* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 4 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-8054
JONA R. PAYTON,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. NO. 03-CR-99-D)

Submitted on the briefs. * Robert G. Levitt, Denver, Colorado and Timothy C. K ingston, Graves, Miller & Kingston, P.C., Cheyenne, Wyoming, for Defendant-Ap pellant. Matthew H. Mead, United States Attorney, District o f Wyoming; Darrell L. Fun, Assistant United States Attorney, District of Wyomi ng; and David A. Kubichek, Assistant United States Attorney, District of Wyomi ng, for Plaintiff-Appellee.

Before EBEL , MURPHY , andMcCONNELL , Circuit Judges.-2-

McCONNELL , Circuit Judge.
Jona R. Payton pleaded guilty to one count of consp iracy to possess with intent to distribute and to distribute methamphetam ine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846. The dis trict court sentenced her to 120 months imprisonment. Ms. Payton now appeals the di strict court’s sentence, arguing that (1) her sentence should not have been enhanced because she did not possess a firearm within the meaning of U.S.S.G. § 2D1.1(b)(1), (2) she was entitled to the application of the “safety valve” p rovision of U.S.S.G. § 5C1.2(a)(2), and (3) she is entitled to a remand fo r resentencing pursuant to United States v. Booker , 125 S.Ct. 738 (2005). We exercise jurisdiction p ursuant to 28 U.S.C. § 1291 and AFFIRM the judgment of the district court.
I. In February 2003, Ms. Payton was arrested shortly a fter selling four ounces of methamphetamine for $5,100. Ms. Payton gave inv estigators consent to search her residence. During the course of the search, th e officers found three firearms secreted in a hidden compartment under her bathtub, a shotgun under her bed, and a revolver under a chair in her living room. In ad dition to the firearms, the officers found substantial quantities of methamphet amine stored throughout her apartment. The grand jury indicted Ms. Payton and Jose Alvarez as co-defendants-3-

on six drug-related counts. Ms. Payton pleaded gui lty to a charge of conspiracy to possess with intent to distribute methamphetamin e. At the sentencing hearing, the district court deter mined that Ms. Payton should receive a two-level enhancement under U.S.S. G. § 2D1.1(b)(1) for possessing firearms, and that she was ineligible fo r a safety valve sentence under U.S.S.G. § 5C1.2(a)(2) because she possessed firearms in connection with her drug trafficking offense. The district court accor dingly sentenced her to 120 months imprisonment, the statutory minimum applicab le to her conviction.
II. A. We begin with Ms. Payton’s factual challenge to the district court’s determination of her sentence. Ms. Payton challeng es her sentence enhancement under § 2D1.1(b)(1) for use of a firearm in connect ion with the drug conspiracy and the district court’s refusal to apply the § 5C1 .2(a) safety valve provision because she possessed a firearm. The district court correctly declined to apply the safety valve provision; therefore, the “enhancement ” under § 2D1.1(b)(1) is not a live controversy. The § 5C1.2 safety valve provision specifies five c riteria that a defendant must satisfy to qualify for an exception to an othe rwise mandatory minimum
sentence:1 See page 10, below. -4-

(1) the defendant does not have more than [one] cri minal history point . . .; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or ind uce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, man ager, or supervisor of others in the offense . . .”; and (5) the defendant has truthfully provided to the Go vernment all information and evidence the defendant has concerning the offen se . . . The burden is on the defendant to demonstrate that she meets all five criteria. United States v. Virgen-Chavarin , 350 F.3d 1122, 1129 (10th Cir. 2003). The district court concluded that Ms. Payton’s personal possession of firearms in connection with the conspiracy precluded her from c arrying her burden of meeting the second criterion. Before Booker , we reviewed a district court’s analysis under § 5C1.2 for clear error. Id. at 1129 (10th Cir. 2003). Because Bookerdoes not speak to this type of fact-finding, 1 we will continue to do so. See Rojas-Coria , 401 F.3d at 873 (reviewing a refusal to apply the s afety valve provision for clear error after Booker ). On appeal, Ms. Payton argues that she was only keep ing the firearms for her co-defendant, Jose Alvarez, and “never physical ly possessed or used” them.-5-

