                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 6 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-1168
                                                     (D.C. No. 00-CR-257)
    DWAYNE LAMONT BURGESS,                                 (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY , Senior
Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Appellant Dwayne Lamont Burgess pled guilty to possession with intent to

distribute cocaine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). Mr. Burgess


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
reserved his right to contest the denial of his motion to suppress, which he

now appeals, along with aspects of his sentence. We exercise jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742 and AFFIRM.


                                   I. Background

      On May 25, 2000, Colorado Springs police officers and Alcohol, Tobacco

and Firearms agents executed a warrant allowing them to search Mr. Burgess’s

apartment for drugs and/or illegal firearms. Among other things, the officers

found a pistol and a scale of the type used for weighing drug quantities.

Meanwhile, officers positioned outside the apartment noticed an individual

matching Mr. Burgess’s description drive up to the apartment building and

continue past the building upon seeing the officers in front. The officers

followed Mr. Burgess to an alley, where they found the car parked and

Mr. Burgess standing next to a dumpster, in a posture as if he were urinating.

      The officers detained Mr. Burgess and two other individuals who were in

the car with him. The officers then searched the car and the dumpster. In the

dumpster they found two plastic bags containing drugs, prompting them to place

Mr. Burgess under arrest. The police officers did not find any weapons or

additional drugs either in the car or on Mr. Burgess’s person.

      Mr. Burgess was taken to the police station, where he was held for a period

of time before being interviewed by two officers. Prior to reading Mr. Burgess

                                         -2-
his Miranda rights, the officers told Mr. Burgess that they had found drugs in his

apartment and had seen him throw the drugs in the dumpster. Both of these

statements were untrue. Mr. Burgess did not say anything in response to these

statements before the officers read him his         Miranda rights. Mr. Burgess then

waived his Miranda rights and confessed to selling crack for about the past three

months. Mr. Burgess further stated that he had received the gun found in his

apartment from a friend who had died, and that he had brought it with him in his

car on a few occasions when he thought a drug deal might be unsafe.

Mr. Burgess requested a lawyer approximately 30 minutes into the interview, and

questioning ended at that time.

       Mr. Burgess moved to suppress the evidence obtained from the search and

his confession on the basis that (1) the police officers lacked probable cause for

his arrest and (2) his confession was involuntary. The court denied the motion.

Mr. Burgess entered a guilty plea but reserved his right to appeal the ruling on the

suppression motion.

       At sentencing, Mr. Burgess requested that the “safety valve” provision of

the United States Sentencing Guidelines be applied to reduce his prescribed

sentence. See U.S. Sentencing Guidelines Manual § 5C1.2(2) (2000)

(“U.S.S.G.”).   1
                    The district court concluded that Mr. Burgess had possessed a


1
       Mr. Burgess was sentenced under the 2000 Sentencing Guidelines, which
                                                                  (continued...)

                                              -3-
firearm in connection with the offense, thus mandating a two-level enhancement

for weapon possession, U.S.S.G. § 2D1.1(b)(1), and precluding application of the

safety valve.   2
                    The court sentenced Mr. Burgess to the statutory minimum of sixty

months’ imprisonment.


                                      II. Discussion

       Mr. Burgess appeals the denial of his motion to suppress, arguing that the

police lacked probable cause for his arrest and that his confession was

involuntary. We find each of these arguments without merit. Mr. Burgess also

appeals the refusal to apply the safety valve, arguing that the government failed to

demonstrate a sufficient connection between the offense and the gun found in Mr.

Burgess’s apartment. We reject this argument and hold that the district court

properly refused to apply the safety valve, because the evidence showed that Mr.

Burgess possessed a firearm in connection with relevant conduct.




