                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-1997

United States v. Wilson
Precedential or Non-Precedential:

Docket 95-7245




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                             ___________

                             No. 95-7245
                             ___________


UNITED STATES OF AMERICA

                           vs.

DAMON J. WILSON

                           Appellant.


                             ___________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF DELAWARE

                   (D.C. Criminal No. 94-cr-00062)

                             ___________


                        ARGUED APRIL 25, 1996

      BEFORE:     BECKER, NYGAARD and LEWIS, Circuit Judges.

                      (Filed February 14, 1997)

                             ___________


Kenneth E. Fink (ARGUED)
Ferry, Joseph & Fink
824 Market Street, Suite 601
Post Office Box 1351
Wilmington, DE 19899

          Attorney for Appellant




                                 1
Colm F. Connolly (ARGUED)
Office of the United States Attorney
Chemical Bank Plaza, Suite 1100
1201 Market Street
Post Office Box 2046
Wilmington, DE 19899-2046

          Attorney for Appellee


                            ___________

                        OPINION OF THE COURT
                            ___________


LEWIS, Circuit Judge.


          This is an appeal from the imposition of the mandatory

minimum sentence for possession with intent to distribute a

controlled substance.   The district court found that the

defendant's possession of a firearm in connection with prior drug

dealing activities precluded the application of the Safety Valve

Provision of the Sentencing Guidelines.    For the reasons which

follow, we conclude that the district court was correct and will

affirm the sentence imposed.

                                  I.

          In mid-September, 1994, Damon J. Wilson was arrested,

charged and pleaded guilty to one count of possession with intent

to distribute over 50 grams of cocaine base (i.e., crack).     See

21 U.S.C. §§ 841(a)(1) and (b)(1)(A).     The government initially

recommended to the district court that it sentence him in

accordance with § 5C1.2 (the "Safety Valve Provision") of Chapter

Five of the United States Sentencing Guidelines (the




                                  2
"Guidelines") codified at 18 U.S.C. § 3553(f).1   The government

later reversed its position and argued that Wilson was ineligible

for the Safety Valve Provision.

          Under this provision, a district court may depart from

the minimum mandatory guideline range when calculating a

defendant's sentence if five criteria are met.2   The issue

1.    Because Wilson was sentenced while the 1994 edition of the
Guidelines was in effect, we will rely on that edition throughout
our discussion. See United States v. Cherry, 10 F.3d 1003 (3d
Cir. 1993) (sentencing courts must generally apply the Guidelines
in effect at the time of sentencing); 18 U.S.C. § 3553(a)(4).

2.    In particular, § 3553(f) provides that:

          Notwithstanding any other provision of law,
          in the case of an offense under section 401,
          404 or 406 of the Controlled Substance Act .
          . . , the court shall impose a sentence
          pursuant to guidelines promulgated by the
          United States Sentencing Commission . . .
          without regard to any statutory minimum
          sentence, if the court finds at sentencing,
          after the Government has been afforded the
          opportunity to make a recommendation, that --

          (1) the defendant does not have more than 1
          criminal history point, as determined under
          the sentencing guidelines;

          (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 the death
          or serious bodily injury to any person;

          (4) the defendant was not an organizer,
          leader, manager, or supervisor of others in
          the offense, as determined under the
          sentencing guidelines and was not engaged in
          a continuing criminal enterprise, as defined
          in 21 U.S.C. § 848; and

          (5) not later than the time of the
          sentencing hearing, the defendant has


                                  3
presented at sentencing was whether Wilson had satisfied one of

these criteria, namely § 5C1.2(2), which requires the defendant

to establish that he or she did not possess a firearm in

connection with the offense.3   See, e.g., United States v.

Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996) (noting that although

there is no legislative comment on the issue, courts have placed

the burden of proof under the Safety Valve Provision on the

defendant).    The commentary to the Safety Valve Provision defines

"offense" as "the offense of conviction and all relevant

conduct."    U.S.S.G. § 5C1.2 comment. (n.3).

