* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUL 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. TRACY LEWIS O’DONNELL,

Defendant-Appellant. No. 96-8098 (D.C. No. 95-CR-104) (D. Wyo.)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Appel lant’s request for oral argument is therefore denied, and the case is ordered submitted without oral argument.-2-

In this direct appeal, defendant Tracy Lewis O’Donn ell challenges the propriety of his sentence following conviction of c onspiracy to possess with intent to distribute methamphetamine in violation o f 21 U.S.C. § 846. Specifically, Mr. O’Donnell asserts that the distri ct court erred in enhancing his sentence two levels for possession of a firearm pur suant to USSG § 2D1.1(b)(1) and failing to afford him relief under 18 U.S.C. § 3553(f). We have jurisdiction pursuant to 18 U.S.C. § 3742(a), and we affirm.

I. Background In mid-July 1995, Mr. O’Donnell’s co-defendant, Dav id Witt, entered into an agreement with a confidential informant for the Wyoming Division of Criminal Investigation, whereby Mr. Witt agreed to procure f our ounces of methamphetamine from Mr. O’Donnell in Arizona. The informant paid Mr. Witt $1,500 for the purchase of the methamphetamine. Mr . Witt traveled to Arizona to make the purchase and subsequently called the informant to advise him that he would need an additional $4,500 in order to complet e the transaction. The informant wired this amount to Mr. O’Donnell’s bankaccount in Arizona. After attempting, without success, to acquire the m ethamphetamine, the two co-defendants and Mr. O’Donnell’s wife traveled to Worland, Wyoming, where they returned the $6,000 to the informant before co ntinuing on to Sturgis, South1 In exchange for Mr. O’Donnell’s plea of guilty to the charge of conspiracy

to possess with intent to distribute methamphetamin e, the government agreed to dismiss charges of aiding and abetting the possessi on of methamphetamine with intent to distribute in violation of 21 U.S.C. § 84 1(a)(1) and 18 U.S.C. § 2. -3- Dakota, to attend an annual motorcycle rally. Duri ng this trip, Mr. O’Donnell carried with him a nine millimeter Beretta pistol. Mr. O’Donnell confessed to these facts during a non-custodial interview with a gents of the Wyoming Division of Criminal Investigation. In late August 1995, the co-defendants advised the informant that the methamphetamine was available, and again he wired $ 6,000 to Mr. O’Donnell’s bank account in Arizona. In mid-September 1995, Mr . Witt personally delivered three ounces of methamphetamine to the informant inWorland, Wyoming. The final ounce was delivered to Mr. Witt by controlledmail delivery in early October 1995. Both Mr. O’Donnell and Mr. Witt were subsequ ently arrested. On June 20, 1996, Mr. O’Donnell entered a non-condi tional plea of guilty to conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. § 846. 1 He was sentenced to sixty months’ imprisonment, f our years’ supervised release, a $10,000 fine, and a $50 speci al assessment. Because Mr. O’Donnell possessed a firearm during the course of the drug offense, the district court enhanced his sentence pursuant to USSG § 2D1. 1(b)(1), and rejected his request for sentencing under the “safety valve” pro vision of the Sentencing2 The U.S. Sentencing Commission Guidelines Manual, § 5C1.2, adopts

verbatim the language of 18 U.S.C. § 3553(f). -4- Reform Act, 18 U.S.C. § 3553(f). Mr. O’Donnell ass erts error as to both decisions.

II. Discussion A. Standard of Review We review de novo the district court’s interpretati on of the sentencing guidelines. See United States v. Acosta-Olivas , 71 F.3d 375, 377 (10th Cir. 1995). We have noted, however, that “a district co urt’s application of the correct legal standard to a particular defendant, and the s pecific conclusion that the defendant is or is not eligible for relief under § 3553(f), would ordinarily be reviewed for clear error.” Id. at 378 n.3.

B. USSG § 5C1.2 2 “Section 3553(f) was enacted as a ‘safety valve’ to permit courts to sentence less culpable defendants to sentences unde r the guidelines, instead of imposing mandatory minimum sentences.” Acosta-Oliv as , 71 F.3d at 378. The “safety value” provision allows the district court to depart from the statutory minimum sentence if it finds that:-5- (1) the defendant does not have more than 1 crimina l history point, as determined under the sentencing guideline s; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous we apons (or induce another participant to do so) in connection with th e 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, as determined under the sentencing guidelines and was not engaged in a cont inuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing heari ng, the defendant has truthfully provided to the Governmentall information and evidence the defendant has concerning the offen se 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 rel evant or useful other information to provide or that the Government is al ready aware of the information shall not preclude a determination by t he court that the defendant has complied with this requirement. USSG § 5C1.2(1)-(5). Here, the district court concluded that because Mr. O’Donnell possessed a firearm during his trip from Arizona to Worland, Wy oming, he did not qualify for relief under the second factor of § 5C1.2. The cou rt opined that the trip to return the purchase money to the informant was part of the on-going drug trafficking transaction and, moreover, the co-defendants were c arrying drugs at the time, albeit for the their own use.-6-

