United States District Court, E.D. Tennessee
A. VARLAN, UNITED STATES DISTRICT JUDGE
a pro se prisoner's motion to vacate, set aside,
or correct a sentence under 28 U.S.C. § 2255 [No.
3:16-cv-433-TAV, Doc. 1]. Respondent responded in opposition
[Id., Doc. 5]. For the following reasons, the §
2255 motion [Id., Doc. 1] will be denied and this
action will be dismissed.
the summer of 2010 through early February 2013, Petitioner
participated in a large-scale methamphetamine-manufacturing
conspiracy [No. 3:13-cr-84-TAV-CCS-4, Doc. 76.].
Specifically, she purchased at least 150 grams of
pseudoephedrine, an ingredient of methamphetamine, and
assisted with the hazardous process of “cooking”
methamphetamine [Id., Docs. 76, 202]. Petitioner
told investigators that she was present for at least a dozen
“cooks” by codefendant Charles Craig Rhodes
[Id., Doc. 231]. During the conspiracy, Petitioner
became pregnant and ultimately gave birth to a child who
exhibited signs of opiate and amphetamine exposure and
drug-withdrawal symptoms [Id.].
November 2013, Petitioner pleaded guilty, pursuant to a
written plea agreement, to conspiring to manufacture at least
50 grams of methamphetamine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(A) [Id.,
Docs. 76, 256]. She agreed she was subject to a ten-year
statutory mandatory minimum sentence and that the Court had
discretion to impose any sentence up to the statutory maximum
of life imprisonment [Id.]. She also acknowledged
that her sentence would be “based upon the entire scope
of [her] criminal conduct, [her] criminal history, and
pursuant to other factors and guidelines as set forth in the
Sentencing Guidelines and . . . 18 U.S.C. § 3553”
[Id.]. As part of her plea agreement, Petitioner
also waived her right to appeal, reserving only the right to
appeal a sentence above the guidelines range
“determined by” the Court [Id., Doc.
on the drug quantity stipulated as part of the guilty plea,
the Presentence Investigative Report (PSR) listed
Petitioner's base offense level as 32 [Id., Doc.
112]. The PSR applied a three-level enhancement under
U.S.S.G. § 2D1.1(b)(13)(C)(ii)(I), on the basis that
Petitioner's offense involved the manufacture of
methamphetamine and created a substantial risk of harm to
human life [Id.]. Specifically, the probation
officer referred to evidence that Petitioner had
manufactured-and smoked-methamphetamine while in the late
stages of pregnancy [Id.]. A three-level reduction
for acceptance of responsibility yielded a total offense
level of 32 and, in light of Petitioner's criminal
history category of IV, a guidelines range of 168 to 210
months' imprisonment [Id.].
objected to the three-level enhancement, claiming that her
proximity to an operational methamphetamine laboratory while
pregnant and her methamphetamine use were
“irrelevant” to a determination of whether the
offense of conviction created a substantial risk of harm to
human life [Id., Doc. 125]. Petitioner also argued
that this enhancement was inappropriate because an unborn
fetus is not specifically contemplated in § 2D1.1(b)(13)
as constituting “human life” [Id.].
Subsequently, the United States requested a six-level
enhancement under U.S.S.G. § 2D1.1(b)(13)(D)-regarding
substantial risk of harm to the life of a minor-instead of
the three-level enhancement objected to by
Petitioner-regarding human life generally [Id., Doc.
172]. In response to Petitioner's suggestion that the
enhancement was inapplicable if the risk of harm related to
an unborn fetus, the United States argued that Petitioner not
only created a substantial risk of harm to her child in
utero, but also created a substantial risk of harm to the
child after birth, as evidenced by the severe effects of drug
dependence that he displayed once born [Id.].
was revised to contain the six-level § 2D1.1(b)(13)(D)
enhancement instead of the three-level §
2D1.1(b)(13)(C)(ii)(I) enhancement [Id., Doc. 202].