            After conducting three sentencing hearings, the

district court concluded that Wilson had possessed "a firearm in

connection with the offense.    In connection meaning in connection

with his drug enterprise and gun enterprise that he was running

(..continued)
          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, but the fact that the
          defendant has no relevant or useful other
          information to provide or that the Government
          is already of aware of the information shall
          not preclude a determination by the court
          that the defendant has complied with this
          requirement.

3.    Congress did not indicate whether the government or a
defendant should bear the burden of proving that the "safety
valve" criteria have been met. In our view, this burden properly
should fall upon the defendant because the provision is
specifically designed to benefit defendants by allowing district
courts to impose a sentence below the mandatory minimum under
certain circumstances. We note, however, that the government
bears the initial burden of proving that prior conduct by a
defendant falls within the scope of "relevant conduct" for
purposes of determining the applicability of the Safety Valve
Provision.



                                 4
in Wilmington . . ." from May, 1994 until his arrest in

September, 1994.   Sentencing Hearing Transcript, Appellant's

Appendix at A-202.     Accordingly, it declined to apply the Safety

Valve Provision of the Guidelines and instead sentenced Wilson to

the 10-year minimum mandatory term of imprisonment.

          The district court's conclusion was based on the

following evidence.

          Wilson admitted in the Pre-Sentence Report (PSI) that

he dealt drugs in May and June of 1994.     According to the

Probation Officer, Wilson "candidly explained how he became

involved in the sale of drugs, and how his involvement

`escalated' over the course of the year prior to his arrest for

the instant offense."     PSI at ¶ 12.   Wilson further stated to the

Probation Officer that "there were times that he wanted to `chill

out' and stop selling drugs, but he felt extremely pressured by

the person for whom he sold drugs to `stay in the game.'"       Id.

He even expressed relief when he was apprehended because he was

hurting people, but in order to stop he would have been putting

his own life in jeopardy.    The foregoing suggests that he was

continuing to sell drugs between May and June and September of

1994, when he was arrested in the instant case.      He also admitted

to supervising others in selling drugs in the vicinity of the

corner of Fourth and Broom in Wilmington, Delaware over the

course of that year.    Witnesses testified that Wilson had the

reputation of being a drug dealer at that location.      When

arrested in September on the corner of Third and Broom, he

possessed both cocaine and marijuana.


                                  5
          Wilson stated that he moved from his mother's home

because of his involvement in the sale of illegal drugs and the

potential danger this could cause to his family, specifically his

two younger brothers.   Coy Haynes, Sean Joyce and Theodore Marek

admitted that at around the same time, Wilson arranged for them

to purchase guns for him.   According to their testimony, from May

6 to May 23, 1994, Wilson purchased eleven guns for himself and

those who worked for him selling drugs.   On June 14, 1994, he

purchased three guns and attempted to purchase more.   He made

another attempted purchase at some time before July 4, 1994.

According to Joyce, Wilson attempted to initiate a cocaine-for-

guns transaction and was possibly involved in gun sales to buyers

in New York State.

          The district court also considered that Wilson's

September, 1994, arrest was not his first encounter with the law.

 He had been arrested in June, 1994, for possession of a Tec .22

with an obliterated serial number, a gun meeting the description

of one of those bought by Wilson on May 6.   He was never charged

in connection with that offense, the case having been nol prossed

for reasons not apparent from the record.    He told investigators

that he did not carry a weapon after the June arrest; however,

those who worked for him continued to carry weapons and provided

Wilson with protection.

                               II.

          The question in this appeal is whether the district

court erred in concluding that Wilson did not qualify for

sentencing under the Safety Valve Provision because he possessed


                                6
a firearm in connection with the offense.    The court's finding

that the "safety valve" did not apply was grounded in its belief

that Wilson's past drug dealing constituted conduct relevant to

the offense of conviction and that Wilson's involvement with guns

was connected to this relevant conduct.   Our discussion will

focus upon the validity of these premises.