1
 (...continued)
apply to this appeal.
2
        Mr. Burgess appeals denial of the safety valve only, despite the fact that the
rulings on the enhancement and the safety valve were made on the same basis and
are essentially a single ruling. This is presumably because the district court
sentenced Mr. Burgess to the statutory minimum, and, if the safety valve does not
apply, removal of the enhancement would have no effect on his sentence.       See,
e.g. , United States v. Sherwin , 271 F.3d. 1231, 1235-36 (10th Cir. 2001) (Court of
Appeals will not address purported error in applying Guidelines where removal of
enhancement would have no effect on sentence).

                                            -4-
A. Probable Cause for Arrest

       Mr. Burgess first argues that the officers lacked probable cause to arrest

him. We review for clear error the district court’s factual findings underlying its

denial of the motion to suppress.    United States v. Gama-Bastidas   , 142 F.3d 1233,

1237 (10th Cir. 1998). We review de novo the legal question of whether police

officers had probable cause for an arrest.    United States v. Edwards , 242 F.3d

928, 933 (10th Cir. 2001).

       Probable cause for an arrest exists if, under the totality of the

circumstances, a “reasonable person [would] believe that an offense has been or is

being committed by the person arrested.”       United States v. Vazquez-Pulido   ,

155 F.3d 1213, 1216 (10th Cir. 1998) (quotation omitted). Mr. Burgess asserts

that there was no basis to conclude that the gun in his apartment was possessed

illegally, because there was no indication that it was used in drug trafficking.

Further, he argues, the police admitted they did not have enough evidence to

connect him to the drugs in the dumpster at the time of his arrest. Based on these

arguments, he contends that neither the discovery of the gun nor the discovery of

the drugs could have provided probable cause for his arrest.

       In fact, it was permissible for the officers to detain Mr. Burgess in light of

the reasonable suspicion of danger created by their discovery of a weapon in his

apartment. Terry v. Ohio , 392 U.S. 1, 26-27 (1968) (permissible to search for


                                             -5-
weapons if there is a reasonable apprehension of danger). Mr. Burgess argues

that this detention would be considered an arrest if it continued past the point

when the officers concluded there were no weapons in the car or on Mr. Burgess,

citing United States v. Perdue , 8 F.3d 1455, 1464-65 (10th Cir. 1993), but

testimony revealed that the officers searched the dumpster immediately upon

detention of Mr. Burgess. Once the drugs were found in the dumpster, with all

circumstances suggesting that Mr. Burgess had thrown them there, there was

probable cause for the officers to arrest him.     United States v. Snow , 82 F.3d 935,

942 (10th Cir. 1996) (reasonable inference derived from circumstantial evidence

sufficient to establish probable cause). The fact that the officers thought

additional evidence would be required to prove Mr. Burgess’s connection to

the drugs does not imply that they lacked probable cause to arrest him.     United

States v. Watson , 423 U.S. 411, 431 n.4 (1976) (Powell, J., concurring)

(“Whatever evidence may be necessary to establish probable cause . . . it is clear

that it never need rise to the level required to prove guilt beyond a reasonable

doubt.”).


B. Voluntariness of Confession

       Mr. Burgess next argues that the circumstances of his confession rendered

it involuntary. We review de novo the question of whether a confession was

voluntary. United States v. Lugo , 170 F.3d 996, 1003 (10th Cir. 1999).

                                             -6-
       Mr. Burgess argues that a combination of factors caused him to confess

involuntarily. First, he argues that the confession was tainted by arrest without

probable cause. Because we conclude that there was probable cause for Mr.

Burgess’s arrest, however, this factor does not support the notion that his

confession was involuntary. Second, the officers attempted to interrogate him

prior to reading him his   Miranda rights. Finally, the officers made promises of

leniency they knew they could not fulfill.

       Regarding the second factor, the alleged pre-     Miranda interrogation, it is

true that a statement constitutes interrogation if it is “reasonably likely to elicit an

incriminating response.”    Rhode Island v. Innis , 446 U.S. 291, 301 (1980). Here,

the officers’ false statements about the evidence were, by the officers’ own

admissions, designed to do precisely that – elicit incriminating statements by Mr.

