       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Bolka                      No. 02-6168
    ELECTRONIC CITATION: 2004 FED App. 0028P (6th Cir.)
                File Name: 04a0028p.06                    Appellant. Thomas A. Colthurst, ASSISTANT UNITED
                                                          STATES ATTORNEY, Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

 UNITED STATES OF AMERICA , X                               KENNEDY, Circuit Judge. Defendant Joseph F. Bolka, III
                                                          pleaded guilty to five counts of possession of
             Plaintiff-Appellee, -                        methamphetamine with the intent to distribute and
                                   -
                                   -  No. 02-6168         distribution and one count of manufacturing
            v.                     -                      methamphetamine in violation of 21 U.S.C. § 841(a)(1).
                                    >                     Defendant now appeals the district court’s denial of his
                                   ,                      motion for a sentencing reduction under the “safety valve”
 JOSEPH F. BOLKA , III,            -
          Defendant-Appellant. -                          provision of the United States Sentencing Guidelines
                                                          (“U.S.S.G.”) § 5C1.2(a). For the reasons explained below,
                                  N                       we AFFIRM the judgment and defendant’s sentence.
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.                           I. Background
   No. 02-20069—Samuel H. Mays, Jr., District Judge.
                                                             Pursuant to a plea agreement, defendant Bolka pleaded
               Argued: December 5, 2003                   guilty to multiple violations of 21 U.S.C. § 841(a)(1). At the
                                                          sentencing hearing, the district court adopted the Pre-sentence
         Decided and Filed: January 22, 2004              Investigation Report’s calculations under the 2001 edition of
                                                          the United States Sentencing Guidelines. In particular, the
  Before: KENNEDY, MARTIN, and MOORE, Circuit             district court found that U.S.S.G. § 2D1.1(b)(1) applied so as
                    Judges.                               to increase defendant’s base offense level by two increments.
                                                          Section 2D1.1(b)(1) provides for such an enhancement “[i]f
                  _________________                       a dangerous weapon (including a firearm) was possessed.”
                                                          Defendant, conceding such possession, had withdrawn his
                       COUNSEL                            objection to this sentence enhancement.

ARGUED: Eugene A. Laurenzi, GODWIN, MORRIS,                 Yet, before sentencing, defendant had filed a motion for a
LAURENZI & BLOOMFIELD, Memphis, Tennessee, for            downward departure under the “safety valve” provision of
Appellant. Thomas A. Colthurst, ASSISTANT UNITED          U.S.S.G. § 5C1.2(a). Section 5C1.2(a) permits the court to
STATES ATTORNEY, Memphis, Tennessee, for Appellee.        “impose a sentence in accordance with the applicable
ON BRIEF: Eugene A. Laurenzi, GODWIN, MORRIS,             guidelines . . . [regardless] of any statutory minimum
LAURENZI & BLOOMFIELD, Memphis, Tennessee, for            sentence” if the court finds that the defendant meets” the

                            1
No. 02-6168                             United States v. Bolka            3    4     United States v. Bolka                       No. 02-6168

criteria of 18 U.S.C. § 3553(f).1 As one of those criteria,                                             II. Analysis
§ 5C1.2(a)(2) mandates that the “defendant did not . . .
possess a firearm . . . in connection with the offense.” In his                  We review a district court’s interpretation of a sentencing
motion and at the sentencing hearing, defendant argued that                    guideline de novo and “a court’s factual determination of
there was no evidence demonstrating that he had possessed                      whether a . . . guideline applies in a particular case under a
the firearms in connection with his drug offenses.2 The                        clearly erroneous standard.” United States v. Adu, 82 F.3d
district court denied defendant’s motion for a “safety valve”                  119, 124 (6th Cir. 1996) (holding that we review a district
reduction under § 5C1.2(a). In finding defendant ineligible                    court’s refusal to apply U.S.S.G. § 5C1.2 for clear error
for that reduction, the district court construed this Court’s                  because it is a factual finding).
opinion in United States v. Stewart, 306 F.3d 295 (6th Cir.
