiciary Committee
Report states: “More disturbing is that most of these
laboratories are situated in residences, motels, trailers, and
vans, and often times are operated in the presence of children.”
H.R. Rep. 106-878 at 22 (Sept. 21, 2000). The Report also says:
“Law enforcement officials cite frequent discovery of children
living and playing among toxic and volatile chemicals in home-
based amphetamine and methamphetamine laboratories.” Id. at 27.
The district court may find this legislative history to be
helpful when considering if the six-level enhancement should
apply to Carney’s conduct.
serious injury that would adversely affect the life of a minor.
We also note that the application notes for § 2D1.1(b)(5)(C)
include four factors that a court “shall” apply when determining
if the six-level enhancement applies to a defendant’s conduct.
U.S.S.G. § 2D1.1, cmt. n. 20(A). The district court in the
instant case did not consider these factors with respect to
Carney’s conduct. It was error to not do so, and on remand the
district court should weigh the factors provided in the
application notes.
IV. Conclusion
The district court erred by using an incorrect standard to
determine if the six-level enhancement in § 2D1.1(b)(5)(C)
applied to Carney’s conduct. The district court required a
substantial risk of any type of harm, whereas the language of the
guideline provision actually requires a “substantial risk of harm
to the life of a minor.” U.S.S.G. § 2D1.1(b)(5)(C).3
Accordingly, for the foregoing reasons, the judgment of the
district court is REVERSED and the case REMANDED for further

-- 6 of 7 --

proceedings consistent with this Court’s opinion.

-- 7 of 7 --