
USCA1 Opinion

	




          August 19, 1994                                [Not for Publication]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1945                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   KURT ALAN STEIN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                         and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            William Maselli, by Appointment of the Court, for appellant.            _______________            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom  Jay P. McCloskey, United  States Attorney, and  Timothy D. Wing,              ________________                                _______________        Assistant United States Attorney, were on brief for the United States.                                 ____________________                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.                 Per  Curiam.    In  September 1992,  a  law  enforcement                 ___________            helicopter  spotted marijuana plants  growing on the property            of Kurt Alan Stein in Somerset County, Maine.  After a ground            search revealed  172 marijuana plants growing on  or near the            property, Stein was charged with manufacture of marijuana, 21            U.S.C.   841(a)(1) and (b)(1)(B), and possession of marijuana            with  intent  to distribute.    21  U.S.C.     841(a)(1)  and            (b)(1)(C).  Pursuant to a  plea agreement, Stein was  allowed            to  plead guilty on  March 1, 1993, to  the lesser offense of            cultivation of marijuana in excess of fifty plants. 21 U.S.C.              841(b)(1)(C).                 Sentencing occurred  on August 10,  1993.  Based  on the            amount  of marijuana  involved, the court  began with  a base            offense level of 26.  It  then enhanced Stein's base level by            two based  on the discovery  by law  enforcement officers  of            four firearms  on Stein's property along  with the marijuana,            U.S.S.G.     2D1.1(b)(1),  and  deducted  three  levels after            determining  that Stein  had accepted responsibility  for his            crime. U.S.S.G.   3E1.1(b).  The resulting base offense level            of 25, coupled with a criminal history category of I, yielded            a guideline sentence range of 57 to 71 months.                 Although Stein argued that a downward departure would be            appropriate because his consumption of marijuana was prompted            by severe  physical and psychological  problems, the district            court  rejected this  contention  and sentenced  Stein to  57                                         -2-                                         -2-            months imprisonment.  This appeal followed.                 Stein's first  argument on  appeal is that  the district            court  abused its  discretion in  failing to  depart downward            from  the guideline range.  It is well settled, however, that            this court ordinarily lacks  jurisdiction to review  refusals            to depart downward so long as the sentence imposed was within            the guideline range.  See, e.g., United States v. Amparo, 961                                  _________  _____________    ______            F.2d  288, 292  (1st  Cir.), cert.  denied,  113 S.  Ct.  224                                         _____________            (1992); United States v.  Tucker, 892 F.2d 8, 9-11  (1st Cir.                    _____________     ______            1989).    An  exception exists  "if  the  record supports  an            inference that  the sentencing court's failure  to depart did            not represent an exercise  of fact-finding or discretion, but            was instead  the product of the  court's miscalculation about            whether it  possessed the  authority to depart."  Amparo, 961                                                              ______            F.2d at 292; see also United States v. Lauzon, 938  F.2d 326,                         ________ _____________    ______            330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991).  Despite                            ____________            Stein's  argument to the  contrary, we find  that the present            record supports no such inference.                 Stein argued in the district court that he was driven to            consume  marijuana  by  a  host  of  physical  and  emotional            difficulties.  The presentence  investigator found that Stein            had suffered a  wide range  of severe injuries  to his  back,            leg, face, hands, and various  internal organs, most of which            arose from  an automobile accident  in 1989.   Although Stein            had undergone 12 operations  since the accident, he continued                                         -3-                                         -3-            to  experience  intense headaches  and  was  receiving Social            Security disability payments at  the time of his arrest.   In            addition,   Stein   suffered   severe  emotional   depression            resulting  from  the death  of  his fiancee  in  another auto            accident  that  took  place  in  1992.    Accordingly,  Stein            asserted  that he  qualified for  a downward  departure under            U.S.S.G.    5H1.3 (Mental  and Emotional Condition) and 5H1.4            (Physical Condition).   Stein  also claimed that  the factors            prompting him to use marijuana amounted to duress, U.S.S.G.              5K2.12, and entitled him  to a departure under  the catch-all            provision of U.S.S.G.   5K2.0.                 Although  the district  court rejected  these arguments,            the record leaves little doubt that the court recognized  its            authority to depart.   The  court noted that  "I don't  think            there is any  question that  the court has  the authority  to            depart,"  and explicitly  rejected the  government's argument            that a departure would  be forbidden under the circumstances.            