U.S. v. Wilson

• Citation: 106 F.3d 1140
• Decision Date: 14 February 1997
• Docket Number: No. 95-7245,95-7245
• Parties: UNITED STATES of America v. Damon J. WILSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1140

106 F.3d 1140

UNITED STATES of America v. Damon J. WILSON, Appellant.

No. 95-7245.

United States Court of Appeals,

Third Circuit.

Argued April 25, 1996.

Decided Feb. 14, 1997.

Kenneth E. Fink (argued), Ferry, Joseph & Fink, Wilmington, DE, for Appellant.

Colm F. Connolly (argued), Office of the United States Attorney, Wilmington, DE, for Appellee.

Before: BECKER, NYGAARD and LEWIS, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

This is an appeal from the imposition of the mandatory minimum sentence for possession with intent to distribute a controlled substance. The district court found that the defendant's possession of a firearm in connection with prior drug dealing activities precluded the application of the Safety Valve Provision of the Sentencing Guidelines. For the reasons which follow, we conclude that the district court was correct and will affirm the sentence imposed.

I.

In mid-September, 1994, Damon J. Wilson was arrested, charged and pleaded guilty to one count of possession with intent to distribute over 50 grams of cocaine base (i.e., crack). See 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The government initially recommended to the district court that it sentence him in accordance with § 5C1.2 (the "Safety Valve Provision") of Chapter Five of the United States Sentencing Guidelines (the "Guidelines"), codified at 18 U.S.C. § 3553(f). ¹ The government later reversed its position and argued that Wilson was ineligible for the Safety Valve Provision.

Under this provision, a district court may depart from the minimum mandatory guideline range when calculating a defendant's sentence if five criteria are met. ² The issue presented at sentencing was whether Wilson had satisfied one of these criteria, namely § 5C1.2(2), which requires the defendant to establish that he or she did not possess a firearm in connection with the offense. ³ See, e.g., United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir.1996) (noting that although there is no legislative comment on the issue, courts have placed the burden of proof under the Safety Valve Provision on the defendant). The commentary to the Safety Valve Provision defines "offense" as "the offense of conviction and all relevant conduct." U.S.S.G. § 5C1.2 comment. (n. 3).

After conducting three sentencing hearings, the district court concluded that Wilson had possessed "a firearm in connection with the offense. In connection meaning in connection with his drug enterprise and gun enterprise that he was running in Wilmington ..." from May, 1994 until his arrest in September, 1994. Sentencing Hearing Transcript, Appellant's Appendix at A-202. Accordingly, it declined to apply the Safety Valve Provision and instead sentenced Wilson to the 10-year minimum mandatory term of imprisonment.

The district court's conclusion was based on the following evidence.

Wilson admitted in the Pre-Sentence Report (PSI) that he dealt drugs in May and June of 1994. According to the Probation Officer, Wilson "candidly explained how he became involved in the sale of drugs, and how his involvement 'escalated' over the course of the year prior to his arrest for the instant offense." PSI at p 12. Wilson further stated to the Probation Officer that "there were times that he wanted to 'chill out' and stop selling drugs, but he felt extremely pressured by the person for whom he sold drugs to 'stay in the game.' " Id. He even expressed relief when he was apprehended because he was hurting people, but in order to stop he would have been putting his own life in jeopardy. The foregoing suggests that he was continuing to sell drugs between May and June and September of 1994, when he was arrested in the instant case. He also admitted to supervising others in selling drugs in the vicinity of the corner of Fourth and Broom in Wilmington, Delaware over the course of that year. Witnesses testified that Wilson had the reputation of being a drug dealer at that location. When arrested in September on the corner of Third and Broom, he possessed both cocaine and marijuana.

Wilson stated that he moved from his mother's home because of his involvement in the sale of illegal drugs and the potential danger this could cause to his family, specifically his two younger brothers. Coy Haynes, Sean Joyce and Theodore Marek admitted that at around the same time, Wilson arranged for them to purchase guns for him. According to their testimony, from May 6 to May 23, 1994, Wilson purchased eleven guns for himself and those who worked for him selling drugs. On June 14, 1994, he purchased three guns and attempted to purchase more. He made another attempted purchase at some time before July 4, 1994. According to Joyce, Wilson attempted to initiate a cocaine-for-guns transaction and was possibly involved in gun sales to buyers in New York State.

