United States of America v.  Susan Houchins

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4536 
SUSAN HOUCHINS,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4537 
KENNETH WAYNE HALEY,
Defendant-Appellant. 
Appeals from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden, II, District Judge.
(CR-02-248-5)
Argued: February 25, 2004
Decided: April 14, 2004
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Motz and Judge Gregory joined.
Vacated by Supreme Court, January 24, 2005

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COUNSEL
ARGUED: David Robert Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellants. Stephanie Lynn
Ojeda, Assistant United States Attorney, Charleston, West Virginia,
for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Jonathan D. Byrne, Legal Research and Writing Specialist,
Office of the Federal Public Defender, Charleston, West Virginia, for
Appellant Haley. Sante Boninsegna, Jr., Princeton, West Virginia, for
Appellant Houchins. Kasey Warner, United States Attorney, Charles-
ton, West Virginia, for Appellee.
OPINION
KING, Circuit Judge:
Susan Houchins and Kenneth Wayne Haley were convicted in the
Southern District of West Virginia of conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846. Houchins and
Haley appeal their sentences of seventy months and eighty-seven
months, respectively, contending that the district court erroneously
found their actions to have created a substantial risk of harm to human
life and the environment, and that it thereby improperly enhanced
their Guidelines offense levels. Haley also appeals the court’s refusal
to seal his presentence report ("PSR") from disclosure to Congress.
United States v. Houchins, No. 5:02-00248-04 (S.D. W. Va. June 19,
2003) (the "Houchins Memorandum"); United States v. Haley, No.
5:02-00248-01 (S.D. W. Va. June 19, 2003) (the "Haley Memoran-
dum"). As explained below, we affirm.
I.
A.
On September 13, 2002, Rennis Ward of Ansted, West Virginia,
advised law enforcement authorities that, on September 6 and 7,
2002, he had observed two men manufacturing drugs in his neigh-
bor’s yard. Although Ward was unsure of the drug being manufac-
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tured, he described the process he had observed. Ward advised
Detective Garland Burke of the Fayette County Sheriff’s Office that
the two men, later identified as Kenneth Haley and Roby Dolinger,
Jr., had combined the contents of several containers into a gallon-
sized storage bag into which they had inserted a piece of hose.1 J.A.
125. After the containers were emptied into the bag, one of the men
shook the bag while the other blew through the hose. In this process,
a "cloud of white smoke" was expelled from the bag and drifted
around the yard next to the Ward home "for some time." J.A. 125.
Haley and Dolinger then retrieved some small "white-looking rocks"
from the bag and carried them into the home of Ward’s neighbor,
defendant Susan Houchins.2 J.A. 125. Ward stated that the men there-
after cleaned the containers, placed them in a black bag, and carried
the bag into the Houchins home. Finally, Ward said that two women,
later identified as Houchins and Katie Dolinger, frequently came out
of the house during the process to speak with Haley and Roby Dol-
inger, Jr.3
Approximately two weeks later, on September 25, 2002, a confi-
dential informant (the "CI") contacted Burke and advised him about
a recent telephone call from Haley. J.A. 126. According to the CI,
Haley was manufacturing methamphetamine and had offered to sell
the CI an ounce of the drug for $1,000. The CI and Haley agreed to
meet the next day so that the CI could purchase methamphetamine.
At that meeting, however, Haley advised the CI that he had been
unable to make any "meth," explaining that he needed to secure anhy-
1Ward provided Burke a description of the men and the vehicles they
drove, as well as each vehicle’s license number. J.A. 126. Police officers
verified that one of the vehicles was registered to Haley’s parents and
that the other was registered to Roby Dolinger, Jr. J.A. 126.
2Evidence provided at the sentencing hearing by EPA agent Nick Gil-
lespie indicated that other residences "were sitting fairly close together"
around the Houchins home, and that the Houchins home was located
only ten to twenty yards from neighboring homes. J.A. 56.
3Based on the information provided by Ward, Burke believed that
methamphetamine, a Schedule II controlled substance, was being ille-
gally manufactured, and he obtained a search warrant for the Houchins
residence. Due to the ongoing nature of the investigation, however, the
warrant was not executed. J.A. 126.
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drous ammonia from his source in Ohio in order to manufacture the
substance.4 Haley promised that he would obtain the ammonia and
that he would recontact the CI when methamphetamine was available.5
J.A. 126.