2002), to hold that conduct that warrants a sentence                              In United States v. Stewart, 306 F.3d at 327 n.19, we held
enhancement under § 2D1.1(b)(1) necessarily precludes the                      that a defendant, as the party seeking a “safety valve”
application of a “safety valve” reduction under § 5C1.2(a).                    reduction under § 5C1.2(a), has the burden of proving by a
After applying all of the relevant factors,3 the district court                preponderance of the evidence that he is entitled to that
ultimately sentenced defendant to sixty months of                              downward departure. Accord United States v. Salgado, 250
imprisonment, followed by four years of supervised release,                    F.3d 438, 459 (6th Cir. 2001); Adu, 82 F.3d at 124. Thus, as
and a $600 special assessment. Defendant appeals the district                  one of the eligibility criteria for a “safety valve” reduction, a
court’s denial of his motion for a “safety valve” reduction                    defendant must prove by a preponderance of the evidence that
under U.S.S.G. § 5C1.2(a).                                                     he “did not . . . possess a firearm . . . in connection with the
                                                                               offense.” U.S.S.G. § 5C1.2(a)(2). In contrast, to enhance a
                                                                               sentence under § 2D1.1(b)(1), the government must first
                                                                               demonstrate by a preponderance of the evidence that the
    1                                                                          defendant possessed a firearm “during the commission of a
      Additiona lly, U.S.S.G. § 2D 1.1(b)(6) would afford a decrea se in the   drug-trafficking offense.” United States v. Moses, 289 F.3d
defendant’s base offense level by two incre ments if he were to satisfy
§ 5C 1.2(a).
                                                                               847, 850 (6th Cir. 2002) (treating “during the commission of”
                                                                               as “during the period [or time] of ” the drug-trafficking
    2
      To the extent that defendant’s argum ents, bo th below and on ap peal,
                                                                               offense). If the government meets this burden, a presumption
reference the use of a firearm–rather than the possession of a firearm–, we    arises that such possession was “connected to the defendant’s
will treat those arguments as pertaining only to possession since, under       offense.” Id. The defendant may rebut this presumption only
§ 5C1.2(a)'s express language, a defendant need only possess–not use–a         by demonstrating “that it is clearly improbable that the . . .
firearm in connection with the offense to be ineligible for the “safety        [firearm] was connected to the offense.” Id. (emphasis added)
valve” reduction. Cf. United States v. Kincaide, 145 F.3d 771 , 784 (6th
Cir. 1998) (holding that the prerequ isite of possession under U.S.S.G.
                                                                               (specifying some of the factors in determining “whether a
§ 2D1.1(b)(1) does not require that one actually use or carry the weapon).     firearm was related to an offense, including the proximity of
                                                                               the firearm to the drugs, the type of firearm involved, whether
    3                                                                          the firearm was loaded, and any alternative purpose offered to
      The district court increased defendant’s base offense level under
U.S.S.G. § 2D1.1(b)(5)(C) upon finding that the offense involved the           explain the presence of the firearm”).
manufacture of methamphetamine and “created a substantial risk of harm
to the life of a minor.” Y et, the court also decreased d efendant’s base        In Stewart, this Court held that the district court did not
offense level under U .S.S.G. § 5K1.1 because of defendant’s assistance        clearly err in applying a § 2D1.1(b)(1) enhancement upon
to the go vernm ent.
No. 02-6168                              United States v. Bolka            5    6       United States v. Bolka                                 No. 02-6168

finding that the defendant did not meet “his burden of                          warranting a § 2D1.1(b)(1) sentence enhancement necessarily
showing that it was clearly improbable that the weapon was                      forecloses the application of a § 5C1.2(a) “safety valve”
connected to his drug trafficking offense.” 306 F.3d at 327                     reduction as this per se conclusion does not necessarily
(emphasis added). After noting that the district court                          follow from the different evidentiary standards of
considered the applicability of § 5C1.2(a) separately from that                 §§ 2D1.1(b)(1) and 5C1.2(a)(2).5
of § 2D1.1(b)(1), we then held that the court “did not clearly
err in finding that . . . [the defendant] failed to show by a
preponderance of the evidence that he was eligible for”                             5
                                                                                      Moreover, we know of no binding published case or persuasive
§ 5C1.2(a)'s “safety valve” reduction. Id. at 327 n.19                          unpublished case from this circuit expressly adopting the proposition that
(emphasis added). Without expressly holding so, we                              a § 2D1.1(b )(1) sentence enhancement necessarily forecloses a § 5C1.2(a)
observed that “[e]very circuit thus far that has considered the                 “safety valve” reduction. See United States v. Highsm ith, 60 Fed.Ap px.
