1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-14-1997

United States v. Wilson

Precedential or Non-Precedential:

Docket 95-7245

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Recommended Citation

"United States v. Wilson" (1997). 1997 Decisions. Paper 40.

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 95-7245 

 ___________ 

UNITED STATES OF AMERICA 

 vs. 

DAMON J. WILSON 

 Appellant. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF DELAWARE 

 (D.C. Criminal No. 94-cr-00062) 

 ___________ 

 ARGUED APRIL 25, 1996 

 BEFORE: BECKER, NYGAARD and LEWIS, Circuit Judges. 

 (Filed February 14, 1997) 

 ___________ 

Kenneth E. Fink (ARGUED) 

Ferry, Joseph & Fink 

824 Market Street, Suite 601 

Post Office Box 1351 

Wilmington, DE 19899 

 Attorney for Appellant
2

Colm F. Connolly (ARGUED) 

Office of the United States Attorney 

Chemical Bank Plaza, Suite 1100 

1201 Market Street 

Post Office Box 2046 

Wilmington, DE 19899-2046 

 Attorney for Appellee

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

 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. 

I. 

 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. §§ 841(a)(1) and (b)(1)(A). The government initially 

recommended to the district court that it sentence him in 

accordance with § 5C1.2 (the "Safety Valve Provision") of Chapter 

Five of the United States Sentencing Guidelines (the 
3

"Guidelines") codified at 18 U.S.C. § 3553(f).1 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.2 The issue 

 

1. Because Wilson was sentenced while the 1994 edition of the 

Guidelines was in effect, we will rely on that edition throughout 

our discussion. See United States v. Cherry, 10 F.3d 1003 (3d 

Cir. 1993) (sentencing courts must generally apply the Guidelines 

in effect at the time of sentencing); 18 U.S.C. § 3553(a)(4). 

2. In particular, § 3553(f) provides that: 

 Notwithstanding any other provision of law, 

in the case of an offense under section 401, 

404 or 406 of the Controlled Substance Act . 

. . , the court shall impose a sentence 

pursuant to guidelines promulgated by the 

United States Sentencing Commission . . . 

without regard to any statutory minimum 

sentence, if the court finds at sentencing, 

after the Government has been afforded the 

opportunity to make a recommendation, that -- 

 (1) the defendant does not have more than 1 

criminal history point, as determined under 

the sentencing guidelines; 

 (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; 

 (3) the offense did not result in the death 

or serious bodily injury to any person; 

 (4) the defendant was not an organizer, 

leader, manager, or supervisor of others in 

the offense, as determined under the 

sentencing guidelines and was not engaged in 

a continuing criminal enterprise, as defined 

in 21 U.S.C. § 848; and 

 (5) not later than the time of the 

sentencing hearing, the defendant has 
4

presented at sentencing was whether Wilson had satisfied one of 

these criteria, namely § 5C1.2(2), which requires the defendant 

to establish that he or she did not possess a firearm in 

connection with the offense.3 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. § 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 

(..continued) 

truthfully provided to the Government all 

information and evidence the defendant has 

concerning the offense or offenses that were 

part of the same course of conduct or of a 

common scheme or plan, but the fact that the 

defendant has no relevant or useful other 

information to provide or that the Government 

is already of aware of the information shall 

not preclude a determination by the court 

that the defendant has complied with this 

requirement. 

3. Congress did not indicate whether the government or a 

defendant should bear the burden of proving that the "safety 

valve" criteria have been met. In our view, this burden properly 

should fall upon the defendant because the provision is 

specifically designed to benefit defendants by allowing district 

courts to impose a sentence below the mandatory minimum under 

certain circumstances. We note, however, that the government 

bears the initial burden of proving that prior conduct by a 

defendant falls within the scope of "relevant conduct" for 

purposes of determining the applicability of the Safety Valve 

Provision. 
5

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 ¶ 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. 
6

 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-forguns 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 after the June arrest; however, 

those who worked for him continued to carry weapons and provided 

Wilson with protection. 

II. 

 The question in this appeal is whether the district 

court erred in concluding that Wilson did not qualify for 

sentencing under the Safety Valve Provision because he possessed 
7

a firearm in connection with the offense. The court's finding 

that the "safety valve" did not apply was grounded in its belief 

that Wilson's past drug dealing constituted conduct relevant to 

the offense of conviction and that Wilson's involvement with guns 

was connected to this relevant conduct. Our discussion will 

focus upon the validity of these premises. 