Less than two weeks later, on October 4, 2002, the CI contacted
Burke and informed him that he had again heard from Haley, who
claimed that he had manufactured methamphetamine and was willing
to sell it. The following morning, Burke contacted Ward and asked if
he had observed any suspicious activity at the Houchins home. Ward
reported that Haley’s car had returned to the Houchins home the pre-
vious day, and that Ward had observed the black bag — used earlier
as a storage container by Haley and Roby Dolinger, Jr. — being hid-
den in the crawlspace under the Houchins home. J.A. 127.
Later that morning, the CI met with Haley and Roby Dolinger, Jr.
in Beckley, West Virginia, where Haley and Dolinger were arrested.
A single dose of methamphetamine, containing 0.031 grams, was
found in Haley’s car. Following his arrest, Haley admitted that he had
produced methamphetamine at the home of Rickie Wilson, on nearby
Turkey Creek, the previous day. Haley also explained that he had pro-
cured anhydrous ammonia in Chillicothe, Ohio, for the "cooking" of
methamphetamine. Finally, Haley explained that he had stored some
of the equipment used to manufacture methamphetamine at the
Houchins home.
In the early afternoon of October 5, 2002, the authorities executed
4The defendants used the "anhydrous ammonia method" in their pro-
duction of methamphetamine. Although anhydrous ammonia is not an
ingredient in methamphetamine, its use in the manufacturing process
greatly reduces the time required to produce the drug. "Anhydrous"
means "free from water," and "[w]hen liquid anhydrous ammonia comes
in contact with skin or eyes or when the vapor is inhaled, it can severely
burn and damage tissues. In sufficient quantities and concentrations, it
can cause death." United States v. Smith, 210 F.3d 760, 761 (7th Cir.
2000).
5On October 5, 2002, police officers recorded a conversation between
Haley and the CI, during which Haley said that Houchins had previously
driven him to Ohio to obtain anhydrous ammonia. J.A. 159.
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a search warrant at the Wilson home, and they seized a bucket con-
taining a white frothy substance and a container used to transport
anhydrous ammonia. They also discovered that a small area of the
yard, covered by a tarpaulin, was emitting a strong chemical smell.
According to the officers who executed the warrant, the smell was so
strong that it burned their noses and caused one officer to suffer a
severe headache. Soil samples were collected from locations in the
Wilson yard where the officers suspected methamphetamine had been
manufactured. Later that same afternoon, Wilson advised the officers
that Haley and Katie Dolinger had manufactured methamphetamine
at his residence on the previous day. He also stated that he had visited
in the Houchins home on two other occasions when methamphet-
amine was being manufactured.
Later that day, the authorities executed a search warrant at the
Houchins home in Ansted. In the crawlspace under the house, officers
found a black canvas bag containing various implements commonly
used in the manufacture of methamphetamine. Finally, a soil sample
was collected from the area of Houchins’s yard where Ward had
observed suspicious activity.
B.
On December 23, 2002, Houchins and Haley pleaded guilty to con-
spiracy to manufacture a quantity of methamphetamine, in violation
of 21 U.S.C. § 846. At their sentencing hearing on June 16, 2003, the
probation officer recommended a three-level enhancement, under
§ 2D1.1(b)(5)(B) of the Sentencing Guidelines, to reflect the substan-
tial risk of harm to which the community had been subjected by
Houchins and Haley’s criminal activities. In the PSRs, the probation
officer observed that the conspirators had manufactured a quantity of
methamphetamine outside of residences in Fayette County, West Vir-
ginia, on at least three occasions; that two of their methamphetamine
productions were conducted in a residential area within ten to twenty
yards of neighboring homes; that the process had exposed others in
the community to the possibility of explosions by volatile substances
such as anhydrous ammonia; that EPA tests on soil samples from the
Houchins and Wilson yards indicated that hazardous or toxic sub-
stances had been discharged into the environment during the produc-
tion of methamphetamine; that the production area at the Wilson
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home emitted a chemical odor so strong that it burned the officers’
noses and caused an officer to suffer a severe headache; and that
Haley had transported anhydrous ammonia in an unapproved con-
tainer from Chillicothe, Ohio, to Ansted.
At sentencing, Haley requested the court to seal his PSR so that,
unless requested with particularity, it would be unavailable under the
Feeney Amendment for congressional review.6 Haley maintained that
the right of Congress, pursuant to the Feeney Amendment, to access
his PSR without identifying the items sought, contravenes his Fourth
Amendment rights.
