United States v. Michael Voelz ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2276
___________________________
United States of America
Plaintiff - Appellee
v.
Michael Allen Voelz
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: February 15, 2023
Filed: May 8, 2023
____________
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
____________
BENTON, Circuit Judge.
Michael A. Voelz pled guilty to a drug offense in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A). The district court1 applied a two-level sentence
enhancement for possessing a dangerous weapon in connection with a drug offense
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
under U.S.S.G. § 2D1.1(b)(1), while declining safety-valve relief under 18 U.S.C. §
3553(f) and U.S.S.G. § 5C1.2. The court sentenced him to the statutory minimum
of 120 months in prison. Voelz appeals. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
I.
Two confidential reliable informants (“CRIs”) made four controlled
purchases of methamphetamine from Michael A. Voelz at his farmstead. The CRIs
saw firearms there. A search warrant found 20 firearms, a silencer, and a pipe bomb
there. Two of the controlled purchases occurred inside a shed, which had three of
the firearms (a handgun and two rifles), the pipe bomb, pipes with meth residue,
scales, and other drug paraphernalia. A garage there had most of the meth and a
locked safe with 15 of the firearms. Voelz’s truck had two loaded firearms (one with
a silencer) and drug paraphernalia.
Voelz pled guilty to a single count of possession with intent to distribute 500
grams or more of a substance containing a mixture, or a detectable amount, of meth
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The Presentence
Investigation Report recommended a two-level enhancement for possessing a
dangerous weapon in connection with a drug offense pursuant to U.S.S.G. §
2D1.1(b)(1). The district court applied the enhancement and declined to grant
safety-valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.
Voelz appeals, alleging error in (i) enhancing his sentence, (ii) denying safety-
valve relief, (iii) assigning him the burden of proof for the safety-valve requirements,
and (iv) applying these sentencing guidelines after New York State Rifle & Pistol
Association, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022).
-2-
II.
Voelz argues that the district court erred by enhancing his sentence under
U.S.S.G. § 2D1.1(b)(1). “This court reviews de novo the district court’s
interpretation of the Guidelines and reviews for clear error, its application of the
Guidelines to the facts.” United States v. Garcia, 772 F.3d 1124, 1125 (8th Cir.
2014).
“Federal Sentencing Guideline § 2D1.1(b)(1) provides for an increase of two
levels to a person’s base offense level for certain drug-related crimes ‘if a dangerous
weapon (including a firearm) was possessed.’” United States v. Payne, 81 F.3d 759,
762 (8th Cir. 1996), quoting U.S.S.G. § 2D1.1(b)(1). “The enhancement should be
applied if the weapon was present, unless it is clearly improbable that the weapon
was connected with the offense.” Garcia, 772 F.3d at 1125, quoting U.S.S.G. §
2D1.1 Application Note 11(a).
“The enhancement poses a very low bar for the government to hurdle.” Id.
“The government must simply show that it is not clearly improbable that the weapon
was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889
(8th Cir. 2008). This requires “a preponderance of the evidence that there was a
temporal and spatial nexus among the weapon, defendant, and drug-trafficking
activity.” United States v. Escobar, 909 F.3d 228, 240 (8th Cir. 2018). “This exists
when the weapon was found in the same location where drugs or drug paraphernalia
were located or where part of the conspiracy took place.” Garcia, 772 F.3d at 1125.
“[T]he presence of a firearm in a location where it could be used to protect drugs can
be sufficient evidence to prove the requisite connection.” United States v. Young,
689 F.3d 941, 946 (8th Cir. 2012) (alteration in original), quoting United States v.
Warford, 439 F.3d 836, 844 (8th Cir. 2006). “The government need not show that
the defendant used or even touched a weapon to prove a connection between the
weapon and the offense.” United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir.
2000).
-3-
Voelz sold meth four times at his farmstead. Twenty firearms and a pipe
bomb were located near drugs and drug paraphernalia. At least two of the purchases
occurred in the shed where three firearms and the pipe bomb were stored. The
garage, where most of the meth was stored, had a safe with 15 firearms within 10
feet of the drugs. All 20 of the weapons on the property were near drugs or drug
paraphernalia. Police knew about the weapons only because the CRIs saw the
weapons during the controlled purchases.