          We exercise appellate jurisdiction over this case

pursuant to 18 U.S.C. § 1291.4   We review for clear error the

district court's factual findings regarding Wilson's past

involvement with drugs.   See United States v. Hamilton, 929 F.2d

1126, 1130 (6th Cir. 1991).   By contrast, "[w]hether the facts

found by the district court warrant application of a particular

guideline provision is a legal question and is to be reviewed de

novo."   See United States v. Partington, 21 F.3d 714, 717 (6th

Cir. 1994).   Accordingly, our review of the district court's

ultimate refusal to invoke the Safety Valve Provision is plenary.

                                 A.

          Based upon the government's submissions, we believe

that the following, taken from its Supplemental Brief, represents

the clearest articulation of its position in this case:
[t]he government does not argue and the record evidence
          does not support a finding that Wilson's past
          involvement with firearms occurred on a
          sufficiently regular basis or was
4.    The government contends that we lack appellate jurisdiction
over this case. See Appellee's Br. at 1. The government is
mistaken. The district court's refusal to invoke the "safety
valve" provision in this instance was not based upon an exercise
of its discretion, but upon its interpretation of a Guidelines
provision. See Sentencing Hearing Transcript, Appellant's
Appendix at A-198 ("I [the district court] think we're involved
here with a question of statutory interpretation.").



                                 7
           sufficiently similar to the instant drug
           offense of conviction to constitute "relevant
           conduct." Wilson's past drug dealings,
           however, were sufficiently regular and had
           sufficient temporal proximity and similarity
           to the instant offense to constitute relevant
           conduct; and because Wilson possessed
           firearms during this relevant conduct of drug
           dealing, he fails to satisfy 18 U.S.C.
           § 3553(f)(2).


Government's Supplemental Letter Brief at 1 (emphasis removed).

Essentially, the government argues that Wilson's prior drug

dealing is "relevant conduct" because it was part of the "same

course of conduct" and "common scheme or plan" as his offense of

conviction.     See id. at 3.

                  Wilson argues that his prior drug dealing is not

relevant conduct and even if it were, the connection between his

possession of a firearm and his offense is too tenuous for the

purposes of the Safety Valve Provision.

                                  B.

             The Safety Valve Provision does not define "relevant

conduct" for its own purposes, and we must look elsewhere in the

Guidelines to understand how it is used there.     See U.S.S.G.

§ 5C1.2.   However, section 1B1.3 (the "Relevant Conduct

Provision"), provides guidance in delineating the scope of

"relevant conduct" for the purposes of the Safety Valve

Provision.    See United States v. Smith, 991 F.2d 1468, 1471 (9th
Cir. 1993).

           "Relevant conduct" for an offense that requires the

grouping of multiple counts, singly undertaken, includes "all

acts and omissions committed, aided, abetted, counseled,



                                  8
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), and "all acts and

omissions described . . . [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).

          The commentary defines the "same course of conduct" as

those offenses that "are sufficiently connected or related to

each other as to warrant the conclusion that they are part of a

single episode, spree, or ongoing series of offenses."   U.S.S.G.

§ 1B1.3 comment. (n.9(B)).   It defines a "common scheme or plan,"

as a criminal plan in which two or more offenses are

"substantially connected to each other by at least one common

factor, such as common victims, common accomplices, or similar

modus operandi."   U.S.S.G. § 1B1.3 comment. (n.9(A)).   Although

there is substantial overlap between the two terms, the former

envelops a greater sphere of activity than the latter.

          The commentary provides a three-prong test to determine

whether offenses are part of the same course of conduct.   The

sentencing court must look to "the degree of similarity of the

offenses, the regularity (repetitions) of the offenses, and the

time interval between offenses."    U.S.S.G. § 1B1.3 comment. (n.9)

(adopting the three prong test from United States v. Hahn, 960
F.2d 903, 910 (9th Cir. 1992), effective November 1, 1994).   Even

if one factor is absent, "a stronger presence of at least one of


                                9
the other" factors may be sufficient to find the same course of

conduct.   U.S.S.G. § 1B1.3 comment. (n.9); see also Hahn, 960

F.2d at 910 (same); United States v. Hill, 79 F.3d 1477, 1484

(6th Cir. 1996), cert. denied, 117 S. Ct. 158 (while there is no

bright line rule as to what constitutes the same course of

conduct, a court may look to the relative strengths of the three

prongs in reaching its conclusion).

