APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Criminal No. 94-cr-00062)
BEFORE: BECKER, NYGAARD and LEWIS, Circuit Judges.
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.
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. Section(s) 841(a)(1) and (b)(1)(A). The government initially recommended to the district court that it sentence him in accordance with Section(s) 5C1.2 (the "Safety Valve Provision") of Chapter Five of the United States Sentencing Guidelines (the "Guidelines") codified at 18 U.S.C. Section(s) 3553(f). *fn1 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. *fn2 The issue presented at sentencing was whether Wilson had satisfied one of these criteria, namely Section(s) 5C1.2(2), which requires the defendant to establish that he or she did not possess a firearm in connection with the offense. *fn3 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. Section(s) 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 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 Para(s) 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.
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 ...