          United States Court of Appeals
                     For the First Circuit

No. 13-1256

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        LEVELL MATTHEWS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                        Lynch, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


     Joseph M. Bethony, with whom Gross, Minsky, Mogul, P.A., was
on brief, for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.



                          May 16, 2014
             THOMPSON, Circuit Judge.

                                   OVERVIEW

             Levell   Matthews    stands   convicted       of   one    count    of

conspiring with others to make false statements to a firearms

dealer, three counts of possessing a firearm following a felony

conviction, and one count of possessing marijuana.                 He complains

about the district court's rulings denying him a judgment of

acquittal on the marijuana-possession count and enhancing his

sentence four levels for possessing a gun "in connection with"

felony drug trafficking. Finding none of his arguments persuasive,

we affirm.

                           HOW THE CASE GOT HERE

             We summarize the trial evidence against Matthews in the

light most favorable to the jury's verdict.                See, e.g., United

States v. Acosta-Colón, 741 F.3d 179, 191 (1st Cir. 2013).

                           Arrest and Indictment

             This is not Matthews's first scrape with the law.                  In

2009 he was convicted in New York of possessing cocaine with intent

to   distribute   —   a   crime   punishable   by   more    than      one   year's

imprisonment.     Some time after he got off parole for that offense,

he headed to Maine, staying occasionally with Taleek McFadden and

Victor Morales at Renee Weeks's house.              No Boy Scout himself,

McFadden would later get locked up for selling crack cocaine.




                                     -2-
          In October 2011 Matthews and Morales walked into a store

called Frati the Pawn Brokers.     We will refer to this shop as

"Frati's," to avoid any confusion with its eponymous owner, Orlando

Frati, who — importantly — is a federally-licensed firearms dealer.

Matthews checked out a couple of guns while there, actually holding

them in his hand.

          About two weeks later, Matthews and Morales stopped by

Frati's again, this time with Weeks in tow.   Matthews zeroed in on

a Taurus .45 caliber pistol, picking it up to get a closer look.

Weeks then told Frati that she wanted to buy the pistol.      Frati

handed Weeks the federal form — "Form 4473" — that anyone trying to

buy a gun must complete.   After getting the filled-out document,

Frati ran a background check on her to see whether the sale could

take place that day. He learned that Weeks's name went to "delayed

status," which meant the sale could not happen right away, so

Matthews, Morales, and Weeks took off.1       Suspecting that Weeks

wanted to buy the gun for Matthews, Frati tipped off ATF agent

Brent McSweyn, who began to investigate.2

          Around this time, Matthews — while riding in a car owned

by Weeks but driven by McFadden — was searched by local police



     1
      "Delayed status" occurs where a name is "technically flagged
for one reason or another," which could be, for example, because
someone has "had any encounter with the court or law enforcement."
     2
       "ATF" is the usual acronym for the Bureau of Alcohol,
Tobacco, Firearms and Explosives.

                               -3-
during a traffic stop.    Turned out Matthews had $2,500 in cash on

him, though that is basically all we know about the stop.

            Fast forward a few weeks.    Acting on Agent McSweyn's

instructions, Frati called Weeks to let her know that she could buy

the Taurus pistol.       She said that she would be there in ten

minutes.    Waiting for her to show up, Agent McSweyn placed ATF

agent Paul McNeil in an unmarked car outside Frati's and ATF agent

Daniel Woolbert in the store, posing as an employee. Agent McSweyn

then hid in the store's back room.

            Eventually, Weeks drove over with Matthews and another

woman.     Only Weeks went inside, though, with $250 Matthews had

given her to buy the pistol.     Her mission complete, Weeks jumped

back into her car's driver's seat and put the pistol (unloaded,

with the safety lock on) on her lap, seconds before Agent McNeil

approached the driver's side and Agent McSweyn approached the

passenger's side. Agent McSweyn ordered Matthews — who was sitting

in the front passenger seat — out of the car.        And then Agent

McSweyn frisked Matthews for weapons.     Matthews had $967 in his

pocket, with a $50 bill on his seat in the car.

