           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    United States v. Johnson, et al.    Nos. 02-1191/1293
        ELECTRONIC CITATION: 2003 FED App. 0345P (6th Cir.)
                    File Name: 03a0345p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: David L. Kaczor, Grand Rapids, Michigan,
                  FOR THE SIXTH CIRCUIT                                   Frank Stanley, Grand Rapids, Michigan, for Appellants.
                    _________________                                     Timothy P. VerHey, UNITED STATES ATTORNEY, Grand
                                                                          Rapids, Michigan, for Appellee. ON BRIEF: David L.
UNITED STATES OF AMERICA , X                                              Kaczor, Grand Rapids, Michigan, Frank Stanley, Grand
            Plaintiff-Appellee, -                                         Rapids, Michigan, for Appellants. Timothy P. VerHey, Brian
                                  -                                       P. Lennon, UNITED STATES ATTORNEYS, Grand Rapids,
                                  -   Nos. 02-1191/1293                   Michigan, for Appellee.
           v.                     -
                                   >                                                         _________________
                                  ,
ROBERT ANTHONY JOHNSON            -                                                              OPINION
(02-1191) and TODD STUUT          -                                                          _________________
(02-1293),                        -
        Defendants-Appellants. -                                            BOGGS, Circuit Judge. Co-defendants Robert Johnson and
                                  -                                       Todd Stuut appeal their sentences received after pleading
                                 N                                        guilty to conspiracy to distribute methamphetamine. Both
       Appeal from the United States District Court                       appellants raise the same claims: they object to the two-level
  for the Western District of Michigan at Grand Rapids.                   enhancement imposed by the district court for the possession
No. 01-00128—Robert Holmes Bell, Chief District Judge.                    of a weapon during the commission of a drug offense, and to
                                                                          the related denial of “safety-valve” status and the
                     Argued: June 17, 2003                                corresponding two-level reduction that such status would
                                                                          entail. We affirm.
            Decided and Filed: September 25, 2003
                                                                                                        I
    Before: BOGGS and GILMAN, Circuit Judges; and                           Both Johnson and Stuut entered guilty pleas, pursuant to
              MARBLEY, District Judge.*                                   written plea agreements. They both objected to the pre-
                                                                          sentencing report for two reasons relevant to this appeal:
                                                                          (1) they objected to a two-level enhancement for possession
                                                                          of a weapon; and (2) they objected to the denial of “safety-
                                                                          valve” status and its corresponding two-level reduction. See
                                                                          U.S.S.G. §§ 2D1.1(b)(1), 2D1.1(b)(6), and 5C1.2(a)(2). In
                                                                          both cases, the government moved for a downward departure,
    *
     The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                  1
Nos. 02-1191/1293        United States v. Johnson, et al.      3    4        United States v. Johnson, et al.     Nos. 02-1191/1293

pursuant to U.S.S.G. § 5K1.1, for the defendants’ substantial       is clearly improbable that the weapon was connected to the
assistance to the authorities.                                      offense.” U.S.S.G. § 2D1.1, comment. (n.3).
  At their respective sentencing hearings, the district court          The “safety-valve” provision of the sentencing guidelines
overruled appellants’ objections and granted the                    states that “[i]f the defendant meets the criteria set forth in
government’s motions for downward departure.              On        subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation
January 31, 2002, Johnson was sentenced to 120 months of            on Applicability of Statutory Minimum Sentences in Certain
imprisonment. On February 28, 2002, Stuut was sentenced to          Cases), decrease by 2 levels.” U.S.S.G. §2D1.1(b)(6). The
108 months of imprisonment. Both appellants filed timely            district court’s determination that Johnson and Stuut
appeals.                                                            possessed a firearm rendered them ineligible to receive a two-
                                                                    level reduction because they did not meet the conditions of
                               II                                   § 5C1.2(a)(2) (“the defendant did not use violence or credible
                                                                    threats of violence or possess a firearm or other dangerous
   A district court’s determination that a defendant possessed      weapon (or induce another participant to do so) in connection
a firearm during a drug crime is a factual finding that this        with the offense”).