           In finding that offenses satisfy the temporal proximity

prong, courts have considered offenses that precede the offense

of conviction by as much as 17 months.     United States v.

Richards, 27 F.3d 465, 468-69 (10th Cir. 1994); see also United

States v. Santiago, 906 F.2d 867, 873 (2d Cir. 1990) (affirming

ruling that drug sales occurring eight months before drug offense

of conviction were relevant conduct); United States v. Moore, 927

F.2d 825, 828 (5th Cir.), cert. denied, 502 U.S. 871 (1991)

(affirming ruling that drug sales occurring five months before

drug offenses of conviction were relevant conduct).

           In evaluating offenses under the similarity prong, a

court must not do so at such "a level of generality that would

render worthless the relevant conduct analysis."     Hill, 79 F.3d
at 1483; see also United States v. Maxwell, 34 F.3d 1006, 1011-12

(11th Cir. 1994).     In determining similarity in a drug case, a

court may consider the similarity of the offenses (i.e., two

sales of cocaine as opposed to a sale of cocaine and a sale of

LSD); the quantities involved; the location of the offenses; the

identity of the supplier, buyer or other participants.    See Hill,
79 F.3d at 1484-85.



                                  10
                                III.

          Whether Wilson is eligible for the Safety Valve

Provision depends on whether he possessed a firearm in connection

with the offense of conviction and all relevant conduct.       See

U.S.S.G. § 5C1.2.   It is undisputed that Wilson did not possess a

firearm in connection with the offense of conviction.    Our

analysis then has two steps.    We must first determine whether

Wilson was involved in prior drug dealing that amounted to

relevant conduct to the offense of conviction.    If we so find, we

must then determine whether he possessed a firearm in connection

with that prior drug dealing.

                                 A.

          Wilson argues that his drug dealing prior to the

September arrest fails to satisfy the three prong test for "same

course of conduct."   See United States v. Hahn, 960 F.2d 903, 910

(9th Cir. 1992); U.S.S.G. § 1B1.3 comment. (n.9(B)).    If Wilson

were correct, he would meet the requirements of § 5C1.2(2)

because it is undisputed that he did not possess a firearm in

connection with the offense of conviction.    The government argues

that Wilson's drug dealing prior to his September arrest, taken

as a whole, is sufficiently similar to the offense of conviction

to warrant a conclusion that it was part of the "same course of

conduct" or "common scheme or plan."

          The applicable standard of relevant conduct for Wilson

is that which applies to an offense requiring the grouping of

multiple counts, singly undertaken.    U.S.S.G. § 1B1.3(a).    That

section applies to "offenses of a character for which § 3D1.2(d)


                                 11
would require grouping of multiple counts."     U.S.S.G.

§ 1B1.3(a)(2).    Section 3D1.2(d) requires the grouping of drug

offenses, including those covered by § 2D1.1.     U.S.S.G.

§ 3D1.2(d).     Wilson was sentenced for a drug offense --

possession with intent to distribute over fifty grams of crack --

covered by § 2D1.1.     Thus, his offense is of a character for

which § 3D1.2(d) would require grouping of multiple counts.

             The record shows that Wilson's drug dealing activities

in the year preceding his arrest fit within the definition of

"same course of conduct."     By his own admission, he was regularly

engaged in drug sales for the year prior to his September arrest,

satisfying both the "regularity" and "temporal proximity" tests

for determining "same course of conduct."5    Wilson also admitted

to moving out of his parents' home in May, 1994, because he was

concerned that his drug dealing was putting his family in danger.

