United States v. Peter Robert Betz

___________
No. 95-2591
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United
* States District Court for the
Peter Robert Betz, * Eastern District of Missouri.
*
Appellant. *
___________
Submitted: January 9, 1996
Filed: April 24, 1996
___________
Before WOLLMAN, Circuit Judge, CAMPBELL,* Senior Circuit Judge, and
MURPHY, Circuit Judge.
___________
*
The HONORABLE LEVIN H. CAMPBELL, Senior United States Circuit
Judge for the First Circuit, sitting by designation.
CAMPBELL, Senior Circuit Judge.
Defendant-appellant Peter Robert Betz was indicted in the
United States District Court for the Eastern District of Missouri
for knowingly manufacturing, culturing and harvesting marijuana
plants on federal property in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(vii), and 841(b)(5), possession of marijuana with
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(D), and use of firearms during the commission of a drug
crime in violation of 18 U.S.C. § 924(c)(1). Betz pled guilty to
the first two charges and the gun charge was dismissed as part of
the plea agreement. An evidentiary hearing was then held on Betz's
objections to the calculation of his offense level in the
Presentence Report. The district court accepted the offense level
as set forth in the Presentence Report and sentenced Betz within
the Sentencing Guidelines range for that level. Betz appeals from
his sentence.
I.
In 1992, the United States Department of Agriculture, Forest
Service, received reports from local residents who suspected Betz
of growing marijuana in the Mark Twain National Forest, Carter
County, Missouri. Forest Service officers began investigating the
area of the National Forest surrounding Betz's residence. They
observed Betz driving a motorcycle in the National Forest and
backtracked the motorcycle tracks to a marijuana patch in a
clearing. The officers located several other marijuana patches
within a five to seven mile radius of Betz's residence. In most of
the patches, there were groups of three to five plants enclosed by
a circular chicken wire ring, and the chicken wire enclosure was
anchored to the ground with wooden stakes. Forest Service officers
-2-
continued to monitor marijuana patches with these characteristics
during the 1992 growing season and found 34 patches containing 255
marijuana plants in the area of the National Forest around Betz's
-3-
residence. During 1993, the officers found 57 marijuana patches
containing 462 plants. The officers recorded the location of each
marijuana patch on a topographical map of the forest.
In September 1993, a surveillance camera set on one of the
patches showed Betz pruning and harvesting marijuana. Having
obtained a search warrant, the officers searched Betz's home, where
they found several kilograms of marijuana, some marijuana seeds, a
scale, two chicken wire rings, a map of the National Forest, $5,600
in cash, and other drug paraphernalia. Four firearms were also
seized at the residence. Betz admitted that he had been growing
marijuana for about three years and that the cash found at his
residence was drug proceeds.
Betz pled guilty to manufacturing marijuana and possessing the
drug with the intent to distribute it. In the plea agreement, the
parties reserved the right to contest the quantity of marijuana
attributed to Betz and his offense level. A Presentence Report was
prepared by the United States Probation Office, and Betz objected
to the amount of marijuana, 722.45 kilograms, for which he was held
accountable in determining his offense level. Betz also objected
to the two-level enhancement to his offense level for possession of
a dangerous weapon in connection with a drug crime (U.S.S.G. §
2D1.1(b)(1)).
After an evidentiary hearing, the district court found that
Betz was responsible for 722.45 kilograms of marijuana and that the
§ 2D1.1(b)(1) two-level increase in his offense level for
possession of a dangerous weapon was warranted. Under the
Sentencing Guidelines this translated into an offense level of 29
and a sentencing range of 87 to 107 months in prison. The district
court sentenced Betz to 87 months in prison on the manufacturing
-4-
count and 60 months in prison on the possession count, to run
concurrently, followed by four years of supervised release.
-5-
II.
Betz makes two arguments on appeal. First, he contends that
the district court erred in overruling his objection to the
quantity of marijuana attributed to him for sentencing purposes.
He contends that the prosecution failed to produce sufficient
evidence to link him to the vast majority of marijuana plants
included in his offense level calculation. Second, Betz contends
that the district court erred in enhancing his offense level for
possession of a firearm in connection with a drug offense pursuant
to U.S.S.G. § 2D1.1(b)(1). No evidence exists, he says, of a nexus
between his possession of the firearms seized from his residence
and his drug activities. We address each of these arguments below.
