US v. Barton

Filing 920070905

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4927

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RANDOLPH BARTON, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:05-cr-01180-HFF-2)

Submitted:

August 27, 2007

Decided:

September 5, 2007

Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Melissa J. Kimbrough, KIMBROUGH & LONGSHORE, Columbia, South Carolina, for Appellant. Regan A. Pendleton, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Randolph Barton pled guilty pursuant to a written plea agreement to one count of conspiracy to possess with intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2000). Barton was sentenced Finding no

by the district court to 125 months' imprisonment. error, we affirm.

On appeal, counsel filed a brief pursuant to Anders v. California, meritorious district 386 U.S. 738 (1967), but asserting there were no the

grounds

for in

appeal, its

questioning of the

whether

court

erred

application

Sentencing

Guidelines.

Barton was notified of his right to file a pro se

supplemental brief, but did not do so, and the Government elected not to file a responsive brief. When reviewing the district court's application of the Sentencing Guidelines, we review findings of fact for clear error and questions of law de novo. United States v. Green, 436 F.3d Section for a

449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). 2D1.1(b)(6)(B) of the Sentencing Guidelines provides

three-level increase if the offense involved the manufacture of methamphetamine and created a significant risk of harm to the environment. In determining whether a significant risk was

created, a court should consider: (1) the quantity of any chemical, hazardous, or toxic substances, and the manner in which such

- 2 -

substances were stored; (2) the manner in which the substances were disposed, and the likelihood of release into the environment; (3) the duration of the offense; and (4) the location of the

laboratory.

U.S. Sentencing Guidelines Manual § 2D1.1, comment.

(n.20(A)); see United States v. Houchins, 364 F.3d 182, 187-90 (4th Cir. 2004), vacated on other grounds, 543 U.S. 1104 (2005). Barton contends that the district court erred in its application of § 2D1.1(b)(6)(B). He asserts that the Government's

witness failed to identify a specific harm or environmental injury stemming from the production of methamphetamine. argues that the chemicals and compounds Moreover, Barton used to produce

methamphetamine are not individually unlawful to possess, use, dispose of, and store. However, as alleged in the indictment, the conspiracy to manufacture methamphetamine spanned more than two years. Testimony at the sentencing hearing established that numerous chemicals and other materials were found at Barton's residence. They were stored in regular household garbage bags and placed in an open horse trailer, which was described as having an "ether ammonia smell emitting from it." The trailer was located in a residential area, Neither the

and was emptied twice a year at a public landfill.

method of storage nor the manner of disposal was proper. Moreover, a hazardous material team was required to clean up Barton's

- 3 -

property.

Thus, under these circumstances, we conclude that the

district court properly applied the environmental risk enhancement. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. Accordingly, we affirm the judgment of the district court. This court requires that counsel inform her client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from

representation.

Counsel's motion must state that a copy thereof We dispense with oral argument because

was served on the client.

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.

AFFIRMED

- 4 -