            Agent McNeil told Matthews that he was not under arrest.

But Matthews wanted to "clear things up."      So Agent McNeil read

Matthews his Miranda rights, see Miranda v. Arizona, 384 U.S. 436

(1966), and Matthews started talking.     No way would he ever ask

Weeks to get him a gun, Matthews said, because he was a convicted


                                 -4-
felon and knew that he could not have a firearm.      That statement

did not jibe with Matthews's going to Frati's and actually looking

at guns, Agent McNeil shot back.   Matthews replied, "uh oh."

           As they talked, Agent McNeil smelled burnt marijuana and

asked Matthews what he had "taken that day."       Matthews admitted

that he had smoked two "blunts" (cigars in which the tobacco has

been replaced with marijuana) but said that there was no marijuana

in Weeks's car.   "You want to know where you fucked up?" Matthews

then asked McNeil. "What you should have done," Matthews said, was

"wait to see where" Weeks took "the gun to see who she [was] buying

it for."   A smiling Agent McNeil simply fired back, "some people"

might say that is "exactly what we did do.    We didn't arrest Ms.

Weeks at the counter.   We waited to see, when she left the store,

who was in the car and who she was getting the gun for."       "Oh,"

Matthews exclaimed, catching Agent McNeil's drift, "because she was

in the store that I had been [in], bought the gun that I had looked

at, came out to the car that I was sitting in, and I have [hundreds

of dollars] in my pocket[?]"   Bingo, Agent McNeil basically said —

to which Matthews replied, "that's cold" (with "cold" being slang

for "harsh," or so Agent McNeil testified).

           Agent McSweyn then arrested Matthews.    Knowing the jig

was up, Matthews said that he had some "weed" stuffed in his

underwear — 3.2 grams worth, tests showed.    He also said that he

had $4,000 hidden in his sock, though he actually had $3,700.    For


                                -5-
anyone keeping track, that is $7,217 in cash law enforcement had

caught him with over a fairly short period (we are talking weeks).

            A federal grand jury later indicted Matthews, with the

operative document charging him with one count of conspiracy to

make false statements on a federal firearms application,3 three

counts of gun possession by a previously convicted felon,4 and one

count of marijuana possession.5         Matthews pled not guilty to all

charges.    And a jury trial followed in due course.

                           Trial and Sentencing

            The trial testimony came in consistent with the facts

described above.       What we have not mentioned yet is that Weeks —

having copped a plea and agreed to testify for the government —

told the jury about Matthews's involvement with crack cocaine,

saying that she had seen him with crack and had bought crack from

him before.    Asked whether she was "promised crack" if she helped

with the gun buy, Weeks answered "yes."                Matthews's counsel

attacked her credibility by getting her to talk about how she was

a chronic drug abuser, with crack and marijuana being her go-to

drugs.

            Matthews    moved   for   acquittal   at   the   close   of   the

government's case.      See Fed. R. Crim. P. 29(a).     As relevant here,


     3
         See 18 U.S.C. §§ 2, 371, 924(a)(1)(A), and 922(a)(6).
     4
         See 18 U.S.C. §§ 2, 922(g)(1), and 924(a)(2).
     5
         See 21 U.S.C. § 844.

                                      -6-
he argued that prosecutors had failed to prove an element required

by § 844 — namely, that he did not have a valid prescription for

the marijuana.         Convinced that the non-existence of a valid

prescription is not an element of a § 844 offense, the district

court denied the motion.           After the jury convicted him on all

counts, Matthews again moved for acquittal on this theory.                 See

Fed. R. Crim. P. 29(c).        But the court denied that motion too.