The firearms and pipe bomb were “found in the same location[s] where drugs
or drug paraphernalia were located and part of the [offense] took place.” Garcia,
772 F.3d at 1125. The government adduced sufficient evidence of “a temporal and
spatial nexus among the weapon, defendant, and drug-trafficking activity.”
Escobar, 909 F.3d at 240. The government here hurdled the “very low bar” for
enhancement. Garcia, 772 F.3d at 1125.
Voelz argues that the enhancement should not apply because the firearms in
the garage were locked in the safe. But the weapons in the shed, where at least two
of the four controlled purchases occurred, were not in a safe—which independently
supports the enhancement. Even without independent evidence, the locked garage
safe might support the enhancement. See United States v. Anderson, 618 F.3d 873,
880-81 (8th Cir. 2010) (finding a nexus between a handgun and drug-trafficking
activity where the handgun was locked in a safe that was locked inside of a storage
unit); Brown v. United States, 169 F.3d 531, 533-34 (8th Cir. 1999) (finding a nexus
between firearms and drug-trafficking activity where the drug-trafficking activities
occurred in the basement and the firearms were locked in a safe on the first floor
with drug money).
Voelz stresses he had legitimate purposes for possessing the firearms. But
this does not affect the analysis. See United States v. Belitz, 141 F.3d 815, 818 (8th
Cir. 1998) (“Nor is the fact that [defendant] allegedly possessed the gun for a
legitimate purpose controlling.”); United States v. Newton, 184 F.3d 955, 958 (8th
Cir. 1999) (“The use or intended use of firearms for one purpose, however, even if
-4-
lawful, does not preclude their use for the prohibited purpose of facilitating the drug
trade, and therefore does not automatically remove them from the purview of section
2D1.1(b)(1).”).
It is not clearly improbable that the weapons were connected to Voelz’s drug
offense. See Garcia, 772 F.3d at 1125. The district court properly applied the two-
level enhancement under U.S.S.G. § 2D1.1(b)(1).
III.
Voelz argues that the district court erred by denying safety-valve relief under
18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. “This court reviews the interpretation of
18 U.S.C. § 3553(f) de novo. The district court’s factual findings on safety-valve
eligibility are reviewed for clear error.” United States v. Foote, 705 F.3d 305, 306
(8th Cir. 2013).
“Safety-valve relief allows the district court to disregard an applicable
statutory minimum if certain requirements are met.” United States v. Barrera, 562
F.3d 899, 902 (8th Cir. 2009), citing 18 U.S.C. § 3553(f). “The Guidelines reflect
this statutory provision.” United States v. Ruacho, 746 F.3d 850, 853 (8th Cir.
2014), citing U.S.S.G. § 5C1.2. Under that provision “less knowledgeable and less
culpable offenders may be able to avoid application of the often harsh statutory
minimum sentences if they give full and truthful information about their offenses
before sentencing.” United States v. Alvarado-Rivera, 412 F.3d 942, 944 (8th Cir.
2005) (en banc). “The statute creating the safety valve provides that it is the district
court which is to determine at sentencing whether the requirements for the benefit
have been met . . . .” Id. at 947, citing 18 U.S.C. § 3553(f). “Defendants have the
burden to show affirmatively that they have satisfied each requirement for the safety
valve . . . .” Id. One requirement is:
-5-
....
(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;
....
