The Honorable Nanette K. Laughrey, United States District 1

Judge for the Eastern and Western Districts of Missouri, sitting

by designation.

The Honorable Lawrence L. Piersol, United States District 2

Judge for the District of South Dakota.

 

No. 96-2652SD

 

John Howard Wright, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

United States of America, * District of South Dakota,

* Southern Division.

Appellee. *

 

Submitted: March 11, 1997

 Filed: May 7, 1997 

 

Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY, District 1

Judge.

 

LAUGHREY, District Judge.

John Howard Wright appeals from the district court’s Order denying 2

his 18 U.S.C. § 3582(c)(2) motion to modify his sentence. We affirm.

Wright pled guilty to an Information charging manufacture of

marijuana in violation of 21 U.S.C. § 841(a)(1). On September 22, 1994,

the district judge sentenced Wright to 76 months in prison and four years

supervised release. We affirmed Wright’s conviction and sentence on direct

appeal. United States v. Wright, 56 F.3d 69
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(8th Cir. 1995). Wright later filed this § 3582(c)(2) Motion to Modify his

Sentence. Section 3582(c)(2) permits modification of a sentence after a

provision of the Sentencing Guidelines has been amended. To justify

resentencing, Wright relied on an amendment to Section 2D1.1(c)n.(E) of the

Sentencing Guidelines which altered the method for quantifying marijuana.

Even after this amendment was taken into account, Wright still faced

a mandatory minimum sentence of 60 months because his offense involved more

than 100 marijuana plants. On resentencing, Wright attempted to avoid the

imposition of the mandatory minimum by arguing that the district judge

should apply the “safety valve” provision in 18 U.S.C. § 3553(f); U.S.S.G.

§ 5C1.2. The safety valve provision permits a court to impose a sentence

without regard to a statutory minimum if certain conditions are met. One

of the conditions is that “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.” 28

U.S.S.G. § 5C1.2(2). In this case the district court found that the safety

valve did not apply because the defendant possessed a firearm in connection

with his drug offense. The sole issue on appeal is the propriety of this

finding.

We review the district judge’s factual findings under the clearly

erroneous standard and we give due deference to his application of the

guidelines. United States v. Kalb, 105 F.3d 426 (8th Cir. 1997); United

States v. Berndt, 86 F.3d 803, 810 (8th Cir. 1996). This court will not

reverse a district court’s conclusion that a weapon is connected to the

offense of conviction unless it is clearly erroneous. United States v.

Betz, 82 F.3d 205 (8th Cir. 1996). A defendant seeking relief under the

safety valve has the burden to show that each condition of the statute has

been satisfied. United States v. Gambino, 106 F.3d 1105 (2d Cir.
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1997)(under Sentencing Guidelines the party that seeks adjustment generally

bears the burden of proof, citing U.S.S.G. § 1B1.1, et seq.); United States

v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996); United States v. Ramirez, 94

F.3d 1095, 1100-02 (7th Cir. 1996); United States v. Verners, 103 F.3d 108

(10th Cir. 1996).

The applicable facts are largely undisputed. Wright was arrested on

a rural road as he loaded crates of marijuana plants into a van. He and

his accomplice, Riley, were in the process of planting the marijuana in the

field of an unsuspecting farmer. They had brought the marijuana plants

from Colorado in a pickup truck and had been staying at a motel in the area

while they traveled at night to different farms in the area to deposit

their plants. When the motel room was searched following Wright’s arrest,

the officers found $6500 in cash, handwritten maps showing the location of

602 marijuana plants and a large cache of weapons which Wright admitted

were his. The district judge found that these weapons had been transported

to South Dakota in the pickup truck along with the marijuana. Wright’s

psychiatrist testified at an earlier sentencing that Wright had paranoid

delusions and acquired these firearms “primarily” for the purpose of

protecting himself from members of organized crime who were attempting to

kill him. The district judge found that Wright possessed the guns, in

part, because of his “paranoid delusions,” but also found that he

possessed the guns, in part, because of his marijuana operation. 

The factual findings made by the district judge are well supported

by the record and not clearly erroneous. The only remaining question is

whether the district judge correctly applied these facts when he concluded

that the safety valve provision did not apply.
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Our court addressed a similar question in United States v. Burke, 91

F.3d 1052 (8th Cir. 1996). We held that for purposes of 18 U.S.C. §

3553(f) and Section 5C1.2(2) of the Sentencing Guidelines, a firearm is

used in connection with an offense if the “weapon facilitated or had the

potential to facilitate [the] drug offense.” Id. at 1053. While the guns

at the motel were not in Wright’s possession at the time he was arrested,

they were in his possession at the time he traveled with the marijuana to

South Dakota and were available to him while he traveled between the

targeted farms and his motel room. The motel room also contained indicia

of drug trafficking, the $6500 in cash and the maps locating the marijuana

plants. Merely because the guns were not in his possession at the time of

his arrest does not mean he did not possess them in connection with his

offense, the manufacture of marijuana. United States v. Wilson, 106 F.3d

1140 (3d Cir. 1997)(Defendant did not possess weapons at time of arrest but

had possessed weapons in connection with drug dealing during the previous

year.) Wright’s offense was ongoing, the weapons were found at the motel

which was the focal point of the drug planting operation, he transported

the guns with the marijuana, and other indicia of drug trafficking were

found in the motel room in close proximity to the guns. It is clear that

the defendant did not meet his burden of showing that he did not possess

these firearms in connection with his drug offense. Thus, we affirm the

district court’s refusal to apply the safety valve provision. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEAL, EIGHTH CIRCUIT.