             At   sentencing   the   parties    battled   over   whether   the

district court should hand Matthews a four-level enhancement under

the federal sentencing guidelines for possessing a firearm in

connection with another felony.          See USSG § 2K2.1(b)(6).       Leaning

heavily on United States v. Cannon, 589 F.3d 514 (1st Cir. 2009),

the court imposed the enhancement, describing the other felony as

"drug trafficking" rather than marijuana possession, and concluding

Matthews had possessed a gun in connection with that offense. This

enhancement helped set Matthews's sentencing range at 70-87 months

in prison.     And, ultimately, the court imposed a 70-month term.

             This appeal followed. In resolving it, we will add a few

more details as we discuss specific issues.

                            OUR TAKE ON THE CASE

             As   we   mentioned   at   the   beginning   of   this   opinion,

Matthews challenges the denial of his acquittal motion on the

marijuana-possession count plus the imposition of the four-level




                                        -7-
sentencing enhancement.    As we also noted, his arguments do not

carry the day for him, for reasons we now explain.

                        Judgment of Acquittal

          First up is the judgment-of-acquittal issue, which we

review de novo.   See, e.g., United States v. Dávila-Nieves, 670

F.3d 1, 7 (1st Cir. 2012).

          Section 844 — a provision under the Controlled Substance

Act ("CSA") forming the basis of Matthews's marijuana-possession

conviction — pertinently provides that

          [i]t shall be unlawful for any person
          knowingly or intentionally to possess a
          controlled substance unless such substance was
          obtained directly, or pursuant to a valid
          prescription or order, from a practitioner,
          while acting in the course of his professional
          practice.

21 U.S.C. § 844(a)(1) (emphasis added).         Matthews reads the

"unless" clause as requiring the government to prove that he did

not have a valid marijuana prescription.   But another statute that

he does not mention or cite — 21 U.S.C. § 885, titled "Burden of

proof; liabilities" — undoes his theory.

          Subsection (a)(1) of § 885 — titled "Exemptions and

exceptions; presumption in simple possession offenses" — declares

in relevant part that

          [i]t shall not be necessary for the United
          States to negative any exemption or exception
          set forth in this subchapter in any . . .
          indictment . . . or in any trial . . . and the
          burden of going forward with the evidence with


                                 -8-
             respect to any such exemption or exception
             shall be upon the person claiming its benefit.

Subsection (a)(2) adds that in § 844(a) prosecutions "any label

identifying such substance . . . shall be admissible in evidence"

and that the label "shall be prima facie evidence that such

substance was obtained pursuant to a valid prescription from a

practitioner."

             The precise issue Matthews raises is not one we have

faced before. The closest match in our caselaw is United States v.

Hooker, an opinion dealing with CSA sections different from the one

that confronts us here — §§ 841 and 846, not § 844.                       See 541 F.2d

300, 301 (1st Cir. 1976).            A jury had convicted Hooker — a licensed

physician      —    of    distributing        and      conspiring    to    distribute

prescriptions for controlled substances.                     Id. at 301-02 (citing

§§ 841 and 846). Trumpeting his physician status, Hooker argued to

us that he had statutory authorization to dispense controlled

substances and so could not be convicted of illegal distribution

unless the prosecution proved beyond a reasonable doubt that his

deeds   fell       "outside    the       bounds   of   the    professional    medical

practice."     Id. at 305.          Critically, in analyzing his argument we

noted that under § 885(a)(1) "a defendant claiming the benefit of

a medical exemption bears the evidentiary burden with respect to

its applicability."           Id.

             Hooker      helps      us   understand     §    885(a)(1)'s    effect   on

evidentiary burdens in this corner of the law. But what ultimately

                                            -9-
seals Matthews's fate is a line of cases from other circuits

expressly holding — based on a plain reading of the statutory text

— that § 844(a)'s "unless" clause "establishes a defense" for "the

accused" to raise "rather than an element of the offense" for the

government to prove.        See United States v. Forbes, 515 F.2d 676,

680 n.9 (D.C. Cir. 1975); see also United States v. Foster, 374 F.