issue has held that[,] where a defendant had . . . possession                   517, 519, 20 03 W L 15232 4, at *2 (6th Cir. 2003) (unpub lished opinion)
                                                                                (reading Stew art as adop ting this per se bar); Un ited States v. M itchell, 63
over a firearm such that an increase to his or her base offense                 Fed.Appx. 224 , 200 3 W L 21 147 956 , at *4 (6th Cir. 2003) (unpublished
level under § 2D1.1 is appropriate, such possession ‘defeats                    opinion) (noting that the district court, after finding that the defendant
[the] application of the safety valve.’” Id. (quoting United                    possessed a firearm in conne ction with relevant cond uct, “imposed the
States v. Smith, 175 F.3d 1147, 1149 (9th Cir. 1999)).4                         U.S.S.G. § 2D1.1(b)(1) enhancement, which effectively deprived . . . [the
Relying upon this statement, the district court construed                       defendant] of the safety valve [reduction]” ); Un ited States v. B ursey , 215
                                                                                F.3d 1327, 20 00 W L 7123 77, at *4 (6th Cir. 2000) (unpublished opinion)
Stewart to hold that conduct that warrants a § 2D1.1(b)(1)                      (observing that “constructive o r actual posse ssion o f a firearm will
enhancement necessarily bars a § 5C1.2(a) “safety valve”                        prevent application of the safety valve,” but also recognizing that
reduction. We note that this interpretation of Stewart is                       § 5C1.2(a)(2) pertains to possession “in connection with the offense”).
unwarranted because the statement upon which that                               For example, in United States v. Johnson, 344 F.3d 56 2, 564 (6th Cir.
interpretation relies does not expressly ratify this underlying                 2003), two co -defendants appealed their sentences for co nspiracy to
                                                                                distribute methamphetamine on the grounds that the district co urt erred in
per se proposition but, rather, simply recognizes its existence.                applying § 2D1 .1(b)(1) enhancements and in refusing to apply § 5C1.2(a)
We expressly disclaim the proposition that conduct                              “safety valve” reductions. T his Co urt held that, because § 2D1.1(b)(1)
                                                                                enhancem ents “properly applied to b oth defendants, both are ineligible for
                                                                                ‘safety valve’ status.” Id. at 565 . Adm ittedly, one cou ld reasonably
    4
                                                                                construe this language as implicitly holding that the proper application of
      Conceding that “Sm ith might be read as a per se rule . . . [that]        a § 2D 1.1(b)(1 ) enhancem ent auto matica lly precludes the application of
forecloses the safety valve any time a § 2D1.1(b)(1) enhancement has            a § 5C1.2(a) reduction. However, we believe that this language is better
been imposed[,]” the Ninth Circuit subsequently limited Sm ith’s reach to       unde rstood as b eing limited to the particular facts of that case.
the particular cond uct invo lved in that case. United States v. Nelson, 222         Defendant John son, a methamphetamine supplier, solely argued that
F.3d 545, 550 (9th Cir. 2000). According to the co urt, Smith did not           the government had failed to discharge its duty of proving that he had
address the “separate and distinct burdens of proof for § 2D1.1(b)(1) and       possessed a firearm. Id. This Court held that the government had proven
§ 5C1.2.” Id. The cou rt noted that, although conduc t that will supp ort a     by a preponderance o f the evidence that Johnson reasonably could have
finding under §§ 2D1.1(b)(1) and 5C1.2 may be the same, “the burden             foreseen that a “co-conspirator would p ossess a firearm in the commission
and quantum of proo f . . . [under these sec tions] remain different.” Id. at   of the drug conspiracy.” Id. This Court also held that the district court
551. The court then held that, “even where a defendant has already              did not clearly err in applying a § 2 D1 .1(b)(1) enhancement to John son’s
received a § 2D1 .1(b)(1) enhancement, the defendant need only show his         sentence because he had presented no evide nce that “it [wa]s clearly
eligibility for [§ 5C1.2 “safety valve”] relief by a preponderance o f the      improba ble that the weap on wa s connected to the offense.” Id. (internal
evide nce.” Id. at 551-52 (holding that the defendant, on remand, may           quotation marks omitted).           Inherent in these holdings are the
show his eligibility for the “safety valve” reduction by a preponderance        determinations that a prepo nderance of the evidence demonstrated
of the evidence even where a § 2D1.1(b)(1) enhancem ent applied).               Johnson’s possession of a firearm and that Johnson produced no
No. 02-6168                               United States v. Bolka              7    8    United States v. Bolka                      No. 02-6168

  The application of a § 2D1.1(b)(1) sentence enhancement                          the offense–so as to defeat a § 2D1.1(b)(1) enhancement. See
does not necessarily preclude the application of a § 5C1.2(a)                      United States v. Johnson, 344 F.3d 562, 567 (6th Cir. 2003)
“safety valve” reduction. A defendant may be unable to                             (referring to this standard in its logically equivalent form).
prove that it is clearly probable that the firearm was not                         However, that same defendant may, nevertheless, be able to
connected to the offense–the logical equivalent of showing                         prove by a preponderance of the evidence that the firearm was
that it is clearly improbable that the firearm was connected to                    not connected to the offense so as to satisfy § 5C1.2(a)(2).