 We exercise appellate jurisdiction over this case 

pursuant to 18 U.S.C. § 1291.4 We review for clear error the 

district court's factual findings regarding Wilson's past 

involvement with drugs. See United States v. Hamilton, 929 F.2d 

1126, 1130 (6th Cir. 1991). By contrast, "[w]hether the facts 

found by the district court warrant application of a particular 

guideline provision is a legal question and is to be reviewed de 

novo." See United States v. Partington, 21 F.3d 714, 717 (6th 

Cir. 1994). Accordingly, our review of the district court's 

ultimate refusal to invoke the Safety Valve Provision is plenary. 

A. 

 Based upon the government's submissions, we believe 

that the following, taken from its Supplemental Brief, represents 

the clearest articulation of its position in this case: 

[t]he government does not argue and the record evidence 

does not support a finding that Wilson's past 

involvement with firearms occurred on a 

sufficiently regular basis or was 

 

4. The government contends that we lack appellate jurisdiction 

over this case. See Appellee's Br. at 1. The government is 

mistaken. The district court's refusal to invoke the "safety 

valve" provision in this instance was not based upon an exercise 

of its discretion, but upon its interpretation of a Guidelines 

provision. See Sentencing Hearing Transcript, Appellant's 

Appendix at A-198 ("I [the district court] think we're involved 

here with a question of statutory interpretation."). 
8

sufficiently similar to the instant drug 

offense of conviction to constitute "relevant 

conduct." Wilson's past drug dealings, 

however, were sufficiently regular and had 

sufficient temporal proximity and similarity 

to the instant offense to constitute relevant 

conduct; and because Wilson possessed 

firearms during this relevant conduct of drug 

dealing, he fails to satisfy 18 U.S.C. 

§ 3553(f)(2). 

Government's Supplemental Letter Brief at 1 (emphasis removed). 

Essentially, the government argues that Wilson's prior drug 

dealing is "relevant conduct" because it was part of the "same 

course of conduct" and "common scheme or plan" as his offense of 

conviction. See id. at 3. 

 Wilson argues that his prior drug dealing is not 

relevant conduct and even if it were, the connection between his 

possession of a firearm and his offense is too tenuous for the 

purposes of the Safety Valve Provision. 

B. 

 The Safety Valve Provision does not define "relevant 

conduct" for its own purposes, and we must look elsewhere in the 

Guidelines to understand how it is used there. See U.S.S.G. 

§ 5C1.2. However, section 1B1.3 (the "Relevant Conduct 

Provision"), provides guidance in delineating the scope of 

"relevant conduct" for the purposes of the Safety Valve 

Provision. See United States v. Smith, 991 F.2d 1468, 1471 (9th 

Cir. 1993). 

 "Relevant conduct" for an offense that requires the 

grouping of multiple counts, singly undertaken, includes "all 

acts and omissions committed, aided, abetted, counseled, 
9

commanded, induced, procured, or willfully caused by the 

defendant . . . that occurred during the commission of the 

offense of conviction, in preparation for that offense, or in the 

course of attempting to avoid detection or responsibility for 

that offense . . .," U.S.S.G. § 1B1.3(a), and "all acts and 

omissions described . . . [above] . . . that were part of the 

same course of conduct or common scheme or plan as the offense of 

conviction." U.S.S.G. § 1B1.3(a)(2). 

 The commentary defines the "same course of conduct" as 

those offenses that "are sufficiently connected or related to 

each other as to warrant the conclusion that they are part of a 

single episode, spree, or ongoing series of offenses." U.S.S.G. 

§ 1B1.3 comment. (n.9(B)). It defines a "common scheme or plan," 

as a criminal plan in which two or more offenses are 

"substantially connected to each other by at least one common 

factor, such as common victims, common accomplices, or similar 

modus operandi." U.S.S.G. § 1B1.3 comment. (n.9(A)). Although 

there is substantial overlap between the two terms, the former 

envelops a greater sphere of activity than the latter. 