In sentencing Houchins and Haley, the court found that they had
subjected their community to a substantial risk of harm through the
unsafe manufacture of methamphetamine, and it concluded that their
offense levels should be enhanced by three levels pursuant to Guide-
lines § 2D1.1(b)(5)(B). Houchins was sentenced to seventy months in
prison, followed by three years of supervised release, and Haley was
sentenced to eighty-seven months of imprisonment, followed by three
years of supervised release. United States v. Houchins, No. 5:02-
00248-04 (S.D. W. Va. June 16, 2003) (Judgment Order); United
States v. Haley, No. 5:02-00248-01 (S.D. W. Va. June 16, 2003)
(Judgment Order).
On June 19, 2003, in the Houchins Memorandum and the Haley
Memorandum, the court memorialized its rulings of June 16, 2003. In
so doing, the court stated that it had received and reviewed
Houchins’s and Haley’s PSRs and that it "adopted the statements con-
6Prior to the 2003 enactment of the Feeney Amendment, 28 U.S.C.
§ 994(w) required the Sentencing Commission to periodically provide
general sentencing reports to Congress. The Feeney Amendment, enacted
pursuant to the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 (i.e., the "PROTECT Act"),
modified, inter alia, the reporting provisions of § 994(w). See 149 Cong.
Rec. S6708-01 (May 20, 2003). Pursuant thereto, the Chief Judge of each
district is obliged to submit presentence reports to the Sentencing Com-
mission and, upon request, the Commission is to forward those reports
to the House and Senate Committees on the Judiciary. 28 U.S.C.A.
§ 994(w) (West Supp. 2003).
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tained therein as its findings of fact and conclusions of law."
Houchins Memorandum at 4; Haley Memorandum at 5. The court
overruled Houchin’s and Haley’s objections to its application of the
sentence enhancement because it "FOUND and CONCLUDED that
[Houchins and Haley’s] manufacture of methamphetamine created a
danger of substantial harm to human life and, at least temporarily,
substantial harm to the environment." Houchins Memorandum at 4;
Haley Memorandum at 4. The court also addressed Haley’s request
that his PSR be sealed so that Congress would be unable to obtain it
through the generalized request authorized by the Feeney Amend-
ment. The court observed that the extent to which Haley’s right to pri-
vacy might be infringed by Congress’s use of the Feeney Amendment
has not been determined. Because Congress has not yet relied on the
Feeney Amendment to secure and review PSRs, and it is uncertain
whether Congress will rely on the Amendment to request his PSR,
Haley cannot show that the Feeney Amendment has infringed upon
his constitutional rights, or that such an infringement is imminent.
The court concluded, therefore, that Haley lacked standing to chal-
lenge the constitutionality of the Feeney Amendment. Haley Memo-
randum at 8. Houchins and Haley have timely appealed, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
When reviewing a district court’s application of the Guidelines in
the context of an enhancement, we review the court’s findings of fact
for clear error. United States v. Daugherty, 874 F.2d 213, 217 (4th
Cir. 1989). Whether a district court has properly found the existence
of a substantial risk of harm to human life or the environment within
the meaning of Guidelines § 2D1.1(b)(5)(B) is a mixed question of
law and fact which we review de novo. United States v. Layne, 324
F.3d 464, 468 (6th Cir. 2003). We also review de novo whether Haley
possessed Article III standing to challenge the Feeney Amendment.
See Marshall v. Meadows, 105 F.3d 904, 905-06 (4th Cir. 1997).
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III.
A.
On appeal, Houchins and Haley assert that the district court errone-
ously enhanced their sentences pursuant to Guidelines
§ 2D1.1(b)(5)(B) (the "Risk Enhancement").7 The Risk Enhancement
is only applicable when the offense of conviction satisfies two
criteria, that is, it "(i) involved the manufacture of . . . methamphet-
amine; and (ii) created a substantial risk of harm to (I) human life . . .;
or (II) the environment . . . ." Houchins and Haley maintain that,
because they were not operating an "active" methamphetamine labo-
ratory, no precursor chemicals were found at their production sites,
and no quantifiable amounts of toxic or hazardous substances were
disposed of into the environment surrounding those sites, the court’s
application of the Risk Enhancement to their offense levels was
improper.