App'x 448, 449 (4th Cir. 2010) (per curiam) (relying on § 885(a)(1)

in rejecting the idea that § 844(a) has as an element that the

defendant    did    not    possess    the    drugs    pursuant   to   a   valid

prescription); see generally Woods v. Butler, 847 F.2d 1163, 1166-

67 (5th Cir. 1988) (relying on Forbes in analyzing state statutes

"virtually identical" to §§ 844(a) and 885(a)(1), and reaching the

same result).6

            A principle animating these cases is that a contrary

ruling would blot out § 885(a)(2).           Again, that provision provides

that a label is prima facie evidence that the drugs were obtained

lawfully — without any contrary evidence by the government, that

showing would satisfy § 844(a)'s "unless" clause. Matthews offered

no prima facie evidence, we must say.                 Anyway, accepting his

argument    would   mean    forcing    the    government   to    "negate"   the

possibility of a valid prescription "even in the absence of the

label."     Forbes, 515 F.2d at 680 n.9.             And that cannot be what


     6
        Courts   grappling  with   this  issue   apparently   use
"'exemption,'"   "'affirmative   defense,'"   and   like    words
"interchangeably." See Woods, 847 F.2d at 1165 n.1.

                                      -10-
Congress had in mind when it set up a statutory scheme requiring

the defendant to come forward with evidence of the exception.            See

id.   Finding this reasoning convincing, we hold that § 844(a)'s

"unless" clause creates an exception for an accused to invoke by

producing prima facie evidence of a valid prescription, not an

element of the offense for a prosecutor to prove.

             Unfortunately    for    Matthews,    he   cannot   escape   this

conclusion with the cases he champions.            True, one of his cases

says that "[i]t is a general guide to the interpretation of

criminal statutes that when an exception is incorporated in the

enacting clause of a statute, the burden is on the prosecution to

plead and prove that the defendant is not within the exception."

United States v. Vuitch, 402 U.S. 62, 70 (1961) (emphasis added).

But Vuitch's "general guide" is helpful only when Congress has not

clearly expressed its intent.          See United States v. Steele, 147

F.3d 1316, 1319 (11th Cir. 1998).           And here Congress has spoken

with crystal clarity, declaring in § 885(a)(1) that a defendant

seeking the benefit of an exception found in title 21 must shoulder

the   burden    of   coming   forward    with    evidence   regarding    that

exception.     So Vuitch's general rule does not come into play.          See

Steele, 147 F.3d at 1319.           As for his other cases, they simply

mention § 844(a) without discussing § 885(a)'s effect on the

crime's elements or on the burdens of production.           See Dorszanski

v. United States, 418 U.S. 424, 426 n.3 (1974); United States v.


                                     -11-
LaBuff, 101 F. App'x 678, 682 (9th Cir. 2004) (mem.); United States

v. Stone, 139 F.3d 822, 834 (11th Cir. 1998); United States v.

Swiderski, 548 F.2d 445, 449 (2d Cir. 1977).          And that means that

they cannot turn the tide in Matthews's favor.

            Having concluded that § 844(a)'s "unless" clause creates

an exception under § 885(a)(1), we find that the district court

rightly denied Matthews a judgment of acquittal.

                         Sentencing Enhancement

            Which takes us to the sentencing-enhancement issue.          The

government, naturally, bears the burden of proving sentencing

enhancements.      See, e.g., United States v. Paneto, 661 F.3d 709,

715 (1st Cir. 2011); Cannon, 589 F.3d at 517.            The standard of

proof is preponderance of the evidence.           See, e.g., Paneto, 661

F.3d   at   715;   Cannon,   589   F.3d   at   517.    Either   direct   or

circumstantial evidence will do, with the sentencing court free to

draw commonsense inferences from the evidence.         See, e.g., Paneto,

661 F.3d at 716; Cannon, 589 F.3d at 517.

            For our part, we review the district court's legal

rulings anew, its factfinding for clear error, and its application

of the guidelines to the case on a "sliding scale" — with the

scrutiny cranked up the more law-driven the court's decision is.