A. Quantity of Marijuana
The district court overruled Betz's objection to the quantity
of marijuana, 722.45 kilograms, attributed to him in the
Presentence Report. This figure represents the sum of the 2.91
kilograms of marijuana found at Betz's residence during the
execution of the search warrant, 2.54 kilograms of marijuana
estimated as the quantity one could purchase for the $5,600 in drug
proceeds seized from Betz's residence, and 717 kilograms
representing some 717 marijuana plants found in the Mark Twain
National Forest that were attributed to Betz.1 Betz denied there
1
For purposes of calculating Betz's base offense level under
the Sentencing Guidelines, one marijuana plant is equivalent to one
kilogram of marijuana. The Sentencing Guidelines provide that:
[i]n the case of an offense involving
marihuana plants, if the offense involved (A)
50 or more marihuana plants, treat each plant
as equivalent to 1 KG of marihuana; (B) fewer
than 50 marihuana plants, treat each plant as
-6-
was evidence sufficient to tie him to most of the latter, even
under the "preponderance of the evidence" standard applicable at a
sentencing hearing.
The district court accepted the government's attribution to
Betz of all of the marijuana plants encircled by chicken wire found
in the National Forest in 1992 and 1993, as well as all plants
without surrounding chicken wire found in 1993 in locations that
had had chicken wire in 1992. The court also attributed to Betz
some plants surrounded by an old garden fence rather than chicken
wire, and some plants found in a ditch without chicken wire. All
of these attributed plants were within a radius of seven miles from
Betz's residence. Betz does not question the accuracy of the number
and location of the described marijuana plants. Rather, he denies
that the circumstantial evidence was sufficient to link him to the
plants as ones he tended and meant to harvest.
In determining drug quantity, "[t]he government bears the
burden of proving by a preponderance of the evidence the quantity
of drugs involved." United States v. Smiley, 997 F.2d 475, 481
(8th Cir. 1993). The district court's factual findings as to the
amount of drugs attributable to a defendant will not be overturned
unless clearly erroneous, United States v. Hiveley, 61 F.3d 1358,
equivalent to 100 G of marihuana. Provided,
however, that if the actual weight of the
marihuana is greater, use the actual weight of
the marihuana.
U.S.S.G. § 2D1.1 Notes to Drug Quantity Table (1994). Amendment
516 to the Sentencing Guidelines replaced the above paragraph with
the following language: "In the case of an offense involving
marihuana plants, treat each plant, regardless of sex, as
equivalent to 100 G of marihuana." U.S.S.G. § 2D1.1 Notes to Drug
Quantity Table (1995). Unfortunately for Betz, the effective date
of Amendment 516 was November 1, 1995. Because Betz's case was
brought before that date, it is subject to the 1994 language.
-7-
1362 (8th Cir. 1995); see also United States v. Sleet, 893 F.2d
947, 949 (8th Cir. 1990), and the district court's findings as to
witness credibility are "'virtually unreviewable on appeal.'"
United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993)
(quoting United States v. Candie, 974 F.2d 61, 64 (8th Cir. 1992));
-8-
see also United States v. Carter, 997 F.2d 459, 461 (8th Cir.
1993). Thus, a defendant challenging a district court's
determination of quantity faces "a difficult burden" on appeal.
United States v. Simmons, 964 F.2d 763, 773 (8th Cir.), cert.
denied, 506 U.S. 1011 (1992) (internal citation omitted); see also
United States v. Sales, 25 F.3d 709, 711 (8th Cir. 1994)
("Defendants who challenge the sentencing court's determination of
drug quantity face an uphill battle on appeal because we will
reverse a determination of drug quantity only if the entire record
definitely and firmly convinces us that a mistake has been made.").