In pleading guilty to the offense of conspiracy to manufacture
methamphetamine, Houchins and Haley conceded that their conspir-
acy offense satisfies the first prong of the Risk Enhancement — it
involved the manufacture of methamphetamine. They contend, how-
ever, that the second prong of the Risk Enhancement is not met. Spe-
cifically, they assert that the court erred in applying the Risk
Enhancement because it erroneously "found and concluded" that their
offense "created a danger of substantial harm to human life and, at
least temporarily, substantial harm to the environment." Houchins
Memorandum at 4; Haley Memorandum at 4.
Application Note 20 of § 2D1.1 (the "Application Note") identifies
four factors a sentencing court is to assess in determining whether an
offense created a substantial risk of harm to human life or the envi-
ronment (the "Factors").8 The Factors are designed to assist a sentenc-
7If the Risk Enhancement is applicable, a sentencing court must apply
a three-level enhancement to the defendant’s offense level. Guidelines
§ 2D1.1(b)(5)(B). If the resulting offense level is less than twenty-seven,
the court must increase the offense level to twenty-seven. Id.
8Pursuant to Application Note 20, a sentencing court must include con-
sideration of the following factors in assessing whether an offense cre-
ated a substantial risk of harm to human life or the environment:
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ing court in determining whether there has been a "substantial risk of
harm," as that term is used in the Guidelines. See U.S. Sentencing
Guidelines Manual app. C (vol. II) at 193-94. As explained below, the
sentencing court properly assessed the Factors, and it did not err in
determining that the Risk Enhancement was warranted under each.9
1.
The first Factor of the Application Note (the "Storage Factor")
mandates that a sentencing court consider "[t]he quantity of any
chemicals or hazardous or toxic substances found at the laboratory,
and the manner in which the chemicals or substances were stored."
Houchins and Haley maintain that, because there were no chemicals
(i) The quantity of any chemicals or hazardous or toxic sub-
stances found at the laboratory, and the manner in which
the chemicals or substances were stored.
(ii) The manner in which hazardous or toxic substances were
disposed, and the likelihood of release into the environ-
ment of hazardous or toxic substances.
(iii) The duration of the offense, and the extent of the “manu-
facturing operation.
(iv) The location of the laboratory (e.g., whether the laboratory
is located in a residential neighborhood or a remote area),
and the number of human lives placed at substantial risk
of harm.
Although the earlier version of Application Note 20 provided that a
court "may" consider the Factors in determining the applicability of the
Risk Enhancement, the Note was amended on November 1, 2001, and it
now mandates that the Factors "shall" be considered. See U.S. Sentenc-
ing Guidelines Manual app. C (vol. II) at 193-94.
9We address each of the Factors because the sentencing court con-
cluded that all four Factors were applicable. In addressing each Factor,
we do not imply that a sentencing court must find each Factor satisfied
in order to apply the Risk Enhancement. What the court must do, in order
to pass muster on appellate review, is not clearly err in its finding that
the production of methamphetamine created a substantial risk of harm to
human life or the environment.
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found at the Houchins or Wilson homes when the search warrants
were executed, the court erred in deciding that the Risk Enhancement
was applicable to them under the Storage Factor. We disagree. Pursu-
ant to the Storage Factor, a sentencing court must assess the manner
in which the chemicals used in the manufacturing process were
stored. The court found that Haley had transported anhydrous ammo-
nia from Ohio to West Virginia "in containers not designed or suitable
for the purpose of transporting such material," and that the ammonia
was then used by the conspirators in the manufacture of methamphet-
amine. J.A. 81. Although no hazardous substances were found at
either of the production sites (i.e., the Houchins or Wilson homes)
when the search warrants were executed, the court correctly deter-
mined that the interstate transportation of anhydrous ammonia in non-
suitable containers supported application of the Risk Enhancement.
2.
The second Factor of the Application Note (the "Release Factor")
requires that the sentencing court consider "the manner in which haz-
ardous or toxic substances were disposed, and the likelihood of
release into the environment of hazardous or toxic substances." In
assessing the Release Factor, the court found that the manufacturing
and cleanup process employed by Houchins and Haley was "very
informal" and that it was "sloppily done." J.A. 81-82. The court
observed that Ward watched as a white cloud from the manufacturing
process drifted over the yard next to his home. J.A. 81. And EPA
agent Gillespie stated that there was an area of "white crystalized
material" and dead vegetation in the Houchins yard, resulting from
the improper disposal of byproducts from methamphetamine produc-
tion. According to the officers who executed the Wilson search war-
rant, the chemical smell emanating from the area covered by the
tarpaulin in the Wilson yard was so strong that it burned their noses
and caused an officer to suffer a severe headache. Finally, EPA tests
on soil samples taken from the Houchins and Wilson yards revealed
that hazardous or toxic substances were discharged into the environ-
ment during the production of methamphetamine. In view of this evi-
dence, we are unable to conclude that the court clearly erred in
finding that hazardous materials had been released in an environmen-
tally unsafe manner. In these circumstances, the Release Factor sup-
ported application of the Risk Enhancement.