          Wilson's admissions are consistent with other evidence

in the record.    Those who sold guns to Wilson indicated that he

was known to be a drug dealer who sold from the corner of Fourth

and Broom.    The fact that he was arrested in September selling

small quantities of drugs on Third and Broom, taken together with

his lack of gainful employment, support the conclusion that he

regularly sold drugs.    These findings independently satisfy both

the "regularity" and "temporal proximity" prongs of the three


5.    Wilson argues that his Presentence Report admission to
selling drugs over the last year should be excluded pursuant to
U.S.S.G. § 1B1.8. However, § 1B1.8 is not applicable as Wilson's
admissions merely corroborated information already known by the
government.



                                  12
prong test.   See United States v. Richards, 27 F.3d 465, 468-69

(10th Cir. 1994); United States v. Moore, 927 F.2d 825, 828 (5th

Cir.), cert. denied, 502 U.S. 871 (1991); United States v.

Santiago, 906 F.2d 867, 873 (2d Cir. 1990).

          Although Wilson did not admit to dealing the same types

of drugs both while in possession of firearms and in connection

with his offense of conviction, other evidence supports this

conclusion.   For example, Wilson was arrested in September while

in possession of both marijuana and cocaine.    In May, 1994,

Wilson told someone he bought guns from that he could supply him

with "anything he wanted" by way of drugs, and specifically

offered to trade him cocaine for firearms.     Although mindful that

we are not to evaluate Wilson's behavior at "a level of

generality that would render worthless the relevant conduct

analysis," Hill, 79 F.3d at 1483, the record has demonstrated

that Wilson has dealt drugs, and cocaine in particular, both when

he was in possession of firearms and in connection with the

offense of conviction.   Wilson's admission of prior drug dealing,

the reputation evidence and the circumstances surrounding his

September arrest are sufficient to satisfy the similarity prong.

 We conclude that Wilson's prior drug dealing, particularly

during May, 1994, is part of the same course of conduct as the

offense of conviction.   See id. at 1484-85.
          The record indicates that Wilson was continuously

involved in the sale of drugs for at least one year until his

arrest, that the business was so large that he employed others to

sell for him, and that he offered a variety of drugs for sale


                                13
throughout.    We conclude from this course of conduct that

Wilson's prior drug dealing was relevant conduct to the offense

of conviction for possession of crack with the intent to

distribute for the purposes of the Relevant Conduct and Safety

Valve Provisions.    Because we so conclude, we need not decide

whether they were also part of a common scheme or plan.

                                  B.

             Wilson further argues that even if the prior drug

dealing can be tied to the offense of conviction, the possession

of the firearm that was contemporaneous with the earlier drug

dealing should not ride "piggyback" on our safety valve analysis.

 That is, even if the earlier drug dealing is relevant conduct,

Wilson's involvement with firearms is too tenuously connected to

the offense of conviction for the purposes of the Safety Valve

Provision.    The government argues that the drug dealing is

sufficiently connected to Wilson's involvement with firearms to

make him ineligible for the safety valve.     In determining whether

Wilson possessed a firearm in connection with his prior drug

dealing, we again look to the evidence of record.

             Wilson was involved in gun transactions from May

through July, 1994, and he was arrested for gun possession in

June, 1994.    These actions are obviously concurrent with conduct

relevant to the offense of conviction as they occurred during the

period in which Wilson dealt drugs.     Moreover, he bought firearms

to protect himself, those who worked for him and his drug

enterprise; he attempted to trade drugs for guns; and he

participated in firearms transactions with the same parties who


                                  14
sold him the firearms meant for his drug enterprise.   Thus,

Wilson's involvement with firearms furthered his drug enterprise;

and his firearms transactions resulted from his contact with

those he met through his drug enterprise.   We conclude that his

involvement with firearms is integrally connected to his prior

drug dealing.

                               IV.

          Accordingly, the district court's findings of fact

support the conclusion that Wilson possessed a firearm in

connection with his prior drug dealing, and that this was conduct

relevant to the offense of conviction for the purposes of the

Safety Valve Provision.   The district court correctly concluded

that Wilson failed to meet one of the requirements of the Safety

Valve Provision.   Thus, we will affirm the district court's

refusal to apply the Safety Valve Provision.




                                15