Burgess. The crucial point, however, is that Mr. Burgess did not say anything in

response to the officers’ pre- Miranda statements, and the officers’ tactics are

therefore ultimately without consequence.         United States v. Lowe , 569 F.2d 1113,

1116 (10th Cir. 1978) (no error in admitting post-      Miranda statements where pre-

Miranda statements were excluded and were not “stepping stones” to

incriminating evidence). In addition, misrepresentations about evidence against a

defendant do not in and of themselves render a confession involuntary       . Lucero v.

Kerby , 133 F.3d 1299, 1311 (10th Cir. 1998). Although one may question the


                                            -7-
motive of the officers in making provocative statements prior to reciting a suspect

his Miranda rights, there is no indication here that the officers’ statements

affected the voluntariness of the confession Mr. Burgess made after he had been

read his Miranda rights.

      Nor does the third factor named by Mr. Burgess, the false promises of

leniency, suggest that his confession was involuntary. The officers’ promises

were vague and non-committal, and such promises are not coercive.       See, e.g. ,

United States v. Glover , 104 F.3d 1570, 1582 (10th Cir. 1997) (promise to bring

defendant’s cooperation to the court’s attention not coercive). Additional

testimony regarding the officers’ knowledge that they could provide no leniency

under the federal Sentencing Guidelines would not have strengthened this

argument. Thus, even if it was error for the district court to disallow this line of

questioning by Mr. Burgess, no prejudice resulted from it.    See Fed. R. Evid.

103(a); Fed. R. Crim. P. 52(a).

      For these reasons, we are not persuaded that Mr. Burgess’s confession was

involuntary. As a result of this conclusion and our conclusion that probable cause

existed, we hold that the district court properly denied the motion to suppress.


C. Safety Valve Provision

      Finally, Mr. Burgess argues that the district court erred in declining to

apply the safety valve provision of the Sentencing Guidelines. The safety valve

                                           -8-
provision, which permits the court to depart downward from the statutory

minimum sentence, is designed to allow courts to impose proportionately lesser

sentences on defendants who are less culpable.        United States v. Acosta-Olivas   ,

71 F.3d 375, 378 (10th Cir. 1995). To qualify for application of the safety valve,

a defendant must demonstrate that he meets all five criteria listed in the

provision.   3
                 If all the factors are met, application of the safety valve provision is

mandatory. United States v. Verners, 103 F.3d 108, 110 n.3 (10th Cir. 1996). It

is undisputed that Mr. Burgess met four of the five factors. The district court

concluded that he was ineligible for the safety valve, however, because he

“possess[ed] a firearm [i.e., the gun found in the apartment] . . . in connection

with the offense.” U.S.S.G. § 5C1.2(2).       4




3
      The criteria listed in U.S.S.G. § 5C1.2 are:

      (1) the defendant does not have more than 1 criminal history
      point . . . ; (2) the defendant did not use violence or credible threats
      of violence or possess a firearm or other dangerous weapon (or
      induce another participant to do so) in connection with the offense;
      (3) the offense did not result in death or serious bodily injury to any
      person; (4) the defendant was not an organizer, leader, manager, or
      supervisor of others in the offense . . . ; and (5) not later than the
      time of the sentencing hearing, the defendant has truthfully provided
      to the Government all information and evidence the defendant has
      concerning the offense or offenses that were part of the same course
      of conduct or of a common scheme or plan . . . .
4
      The majority of cases examining the concept of weapon possession in a
sentencing context do so with respect to the weapon-possession enhancement of §
2D1.1, rather than subsection (2) of the safety valve provision. This is because
                                                                     (continued...)

                                              -9-
      “We review factual findings [of the sentencing court] for clear error; we

give due deference to the application of the Guidelines to the facts; we review

purely legal questions de novo.”   United States v. Vaziri , 164 F.3d 556, 568

(10th Cir. 1999).