 The commentary provides a three-prong test to determine 

whether offenses are part of the same course of conduct. The 

sentencing court must look to "the degree of similarity of the 

offenses, the regularity (repetitions) of the offenses, and the 

time interval between offenses." U.S.S.G. § 1B1.3 comment. (n.9) 

(adopting the three prong test from United States v. Hahn, 960 

F.2d 903, 910 (9th Cir. 1992), effective November 1, 1994). Even 

if one factor is absent, "a stronger presence of at least one of 
10

the other" factors may be sufficient to find the same course of 

conduct. U.S.S.G. § 1B1.3 comment. (n.9); see also Hahn, 960 

F.2d at 910 (same); United States v. Hill, 79 F.3d 1477, 1484 

(6th Cir. 1996), cert. denied, 117 S. Ct. 158 (while there is no 

bright line rule as to what constitutes the same course of 

conduct, a court may look to the relative strengths of the three 

prongs in reaching its conclusion). 

 In finding that offenses satisfy the temporal proximity 

prong, courts have considered offenses that precede the offense 

of conviction by as much as 17 months. United States v. 

Richards, 27 F.3d 465, 468-69 (10th Cir. 1994); see also United 

States v. Santiago, 906 F.2d 867, 873 (2d Cir. 1990) (affirming 

ruling that drug sales occurring eight months before drug offense 

of conviction were relevant conduct); United States v. Moore, 927 

F.2d 825, 828 (5th Cir.), cert. denied, 502 U.S. 871 (1991) 

(affirming ruling that drug sales occurring five months before 

drug offenses of conviction were relevant conduct). 

 In evaluating offenses under the similarity prong, a 

court must not do so at such "a level of generality that would 

render worthless the relevant conduct analysis." Hill, 79 F.3d 

at 1483; see also United States v. Maxwell, 34 F.3d 1006, 1011-12 

(11th Cir. 1994). In determining similarity in a drug case, a 

court may consider the similarity of the offenses (i.e., two 

sales of cocaine as opposed to a sale of cocaine and a sale of 

LSD); the quantities involved; the location of the offenses; the 

identity of the supplier, buyer or other participants. See Hill, 

79 F.3d at 1484-85. 
11

III. 

 Whether Wilson is eligible for the Safety Valve 

Provision depends on whether he possessed a firearm in connection 

with the offense of conviction and all relevant conduct. See

U.S.S.G. § 5C1.2. It is undisputed that Wilson did not possess a 

firearm in connection with the offense of conviction. Our 

analysis then has two steps. We must first determine whether 

Wilson was involved in prior drug dealing that amounted to 

relevant conduct to the offense of conviction. If we so find, we 

must then determine whether he possessed a firearm in connection 

with that prior drug dealing. 

A. 

 Wilson argues that his drug dealing prior to the 

September arrest fails to satisfy the three prong test for "same 

course of conduct." See United States v. Hahn, 960 F.2d 903, 910 

(9th Cir. 1992); U.S.S.G. § 1B1.3 comment. (n.9(B)). If Wilson 

were correct, he would meet the requirements of § 5C1.2(2) 

because it is undisputed that he did not possess a firearm in 

connection with the offense of conviction. The government argues 

that Wilson's drug dealing prior to his September arrest, taken 

as a whole, is sufficiently similar to the offense of conviction 

to warrant a conclusion that it was part of the "same course of 

conduct" or "common scheme or plan." 

 The applicable standard of relevant conduct for Wilson 

is that which applies to an offense requiring the grouping of 

multiple counts, singly undertaken. U.S.S.G. § 1B1.3(a). That 

section applies to "offenses of a character for which § 3D1.2(d) 
12

would require grouping of multiple counts." U.S.S.G. 

§ 1B1.3(a)(2). Section 3D1.2(d) requires the grouping of drug 

offenses, including those covered by § 2D1.1. U.S.S.G. 

§ 3D1.2(d). Wilson was sentenced for a drug offense -- 

possession with intent to distribute over fifty grams of crack -- 

covered by § 2D1.1. Thus, his offense is of a character for 

which § 3D1.2(d) would require grouping of multiple counts. 

 The record shows that Wilson's drug dealing activities 

in the year preceding his arrest fit within the definition of 

"same course of conduct." By his own admission, he was regularly 

engaged in drug sales for the year prior to his September arrest, 

satisfying both the "regularity" and "temporal proximity" tests 

for determining "same course of conduct."5 Wilson also admitted 

to moving out of his parents' home in May, 1994, because he was 

concerned that his drug dealing was putting his family in danger. 