Betz challenges the government's theory that the use of
chicken wire rings to protect the plants constituted a unique
"signature" of growing marijuana that enabled the officers to
identify marijuana grown by him. Evidence of Betz's "chicken wire
signature" was put forth at the sentencing hearing by Officer
Clark, who testified that he, along with Special Agent Smallwood
and Officer Stevens of the Forest Service, identified a particular
method of growing marijuana -- groups of three to five marijuana
plants encircled by chicken wire rings. This particular method of
growing marijuana was attributed to Betz when officers photographed
Betz pruning marijuana in a patch of plants encircled with chicken
wire rings. Officer Clark testified that other marijuana plants,
not attributed to Betz, were found in different locations of the
National Forest or were planted in a different way. The district
court made specific findings crediting the testimony of Officer
Clark as to Betz's "signature" of planting marijuana, stating:
I am impressed by Mr. Clark, with his background,
knowledge, and information, characterizing marijuana
growing and identification as a signature. . . . The
signature that Officer Clark attributed to the defendant
was the fact that he had chicken wire around the various
plants that were identified by the officers who
investigated this problem.
-9-
-10-
Betz argues that the district court was clearly erroneous in
attributing to him all the marijuana plants encircled with chicken
wire found within a seven mile radius of his residence. Betz
contends that using chicken wire to protect plants must be so
commonplace that it cannot be a "signature." Apart from the
chicken wire surrounding the plants, Betz argues that there was no
other characteristic which differentiated any of the plants from
any others. Throughout the patches, the number of plants in each
chicken wire ring varied from one plant to 30 plants or more. Betz
points to Officer Clark's testimony that the type of chicken wire
varied between marijuana patches and that the stakes used to anchor
the rings to the ground were sometimes wooden and sometimes metal.
We believe, in all the circumstances, that the chicken wire
was a sufficient "signature" to warrant the attribution to Betz of
the marijuana plants encircled by the wire. The officers testified
that they identified similarities in the style of marijuana growing
that allowed them to attribute plants grown with chicken wire to a
single defendant. Betz was photographed in a patch of marijuana
planted with chicken wire, was seen driving his motorcycle in the
vicinity of other patches of plants with chicken wire, and admitted
to growing marijuana in the National Forest over three years. Two
rings of chicken wire were stored at his residence, which also
contained marijuana leaves drying in a shed, $5,600 in admitted
drug proceeds, and other indicia of a substantial marijuana-growing
business. Betz admitted to having conducted such an operation in
1991-1993, with 1992 and 1993 -- the years the agents observed him
-- being his best years. The systematic use of the wire throughout
the area suggested that each enclosure was part of a single program
rather than each patch being the haphazard product of a variety of
different growers. While it was conceded there were others who
grew marijuana in the National Forest, there was no evidence that
the others were systematically cultivating marijuana on this scale
-11-
in this location and manner. We therefore find no clear error in
the district court's decision to attribute to Betz all the plants
-12-
encircled by chicken wire. Cf. United States v. Rose, 8 F.3d 7, 9
(8th Cir. 1993) (holding that the district court was not clearly
erroneous in attributing to the defendant 172 marijuana plants
found in a plot in which the defendant had been photographed
tending the plants).
Turning to the plants not encircled by wire, we also affirm
the district court's determination. Officer Clark testified that
approximately 188 plants were attributed to Betz despite the fact
that they were not planted within chicken wire enclosures: (1) 84
plants without chicken wire around them in 1993 but planted in
patches where the officers determined there had been chicken wire
in 1992; (2) 35 plants protected by an old garden fence rather than
chicken wire; and (3) 69 unfenced plants found in a ditch. The
district court found as to the plants described in (1):
[I]t appears, from one of the documents . . . that some
of the plants were counted that did not have chicken wire
around them. As I understood the testimony, that those
particular plants were plants that were discovered in
1993 which had chicken wire around them in 1992, but did
not have chicken wire around them in 1993. So the
conclusion of the officer was that it was still the same
modus operandi, the same signature utilized when they had
chicken wire around them one year, and perhaps did not
have that wire around them the next year. But there was
sufficient direct evidence to show that at least at one
time, those plants, which when counted did not have the
wire, did at one time.
We accept the court's reasoning as to these some 84 plants found
growing in 1993 in plots which in 1992 had had wire. The
indication of the use of wire in the earlier year was, we think, a
sufficient signature.