Instead,  the  court found  that  Stein's admittedly  "tragic            situation"  was   not  the  primary  cause   of  his  illegal            activities, stating that "it tests the bounds of credulity to            suggest that  these plants,  172 plants or  thereabouts, were            being used primarily  for personal consumption.  . . .  [T]he            fact  of the matter is that  [Stein] was also selling, by his            own admission, quantities of marijuana . . . ."                 The district court  rejected Stein's duress  argument on                                         -4-                                         -4-            similar grounds.  Although the court  commented that "I don't            understand  the duress  argument at  all," and  expressed the            view that duress could only exist where a person is forced to            commit an act by  someone "with superior power or  will," the            court  also repeated  its belief  that the  number of  plants            involved and the sales by Stein undermined the credibility of            the  duress  argument.   Moreover,  the  court concluded  its            discussion by insisting that "[t]hat's  not [to] say I  don't            have authority to depart if I found the facts differently.  I            do have authority to depart, but . . . I'm not satisfied that            the facts  of  this  case  warrant  departure."    Given  the            district  court's  clear  recognition  of  its  authority  to            depart, we have no jurisdiction to review its decision not to            do so on the merits. Amparo, 961 F.2d at 292.                                  ______                 Stein also appeals from the district court's enhancement            of his base offense level by  two levels for possession of  a            dangerous weapon.  U.S.S.G.   2D1.1(b)(1).   Law  enforcement            officers discovered  four firearms  on  Stein's property,  at            least  three  of which  were operable  and  one of  which was            loaded.  Stein does not dispute his ownership of the weapons;            he  asserts,  however,  that   they  were  unrelated  to  his            possession  of  marijuana  and  thus  should  not  have  been            considered in computing his sentence.                 We  have held  that,  once the  government shows  that a            weapon was possessed or present with drugs, the burden shifts                                         -5-                                         -5-            to  the defendant  to demonstrate  "the existence  of special            circumstances that would render it `clearly  improbable' that            the  weapon's  presence has  a  connection  to the  narcotics            trafficking." United States v. Corcimiglia, 967 F.2d 724, 728                          _____________    ___________            (1st  Cir. 1992).  Although  some connection to  the drugs is            required, the defendant  need not  be shown to  have had  the            weapon on his person  or in his immediate vicinity;   rather,            it is sufficient if  the weapon was available to  protect the            defendant  or the  drugs. United  States v. Pineda,  981 F.2d                                      ______________    ______            569, 573 (1st Cir.  1992).  Moreover, we review  the district            court's  findings  on  this   point  --  like  other  factual            determinations in sentencing under the Guidelines -- only for            clear error. United States v. Wheelwright, 918 F.2d 226, 227-                         _____________    ___________            28  (1st Cir. 1990).   We find  no such error  on the present            record.                 Three of  Stein's four  weapons were  found in the  same            camper  as a number  of baggies containing  marijuana.  Stein            also testified that  he kept  one of the  weapons loaded  and            underneath his bed in order to  prevent rodents from nibbling            at  his marijuana plants.   The use  of firearms  to fend off            woodchucks was  probably not  what the  Sentencing Commission            had  in mind  in drafting  U.S.S.G.    2D1.1(b)(1).   But the            availability of a weapon suggests  that it could readily have            been  used to  protect the  plants from  others or  to resist            arrest.   The  district court's  determination that  the guns                                         -6-                                         -6-            were used "to further the crime" was not clearly erroneous.                 Nor does it make any difference that most of the weapons            may  not have been easily  accessible at the  time that Stein            was  arrested.   Although Stein  testified at  his sentencing            hearing that  the guns were  kept underneath "a  multitude of            items" in his trailer at the time of his arrest, the district            court found that "it also is clear from the testimony of  the            defendant that the weapons  were accessible for a significant            period of  time during which the manufacture of the marijuana            took  place."  This is sufficient; nothing in the language or            purpose  of   the  provisions   that   impose  the   firearms            enhancement require  that the  weapon or  weapons be  used or            available for use at the time of arrest.                 Because we have no jurisdiction to consider the district            court's  failure  to  depart  downward   from  the  guideline            sentence, and  because  that court's  enhancement of  Stein's            offense  level for possession  of a dangerous  weapon was not            clearly erroneous, we affirm Stein's sentence.                                  ______                                         -7-                                         -7-