18 U.S.C. § 3553(f)(2). See also U.S.S.G. § 5C1.2(a)(2) (same).
The issue is whether Voelz “possess[ed] a firearm or other dangerous weapon
. . . in connection with the offense.” 18 U.S.C. § 3553(f)(2). As discussed, the §
2D1.1(b)(1) enhancement applies here. “Our conclusion that the increase under §
2D1.1(b)(1) was proper dictates our conclusion that [defendant] was ineligible for
the ‘safety valve’ provision under § 5C1.2(2).” United States v. Moore, 184 F.3d
790, 795 (8th Cir. 1999), citing United States v. Smith, 175 F.3d 1147, 1149 (9th
Cir. 1999) (“Every circuit to consider the issue has held that conduct which warrants
an increase in sentence under § 2D1.1(b)(1) necessarily defeats application of the
safety valve.”). But see United States v. Nelson, 222 F.3d 545, 550 (9th Cir. 2000)
(holding “separate and distinct burdens of proof for § 2D1.1(b)(1) and § 5C1.2 are
not inconsistent with [the Ninth Circuit’s] opinion in Smith and the cases upon which
it relied”). Because Voelz’s sentence was properly enhanced under U.S.S.G. §
2D1.1(b)(1), he is ineligible for safety-valve relief. See Moore, 184 F.3d at 795. 2
Citing an Eleventh Circuit case, Voelz argues that a defendant who receives
U.S.S.G. § 2D1.1(b)(1) enhancement should not be precluded from safety-valve
relief. See United States v. Carrasquillo, 4 F.4th 1265, 1272 (11th Cir. 2021). That
court explained that “not all defendants who receive the firearm enhancement under
2
An exception to this general rule is irrelevant here. See United States v.
Delgado-Paz, 506 F.3d 652, 655-56 (8th Cir. 2007) (“[T]he circuits are unanimous
in holding that possession of a weapon by a defendant’s co-conspirator does not
render the defendant ineligible for safety-valve relief unless the government shows
that the defendant induced the co-conspirator’s possession.” (citations omitted)).
-6-
U.S.S.G. § 2D1.1(b)(1) are precluded from relief under § 5C1.2(a)(2)” because “a
defendant who receives a § 2D1.1(b) enhancement must show that it is more likely
than not that the possession of the firearm was not in connection with the offense.”
Id. (emphasis added), citing United States v. Carillo-Ayala, 713 F.3d 82, 91 (11th
Cir. 2013). Carrasquillo is not persuasive. Unlike the Eleventh Circuit, this court’s
clearly-improbable standard precludes safety-valve relief for a defendant with a
sentence enhanced by U.S.S.G. § 2D1.1(b)(1). See Moore, 184 F.3d at 795. See
generally Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“It
is a cardinal rule in our circuit that one panel is bound by the decision of a prior
panel.”). 3
Regardless, sufficient evidence supports the conclusion that Voelz possessed
the weapons in connection with the offense. “[C]onstructive possession is sufficient
to preclude a defendant from receiving safety valve relief under § 5C1.2.” United
States v. Jackson, 552 F.3d 908, 910 (8th Cir. 2009). See generally United States
v. Warford, 439 F.3d 836, 844 (8th Cir. 2006) (“A defendant possesses a firearm ‘in
connection with’ an offense if the evidence shows that the weapon ‘facilitated or had
[the] potential to facilitate’ the drug offense.” (alteration in original)), quoting
United States v. Burke, 91 F.3d 1052, 1053 (8th Cir. 1996). The 20 firearms and
pipe bomb on the property, including the three weapons in the shed and 15 firearms
in the garage, were all near drugs or drug paraphernalia. At least two of the
controlled purchases took place in the shed where the firearms and pipe bomb were
located. The CRIs saw the weapons during the controlled purchases. At a minimum,
Voelz constructively possessed some of these weapons in connection with the drug
offense.
3
See, e.g., United States v. Ruiz, 621 F.3d 390, 397 (5th Cir. 2010); United
States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005); Smith, 175 F.3d at 1149. But
see, e.g., United States v. Bolton, 858 F.3d 905, 914 (4th Cir. 2017), citing United
States v. Carillo-Ayala, 713 F.3d 82, 91 (11th Cir. 2013); United States v. Anderson,
452 F.3d 87, 90 (1st Cir. 2006); United States v. Zavalza-Rodriguez, 379 F.3d 1182,
1188 (10th Cir. 2004); United States v. Bolka, 355 F.3d 909, 914 (6th Cir. 2004);
Nelson, 222 F.3d at 549-51.
-7-
The district court did not clearly err in finding Voelz ineligible for safety-
valve relief because enhancement under U.S.S.G. § 2D1.1(b)(1) was proper. See
Moore, 184 F.3d at 795.
IV.
