United States v. Royall

* 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that this opinion should not be published and is not precedent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
June 13, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-51308
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROWDY WAYNE ROYALL, also known as
Rowdy Royall,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-155-1
--------------------
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rowdy Wayne Royall appeals his guilty-plea conviction for
attempting to manufacture methamphetamine. Royall argues on
appeal that only violations of the federal statutes listed in
application note 19 to U.S.S.G. § 2D1.1 trigger the two-level
enhancement under U.S.S.G. § 2D1.1(b)(5)(A). He also argues for
the first time on appeal that he did not violate 49 U.S.C.
§ 5124, a statute listed in application note 19, because the

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Government did not prove that he moved anhydrous ammonia in
interstate commerce. Royall’s legal arguments regarding the
operation and applicability of the application note presuppose
there was no error in the application of the enhancement itself.
Because we find this premise to be false, we do not reach the
legal arguments presented by Royall with respect to the
application note.
The district court’s legal conclusions are reviewed de novo,
and its findings of fact are reviewed for clear error. United
States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993). Our
review of the record indicates that there was insufficient
evidence presented to the district court to support its
application of the enhancement under U.S.S.G. § 2D1.1(b)(5)(A).
The enhancement is applicable under U.S.S.G. § 2D1.1(b)(5)(A)(i)
if the offense involved “an unlawful discharge, emission, or
release into the environment of a hazardous or toxic substance.”
See U.S.S.G. § 2D1.1(b)(5)(A)(i). Although the presentencing
report contained evidence that there was a discharge, emission,
or release of ammonia fumes and the Government argued that
anhydrous ammonia is a hazardous material, there was no evidence
presented to the district court to support a finding that the
discharge, emission, or release of anhydrous ammonia in this case
was “unlawful.”
The enhancement is applicable under U.S.S.G.
§ 2D1.1(b)(5)(A)(ii) if the offense involved “an unlawful

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transportation, treatment, storage, or disposal of a hazardous
waste.” See U.S.S.G. § 2D1.1(b)(5)(A)(ii). The Government
argued that Royall unlawfully transported and stored the
anhydrous ammonia in violation of federal and state laws,
including 49 U.S.C. § 5124, 42 U.S.C. § 6928, and Texas Health
and Safety Code § 504.001. The Government did not provide
sufficient evidence that a violation of any of these statutes
supported the enhancement, however, as it did not show that the
anhydrous ammonia in this case was a “hazardous waste.”
We note that, even if the anhydrous ammonia in this case was
a hazardous waste, the Government did not prove that the
transportation of anhydrous ammonia in this case was “unlawful”
under 49 U.S.C. § 5124. The Government argued that Royall
violated 49 U.S.C. § 5124 because Royall was transporting
anhydrous ammonia in violation of the Hazardous Materials Table
under 49 C.F.R. § 172.101. The table, however, does not speak to
the transportation of hazardous substances in passenger motor
vehicles.
Accordingly, as there was no evidence presented to the
district court to show that Royall’s actions were “unlawful”
under either part of the enhancement and because there was no
evidence presented to the district court that the anhydrous
ammonia in this case was a “hazardous waste” as required by the
second part of the enhancement, the district court’s finding that
the enhancement applied was clearly erroneous. Royall’s sentence

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is vacated, and the case is remanded to the district court for
resentencing.
VACATED AND REMANDED.

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