 Wilson's admissions are consistent with other evidence 

in the record. Those who sold guns to Wilson indicated that he 

was known to be a drug dealer who sold from the corner of Fourth 

and Broom. The fact that he was arrested in September selling 

small quantities of drugs on Third and Broom, taken together with 

his lack of gainful employment, support the conclusion that he 

regularly sold drugs. These findings independently satisfy both 

the "regularity" and "temporal proximity" prongs of the three 

 

5. Wilson argues that his Presentence Report admission to 

selling drugs over the last year should be excluded pursuant to 

U.S.S.G. § 1B1.8. However, § 1B1.8 is not applicable as Wilson's 

admissions merely corroborated information already known by the 

government. 
13

prong test. See United States v. Richards, 27 F.3d 465, 468-69 

(10th Cir. 1994); United States v. Moore, 927 F.2d 825, 828 (5th 

Cir.), cert. denied, 502 U.S. 871 (1991); United States v. 

Santiago, 906 F.2d 867, 873 (2d Cir. 1990). 

 Although Wilson did not admit to dealing the same types 

of drugs both while in possession of firearms and in connection 

with his offense of conviction, other evidence supports this 

conclusion. For example, Wilson was arrested in September while 

in possession of both marijuana and cocaine. In May, 1994, 

Wilson told someone he bought guns from that he could supply him 

with "anything he wanted" by way of drugs, and specifically 

offered to trade him cocaine for firearms. Although mindful that 

we are not to evaluate Wilson's behavior at "a level of 

generality that would render worthless the relevant conduct 

analysis," Hill, 79 F.3d at 1483, the record has demonstrated 

that Wilson has dealt drugs, and cocaine in particular, both when 

he was in possession of firearms and in connection with the 

offense of conviction. Wilson's admission of prior drug dealing, 

the reputation evidence and the circumstances surrounding his 

September arrest are sufficient to satisfy the similarity prong. 

 We conclude that Wilson's prior drug dealing, particularly 

during May, 1994, is part of the same course of conduct as the 

offense of conviction. See id. at 1484-85. 

 The record indicates that Wilson was continuously 

involved in the sale of drugs for at least one year until his 

arrest, that the business was so large that he employed others to 

sell for him, and that he offered a variety of drugs for sale 
14

throughout. We conclude from this course of conduct that 

Wilson's prior drug dealing was relevant conduct to the offense 

of conviction for possession of crack with the intent to 

distribute for the purposes of the Relevant Conduct and Safety 

Valve Provisions. Because we so conclude, we need not decide 

whether they were also part of a common scheme or plan. 

B. 

 Wilson further argues that even if the prior drug 

dealing can be tied to the offense of conviction, the possession 

of the firearm that was contemporaneous with the earlier drug 

dealing should not ride "piggyback" on our safety valve analysis. 

 That is, even if the earlier drug dealing is relevant conduct, 

Wilson's involvement with firearms is too tenuously connected to 

the offense of conviction for the purposes of the Safety Valve 

Provision. The government argues that the drug dealing is 

sufficiently connected to Wilson's involvement with firearms to 

make him ineligible for the safety valve. In determining whether 

Wilson possessed a firearm in connection with his prior drug 

dealing, we again look to the evidence of record. 

 Wilson was involved in gun transactions from May 

through July, 1994, and he was arrested for gun possession in 

June, 1994. These actions are obviously concurrent with conduct 

relevant to the offense of conviction as they occurred during the 

period in which Wilson dealt drugs. Moreover, he bought firearms 

to protect himself, those who worked for him and his drug 

enterprise; he attempted to trade drugs for guns; and he 

participated in firearms transactions with the same parties who 
15

sold him the firearms meant for his drug enterprise. Thus, 

Wilson's involvement with firearms furthered his drug enterprise; 

and his firearms transactions resulted from his contact with 

those he met through his drug enterprise. We conclude that his 

involvement with firearms is integrally connected to his prior 

drug dealing. 

IV. 

 Accordingly, the district court's findings of fact 

support the conclusion that Wilson possessed a firearm in 

connection with his prior drug dealing, and that this was conduct 

relevant to the offense of conviction for the purposes of the 

Safety Valve Provision. The district court correctly concluded 

that Wilson failed to meet one of the requirements of the Safety 

Valve Provision. Thus, we will affirm the district court's 

refusal to apply the Safety Valve Provision.