      At his sentencing hearing and on appeal, Mr. Burgess argues that the facts

do not support the conclusion that he possessed the gun in connection with the

offense. Officers found the gun in Mr. Burgess’s apartment, which is located a

block or two from the alley where he was arrested. Mr. Burgess argues that the

gun was too remote to facilitate the charged offense of a single count of


4
 (...continued)
the majority of courts first conclude that the enhancement applies and then
determine that application of the safety valve is precluded as a result.
       It appears that the district court here followed roughly this reasoning. The
court first stated that “[t]he same legal issues apply to both issues.” It then
considered the evidence and concluded that the enhancement provision applied.
Finally, the court stated that, “[f]or similar reasons,” the safety valve did not
apply.
       We note, however, that it is not clear whether the substantive standards of
the two provisions are identical. As we emphasized in      United States v. Roederer,
11 F.3d 973, 982 (10th Cir. 1993) , § 2D1.1 was amended in 1991 to eliminate the
requirement that the weapon be carried “during the commission of the offense,”
leaving only the requirement that the weapon “was possessed.” By contrast,
§ 5B1.2(2) specifically requires that the weapon be possessed “in connection with
the offense.” Arguably, this suggests that the standard for finding weapon
possession under the safety valve is more demanding. We need not decide the
precise relationship between the two standards, however, because we determine
that the evidence in this case supports the finding that the defendant possessed the
weapon in connection with relevant conduct. For the same reason, we need not
decide whether failure to appeal the weapon-possession enhancement, even
though it did not affect the sentence, precludes review of the safety valve issue.

                                         -10-
possession with intent to distribute, and further that   the prior occasional use of

the gun is not “relevant conduct” for sentencing purposes. The government

contends that there was sufficient proximity between the gun and Mr. Burgess’s

drug-trafficking activities. In agreeing with the government, the district court

reasoned as follows:

       I think a fair inference on these facts is that the location of the
       defendant’s arrest and the location of those drugs is happenstance in
       this case. It is a fair inference that the defendant was purchasing the
       drugs that were found in the Dumpster; and but for the fact that he
       was interrupted by the officer’s discovery and chase, those drugs
       would have ended up in his room.

       I say that because the defendant admitted that he used or possessed
       the gun in connection with his drug-trafficking activities. That’s
       really what the adjustment is all about. The cases that talk[] about
       the drugs and the gun being in the same location are simply saying
       that such proximity gives rise to the fact that he used the gun in
       connection with drug trafficking.

The district court determined that Mr. Burgess had possessed the gun in

connection with the offense. The court therefore found that application of the

safety valve was precluded.

       Subsection 5C1.2(2) of the Sentencing Guidelines bars application of the

safety valve if a defendant possessed a gun or other dangerous weapon “in

connection with the offense.” In the context of the safety valve provision, the

term “offense” means “the offense of conviction and all relevant conduct.”

U.S.S.G. § 5C1.2, cmt. n.3. This is consistent with the Guidelines’ generally


                                             -11-
applicable definition of “offense”:   “‘Offense’ means the offense of conviction

and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different

meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1,

cmt. n.1(l). Based on the district court’s reasoning at sentencing, it is our

understanding that the district court concluded that the occasions on which Mr.

Burgess possessed the gun were relevant conduct.

       “Relevant conduct” is defined in section 1B1.3 to include “all acts or

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)(1). In addition, with respect to offenses that would have to be grouped

under the guidelines, the definition encompasses “   all acts and omissions described

in [subsection 1B1.3(a)(1)] 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). 5


5
        Subsection 5C1.2(2) refers to possession of a firearm “in connection with
the offense.” This subsection does not “  expressly modif[y]” the Guidelines’
generally applicable definition of “offense,” which specifically incorporates the
definition of relevant conduct in  § 1B1.3. U.S.S.G. § 1B1.1, cmt. n.1, 1(l). We
therefore conclude that § 1B1.3 controls the determination of what is relevant
conduct for purposes of § 5C1.2(2). See also U.S.S.G. § 5C1.2, cmt. n.4 (term
“defendant” in § 5C1.2(2) to be read consistently with § 1B1.3 definition of
relevant conduct); Acosta-Olivas , 71 F.3d at 378 (reading relevant conduct under
                                                                      (continued...)

