United States v. David Paul ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID KENNY PAUL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:18-cr-00227-1)
Submitted: November 25, 2019 Decided: December 13, 2019
Before GREGORY, Chief Judge, WYNN, Circuit Judge, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Michelle Roman Fox, MICHELLE ROMAN FOX, ESQ., Hurricane, West Virginia, for
Appellant. Michael B. Stuart, United States Attorney, Stephanie S. Taylor, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Kenny Paul appeals his 46-month sentence imposed following his guilty plea
to possession with intent to distribute heroin and fentanyl, in violation of 21 U.S.C.
§ 841(a)(1) (2012). Paul contends that the district court erred by (1) applying a two-level
weapon enhancement to his Sentencing Guidelines calculation, and (2) denying his request
for a downward variance under the “safety valve” provisions of 18 U.S.C. § 3553(f) (2012)
and U.S. Sentencing Guidelines Manual §§ 2D1.1(b)(18), 5C1.2(a) (2018). * We affirm.
For drug trafficking offenses, the Sentencing Guidelines provide for a two-level
enhancement to a defendant’s offense level when the defendant possessed a dangerous
weapon in connection with the offense. USSG § 2D1.1(b)(1). We review the district
court’s application of the enhancement for clear error, “find[ing] clear error only if, on the
entire evidence, we are left with the definite and firm conviction that a mistake has been
committed.” United States v. Manigan, 592 F.3d 621, 626, 631 (4th Cir. 2010) (brackets
and internal quotation marks omitted).
*
The First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, recently
broadened the scope of eligibility for a safety valve reduction under 18 U.S.C. § 3553(f)
(permitting sentence below statutory minimum when defendant meets eligibility
requirements), from defendants with up to one criminal history point to, in certain
circumstances, defendants with up to four criminal history points. Because Paul has three
criminal history points and the related safety valve reduction under USSG §§ 2D1.1(b)(18)
(permitting two-level reduction to base offense level when defendant meets eligibility
requirements) has not yet been amended to reflect the change to 18 U.S.C. § 3553(f), he
moved for a variance to receive the benefits of the two-level safety valve reduction rather
than moving for the reduction itself. The district court granted Paul a downward variance
based on his “overstated” criminal history but denied Paul’s request for a further variance
under the safety valve because of his possession of a firearm in connection with the drug
trafficking offense.
2
The Government bears the initial burden of proving by a preponderance of the
evidence that a weapon was possessed in connection with drug activities. United States v.
Bolton, 858 F.3d 905, 912 (4th Cir. 2017). “Although the Government need not prove
precisely concurrent drug trafficking and weapon possession, it must at least prove a
temporal and spatial relation linking the weapon, the drug trafficking activity, and the
defendant.” Id. (citation and internal quotation marks omitted). “If the Government
satisfies this burden, the defendant may avoid the enhancement by showing that the
weapon’s link to his or her drug activities was clearly improbable.” Id. (internal quotation
marks omitted); see USSG § 2D1.1 cmt. n.11(A). “[A] sentencing court faced with
whether to apply the weapon enhancement is entitled to take reasonable account of the
settled connection between firearms and drug activities.” Manigan, 592 F.3d at 629.
Here, while executing a search warrant for Paul’s residence, officers discovered
roughly 160 grams of heroin, some mixed with fentanyl, in a locked safe in Paul’s upstairs
bedroom; an unloaded handgun and digital scales in the downstairs kitchen; and various
drug paraphernalia throughout the house. Considering the large quantity of drugs in the
home and the fact that the firearm was a handgun, was easily accessible, and was found
near drug paraphernalia, we conclude that the Government met its initial burden of
establishing that Paul possessed the firearm in connection with drug activities and that Paul
failed to show that the connection was clearly improbable. Accordingly, the district court
did not clearly err in applying the enhancement.
Paul also contests the district court’s rejection of his request for a variance under
the safety valve provisions of 18 U.S.C. § 3553(f) and USSG §§ 2D1.1(b)(18), 5C1.2(a).
3
Paul acknowledges that a defendant who possessed a weapon in connection with his
offense is not applicable for a safety valve reduction. See USSG §§ 2D1.1(b)(18),
5C1.2(a); 18 U.S.C. § 3553(f). He argues, however, that the district court erred by
assuming he was ineligible for the variance just because he received a weapon
enhancement when, in fact, the safety valve reduction and the weapon enhancement require
different burdens of proof. To rebut the weapon enhancement, Paul had to prove that it
was “clearly improbable” that the gun and drugs were connected, but, to qualify for the
safety valve reduction, Paul had to prove by a “preponderance of the evidence” that the
gun and drugs were not connected. Bolton, 858 F.3d at 914. After a review of the record,
we conclude that Paul did not meet either burden. Accordingly, even if we were to
conclude that the district court erred, any error was harmless. See id. (finding harmless
district court’s failure to apply separate analyses to weapon enhancement and safety valve
reduction).
We therefore affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid in the decisional process.
AFFIRMED
4