Aplt. Br. 12. Her only support for this argument i s her testimony to that effect at the sentencing hearing. This showing is insufficie nt for at least two reasons. First, the assessment of Ms. Payton’s credibility i s a matter for the district court. Our review of a district court’s determination of awitness’s credibility at sentencing is extremely deferential. See Virgen-Chavarin , 350 F.3d at 1134 (stating that a district court’s determination of w itness credibility at sentencing is “virtually unreviewable on appeal”). At several po ints during the sentencing hearing the district court expressed immediate skep ticism concerning Ms. Payton’s testimony. When Ms. Payton attempted to e xplain the presence of a 12- gauge shotgun in her apartment, which she admitted purchasing, by saying that it was a Valentine’s Day gift for her co-defendant, th e district court asked whether she was aware “how implausible all this sounds.” R ec. Vol. 3 at 31. On crossexamination, when Ms. Payton denied a drug-related motive for her delivery of a 9 millimeter handgun to some associates of the co-d efendant in Colorado, the district court asked, “What did you think you were doing? . . . [D]id you think they were . . . the local members of the NRA chapte r?” Id. at 69. The district court simply did not believe Ms. Payton’s attempts to disclaim possession of the guns found in her house. By merely rehashing her t estimony, which was not found to be credible, Ms. Payton is asking us for ade novo determination of2 The other guns and drugs were also concealed throu ghout her residence.

The police found three-quarters of a pound of methamphetamine and a .44 magnum revolver hidden in a chair in the living roo m, three guns stored in a secret compartment under the bathtub, and another 8 -ball of methamphetamine and a pyrex dish containing methamphetamine in the kitchen. “8-ball” refers to an eighth of an ounce. See, e.g. , United States v. Quintana , 70 F.3d 1167, 1171 (10th Cir. 1995). -6- credibility. This is not our role. She provides n o reason to disturb the district court’s assessment that her testimony was not belie vable. Second, there are uncontested facts strongly sugges ting that, as a matter of law, Ms. Payton actually possessed firearms in conn ection with the conspiracy to distribute methamphetamine. When law enforcement o fficers searched Ms. Payton’s apartment they found five firearms stored in close proximity to substantial amounts of methamphetamine. One of the weapons was a shortbarreled 12-gauge shotgun that Ms. Payton admitted purchasing for her codefendant. Her purchase of the gun is sufficient t o show actual possession. See United States v. Lindsey , 389 F.3d 1334, 1338–39 (10th Cir. 2004). In addi tion, she admitted she delivered a handgun to associates of her co-defendant, thus she actually possessed a firearm while carrying out thi s task. There are strong indications that her actual possession of these gun s was connected to the conspiracy. The shotgun was hidden under her bed i n close proximity to two 8- balls of methamphetamine in her dresser. 2 The mere propinquity of the weapons and drugs suggests a connection between the two. Cf. United States v. Browning ,3 Ms. Payton admitted being present on another occas ion when her codefendant traded methamphetamine for a firearm. Re c. Vol. 3 at 63. The Supreme Court has held that “a criminal who trades firearms for drugs ‘uses’ it during and in relation to the drug trafficking offe nse within the meaning of” 18 U.S.C. § 924(c)(1), which prescribes a range of man datory minimum sentences for use of a firearm in connection with violent cri mes and drug trafficking offenses. Smith v. United States , 508 U.S. 223, 241 (1993). -7- 252 F.3d 1153, 1160 (10th Cir. 2001) (explaining th at “proximity” of a weapon and narcotics can demonstrate the connection necess ary to support an enhancement under U.S.S.G. § 2K2.1(b)(5) for use orpossession of a firearm “in connection with another felony offense”). Moreover , the lethality of the shortbarreled shotgun supports the inference that this w eapon had an illicit purpose.
See United States v. Wyatt , 102 F.3d 241, 248 (7th Cir. 1996) (noting that sh ortbarreled guns are often associated with the narcoti cs trade). Finally, the codefendant’s practice of trading firearms for methamphetamine supports an inference that Ms. Payton’s delivery of a handgun t o two men, at her codefendant’s direction, 3 was connected to the conspiracy. Accordingly, we cannot say that the district court clearly erred in conclu ding that Ms. Payton was not eligible for the safety valve because she personall y possessed firearms. Our conclusion that the district court properly ref used to apply the safety valve provision obviates the need to consider Ms. P ayton’s challenge to the sentence enhancement under § 2D1.1(b)(1). Because she was not eligible for the safety valve, Ms. Payton received the mandatory min imum sentence required by-8-

