                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4116



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WESLEY M. GROSE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:05-cr-00261)


Submitted:   October 24, 2007          Decided:     November 15, 2007


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.    Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Wesley N. Grose pled guilty to distributing a quantity of

oxycodone on June 10, 2005, 21 U.S.C.A. § 841(a), (b)(1)(C) (West

1999 & Supp. 2007), and was sentenced to a term of seventy-eight

months imprisonment.        Grose appeals his sentence, contending that

the    district    court   clearly        erred   in   giving       him   a   two-level

enhancement for possession of a deadly weapon during the offense,

U.S.     Sentencing   Guidelines       Manual      §   2D1.1(b)(1)        (2006),    in

declining     to    give    him      an     adjustment        for     acceptance     of

responsibility, USSG § 3E1.1, and in finding that he did not

qualify for a reduction under the safety valve provisions of USSG

§§ 2D1.1(b)(9), 5C1.2.          Grose also argues that his sentence is

unreasonable.      We affirm.

            Grose’s conviction was based on his sale of oxycodone and

alprazolam (Xanax) to James Lilly in a controlled buy at Grose’s

house in Cool Ridge, West Virginia, under the surveillance of drug

task force agents.          After two more controlled buys at Grose’s

house, a search warrant was executed there in August 2005.                       Agents

seized    oxycodone   and    Xanax    and     observed    a    large      quantity   of

firearms in Grose’s home, mostly rifles and shotguns, including

several guns in a closet of the bedroom where Grose kept the drugs

he sold.

            Following the search, Grose demanded that Lilly, his son,

and his daughter-in-law write a letter stating that a $100,000


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check Grose received from James Lilly’s wife, Barbara, was a gift.

The next day he had them write a second version of the letter,

which stated that the money was a loan.                  The Lillys informed law

enforcement authorities about Grose’s demand, and said they wrote

what    he    asked   because     Grose    had    previously    made    threatening

statements and they knew he owned firearms. Lilly told authorities

that he and his wife bought oxycodone from Grose for several years

and that his wife had died of an overdose of oxycodone in December

2004.        When   Grose   was   interviewed,      he    did   not    confirm    this

information.

              At Grose’s sentencing, the government stipulated that a

base offense level of 24 applied based solely on the 12 grams of

oxycodone he distributed in the first controlled buy.                     Grose did

not dispute an adjustment for obstruction of justice based on his

attempt to influence or intimidate Lilly into writing the letter

about the $100,000 check, and the district court determined that

the    case    presented    no    extraordinary      circumstances      that     might

justify an adjustment for acceptance of responsibility, which is

ordinarily foreclosed by conduct that results in an adjustment for

obstruction of justice.           USSG § 3E1.1, comment. n.4.          The district

court decided that a firearm enhancement was proper because Grose

had not shown that it was clearly improbable that his guns had any

connection to his drug activity.                  The court noted that it was

widely known that Grose possessed numerous firearms, that the


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controlled drug buys took place at Grose’s house, and that, while

some of Grose’s guns were antique or collectible weapons, others

were simply hunting guns, and that Grose kept a number of the

latter in the closet of the bedroom where he stored the drugs he

sold.

          The court also decided that Grose did not qualify for a

two-level reduction under the safety valve provision because he had

possessed firearms in connection with the offense and made credible

threats of violence, and because the government informed the court

that it did not believe Grose had been fully forthright about his

drug dealing when he was interviewed.            The court determined that

Grose’s total offense level was 28.         He was in criminal history

category I.    His advisory guideline range was 78-97 months.            The

court imposed a sentence at the bottom of the range.

          We   first    conclude   that    the    weapon   enhancement   was

properly applied.      A two-level increase in the base offense level

should be made if a dangerous weapon, such as a firearm, was

present during the offense, “unless it is clearly improbable that

the weapon was connected with the offense.” USSG § 2D1.1(b)(1),

comment. (n.3).   The enhancement reflects “the increased danger of

violence when drug traffickers possess weapons.”           Id.   Application

Note 3 to § 2D1.1 provides, as an example of a situation where it

is clearly improbable that a defendant’s gun is connected to his

drug offense, that the enhancement “would not be applied if the


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defendant, arrested at his residence, had an unloaded hunting rifle

in the closet.”   The district court’s findings of fact relating to

sentencing enhancements are reviewed for clear error.          United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

           In this case, Grose had working firearms in a closet

three to five feet from the dresser where he kept the drugs that he

sold.   Grose did not dispute that he was known to possess firearms

or that this fact was intimidating to the Lillys.    We conclude that

there was no evidence before the court sufficient for the district

court to have found that it was clearly improbable that Grose’s

firearms were connected with his drug offense.        Therefore, the

district court did not clearly err in making the enhancement.