We are left to consider the 35 plants protected by an old
garden fence and the 69 plants found in a ditch. While the wire
signature was lacking, there was evidence that these plants were
-13-
found near the wire-encircled plants, and the officers who were on
the scene concluded that these plants were attributable to the same
-14-
grower, Betz. We are not persuaded the court was clearly erroneous
in attributing these also to Betz.2
We affirm the court's attribution to Betz of all plants and
household amounts included in the sentence calculation.
B. Section 2D1.1(b)(1) Enhancement
Betz contends that the district court erred in adopting the
Presentence Report's recommendation of a two-level enhancement in
Betz's offense level pursuant to § 2D1.1(b)(1) of the Sentencing
Guidelines. This court "'will not reverse the [d]istrict [c]ourt's
conclusion that the weapon was connected to the offense unless it
is clearly erroneous.'" United States v. Britton, 68 F.3d 262, 265
(8th Cir. 1995) (citing United States v. Baker, 64 F.3d 439, 441
(8th Cir. 1995)); see also United States v. Hayes, 15 F.3d 125, 127
(8th Cir.), cert. denied, 114 S. Ct. 2718 (1994).
Section 2D1.1(b)(1) of the Sentencing Guidelines states: "If
a dangerous weapon (including a firearm) was possessed, increase
[base offense level] by 2 levels." Application note 3 of the
Commentary to § 2D1.1 provides in part:
The enhancement for weapon possession reflects
the increased danger of violence when drug
traffickers possess weapons. The adjustment
should be applied if the weapon was present,
unless it is clearly improbable that the
weapon was connected with the offense. For
example, the enhancement would not be applied
if the defendant, arrested at his residence,
had an unloaded hunting rifle in the closet.
2
The author, Judge Campbell, while otherwise in agreement,
would hold that there is insufficient evidence to ascribe to Betz
the 35 plants surrounded by the old garden fence and the 69 plants
lying in the ditch.
-15-
U.S.S.G. § 2D1.1 comment (n.3) (emphasis added). At sentencing,
the burden is on the government to show by a preponderance of the
-16-
evidence that a dangerous weapon was present and that it was not
clearly improbable that the weapon had a nexus with the criminal
activity. United States v. Richmond, 37 F.3d 418, 419 (8th Cir.
1994), cert. denied, 115 S. Ct. 1163 (1995); United States v.
McMurray, 34 F.3d 1405, 1416 (8th Cir. 1994), cert. denied, 115
S. Ct. 1164 (1995); United States v. Khang, 904 F.2d 1219, 1223 (8th
Cir. 1990) ("Because of the aggravating nature of U.S.S.G. §
2D1.1(b)(1), because courts strictly construe penal statutes, and
because of Congress' intent in developing the Guidelines and the
Specific Offense Characteristics, the government must establish a
relationship between a defendant's possession of the firearm and
the offense which he or she has committed."). A firearm's mere
presence is an insufficient predicate for § 2D1.1(b)(1)
enhancement. See United States v. Shields, 44 F.3d 673, 674 (8th
Cir. 1995) ("Although firearms were seized from appellant's
residence, there was no evidence presented which would indicate the
weapons were present during any illegal activity."); United States
v. Turpin, 920 F.2d 1377, 1386 (8th Cir. 1990) ("Mere presence of
the gun is not sufficient to justify sentence enhancement."), cert.
denied, 499 U.S. 953 (1991).
It is undisputed that four firearms, along with drugs and
proceeds from drug sales, were seized from Betz's residence during
the execution of the search warrant: (1) a loaded Springfield 12
gauge pump action shotgun in a Volkswagen van on Betz's property;
(2) a loaded Ruger .223 caliber semi-automatic rifle seized from
the upstairs main bedroom closet; (3) a loaded Ruger .22 caliber
pistol seized from the dining room; and (4) an unloaded Winchester
.22 caliber single shot, bolt action rifle seized from the living
room. Betz argues that the government failed to present evidence
from which to infer, beyond mere presence, that the firearms had a
-17-
nexus to his drug activities.3 He argues that it is common for
people living in rural areas to have firearms on their premises.
Moreover, he points out that the firearms were not found in close
proximity to large amounts of marijuana -- only 2.91 kilograms of
marijuana were found at Betz's residence, and none of the weapons
was found in the shed where the marijuana was located.