statute. The two-level enhancement Ms. Payton rece ived pursuant to § 2D1.1(b)(1) therefore had no material effect on herterm of incarceration. Consequently, the issue is moot and we need not add ress it. See United States v. Williams , 216 F.3d 611, 615 (7th Cir. 2000) (concluding that an appeal of a § 2D1.1(b)(1) enhancement was moot because the defend ant received the mandatory minimum sentence).
B. Ms. Payton filed a supplemental brief arguing that, under United States v. Booker , 125 S.Ct. 738 (2005), the methodology used to det ermine her sentence violated her Sixth Amendment rights. She did not r aise this argument, or any other Sixth Amendment argument, during her sentenci ng. Accordingly, we review for plain error. See Fed. R. Crim. P. 52(b); Booker , 125 S. Ct. at 769 (“[W]e expect reviewing courts to . . . determin[e] . . . whether the issue was raised below and whether it fails the ‘plain error’ test.”); United States v. Gonzalez-Huerta , ___ F.3d ___, 2005 WL 807008 *3 (10th Cir. 2005) (en banc). To establish plain error, Ms. Payton must first dem onstrate that there was, in fact, an error in determining her sentence. See United States v. Cotton , 535 U.S. 625, 631 (2002); Gonzalez-Huerta , 2005 WL 807008 *3. Under Booker , district courts can commit two kinds of error when applying the Guidelines: constitutional error and non-constitutional error. Constitutional error occurs if a-9-

district court violates Booker ’s Sixth Amendment holding: “Any fact (other than a prior conviction) which is necessary to support a s entence exceeding the maximum authorized by the facts established by a pl ea of guilty or a jury verdict must be admitted by the defendant or proved to a ju ry beyond a reasonable doubt.” Booker , 125 S.Ct. at 756; see also Gonzalez-Huerta , 2005 WL 807008 *2. A district court may also commit non-constitut ional error under Booker . The Bookerremedial majority corrected the Sixth Amendment er ror created through mandatory application of the Sentencing Guidelines by severing the statutory section that required district courts to sentence w ithin the Guidelines range. Booker , 125 S.Ct. at 756-57 (excising 18 U.S.C. § 3553(b) (1)); Gonzalez-Huerta , 2005 WL 807008 *2. While courts must still “consul t” the Guidelines, Booker , 125 S.Ct. at 767, they now have the discretion to d epart from the range recommended by the Guidelines. Thus, a court commi ts non-constitutional error by treating the Guidelines as binding. There was no constitutional error in sentencing Ms. Payton. She pleaded guilty to violating 21 U.S.C. §§ 841(a)(1), 841(b)( 1)(A)(viii), and 846, and received the mandatory minimum sentence of 120 months. The district court’s finding that she possessed firearms did not increas e her sentence beyond the maximum authorized by her plea—indeed, she received the required minimum-10-

sentence. The judicially found facts had no consti tutionally significant impact on Ms. Payton’s sentence. Likewise, there was no non-constitutional Booker error in sentencing Ms. Payton. Based on the admitted facts in her guilty plea, the district court had no discretion under the statute to do other than impos e the mandatory minimum
sentence. See United States v. Rojas-Coria , 401 F.3d 871, 874 n.4 (8th Cir. 2005) (concluding that Bookerdoes not apply to the application of mandatory min ima); United States v. Vieth , 397 F.3d 615, 620 (8th Cir. 2005) (same). Ms. Payton also argues that the district court’s re fusal to impose a sentence below the mandatory minimum through application of the § 5C1.2(a)(2) safety valve provision violated her Sixth Amendment rights . This argument relies on an overly broad understanding of Booker ’s Sixth Amendment holding. Bookerdoes not prohibit any and all judicial fact-finding; rat her, Bookeronly proscribes judicial fact-finding that increases a sentence bey ond the maximum authorized by the jury verdict. Booker , 125 S.Ct. at 756. Nothing in Booker ’s holding or reasoning suggests that judicial fact-finding to de termine whether a lower sentence than the mandatory minimum is warranted implicates a defendant’s Sixth Amendment rights. Ms. Payton also contends that the judicially found fact that she possessed firearms makes her ineligible for prison drug treatment programs. This argument-11-

is not correct; at most this factual finding may imperil her early release if she successfully completes a drug treatment program. See 18 U.S.C. § 3621(e). Moreover, her eligibility for drug treatment programs is a matter for the Bureau of Prisons and is not properly before this Court. See id.
III. The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED

.