See, e.g., United States v. Zehrung, 714 F.3d 628, 631 (1st Cir.

2013) (citing Cannon, 589 F.3d at 516-17).        Of course, clear error

is not an easy thing to show, because the sentencing court's choice


                                   -12-
among   rational    but   competing    inferences    cannot   be   clearly

erroneous.     See, e.g., Cannon, 589 F.3d at 517.

             As relevant here, § 2K2.1(b)(6)(B) calls for a four-level

sentencing enhancement if the defendant "possessed any firearm

. . . in connection with another felony offense."          The enhancement

applies, then, if the court finds that the government proved two

things by a preponderance of the evidence: one, that the defendant

committed "another felony offense" — meaning "any Federal . . .

offense punishable by imprisonment for a term exceeding one year,

regardless    of   whether   a   criminal   charge   was   brought,   or   a

conviction obtained," USSG § 2K2.1 cmt. n. 14(C); and two, that he

possessed a firearm "in connection with" that other offense — a

phrase read broadly under our caselaw, which neither requires

"actual use of the weapon during commission of the felony [n]or

physical proximity between the weapon and the contraband."             See

Paneto, 661 F.3d at 716.

             Taking the evidence in its totality (a macro approach,

not a piece-by-piece micro one), we see enough here to support the

district court's finding that Matthews committed "another felony"

— namely, felony drug trafficking.          See Cannon, 589 F.3d at 519

(indicating that felony drug trafficking is a qualifying felony

under § 2K2.1(b)(6)(B)).         Matthews already had a felony drug-

trafficking conviction under his belt before getting busted in our

case.   Also, after moving from New York to Maine, he chose at some


                                   -13-
point to pal around with another drug trafficker, McFadden, living

with him for a time and getting pulled over with him in a traffic

stop.7   More, Matthews sold Weeks crack in the past — the very drug

she was "supposed to" get for helping the gun buy go down.     More

still, despite having no job, he had thousands of dollars in cash

on him when stopped by law enforcement.     On top of that, he had

gotten Weeks to buy the pistol for him and had 3.2 grams of

marijuana on him, with the gun inches from him when nabbed.

           As the district court noted, Matthews's case bears an

uncanny resemblance to Cannon.    There, we upheld a § 2K2.1(b)(6)

sentencing enhancement, highlighting the following:    Cannon had a

"history" as a drug trafficker — just like Matthews — suggesting

that he was "no idle passenger" when the police collared him and

his cohorts after a traffic-violation investigation found him armed

and sitting in an SUV near an "unknown" amount of drugs.    Cannon,

589 F.3d at 516, 519 (discussing cases holding that a defendant's

drug-trafficking history supports an inference that he is a drug

trafficker).   Calling the combined $2,000 found on Cannon and the

others (all of whom were unemployed) a "large" stash of cash —

remember, a jobless Matthews had over $5,000 on him, if you add

everything up, with most of it hidden in his sock — we said such an


     7
       The district court knew McFadden fairly well, having
sentenced him to 33 months in prison for selling crack — a sentence
the court handed down about a year after the police had found
McFadden and Matthews together in the traffic stop and a few weeks
before sentencing Matthews.