           We are also satisfied that the district court did not

clearly err in finding that Grose was not entitled to an adjustment

for acceptance of responsibility.       Application Note 4 to § 3E1.1

states that, generally, a finding that a defendant has engaged in

conduct that warrants an adjustment for obstruction of justice

“indicates that the defendant has not accepted responsibility for

his criminal conduct.”     However, in extraordinary cases both

adjustments may apply.    Id.   Grose contends that his is such an

extraordinary case because (1) his obstructive conduct was limited

to one incident, namely his attempt to create a letter stating that

he received $100,000 from Lilly as a gift or a loan rather than as

payment for drugs, and (2) he admitted his criminal conduct and


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agreed to plead guilty after federal charges were filed.           However,

the district court determined that Grose had never given a credible

explanation   of    his    receipt   of   the   $100,000,   and   that   his

obstruction of the investigation was still ongoing at the time of

sentencing.

          Grose     next    argues    that   his   cooperation    with   the

government entitles him to the safety valve reduction. A defendant

who meets the five criteria set out in § 5C1.2 is entitled to a

two-level reduction under § 2D1.1(b)(9). To qualify, the defendant

must not have “use[d] violence or credible threats of violence or

possess[ed] a firearm . . . in connection with the offense.”             USSG

§ 5C1.2(a)(2).     In addition, no later than the sentencing hearing,

the defendant must have “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.”      USSG § 5C1.2(a)(5).      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).

          Here, the district court based its decision that Grose

was not eligible for the safety valve reduction primarily on his

possession of firearms and the resulting firearm enhancement.             The

court did not specifically find that Grose possessed the firearms

“in connection with the offense.”            See § 5C1.2(a)(2).    As used


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elsewhere in the guidelines, this phrase means that the firearm

facilitated or had a tendency to facilitate the offense.                        United

States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003).                      However, the

district       court’s       finding    concerning      the     firearm   enhancement

encompassed          a   finding   that    Grose      possessed     the   firearm   in

connection with the drug offense.                    The court stated that “[t]he

presence of the weapons . . . was known, and any time weapons are

present, particularly in quantities and in proximity to criminal

activity, including drug activity, there is an intimidation factor

that is inherent in the situation and can be related to the drug

activity.”          Thus, regardless of the nature of Grose’s cooperation,

he was not eligible for the safety valve reduction.*

               Last, we conclude that the sentence was reasonable.

After United States v. Booker, 543 U.S. 220 (2005), this Court will

affirm a sentence if it “is within the statutorily prescribed range

and is reasonable.”           United States v. Moreland, 437 F.3d 424, 433

(4th       Cir.),    cert.    denied,     126   S.    Ct.    2054   (2006)   (internal

quotation marks and citation omitted).                      “[A] sentence within the

proper advisory Guidelines range is presumptively reasonable.”

United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see


       *
      Our review of the record discloses that the district court
did not err in accepting the government’s assessment that Grose had
not been fully truthful in his debriefings, for reasons unrelated
to Lilly’s credibility, or in finding that the presentence report
contained undisputed evidence that Grose made credible threats to
Lilly. Either of these findings would also have been a basis for
denying Grose the benefit of the safety valve provision.

                                          - 7 -
Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding

application   of    rebuttable   presumption    of   reasonableness   to

within-guidelines sentence).

           Grose was sentenced within the advisory guideline range

after the court considered the § 3553(a) factors.        He argues that

his sentence is unreasonable because it is greater than necessary

in light of certain § 3553(a) factors, specifically, his personal

history and characteristics such as his lack of a prior criminal

history, honorable military service, medical condition, and the

effect on his wife and grown children.         While the district court

did not mention each of these factors, it “need not robotically

tick through § 3553(a)’s every subsection[,]” but should “provide

[this Court] an assurance that the sentencing court considered the

§ 3553(a) factors with regard to the particular defendant before

[it] . . . .”      United States v. Moulden, 478 F.3d 652, 657 (4th

Cir. 2007).     The court sentenced Grose at the bottom of the

guideline range, noting his medical conditions and the financial

difficulties his family faced.       We conclude that Grose has not

overcome the presumption of reasonableness by showing that his

sentence is either procedurally or substantively unreasonable.

           We therefore affirm the sentence imposed by the district

court.   We dispense with oral argument because the facts and legal




                                 - 8 -
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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