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3.
The third Factor of the Application Note (the "Extent Factor")
compels a sentencing court to consider "the duration of the offense,
and the extent of the manufacturing operation". In this regard,
Houchins and Haley do not dispute that they were involved in the
manufacture of methamphetamine on three occasions between Sep-
tember 5 and October 5, 2002. The duration of their activities there-
fore supports a duration-based enhancement. See Layne, 324 F.3d at
470 (observing that two-week operation of methamphetamine lab sup-
ports duration-based enhancement under Extent Factor). The circum-
stances surrounding the manufacture of methamphetamine by the
defendants bolstered the court’s determination that the Extent Factor
supported application of the Risk Enhancement. Houchins and Haley
procured anhydrous ammonia, a key ingredient in the production of
methamphetamine, in Ohio, and they transported it to West Virginia.
The manufacturing process, therefore, spanned approximately 170
miles and two states. In view thereof, the court correctly determined
that Houchins and Haley’s involvement in the production of metham-
phetamine supported application of the Risk Enhancement.
4.
The final Factor of the Application Note (the "Location Factor")
mandates a sentencing court to consider "the location of the labora-
tory (e.g., whether the laboratory is located in a residential neighbor-
hood or a remote area), and the number of human lives placed at
substantial risk of harm." It is undisputed that the Houchins home and
the Wilson home were located in residential areas, and Houchins and
Haley concede that the Risk Enhancement was supported by the
Location Factor.10
10Because of the explosive nature and dangerous properties of anhy-
drous ammonia, the method of methamphetamine production employed
by Houchins and Haley is one of the most hazardous methods of produc-
ing methamphetamine. J.A. 178.
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B.
In addition to attacking the court’s analysis of the Factors,
Houchins and Haley challenge the applicability of the Risk Enhance-
ment on the basis of timing, maintaining that the "substantial risk of
harm" requirement contains a temporal element overlooked by the
sentencing court. Specifically, Houchins and Haley maintain that the
Risk Enhancement is justified only under circumstances in which the
Government can show that, at the time of a defendant’s arrest, there
was: (1) a present danger to persons and the environment caused by
an active and ongoing involvement in the production of methamphet-
amine, or (2) that the defendant was in possession of quantifiable
amounts of hazardous or toxic precursor chemicals. Houchins and
Haley contend that, because they were not actively producing
methamphetamine and did not possess quantifiable amounts of dan-
gerous precursor chemicals when the search warrants were executed,
there was no clear and present danger to the community, and the Risk
Enhancement was inapplicable. Reviewing this issue de novo, we
agree with the district court that the term "significant risk of harm"
need not be construed so narrowly. J.A. 80.
There is nothing in Guidelines § 2D1.1(b)(5)(B) that creates or jus-
tifies a temporal requirement for the Risk Enhancement. And imply-
ing a temporal requirement in the Enhancement would, in certain
circumstances, produce absurd results. The plain language of the
Enhancement requires a sentencing court to enhance the offense level
of a defendant convicted of the manufacture of methamphetamine if
the offense "created a substantial risk of harm to . . . the environ-
ment." If it contained a temporal requirement, the Risk Enhancement
would be inapplicable regardless of how severely the environment
might have been damaged by the manufacture of methamphetamine,
so long as the environmental degradation had been remediated by the
time of the defendant’s arrest. Because there is no temporal require-
ment in the Guidelines, and because implying such an element would
occasionally produce an absurd result, we agree with the district
court. Accordingly, the court properly applied the Risk Enhancement
in its sentencing of Houchins and Haley.
C.
We next turn to Haley’s contention that the sentencing court erred
in declining to seal his PSR from disclosure to Congress. Haley
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asserts that the court was required to seal his PSR from congressional
review because the Feeney Amendment, in authorizing Congress to
obtain his PSR through a generalized request, violates his Fourth
Amendment right to privacy. As explained below, we agree with the
district court.