Voelz argues that placing the burden of proof of the safety-valve requirements
on him violates the Fifth and Sixth Amendments because (i) the requirements are
elements of the charged offense that the government must prove beyond a reasonable
doubt and (ii) a judicial finding of safety-valve requirements violates Alleyne by
affecting mandatory minimum sentences. See Alleyne v. United States, 570 U.S.
99, 108 (2013). But since Voelz did not make this objection in the district court, “he
has failed properly to preserve the issue for appeal.” United States v. Payne, 81 F.3d
759, 764 (8th Cir. 1996) (claim as to constitutionality of sentencing enhancement
statute not raised below was not properly preserved for appeal); United States v.
White, 890 F.2d 1033, 1034 (8th Cir. 1989) (same).
Because Voelz “did not assert this as an error below, this argument is reviewed
for plain error.” United States v. Porchay, 533 F.3d 704, 708 (8th Cir. 2008).
Plain error review is governed by the four-part test of [United
States v. Olano, 507 U.S. 725, 732-36 (1993)], as articulated in
[Johnson v. United States, 520 U.S. 461, 466-67 (1997)]: “before an
appellate court can correct an error not raised at trial, there must be (1)
error, (2) that is plain, and (3) that affects substantial rights. If all three
conditions are met, an appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc), quoting
Johnson, 520 U.S. at 466-67.
This court, like five other circuits, has held that “the requirements of Alleyne
do not apply to a district court’s determination of whether the safety valve provided
-8-
in 18 U.S.C. § 3553(f) applies.” United States v. Leanos, 827 F.3d 1167, 1170 (8th
Cir. 2016). See also id. at 1169 (“Five of our sister circuits have addressed this
specific issue, and all five have declined to extend Alleyne in the manner that
[defendant] proposes.” (citations omitted)). Unlike the statute in Alleyne, the safety-
valve statute “does not increase the mandatory minimum; instead, it removes it.”
United States v. King, 773 F.3d 48, 55 (5th Cir. 2014) (“Indeed, throughout the
opinion, Alleyne emphasizes the aggravating nature of increasing a mandatory
minimum sentence. In contrast, the safety valve at issue here mitigates the
penalty.”). See also United States v. Lizarraga-Carrizales, 757 F.3d 995, 999 (9th
Cir. 2014) (“[T]he safety valve does not come into play until the sentencing judge
determines that a mandatory minimum applies. . . . the denial of safety valve relief
does not increase the statutory maximum or minimum such that Alleyne is
implicated.”).
Although Voelz acknowledges this precedent, he claims that United States v.
Haymond, 139 S. Ct. 2369, 2377-80 (2019) (plurality opinion), compels this court
to reconsider Leanos. See generally United States v. Taylor, 803 F.3d 931, 933 (8th
Cir. 2015) (“[A] prior panel ruling does not control when the earlier panel decision
is cast into doubt by an intervening Supreme Court decision.”). The Supreme Court
in Haymond invalidated a statute that required a minimum sentence of five years if
a judge finds, by a preponderance of the evidence, that a sex offender on supervised
release possessed child pornography. See Haymond, 139 S. Ct. at 2378.
The Ninth Circuit has rejected Voelz’s argument. See United States v. Cole,
843 Fed. Appx. 886, 887-88 (9th Cir. 2021) (unpublished). The district court there
declined safety-valve relief under 18 U.S.C. § 3553(f). The defendant appealed,
arguing that, in light of Haymond, Ҥ 3553(f) unconstitutionally relieves the
government of having to prove to a jury facts triggering an increased minimum
sentenced.” Id. at 888. The Ninth Circuit disagreed:
This argument conflates relief from an earned sentence with the
elements of the crime underpinning that sentence. Haymond is readily
-9-
distinguishable, as it dealt with supervised-release violations resulting
in new mandatory minimums without the violations having been
proven to a jury. Here, however, the jury’s findings authorized the
sentence imposed, and the onus of establishing an entitlement to less
time appropriately rested upon Cole.
Id. (citations omitted).