The corresponding total offense level was thus 35 and yielded
an advisory guidelines range of 235 to 293 months'
imprisonment [Id.]. Petitioner again objected to any
“risk of harm” enhancement [Id., Docs.
208, 214, 217].
the sentencing hearing, the United States presented testimony
from two witnesses and, among other evidence, a 40-minute
video recording from a methamphetamine laboratory on May 10,
2012 [Id., Doc. 231]. The video depicted two
methamphetamine “cooks” occurring simultaneously;
Petitioner was present and actively participating in the
process, although a codefendant appeared to be the primary
person manufacturing methamphetamine on that date
[Id.]. In the video, Petitioner can be seen chopping
and grinding pseudoephedrine pills, stirring various
components, and smoking the finished methamphetamine
[Id.]. During the cooking process Petitioner held
her shirt over her nose numerous times, and the video also
depicted codefendants burning trash and byproducts from the
methamphetamine manufacturing process [Id.].
was visibly pregnant in the video recording-she gave birth
twenty-six days after the video was taken [Id.].
explain the significance of the activities shown on the
video, the United States called Tennessee Bureau of
Investigation Special Agent Matthew Thompson; for the
previous fourteen years, he had obtained annual
certifications from the Tennessee Methamphetamine Task Force
qualifying him to safely dismantle methamphetamine
laboratories and supervise others doing so [Id.].
Agent Thompson estimated that, between his own investigations
and assisting others, he had been present in approximately
400 to 500 methamphetamine laboratories. He later explained
that, because of the inherently hazardous health conditions
posed by methamphetamine laboratories, investigating agents
wear full-body chemical suits, gloves, boots, and
self-contained breathing apparatuses when entering such
Thompson testified that the type of manufacturing process
depicted in the video was the “anhydrous ammonia
method” or “ephedrine reduction method”
[Id.]. Specifically, the coconspirators combined
muriatic acid, acetone, anhydrous ammonia, lithium, and
hydrogen chloride, then added a heat source, “basically
boiling a flammable liquid” and thereby creating a
“huge [risk of] fire and explosion”
[Id.]. Agent Thompson explained that an explosion
could occur if any water-or even human sweat-touched the
anhydrous ammonia [Id.]. Moreover, he testified that
anhydrous ammonia's strong odors can cause dizziness and
respiratory problems, and holding fabric over one's nose
would not provide protection from its odors and vapors
[Id.]. Additionally, the coconspirators burned
various items associated with the methamphetamine
manufacturing process, which he stated could have caused an
explosion or further disseminated toxic fumes [Id.].
Agent Thompson also noted that the methamphetamine laboratory
shown in the video was in a building just fifteen feet away
from railroad tracks, so close that the building shook
whenever a train passed, and, in his opinion, increasing the
risk of explosion and the possibility of harm to anyone on a
passing train [Id.].
other witness for the United States-Lynnie Vaughn, a
caseworker with the Tennessee Department of Children's
Services-testified that Petitioner gave birth to a
drug-dependent son on June 5, 2012, less than one month after
the cook depicted in the video [Id.]. At the time of
birth, Petitioner tested positive for oxycodone and
amphetamines; three days later, she tested positive for
methamphetamine, oxycodone, amphetamine, benzodiazepines,
opiates, and marijuana [Id.]. The child's
meconium tested positive for methamphetamine, and he had to
remain in the neonatal intensive-care unit for nearly seven
weeks because of medical complications stemming from drug
withdrawal [Id.]. Petitioner herself admitted the
severity of her son's drug dependence, acknowledging that
“he could have died” because of her actions
on Vaughn's personal observations of the child in the
hospital and her review of his medical records, she testified
that Petitioner's son experienced withdrawal symptoms
including uncontrollable whole-body tremors [Id.].
On most days, the baby was “jittery” when awake
[Id.]. He vomited when attempting to feed
[Id.]. In the end, he received morphine for
thirty-nine consecutive days to help control his withdrawal