We have held that “the defendant has the burden of proving, by a preponderance of the evidence, the applicability of [§ 5C1.2].” United States v.
Verners , 103 F.3d 108, 110 (10th Cir. 1996). At his sente ncing hearing, Mr. O’Donnell argued that the presence of the firearm w as not for any purpose in furtherance or protection of a drug trafficking act ivity. His wife testified that he always took the firearm with him in the saddlebags on his motorcycle “for whatever reason we need them for, you know, shootin g snakes, bears, I don’t know whatever else.” R. Vol. II at 16. On appeal, Mr. O’Donnell argues that the return of the money to the informant in Wyoming was not in connection with the drug offense. He asserts that because the money was being returned, “the dru g transaction had stopped and ended.” Appellant’s Br. at 8. Relying on Bailey v . United States , 116 S. Ct. 501 (1995), Mr. O’Donnell contends that the government was required to prove “a nexus between the offense and the firearm,” and fai led to do so. Appellant’s Br. at 8. In United States v. Hallum , 103 F.3d 87 (10th Cir. 1996), cert. denied , 117 S. Ct. 1710 (1997), we considered a similar argument. The defendant in Hallum argued that the burden was on the government to sup port the “in connection with” element of § 5C1.2(2) by a preponderance of the evi dence. 103 F.3d at 89. He-7-

further asserted “that we should analogize the ‘pos sess’ element of § 5C1.2 to the Supreme Court’s restrictive interpretation of the ‘ use’ language of 18 U.S.C. § 924(c)(1) in Bailey. . . , to require the government to prove active employment of the firearm in relation to the underlying offens e.” 103 F.3d at 89. In rejecting this contention, we opined that “Baile ydealt with ‘use’ in § 924(c), not ‘possess,’ in § 5C1.2(2),” id. , and that the Supreme Court’s analysis that “‘§ 2D1.1(b)(1) provides an enhancement for a person convicted of certain drug-trafficking offenses if a firearm was possesse d during the offense[,] . . . constitutes a recognition, . . . that ‘possess’ is to be given a broader meaning than ‘use.’” Id. We then joined the Eighth Circuit in holding that“a firearm’s proximity and potential to facilitate the offense i s enough to prevent application of USSG § 5C1.2(2).” Id. ; see also United States v. Burke , 91 F.3d 1052, 1053 (8th Cir. 1996). Here, we are satisfied that Mr. O ’Donnell failed to prove a clear probability that the presence of the firearm during the trip to Wyoming to return the money was not for the purpose of facilitating that part of the drug trafficking conspiracy. Mr. O’Donnell also tenuously argues that although h e carried the gun, the money was always in Mr. Witt’s possession. This ar gument also is unavailing. Section 5C1.2 is applicable not only to a defendant ’s own conduct, but also to “‘conduct that he aided or abetted, counseled, comm anded, induced, procured, or-8-

willfully caused.’” Hallum , 103 F.3d at 90 (quoting USSG § 5C1.2, comment (n.4)). Accordingly, for purposes of the applicabi lity of § 5C1.2, Mr. O’Donnell was responsible for Mr. Witt’s actions as well as h is own. The district court’s finding that the presence of the firearm could have been for the purpose of the protection and furtherance of this joint activity w as not clearly erroneous, and the court was correct in denying Mr. O’Donnell relief u nder § 5C1.2.

C. USSG § 2D1.1(b)(1) The sentencing guidelines provide that a base offen se level should be increased by two levels “[i]f a dangerous weapon (i ncluding a firearm) was possessed.” USSG § 2D.1(b)(1). Asking this court to consider the same arguments he made for application of § 5C1.2, Mr. O ’Donnell asserts that the district court improperly enhanced his sentence forpossession of a firearm in connection with a drug trafficking offense. The government bears the initial burden “of proving by a preponderance of the evidence that the gun was proximate to the drug offense.” United States v. Lang , 81 F.3d 955, 964 (10th Cir. 1996); see also United States v. Roederer , 11 F.3d 973, 982 (10th Cir. 1993) (holding “[w]eapon p ossession is established if the government proves by a preponderance of the evidenc e that a temporal and spacial relation existed between the weapon, the drug trafficking activity, and the-9-

defendant”) (quotation omitted). This can be done by establishing that the firearm was in the same general location “where dru gs or drug paraphernalia are stored or where part of the transaction occurred.” Roederer , 11 F.3d at 983 (quotation omitted). Once proximity is established , the burden shifts to the defendant to “show it is clearly improbable that th e weapon was related to the offense.” United States v. Robertson , 45 F.3d 1423, 1449 (10th Cir. 1995) (quotation omitted). Here, it is clear that the return of money, origina lly intended for the purchase of drugs to the buyer/informant in Wyoming , was drug-trafficking activity, and that Mr. O’Donnell’s firearm was prox imately linked to that activity. Moreover, Mr. O’Donnell has not established a clearprobability that the firearm was not present for the purpose of protecting and f urthering the conspiracy. Therefore, the district court’s two-level enhanceme nt of sentence for possession of a firearm pursuant to § 2D1.1(b)(1) was proper. The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED. Entered for the Court

Stephen H. Anderson Circuit Judge