court reviews for clear error. United States v. Pruitt, 156 F.3d
638, 649 (6th Cir. 1998) (quoting United States v. Elder, 90                                                III
F.3d 1110, 1133 (6th Cir. 1996), cert. denied, 519 U.S. 1131
(1997)). The sentencing guidelines provide that a defendant’s          The defendants’ pre-sentencing reports state that Johnson
base offense level should be increased by two levels if the         and his partner, Kevin Tillett, would travel from California to
court determines that he possessed a dangerous weapon               Michigan to supply Dawn Makos with methamphetamine.
during the commission of an offense involving drugs.                Makos would then supply the methamphetamine to her
U.S.S.G. § 2D1.1(b)(1). The government must prove by a              customers, Kenneth Hatfield and Stuut. All five were charged
preponderance of the evidence “that (1) the defendant actually      with the conspiracy. Stuut also stored methamphetamine for
or constructively ‘possessed’ the weapon, and (2) such              Makos and acted as her enforcer in the conspiracy, ensuring
possession was during the commission of the offense.”               that drug debts were paid.1 Sometime during the Fall of
Pruitt, 156 F.3d at 649. “Constructive possession of an item        2000, Tillett beat Hatfield with a PM-11, a 9-mm
is the 'ownership, or dominion or control' over the item itself,    semiautomatic pistol, because Hatfield owed money to
'or dominion over the premises' where the item is located.”         Makos. The firearm used in the beating was seized by police
Ibid. (quoting United States v. Sanchez, 928 F.2d 1450, 1460        at Makos’s residence during the execution of a federal search
(6th Cir. 1991)). If the offense committed is part of a             warrant on January 10, 2001.
conspiracy, it is sufficient if the government establishes “that
a member of the conspiracy possessed the firearm and that the         According to Stuut, Makos asked him to acquire a handgun
member’s possession was reasonably foreseeable by other             for her because she needed protection. He bought it for $500
members in the conspiracy.” United States v. Owusu, 199             and resold it to her. Dawn Makos testified that Johnson and
F.3d 329, 347 (6th Cir. 2000). Once it has been established         Tillett had requested that she acquire a gun, and that they paid
by the government that a defendant was in possession of a
firearm, the burden shifts to the defendant to establish that “it
                                                                        1
                                                                            Stuut vigorously denies this.
Nos. 02-1191/1293       United States v. Johnson, et al.      5    6    United States v. Johnson, et al.      Nos. 02-1191/1293

for the gun by subtracting its cost from money she owed them       Tillett, his partner, had the gun during the commission of their
from previous methamphetamine transactions.                        crimes. He and Tillett requested that Makos acquire the gun.
                                                                   He was well aware that it would be used by his co-
A. Robert Johnson                                                  conspirators in the furtherance of the conspiracy. The
                                                                   government proved by a preponderance of the evidence that
    The district court determined that Johnson possessed a         it was reasonably foreseeable by Johnson that a co-
firearm during the conspiracy. The district court found that       conspirator would possess a firearm in the commission of the
the weapon in question was “not an innocent weapon.” It            drug conspiracy. The district court did not clearly err by
found that the “weapon was acquired and kept in conjunction        finding that Johnson possessed a firearm. Johnson did not
with drug activities” and that “Mr. Johnson and Mr. Tillett        present any evidence that “it [wa]s clearly improbable that the
were acting together . . . .” The court further found that “this   weapon was connected to the offense.” U.S.S.G. § 2D1.1,
weapon was purchased and the deduction for its price . . . was     comment. (n.3). The district court properly enhanced
made from the price of methamphetamine with the consent            Johnson’s sentence by two levels.