                                          -12-
The district court’s phrase, “in connection with his drug-trafficking activities”

indicates that the court relied on subsection (a)(2).

       For the prior deals to qualify as relevant conduct under subsection

1B1.3(a)(2), three criteria must be met. First, the deals must involve conduct

listed in subsections 1B1.3(a)(1)(A) and (B). This requirement is plainly met,

because Mr. Burgess himself “committed” the acts of drug sale. Second, they

must be offenses for which the Guidelines would have required grouping with the

offense of conviction, if the defendant had been convicted of them. This

requirement, too, is plainly satisfied, because the drug sales would have violated

the same statute as the offense of conviction, and the Guidelines require grouping

of these offenses. See 21 U.S.C. § 841(a); U.S.S.G. §§ 2D1.1, 3D1.2(d). Third,

they must have been “part of the same course of conduct or common scheme or

plan.” United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996) (laying out

the requirements of U.S.S.G. § 1B1.3(a)(2)).

       In determining whether conduct qualifies as part of the “same course of

conduct,” the focus of the inquiry is “whether defendant has engaged in an

identifiable ‘behavior pattern’ . . . of specified criminal activity.” United States

v. Roederer, 11 F.3d 973, 979 (10th Cir. 1993) (quoting United States v.



5
 (...continued)
§ 5C1.2(5) consistently with definition of relevant conduct in § 1B1.3(a)(1)(B)).

                                           -13-
Perdomo, 927 F.2d 111, 115 (2d Cir. 1991)). “Similarity, regularity, and temporal

proximity are the significant elements to be evaluated.” Id.

      Mr. Burgess admitted that he had been dealing crack cocaine for

approximately three months prior to his arrest, and that he had taken the gun with

him for protection on “a few” occasions. This admission was corroborated by a

confidential informant, who stated that he had once seen a gun underneath the

driver’s seat in Mr. Burgess’s car when he was purchasing drugs from Mr.

Burgess. In addition, Mr. Burgess referred to use of a car during prior drug deals,

and he had gotten out of his car moments before his arrest for the charged

offense. Finally, the district court found that, immediately prior to the arrest, Mr.

Burgess was on his way to his apartment, where officers had found the gun and

drug paraphernalia (the scale). This evidence is sufficient to support a finding

that Mr. Burgess was engaged in an identifiable pattern of dealing drugs, and that

both the offense of conviction and the prior drug deals he admitted were part of

that pattern. The district court therefore correctly treated the prior drug deals as

relevant conduct.

      Because the prior drug deals qualify as relevant conduct, they are part of

the “offense” for purposes of subsection 5C1.2(2). A firearm’s “proximity and

potential to facilitate the offense is enough to prevent application of USSG

§ 5C1.2(2).” United States v. Hallum , 103 F.3d 87, 89 (10th Cir. 1996)   . On


                                         -14-
those occasions when Mr. Burgess took the gun with him, the gun certainly was

“proximate” and had the “potential to facilitate the offense.” Indeed, Mr. Burgess

specifically stated that he brought the gun with him for protection. Thus, the

district court correctly found that Mr. Burgess possessed a gun in connection with

the offense. Accordingly, the district court properly concluded that the safety

valve did not apply.



                                  III. Conclusion

      For these reasons, the district court’s denial of Mr. Burgess’s motion to

suppress and its refusal to apply the safety valve provision are AFFIRMED.


                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




                                        -15-