This court agrees with the Ninth Circuit that a judicial finding of safety-valve
requirements does not implicate Alleyne and Haymond because the safety valve does
not increase the legally prescribed range of allowable sentences. See Haymond, 139
S. Ct. at 2378 (“So just like the facts the judge found at the defendant’s sentencing
hearing in Alleyne, the facts the judge found here increased ‘the legally prescribed
range of allowable sentences’ in violation of the Fifth and Sixth Amendments.”),
quoting Alleyne, 570 U.S. at 115. “This logic respects not only our precedents, but
the original meaning of the jury trial right . . . . The Constitution seeks to safeguard
the people’s control over the business of judicial punishments by ensuring that any
accusation triggering a new and additional punishment is proven to the satisfaction
of a jury beyond a reasonable doubt.” Id. at 2380 (emphasis added).
The district court did not commit plain error by following Eighth Circuit
precedent and properly assigning the burden of proof for safety-valve relief on
Voelz. See Alvarado-Rivera, 412 F.3d at 947 (“Defendants have the burden to show
affirmatively that they have satisfied each requirement for the safety valve.”).4
4
Voelz makes a similar argument about the burden of proof for the dangerous-
weapon enhancement discussed in Part II. Voelz waived this argument by not
objecting to the burden of proof at sentencing. See United States v. Price, 851 F.3d
824, 826 (8th Cir. 2017) (“To preserve an error for appellate review, an objection
must be timely and must clearly state the grounds for the objection. Errors not
properly preserved are reviewed only for plain error.”). There is no error, plain or
otherwise, in a district court and this court following Eighth Circuit precedent. See
Mader, 654 F.3d at 800 (“It is a cardinal rule in our circuit that one panel is bound
by the decision of a prior panel.”).
-10-
V.
Voelz argues that the sentencing enhancement under U.S.S.G. § 2D1.1(b)(1)
and the safety-valve relief under 18 U.S.C. § 3553(f) are unconstitutional in this case
after New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2122
(2022).
The parties dispute the standard of review. The government proposes that,
because Voelz did not present this issue to the district court, he has not preserved it
for appeal, and this court should review for plain error. See Pirani, 406 F.3d at 549(en banc) (“An error by the trial court, even one affecting a constitutional right, is
forfeited—that is, not preserved for appeal—‘by the failure to make timely assertion
of the right.’”), quoting Olano, 507 U.S. at 731. Voelz counters that he was unable
to properly preserve the issue because Bruen was not published until after he was
sentenced.
But even if Bruen changed the relevant law, plain-error review still applies.
See Pirani, 406 F.3d at 549 (“The plain error principle applies even when, as here,
the error results from a change in the law that occurred while the case was pending
on appeal.”). Again, to succeed on plain error review, Voelz must show: “(1) error,
(2) that is plain, (3) that affects his substantial rights, and (4) that ‘seriously affects
the fairness, integrity, or public reputation of judicial proceedings.’” United States
v. Soto, 62 F.4th 430, 434 (8th Cir. 2023), quoting Pirani, 406 F.3d at 550. See also
Olano, 507 U.S. at 734 (“‘Plain’ is synonymous with ‘clear’ or, equivalently,
‘obvious.’”).
This court previously held that the sentencing enhancement under §
2D1.1(b)(1) and safety-valve relief under § 3553(f) were constitutional after District
of Columbia v. Heller, 554 U.S. 570 (2008), which held the Second Amendment “to
confer an individual right to keep and bear arms.” United States v. Jacobson, 406
Fed. Appx. 91, 93 (8th Cir. 2011) (unpublished). Jacobson relied on the cautionary
language from Heller “that ‘nothing in [its] opinion should be taken to cast doubt on
-11-
longstanding prohibitions on the possession of firearms by felons and the mentally
ill, or laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.’” Jacobson, 406 Fed. Appx. at 93 (alteration in original),
quoting Heller, 544 U.S. at 626-27. See also United States v. Humphrey, 753 F.3d
813, 818 (8th Cir. 2014) (holding that defendant cited “no authority demonstrating
‘clear or obvious error’ that would support a claim of plain error on appeal” because
Heller did not “cast doubt on the constitutionality of felon-in-possession statutes”),
citing Jacobson, 406 Fed. Appx. at 92.
Bruen, like Heller, did not address either sentencing guideline—the
dangerous-weapon enhancement or the safety-valve statute—at issue here. Instead,
assessing New York firearm restrictions, the Supreme Court established the standard
for reviewing Second Amendment challenges:
When the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm regulation.