and knowledge of Mr. Johnson in concert with Mr. Tillett
. . .” or vice versa. Therefore, the court found, the              B. Todd Stuut
“possessory interest of Mr. Johnson was clearly constructive
. . . .”                                                              The district court determined that Stuut possessed a firearm
                                                                   during the commission of the drug conspiracy. The district
   Johnson argues that the district court erred when it applied    court first found that the weapon in question was to be used
the enhancement to his sentence because he was never in            for “assaultive or defensive purposes.” The court also found
possession of a firearm. He argues that, although he was           that “[Stuut’s] possessing it for purposes of purchasing and
present at Hatfield’s beating, he did not participate and          then his passing it on to Ms. Makos with the financial
therefore did not use the weapon, was never in possession of       interaction coming the other way and her acquisition of it and
it, and that it was not reasonably foreseeable to him that a co-   its use thereunder is in fact consistent with a joint possession
conspirator would possess a firearm. Moreover, he argues           as part of a conspiratorial conduct . . . .”
that the government conceded at the sentencing hearing that
it would not be able to present any evidence that he physically      Stuut argues that the district court erred when it concluded
possessed the gun.                                                 that he knew that Makos intended to use the gun to further the
                                                                   drug conspiracy. He maintains that she lied to him about her
  The district court did not err when it applied the two-level     reasons for needing the gun. He claims that Makos told him
sentence enhancement to Johnson’s sentence. However, it            that she needed the gun for self-protection, and did not say
should have relied upon the stronger ground that Johnson was       that she would give the gun to her drug suppliers. He argues
a member of a conspiracy and could reasonably foresee              that his brief possession of the gun was not drug-related, and
another member’s possession of a firearm. In fact, he did see      therefore that it is clearly improbable that his possession had
his co-conspirator use the firearm to beat another co-             to do with his drug crimes. He also argues that he could not
conspirator for failure to pay a drug debt.                        reasonably foresee what his co-conspirator would do with the
                                                                   weapon. Finally, he argues that the court’s joint possession
  There was evidence that Johnson participated in the              theory is clear error.
purchase of the firearm and helped pay for it. He knew that
Nos. 02-1191/1293        United States v. Johnson, et al.      7    8    United States v. Johnson, et al.    Nos. 02-1191/1293

  The government met its burden of showing that Stuut               offense, nor yet that it is “improbable” that the gun was so
actually possessed the firearm. He admitted buying it and           connected, but, even more, that it was “clearly improbable.”
reselling it to Makos. The burden then shifted to Stuut to          (Emphasis added.) The two-level enhancement was properly
show that “it [wa]s clearly improbable that the weapon was          applied.
connected to the offense.” U.S.S.G. § 2D1.1, comment. (n.3).
While Stuut claims that he believed he was buying the gun for                                    IV
Makos for her self-protection, the district court did not clearly
err by finding that this did not meet the burden of showing           As we have held that the two-level enhancement applied
that it was clearly improbable the weapon was connected to          pursuant to § 2D1.1(b)(1) was properly applied to both
the offense. Makos was Stuut’s drug supplier and he                 defendants, both are ineligible for “safety-valve” status. We
occasionally kept drugs for her. He knew quite well that she        therefore AFFIRM both sentences.
was involved in illegal conduct.
   We emphasize that the “clearly improbable” standard is a
difficult burden to meet in the first instance at sentencing. In
order to prevail on appeal, a defendant must show that a
district court committed clear error in finding that he or she
has not met the “clearly improbable” burden of proof. A
district court’s finding is clearly erroneous if “the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948). We
give great deference to the district court’s credibility
determinations as it is in the best position to observe
witnesses. United States v. Hill, 195 F.3d 258, 264-65 (6th
Cir. 1999).
   We hold that the district court did not commit clear error in
determining that Stuut did not meet his burden of showing
that it was clearly improbable the firearm was connected to
the offense. Stuut bought a gun for his drug supplier in the
midst of a drug conspiracy, and we defer to the district court’s
decision to reject Stuut’s argument that his alleged reliance on
Makos’s statement made it “clearly improbable” that the
firearm would be connected to the offense. The government
is not required to show that the firearm possession, once
shown, is related to the drug crime. The defendant must
show, not that there is a possible innocent explanation, nor
even that the gun was “probably” not connected to the