                                 -14-
amount helps justify an inference that the SUV riders "were engaged

in the sale, rather than the casual use, of drugs."              Id. at 518

(citing cases to back up that point).         Also, Cannon's having a gun

on him with drugs in the SUV — Matthews had drugs on him with a gun

next to him — was "probative of an intent to distribute narcotics,"

we wrote.   Id. (citing cases holding that guns and drug dealing go

together like a hand in glove).          And on that record, we could not

say that the sentencing court clearly erred in finding that Cannon

was engaged in drug trafficking.         Id. at 518-19.     Given the eerie

similarities between Cannon's case and Matthews's, we reach the

same conclusion here.8

            The   push-back   we   get    from   Matthews   is   simply   not

persuasive. He argues, for example, that given the small amount of

marijuana on him, it is "equally plausible" to characterize the

evidence as suggesting that he possessed drugs for personal use

rather than for trafficking.         And, he adds, statements in the

presentence report that he drew tattoos on others as an unlicensed

tattoo artist "explains" why he had so much cash with him, casting

doubt on any suggestion that he had gotten the money by trafficking

drugs. We see two big problems with this: Matthews is essentially


     8
       Because we find that the district court supportably found
that Matthews had engaged in felony drug trafficking, we need not
reach the government's alternative theory that having a gun in
connection with simple drug possession suffices to trigger a
§ 2K2.1(b)(6) enhancement — an issue, by the way, left open in our
previous cases. See Paneto, 661 F.3d at 716 n.5 (citing Cannon,
589 F.3d at 520 n.4).

                                   -15-
asking us to view the evidence in stark isolation, which we cannot

do.   See id. at 519 (talking about our viewing the "totality of the

evidence before the district court"). Also, and as we said moments

ago, a sentencing court's selection of one plausible inference over

another cannot be clearly erroneous.     See, e.g., Cannon, 589 F.3d

at 517.     So, again, the district court's drug-dealing finding

stands.

            Moving on, we also see enough here to support the court's

finding that Matthews possessed a firearm "in connection" with the

discerned drug-dealing offense.     The quoted phrase requires that

the gun's presence at the crime scene be more than coincidental.

See Paneto, 661 F.3d at 716.        In other words, the gun must

"'somehow aid[] or facilitate[], or ha[ve] the potential to aid or

facilitate, the commission of another offense.'"      See id. at 717

(quoting United States v. Thompson, 32 F.3d 1, 6 (1st Cir. 1994)).

But bear in mind (and at the risk of repeating ourselves):

Matthews was no ordinary gun owner.      He had a prior felony that

made it illegal — and thus particularly risky — for him to possess

the pistol in question.     And he bought the pistol through straw-

buyer Weeks, who explained that she had been promised crack for her

troubles.    Also and again, Matthews consorted with a known drug

dealer and had lots of cash on him, including a large sum tucked in

his sock when agents caught him with the gun. Ultimately, our view

of the entire picture renders reasonable the inference — which the


                                 -16-
district court made — that Matthews "wanted" the pistol (and not

just his socks!) "to protect the cash and the drugs from people who

would make off with it."         Clearly, then, the pistol had the

potential    to    facilitate   the    drug-trafficking    offense      "by

emboldening the enterprise, aiding the collection of a drug debt,

or in any number of foreseeable ways."         See Cannon, 589 F.3d at

519.

            Wait a minute, protests Matthews, the pistol was on

Weeks's lap, "unloaded and locked."         No doubt.     But if a drug

dealer who has an unloaded gun locked inside a safe in a room away

from the drugs can possess the weapon in connection with another

felony offense, see Paneto, 661 F.3d at 716, then surely it cannot

be reversible error for the district court here to find that

Matthews    possessed   the   pistol   in   connection   with   his    drug

trafficking.      After all, if everything had happened as planned,

Matthews "would have had the Taurus, because he paid for it, and he

would have had actual possession of the Taurus, because that was

the purpose of the sale," the court supportably found.                Also,

unloaded pistols can be reloaded, and even unloaded guns can

"facilitate drug trafficking," we have held.       Id. at 718.

            Bottom line: given the deferential standard of review at

play here, we are duty-bound to uphold the four-level sentencing

enhancement.




                                  -17-
                            FINAL WORDS

            Our review done, we affirm Matthews's conviction and

sentence.

            So ordered.




                               -18-
