United States v. Stepan

* 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that this opinion should not be published and is not precedent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
April 9, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50840
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES RONNIE STEPAN, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-30-3
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
James Ronnie Stepan, Jr., appeals his sentence following his
guilty-plea conviction for conspiring to manufacture
methamphetamine, in violation of 18 U.S.C. §§ 841(a)(1), 846. He
argues that there was insufficient evidence to support the district
court’s determination that cash found on his property was drug-
sales proceeds. Thus, he argues that the district court erred by
converting the cash into an amount of methamphetamine for which to
hold him responsible.

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The district court’s determination of the amount of drugs
attributable to a defendant for sentencing purposes is a finding of
fact that this court generally reviews for clear error. United
States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998). Further,
this court defers to the district court’s superior position in
making credibility determinations. United States v. Perez, 217
F.3d 323, 331-32 (5th Cir. 2000). Given due regard to the
opportunity of the district court to judge the credibility of the
witnesses, we conclude that Stepan has not shown that the district
court clearly erred in determining the amount of drugs involved in
the conspiracy.
Stepan also argues that a two-level increase in his base
offense level was erroneously awarded for his release of anhydrous
ammonia. Stepan argues that anhydrous ammonia is not a hazardous
substance under U.S.S.G. § 2D1.1(b)(5)(A). Because Stepan did not
raise this argument below, we review for plain error. See United
States v. Sneed, 63 F.3d 381, 390 (5th Cir. 1995).
The two level increase applies to any discharge, emission, or
storage violation covered by certain federal statutes, including
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9603(b). U.S.S.G. § 2D1.1,
comment. (n.19). Ammonia is listed in the hazardous materials
table of substances regulated under CERCLA. 49 C.F.R. § 172.101,
App. A (Table). Thus, Stepan has not shown that the district court
plainly erred; its judgment is AFFIRMED.

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