Nonetheless, even though the guns were not found in the shed
with the marijuana, they were found on premises from which Betz
conducted drug-related activities where they were readily
accessible to Betz. See Hiveley, 61 F.3d at 1362-63 (upholding
enhancement where guns were seized from the defendant's home where
he lived with his wife and two minor children, but were not
specifically found in the trailer where the marijuana was found).
Three of the guns were loaded and one had ammunition nearby,
suggesting more than a run-of-the-mill state of readiness for
immediate use. As the district court observed, "people who are
dealing in drugs frequently use dangerous weapons, or have
possession of dangerous weapons, for the purposes of protecting
their bounty." This court has said that "firearms are tools of the
[drug dealer's] trade." Turpin, 920 F.2d at 1387 (internal
citation omitted). We agree with the district court that "[a]nyone
who has marijuana in his home, as this defendant did, and who has
admitted that he is growing . . . and cultivating marijuana in two
3
At oral argument, Betz contended that the Supreme Court's
decision in Bailey v. United States, 116 S. Ct. 501 (1995), impacts
the application of § 2D1.1(b)(1) because the Supreme Court
construed the term "use" to require "active employment" of a
weapon. However, § 2D1.1(b)(1) requires enhancement if a dangerous
weapon was "possessed." The Supreme Court in Bailey suggested that
§ 2D1.1(b)(1) was an enhancement tool for dealing with those who
"mix guns and drugs," but whose conduct does not fall within the
meaning of § 924(c)(1) which requires that the defendant use or
carry the weapon in the commission of the offense. Id. at 509.
Thus, Bailey does not control in the present situation.
-18-
different sections in the Mark Twain National Forest, and who has
over $6,000 [sic] of raw currency on his kitchen table, has
-19-
something to protect." We find no error, clear or otherwise, in
the district court's determination that, in all the circumstances,
it was not clearly improbable that the firearms were connected to
Betz's drug offense.4
We affirm in all respects the sentence imposed on Betz.
4
Section 2D1.1(b)(1) enhancements have been upheld under a
variety of circumstances. See United States v. Early, 77 F.3d 242,
244 (8th Cir. 1996) (upholding enhancement when defendant showed a
firearm during a drug sale even though defendant claimed he was
trying to sell the firearm in a separate transaction); United
States v. Kinshaw, 71 F.3d 268, 271 (8th Cir. 1995) (upholding
enhancement when defendant had a gun belonging to another person in
his apartment -- the defendant "need not have used the gun during
the crime or have even touched it"); Britton, 68 F.3d at 264-65
(upholding enhancement for weapon seized eight months after
narcotics sale when defendant had admitted that he had used pistol
"during all of his transactions"); United States v. Cotton, 22
F.3d 182, 185 (8th Cir. 1994) (enhancement applied where gun and
cocaine were found in room of defendant's daughter); Hayes, 15
F.3d at 127 (upholding dangerous-weapon enhancement when firearms
and drug paraphernalia were found in a locker over which defendant
had control); United States v. Pou, 953 F.2d 363, 371 (8th Cir.)
(firearms seen in apartment from which cocaine was sold establishes
sufficient connection between weapons and drug offenses to sustain
§ 2D1.1(b)(1) enhancement), cert. denied, 504 U.S. 926 (1992);
United States v. Nash, 929 F.2d 356, 359 (8th Cir. 1991) (upholding
enhancement when weapon was found in the luggage of defendant's
girlfriend who was travelling with him); Turpin 920 F.2d at 1386-87
(enhancement applied where gun observed between co-defendants
seated in car from which drugs had been sold); United States v.
Jones, 875 F.2d 674, 676 (8th Cir.) (upholding enhancement where
firearms "were located in close proximity to the drugs"), cert.
denied, 493 U.S. 862 (1989). Cf. United States v. Bost, 968 F.2d
729, 733 (8th Cir. 1992) (reversing § 2D1.1(b)(1) enhancement where
weapons were seized two and one-half months after commission of the
charged acts and when the search warrant was executed and the
weapons were found, no drugs were found).
-20-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
-21-