                                                                                   The “clearly improbable” standard is a higher quantum of
                                                                                   proof than that of the “preponderance of the evidence”
                                                                                   standard. See Moses, 289 F.3d at 852 (construing a
evidence–let alone a preponderance–that this possession was not                    “preponderance of the evidence” as that which is “more likely
connected to his offense. In affirming the § 2D 1.1(b)(1 ) enhancem ent, we        than not”); Johnson, 344 F.3d at 567 (defining the “clearly
implicitly determined that Johnson had failed to prove by a preponderance          improbable” § 2D1.1(b)(1) standard as a difficult one that
of the evidence that he did not po ssess a firea rm in co nnection with his
offense, as § 5C1.2(a)(2) req uires.                                               entails more than showing the existence of a “possible
     Defendant Stuut, a methamphetamine customer and drug-debt                     innocent explanation” or a mere probability that the firearm
enforcer, conceded that, during the conspiracy, he had possessed a                 was not connected to the offense). It does not deductively
firearm, which he had bought and sold to his drug supplier; however,               follow from a defendant’s failure to satisfy a higher quantum
Stuut argued that this possession was not connected to his offen se. Id. at        of proof on a particular issue that he cannot satisfy a lower
566-67. In supp ort, Stuut claimed that he ha d sold the firearm to his drug
supplier based upon the understanding that she needed it for self-                 quantum of proof on that same issue. It also does not
protection and, consequently, that Stuut had not known that she intended           necessarily follow from the existence of a preponderance of
to use the firearm to further the conspiracy. Id. at 566. After affirming          evidence demonstrating that a defendant possessed a firearm
that the governm ent had discharged its prima facie duty, this Court then          during the time of the offense–the government’s prima facie
held that the district court did not clearly err in applying a § 2D1.1(b)(1)       burden of proof–for purposes of a § 2D1.1(b)(1) enhancement
enhancement to Stuut’s sentence because he failed to prove that it was
“clearly impro bab le that the weapon wa s connected to the offense.” Id.          that there exists a preponderance of evidence demonstrating
at 567 . After rec ognizing that a district co urt’s cred ibility determinations   such possession in connection with the offense—contrary to
receive deference, this Court affirmed the district court’s determination          the defendant’s burden of proof–so as to defeat a § 5C1.2(a)
that, during the time of the drug conspiracy, Stuut had sold the firearm to        reduction. See Moses, 289 F.3d at 850. While they are
his drug supplier, whom Stuut knew was engaged in illegal conduct and              quantitatively the same, these evidentiary standards are
for whom Stuut occasio nally kep t drugs.               Id.     Implicit in this
determination was the conc lusion tha t the district court did not clearly err     qualitatively distinct. Similarly, it does not deductively
in deeming Stuut unworthy of credence and, thus, rejecting his self-               follow from the presumption that a defendant’s possession of
serving allegation that he had believed that the firearm was for the               a firearm was connected to the offense–arising from a
supp lier’s personal protection rather than to advance the conspiracy. In          preponderance of evidence demonstrating such possession
essence, this Court affirmed the finding that the only evidence that Stuut         during the time of the offense–for purposes of a § 2D1.1(b)(1)
proffered to pro ve that his possession was not connected with his offense
was unworthy of credence and, thus, tantamount, to no evide nce at all.
                                                                                   enhancement that a preponderance of evidence demonstrating
Thus, we imp licitly determined that Stuut had failed to pro ve by a               such a connection, in fact, exists for purposes of a § 5C1.2(a)
preponderance of the evidence that his conceded possession of the firearm          reduction. Consequently, a defendant’s conduct warranting
was not co nnected to his offense , as § 5C1.2(a)(2) mandates. In sum, the         a § 2D1.1(b)(1) enhancement does not per se preclude that
implicit determinations underlying the application of the § 2D1.1(b)(1)            defendant from proving by a preponderance of the evidence
enhancements–not the application of those enhancements in and of
themselves–precluded the application of the § 5C1.2(a) “safety valve”
                                                                                   that his possession of the firearm was not connected with his
reductions to the sentences o f both Johnson and Stuut.                            offense for purposes of a § 5C1.2 (a) “safety valve” reduction.
No. 02-6168                              United States v. Bolka            9    10    United States v. Bolka                        No. 02-6168

  Even though the district court erred in finding that                          to a search of his residence, federal agents found the three
defendant’s conduct warranting a § 2D1.1(b)(1) enhancement                      firearms in defendant’s bedroom along with
necessarily foreclosed the application of a § 5C1.2(a) “safety                  methamphetamine and scales. Defendant never disproved
valve” reduction,6 the court’s refusal to apply such a                          that one of the revolvers was loaded and that ammunition for
reduction was harmless because defendant failed to discharge                    the other firearms was located in his residence. Defendant
his duty of demonstrating his entitlement to it. Defendant                      admitted that he sold methamphetamine at his residence on
failed to prove by a preponderance of the evidence that he did                  several occasions.
not possess a firearm in connection with his drug offenses.
