UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4702

WILLIAM ARTHUR STROUPE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Norman K. Moon, District Judge.
(CR-97-30027)

Submitted: March 30, 1999

Decided: April 16, 1999

Before ERVIN and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Shmidheiser, III, WHARTON, ALDHIZER & WEAVER,
P.L.C., Harrisonburg, Virginia, for Appellant. Robert P. Crouch, Jr.,
United States Attorney, Donald R. Wolthuis, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

William Arthur Stroupe was convicted pursuant to his guilty pleas
of conspiracy to distribute and distribution of methamphetamine. On
appeal, Stroupe alleges that the district court erred by refusing to
apply the "safety valve" provision found in 18 U.S.C.A. § 3553(f)
(West Supp. 1998) and USSG § 5C1.2.1 Finding no error, we affirm.

In March 1997, DEA agents received information that there was a
suspicious package at the Federal Express distribution center in
Weyers Cave, Virginia. The package, which was addressed to
Stroupe, was exposed to a narcotic detection dog, who alerted posi-
tively. Agents obtained a search warrant, opened the package, and
seized approximately two ounces of methamphetamine. Agents
resealed the package and arranged for a controlled delivery at
Stroupe's residence. After Stroupe accepted delivery of the package,
agents executed a second search warrant for the residence, which was
a single-wide trailer home, and found a day planner containing names
of drug customers, with amounts paid and owed, scales, various other
drug paraphernalia, approximately $1700 in cash, and eighteen fire-
arms, including two handguns in the nightstand beside Stroupe's bed.

Stroupe has the burden of proving that he qualified for application
of the "safety valve" provision, and we find that he has failed to meet
this burden. See United States v. Beltran-Ortiz , 91 F.3d 665, 669 (4th
Cir. 1996). The "safety valve" provision applies only if all five of the
following criteria are satisfied: (1) the defendant does not have more
than one criminal history point; (2) the defendant did not use violence
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual (1995). The "safety valve" allows
a sentencing court to impose a sentence in accordance with the applica-
ble Guidelines range, regardless of any statutory minimum sentence, if
the defendant satisfies five criteria.

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or a credible threat of violence or possess a firearm or other danger-
ous weapon; (3) no one was killed or seriously injured during the
commission of the offense; (4) the defendant was not an organizer,
leader, manager, or supervisor of others; and (5) the defendant truth-
fully provides to the Government all of the information and evidence
he has pertaining to the offense. See USSG§ 5C1.2.

In the present case, it is undisputed that the first and third criteria
are satisfied. However, the district court found that Stroupe failed to
satisfy all three of the remaining criteria. Specifically, the court found
that Stroupe possessed the firearms in connection with his drug traf-
ficking activities,2 that he was the manager of the local drug distribu-
tion network, and that he was untruthful about the scope of his
activities. We find that the district court correctly found that Stroupe
failed to satisfy the second and fifth criteria. 3

The Government only needs to prove by a preponderance of the
evidence that an enhancement for possession of a firearm pursuant to
USSG § 2D1.1(b)(1) is appropriate, and the district court's factual
determinations must be upheld unless they are clearly erroneous. See
United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.
1989). In addition, "[t]he adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon was con-
nected with the offense." USSG § 2D1.1, comment. (n.3). In the pres-
ent case, the record supports the district court's application of the
enhancement. Although Stroupe claimed that he never took the fire-
arms with him when he sold the drugs to his "customers," we find that
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2 In fact, the district court enhanced Stroupe's sentence pursuant to
USSG § 2D1.1(b)(1).
3 We find that the district court erred in finding that Stroupe did not sat-
isfy the element pertaining to being an organizer or manager. Under the
commentary, a defendant only fails to satisfy this element if he received
"an adjustment for an aggravating role under§ 3B1.1 (Aggravating
Role)." See USSG § 5C1.2, comment. (n.5). Since Stroupe did not
receive such an adjustment, he satisfied this element. Nevertheless, the
district court's error is harmless in light of our finding that Stroupe failed
to satisfy two of the five criteria. Our decision on this element should not
be interpreted as a commentary on the factual findings made by the dis-
trict court.

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the district court's conclusion was not clearly erroneous, given the
regular supply of cash and drugs flowing into the residence and the
large number of firearms present in a small mobile home, including
two handguns by Stroupe's bedside. Accordingly, we find that the
district court properly found that it was not clearly improbable that
the firearms were available for Stroupe's use in connection with his
drug dealing if needed. Because the evidence supports the district
court's finding that Stroupe possessed firearms in connection with a
drug trafficking offense, he was not eligible for sentencing under the
"safety valve" provision. See 18 U.S.C.A. § 3553(f)(2); USSG
§ 5C1.2.

Finally, the record supports the district court's finding that Stroupe
was not entirely truthful regarding the scope of his activities. Specifi-
cally, the court found Stroupe's testimony that he did not make any
money from his drug dealing incredible. We give due deference to the
district court's opportunity to judge the credibility of witnesses and
will only reverse the court's factual findings if they are clearly errone-
ous. See United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
Stroupe's own testimony showed that he sold the drugs for almost
twice what he paid for them. Moreover, although Stroupe claimed that
he sold the drugs only out of fear that his suppliers would harm his
family if he did not, the district court properly observed that he could
have simply contacted the police.

We therefore affirm Stroupe's convictions and sentence. We dis-
pense 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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