                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4206


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL PAUL LEVASSEUR,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:09-cr-01132-TLW-1)


Submitted:   September 28, 2011           Decided:   October 11, 2011


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. James Hoffmeyer, LAW OFFICE OF W. JAMES HOFFMEYER, Florence,
South Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Pursuant     to    a   written    plea      agreement,      Michael     Paul

Levasseur pled guilty to conspiracy to possess with intent to

distribute and distribute five kilograms or more of cocaine, in

violation    of    21   U.S.C.     §   846   (2006).            The   district     court

sentenced Levasseur to the statutory mandatory minimum sentence

of    120   months’      imprisonment.         Levasseur          timely    appealed.

Counsel filed a brief pursuant to Anders v. California, 386 U.S.

738   (1967),     finding     no   meritorious          issues    for   appeal,      but

challenging       Levasseur’s      sentence       on     the     grounds    that    the

district    court       clearly    erred     in        giving     him   a   two-level

enhancement for possessing a dangerous weapon, U.S. Sentencing

Guidelines Manual § 2D1.1(b)(1) (2009), and in finding that he

did not qualify for a reduction under the safety valve provision

in USSG §§ 2D1.1(b)(11), 5C1.2.              Although he was advised of his

right to file a pro se supplemental brief, Levasseur did not

exercise this right.          For the reasons that follow, we affirm the

criminal judgment.

            After a confidential informant made a controlled buy

of cocaine from Levasseur at his residence on June 30, 2008,

officers executed a search warrant at Levasseur’s home and found

two sets of digital scales with white powder residue on them, a




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sixteen ounce bottle of Inositol, ∗ the cash that had been used

earlier     in   the    day   to    make    the     controlled          cocaine       buy   from

Levasseur, an additional $3141 in cash, and, on top of a TV

stand, a loaded .38 caliber revolver.                        A confidential informant

had   previously       told      investigators          that      Levasseur       carried     a

handgun.         It   was   on     the    basis   of    the       evidence    seized        from

Levasseur’s residence and the confidential informant’s statement

that the district court applied the two-level enhancement for

possession of a dangerous weapon during the offense under USSG

§ 2D1.1(b)(1) and denied Levasseur a safety valve reduction.

               Levasseur      argues      that    the       district     court     erred     in

applying the § 2D1.1(b)(1) enhancement because the sole witness

who mentioned seeing him with a gun did not state that Levasseur

used the gun in relation to drug transactions.                                Furthermore,

Levasseur argues that the mere presence of the gun in his home

did not indicate that it was connected to drug activity.

               Pursuant to USSG § 2D1.1(b)(1), a defendant’s offense

level     is   increased      by    two    levels      if    he    possessed      a    firearm

during     a   drug    offense.          Application        Note    3   states     that     the

enhancement is intended to “reflect[] the increased danger of

violence when drug traffickers possess weapons,” and applies “if


      ∗
       Inositol is a white powder frequently mixed into cocaine
to increase its weight without altering the drug’s appearance.



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the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.”                             USSG § 2D1.1 cmt. n.3.

The    enhancement        is   proper        when      “the    weapon      was     possessed    in

connection with drug activity that was part of the same course

of    conduct      or    common      scheme       as    the    offense       of     conviction.”

United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010)

(internal quotation marks omitted).

              The Government must prove the facts needed to support

a sentencing enhancement by a preponderance of the evidence.

United      States      v.   Milam,      443    F.3d     382,        386   (4th     Cir.    2006).

Whether      the     district        court     properly        applied       the     enhancement

under USSG § 2D1.1(b)(1) is reviewed for clear error.                                  Manigan,

592 F.3d at 626.             Under a clear error standard of review, this

court will reverse only if “left with the definite and firm

conviction that a mistake has been committed.”                               United States v.

Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation

marks omitted).

              Here, investigators found a loaded gun out in the open

in Levasseur’s home, as well as cash used earlier in the day to

make    a   controlled         buy    of     cocaine         from    Levasseur,       and    other

indicia      of    illegal        drug     activity.                See    United    States     v.

Carrasco,     257       F.3d   1045,       1048       (9th    Cir.    2001)       (stating    that

scales are known tools of drug trade); United States v. Ward,

171 F.3d 188, 195 (4th Cir. 1999) (noting that Rolex watch, a

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wad of currency in the amount of $1055, and a handgun were all

indicia     of    drug     dealing).             The     Government        showed    by   a

preponderance       of    the    evidence        that    a   gun    was    “present,”     as

required by USSG § 2D1.1(b)(1), and Levasseur did not provide

evidence sufficient for the district court to have found that it

was clearly improbable that the gun was connected to his drug

offense.     Accordingly, the district court did not clearly err by

applying the enhancement.

            Levasseur also argues that the district court erred in

refusing     to     apply       the     safety          valve      provision    in    USSG

§§ 2D1.1(b)(11), 5C1.2,           as    he   requested.             “The   safety    valve

permits shorter sentences for a first-time offender who would

otherwise face a mandatory minimum [sentence], provided that he

meets five statutory requirements.”                      United States v. Fletcher,

74 F.3d 49, 56 (4th Cir. 1996) (citing 18 U.S.C. § 3553(f)

(2006); USSG § 5C1.2).            As relevant here, the second criteria is

that “the defendant did not . . . possess a firearm . . . in

connection       with    the    offense.”         18     U.S.C.     § 3553(f)(2);     USSG

§ 5C1.2(a)(2).          The defendant bears “the burden of proving the

existence    of     the    five       prerequisites”         for     the   safety    valve

reduction.       United States v. Wilson, 114 F.3d 429, 432 (4th Cir.

1997).

            Levasseur stressed that only one witness stated that

he was known to carry a gun and that witness did not say that

                                             5
Levasseur carried a gun in connection with his drug dealing.

Furthermore,          he    asserts     that        neither         of     the     confidential

informants who made controlled buys from him mentioned seeing a

weapon.         Finally,       he     notes        that    the       only        drug    evidence

investigators found when they searched his residence was a small

“user       amount”    of   marijuana     and       white       residue     on     the    digital

scales.        Thus,       Levasseur    argues       that       a    preponderance        of    the

evidence established that the firearm found in his residence was

not used in connection with his drug offense.

               The district court found that the cooperating witness

who related that Levasseur carried a gun had experience dealing

drugs with Levasseur and that it was implicit from the witness’

statement that Levasseur carried the gun as a result of his drug

dealing.         Moreover,      the     district          court      emphasized         that   the

search warrant was executed at Levasseur’s residence the same

day     a    confidential       informant          made     a       controlled          buy    from

Levasseur at the home, and that, in addition to the loaded gun,

investigators         found     other     indicia          of       drug    dealing       in   the

residence,       including      the     cash       from    the       controlled         buy.     We

conclude that the district court did not err by finding, based

on    this     evidence,       that    Levasseur          possessed         the     firearm     in

connection with his offense and therefore was not eligible for

the safety valve reduction.



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            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Levasseur’s conviction and sentence.               This

court requires that counsel inform Levasseur, in writing, of the

right to petition the Supreme Court of the United States for

further review.    If Levasseur requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.    Counsel’s motion must state that a copy thereof

was served on Levasseur.

            We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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