Defendant conceded that, during the period of his drug                             Second, defendant failed to demonstrate by a
offenses, he possessed a semi-automatic pistol and two                          preponderance of the evidence that his possession of the
revolvers in his residence. First, defendant failed to                          firearms in his residence was not connected to his offense of
demonstrate by a preponderance of the evidence that such                        manufacturing methamphetamine. Presumably to prove this
possession was not connected to his offenses of possession                      lack of connection, defendant denied that he had
with the intent to distribute and distribution of                               manufactured the methamphetamine in his residence. Rather,
methamphetamine. Affirming the facts in the Pre-sentence                        defendant argued that he had manufactured the
Investigation Report, defendant, thus, conceded that, pursuant                  methamphetamine either in a barn or near a pond
                                                                                approximately 500 to 1000 feet from his residence. However,
                                                                                defendant conceded that he had used an acid gas generator to
    6                                                                           “smoke off” methamphetamine–part of the final stages of the
       Given the inherent difficulty in reconciling such a per se proposition
with the evidentiary standard s of §§ 2D1.1(b)(1) and 5 C1.2(a)(2), the         manufacturing process–in the bathroom of his residence. See
district court’s precise reasoning in denying defendant a “safety valve”        United States v. Morrison, 207 F.3d 962, 964 (7th Cir. 2000)
reduction was, und erstand ably, unclear. For example, in considering the       (observing that, as part of the “methamphetamine production
application of the “safety valve” reduction, the district court first noted
that defendant, while conced ing his po ssession of the firearms, was
                                                                                process, salt and sulfuric acid are mixed to produce hydrogen
claiming that this possession was not connected to his drug offenses. The       chloride gas, which is used to crystallize liquid
court then stated that, under Sixth Circuit precedent, a determination of       methamphetamine”). Defendant also conceded that, on about
possession of a firearm “is automatically in connection with the offense.”      one or two occasions, he mixed some of the chemicals that
After, again, noting that defendant had admitted to the req uisite              comprise methamphetamine on the porch of his residence.
possession, the district court o pined that Stewart also “appears to be         Defendant admitted that the agents found items relating to the
saying [that] the [c]ourt is bound by that determination in making its
[§] 5C1.2 . . . (a)(2) determination.” This reasoning may indicate that the     manufacture of methamphetamine both inside and outside of
district court believe d, albeit incorrectly, that it could not find that       defendant’s residence. To the extent that defendant simply
defendant’s possession of the firearms was not connected to his offenses        argues that there is a lack of evidence showing any
so as to satisfy § 5C1.2(a)(2) where, for purposes of a § 2D1.1(b)(1)           connection between his possession of the firearms and his
enhancement, its determination of possession had already given rise to a        offenses, defendant both disregards the strong record evidence
presumption of such a connection. In any event, as the record
demo nstrates, the district court never separately considered the               demonstrating otherwise and misplaces the burden of proof
app licability of §§ 2D1.1(b)(1 ) and 5C1.2(a)(2) to the particular conduct     under § 5C1.2(a) upon the government. Additionally, to the
at issue based up on those p rovisions’ distinct evidentiary standard s.        extent that defendant, for the first time, asserts in his appellate
Rather, the district court, acting upon the erroneous belief that its           brief that his possession of the firearms was for his personal
application of a § 2 D1 .1(b)(1) enhancement automatically foreclosed its       protection, rather than for any purpose connected with his
application of a § 5C1.2(a) reduction, treated such provisions as though
they were intrinsically, mutually exclusive.                                    offenses, such an alternative explanation comes too late. See
No. 02-6168                      United States v. Bolka     11

Fed. R. App. P. 10(a); cf. United States v. Butler, 207 F.3d
839, 849-50 (6th Cir. 2000) (holding that this Court’s
consideration of a new argument in support of a sentencing
objection raised before the district court was proper where the
additional argument entailed a question of pure law and, thus,
did not deprive any party of the opportunity to offer relevant
evidence). In sum, because defendant did not demonstrate his
entitlement to a “safety valve” reduction under § 5C1.2(a), the
district court’s refusal to apply such a reduction on an
erroneous ground was harmless.
  For the foregoing reasons, we AFFIRM the judgment and
defendant’s sentence.