Only then may a court conclude that the individual’s conduct falls
outside the Second Amendment’s “unqualified command.”
Bruen, 142 S. Ct. at 2129-30, quoting Konigsberg v. State Bar of California, 366
U.S. 36, 50 n.10 (1961).
Bruen did not hold, and this court has not interpreted it to hold, that U.S.S.G.
§ 2D1.1(b)(1) and 18 U.S.C. § 3553(f) are unconstitutional. Voelz cannot
demonstrate an error, let alone a plain error, in the district court’s application of the
statutory enhancement and denial of safety-valve relief. Cf. United States v. Avila,
No. 22-50088, 2022 WL 17832287 at *2 (5th Cir. 2022) (declining, after Bruen, to
hold 18 U.S.C. § 922(n) unconstitutional because “survey[ing] the historical
pedigree of similar laws and . . . adopt[ing] the defendant’s interpretation of that
history, thereby disagreeing with several other federal courts that confronted the
-12-
issue post-Bruen. . . . is not consonant with a finding of plain error” (citations
omitted)); United States v. Thompson, 62 F.4th 37, 43 (1st Cir. 2023) (applying a
similar miscarriage-of-justice standard of review under First Circuit case law to a
Bruen challenge, which failed because “[i]t is far from clear that § 2K2.1(b)(4)(B)
is unconstitutional” (emphasis added)).
The historical inquiry required by Bruen—a demonstration that the challenged
regulations are consistent with the Nation’s historical tradition of firearm
regulation—exceeds plain error review, which looks for errors that are plain, clear,
or obvious.5 “Without any—much less controlling—authority to support
[defendant’s] claim, we cannot conclude the district court committed an error which
was ‘obvious’ or ‘clear under current law.’” Jacobson, 406 Fed. Appx. at 93,
quoting United States v. Pazour, 609 F.3d 950, 953-54 (8th Cir. 2010) (“Because
our review of the Sentencing Guidelines and relevant precedent did not uncover any
authority clearly and obviously supporting [defendant’s] position, and because at
least one case arguably supports the government’s position . . ., we conclude the
district court did not commit plain error in applying the two-level enhancement . . .
.”).
5
Even if this court conducted a Bruen historical inquiry, it is doubtful that
U.S.S.G. § 2D1.1(b)(1) and 18 U.S.C. § 3553(f) are inconsistent with the Nation’s
historical tradition of firearm regulation. Cf. Bruen, 142 S. Ct. at 2162 (Kavanaugh,
J., concurring) (“‘[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and the mentally
ill . . . .’” (alteration in original)), quoting Heller, 544 U.S. at 626; United States v.
Gonzalez, No. 22-1242, 2022 WL 4376074 at *2 (7th Cir. 2022) (holding 18 U.S.C.
§ 922(g)(1) constitutional post-Bruen because the Seventh Circuit was “aware of no
authority supporting an argument that someone [convicted of attempted murder]
historically had the right to possess a gun”); Range v. Attorney General United
States, 53 F.4th 262, 273 (3d Cir. 2022) (holding 18 U.S.C. § 922(g)(1)
constitutional post-Bruen because “review of the historical record supports the
Supreme Court’s understanding: Those whose criminal records evince disrespect for
the law are outside the community of law-abiding citizens entitled to keep and bear
arms”), vacated, reh’g granted en banc, 56 F.4th 992 (2023).
-13-
Voelz fails to show that the district court’s application of the statutory
enhancement and denial of safety-valve relief were errors, let alone plain errors.
*******
The judgment is affirmed.
KELLY, Circuit Judge, concurring.
I agree the evidence is sufficient to support the district court’s conclusion that
Voelz possessed weapons “in connection with the offense” such that he is precluded
from receiving safety-valve relief. USSG § 5C1.2(a)(2). But I see no need to state
categorically that a § 2D1.1(b)(1) sentencing enhancement automatically
disqualifies a defendant from safety-valve relief under § 5C1.2. True, conduct that
triggers the enhancement will in many cases also preclude safety-valve relief. But
the two provisions set out two distinct standards, and I would not collapse the one
into the other.
I otherwise concur in the court’s opinion.
______________________________
-14-