The district court also considered that Wilson's September, 1994, arrest was not his first encounter with the law. He had been arrested in June, 1994, for possession of a Tec .22 with an obliterated serial number, a gun meeting the description of one of those bought by Wilson on May 6. He was never charged in connection with that offense, the case having been nol prossed for reasons not apparent from the record. He told investigators that he did not carry a weapon after the June arrest; however, those who worked for him continued to carry weapons and provided Wilson with protection.

II.

The question in this appeal is whether the district court erred in concluding that Wilson did not qualify for sentencing under the Safety Valve Provision because he possessed a firearm in connection with the offense. The court's finding that the "safety valve" did not apply was grounded in its belief that Wilson's past drug dealing constituted conduct relevant to the offense of conviction and that Wilson's involvement with guns was connected to this relevant conduct. Our discussion will focus upon the validity of these premises.

We exercise appellate jurisdiction over this case pursuant to 28 U.S.C. § 1291. ⁴ We review for clear error the district court's factual findings regarding Wilson's past involvement with drugs. See United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991). By contrast, "[w]hether the facts found by the district court warrant application of a particular guideline provision is a legal question and is to be reviewed de novo." See United States v. Partington, 21 F.3d 714, 717 (6th Cir.1994). Accordingly, our review of the district court's ultimate refusal to invoke the Safety Valve Provision is plenary.

A.

Based upon the government's submissions, we believe that the following, taken from its Supplemental Brief, represents the clearest articulation of its position in this case:

[t]he government does not argue and the record evidence does not support a finding that Wilson's past involvement with firearms occurred on a sufficiently regular basis or was sufficiently similar to the instant drug offense of conviction to constitute "relevant conduct." Wilson's past drug dealings, however, were sufficiently regular and had sufficient temporal proximity and similarity to the instant offense to constitute relevant conduct; and because Wilson possessed firearms during this relevant conduct of drug dealing, he fails to satisfy 18 U.S.C. § 3553(f)(2).

Government's Supplemental Letter Brief at 1 (emphasis removed). Essentially, the government argues that Wilson's prior drug dealing is "relevant conduct" because it was part of the "same course of conduct" and "common scheme or plan" as his offense of conviction. See id. at 3.

Wilson argues that his prior drug dealing is not relevant conduct and even if it were, the connection between his possession of a firearm and his offense is too tenuous for the purposes of the Safety Valve Provision.

B.

The Safety Valve Provision does not define "relevant conduct" for its own purposes, and we must look elsewhere in the Guidelines to understand how it is used there. See U.S.S.G. § 5C1.2. However, section 1B1.3 (the "Relevant Conduct Provision"), provides guidance in delineating the scope of "relevant conduct" for the purposes of the Safety Valve Provision. See United States v. Smith, 991 F.2d 1468, 1471 (9th Cir.1993).

"Relevant conduct" for an offense that requires the grouping of multiple counts, singly undertaken, includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense ...," U.S.S.G. § 1B1.3(a), and "all acts and omissions described ... [above] ... that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

The commentary defines the "same course of conduct" as those offenses that "are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." U.S.S.G. § 1B1.3 comment. (n.9(B)). It defines a "common scheme or plan" as a criminal plan in which two or more offenses are "substantially connected to each other by at least one common factor, such as common victims, common accomplices, or similar modus operandi." U.S.S.G. § 1B1.3 comment. (n.9(A)). Although there is substantial overlap between the two terms, the former envelops a greater sphere of activity than the latter.

The commentary provides a three-prong test to determine whether offenses are part of the same course of conduct. The sentencing court must look to "the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between offenses." U.S.S.G. § 1B1.3 comment. (n.9) (adopting the three prong test from United States v. Hahn, 960 F.2d 903, 910 (9th Cir.1992), effective November 1, 1994)....