Haley contends that his PSR should not be provided to Congress
absent a particularized request for information contained therein.
Haley premised this contention on the Southern District of West Vir-
ginia’s Local Rule of Criminal Procedure 3.01, which provides that
"no confidential records of the court . . . , including presentence . . .
records, shall be producible except by written petition to the court
particularizing the need for specific information." Prior to enactment
of the Feeney Amendment, § 994(w) of Title 28 required the Sentenc-
ing Commission to periodically provide general sentencing reports to
Congress, and individual PSRs were not included in these reports.
The Feeney Amendment, enacted pursuant to the PROTECT Act,
modified the reporting provisions of § 994(w). See 149 Cong. Rec.
S6708-01 (May 20, 2003). Under the amended § 994(w), the Chief
Judge in each district must submit to the Sentencing Commission "a
written report of the sentence, the offense for which it is imposed, the
age, race, sex of the offender, and information regarding factors made
relevant by the guidelines. The report shall also include . . . the pre-
sentence report . . . ." 28 U.S.C.A. § 994(w)(1) (West Supp. 2003)
(emphasis added). Furthermore, § 994(w)(2) provides that "[t]he
Commission shall, upon request, make available to the House and
Senate Committees on the Judiciary, the written reports and all
underlying records accompanying those reports described in this sec-
tion . . . ." Id. § 994(w)(2) (West Supp. 2003) (emphases added).
Haley maintains that his Fourth Amendment rights would be contra-
vened by disclosure of his PSR to Congress, and he contends that the
Feeney Amendment is rendered unconstitutional by providing for
such disclosure. The court, in refusing to seal Haley’s PSR from
review under § 994(w), concluded that to rule on the constitutionality
of the Feeney Amendment would be improper because "the lack of
confidentiality [resulting from the Feeney Amendment] is something
yet to be determined." J.A. 93.
Pursuant to Article III of the Constitution, a claimant must possess
standing in order to pursue a federal claim, in that the "federal courts
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are restricted to the adjudication of ‘cases’ and ‘controversies.’" See
Piney Run Pres. Ass’n v. County Comm’rs of Carroll County, Mary-
land, 268 F.3d 255, 262 (4th Cir. 2001). The Article III standing
inquiry assures "that the legal questions presented to the court will be
resolved, not in the rarefied atmosphere of a debating society, but in
a concrete factual context conducive to a realistic appreciation of the
consequences of judicial action." Id. (quoting Valley Forge Christian
Coll. v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 472 (1982)). To possess Article III standing, (1) an individ-
ual must have suffered an "injury in fact," (2) the injury must be
"fairly traceable to the challenged action of the defendant," and (3) it
must be likely that the injury will be redressed by a favorable deci-
sion. S. Blasting Servs., Inc. v. Wilkes County, 288 F.3d 584, 595 (4th
Cir. 2002) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000)). Because Haley cannot
meet the initial requirement of standing — that is, he cannot establish
that he has suffered an injury in fact — the dismissal of his claim
must be sustained.
An injury in fact is shown when an individual suffers "‘an invasion
of a legally protected interest which is concrete and particularized, as
well as actual or imminent.’" Piney Run Pres. Ass’n, 268 F.3d at 263
(quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149, 154 (4th Cir. 2000)). Put simply, Haley’s claim of
injury is conjectural and hypothetical, in that he has failed to show
that any privacy interest in his PSR has been invaded or that such an
invasion is imminent. The district court was not provided with any
evidence, and we are aware of none, indicating that the Commission
has submitted Haley’s PSR to Congress. Furthermore, there is no
indication in the record, or in Haley’s submissions to this court, that
a Committee on the Judiciary has requested, or plans to request,
Haley’s PSR for review. The court therefore correctly concluded that
Haley lacks standing to challenge the constitutionality of the reporting
provisions of the Feeney Amendment. See Friends for Ferrell Park-
way, LLC v. Stasko, 282 F.3d 315, 322 (4th Cir. 2002) (observing that
injury-in-fact requirement is not satisfied if injury is conjectural or
hypothetical).
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IV.
Pursuant to the foregoing, we affirm the application of the Risk
Enhancement in the sentencing of Houchins and Haley, and we affirm
the dismissal of Haley’s challenge to the Feeney Amendment.
AFFIRMED
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