UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WESLEY M. GROSE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:05-cr-00261)
Submitted: October 24, 2007 Decided: November 15, 2007
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wesley N. Grose pled guilty to distributing a quantity of
oxycodone on June 10, 2005, 21 U.S.C.A. § 841(a), (b)(1)(C) (West
1999 & Supp. 2007), and was sentenced to a term of seventy-eight
months imprisonment. Grose appeals his sentence, contending that
the district court clearly erred in giving him a two-level
enhancement for possession of a deadly weapon during the offense,
U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2006), in
declining to give him an adjustment for acceptance of
responsibility, USSG § 3E1.1, and in finding that he did not
qualify for a reduction under the safety valve provisions of USSG
§§ 2D1.1(b)(9), 5C1.2. Grose also argues that his sentence is
unreasonable. We affirm.
Grose’s conviction was based on his sale of oxycodone and
alprazolam (Xanax) to James Lilly in a controlled buy at Grose’s
house in Cool Ridge, West Virginia, under the surveillance of drug
task force agents. After two more controlled buys at Grose’s
house, a search warrant was executed there in August 2005. Agents
seized oxycodone and Xanax and observed a large quantity of
firearms in Grose’s home, mostly rifles and shotguns, including
several guns in a closet of the bedroom where Grose kept the drugs
he sold.
Following the search, Grose demanded that Lilly, his son,
and his daughter-in-law write a letter stating that a $100,000
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check Grose received from James Lilly’s wife, Barbara, was a gift.
The next day he had them write a second version of the letter,
which stated that the money was a loan. The Lillys informed law
enforcement authorities about Grose’s demand, and said they wrote
what he asked because Grose had previously made threatening
statements and they knew he owned firearms. Lilly told authorities
that he and his wife bought oxycodone from Grose for several years
and that his wife had died of an overdose of oxycodone in December
2004. When Grose was interviewed, he did not confirm this
information.
At Grose’s sentencing, the government stipulated that a
base offense level of 24 applied based solely on the 12 grams of
oxycodone he distributed in the first controlled buy. Grose did
not dispute an adjustment for obstruction of justice based on his
attempt to influence or intimidate Lilly into writing the letter
about the $100,000 check, and the district court determined that
the case presented no extraordinary circumstances that might
justify an adjustment for acceptance of responsibility, which is
ordinarily foreclosed by conduct that results in an adjustment for
obstruction of justice. USSG § 3E1.1, comment. n.4. The district
court decided that a firearm enhancement was proper because Grose
had not shown that it was clearly improbable that his guns had any
connection to his drug activity. The court noted that it was
widely known that Grose possessed numerous firearms, that the
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controlled drug buys took place at Grose’s house, and that, while
some of Grose’s guns were antique or collectible weapons, others
were simply hunting guns, and that Grose kept a number of the
latter in the closet of the bedroom where he stored the drugs he
sold.
The court also decided that Grose did not qualify for a
two-level reduction under the safety valve provision because he had
possessed firearms in connection with the offense and made credible
threats of violence, and because the government informed the court
that it did not believe Grose had been fully forthright about his
drug dealing when he was interviewed. The court determined that
Grose’s total offense level was 28. He was in criminal history
category I. His advisory guideline range was 78-97 months. The
court imposed a sentence at the bottom of the range.
We first conclude that the weapon enhancement was
properly applied. A two-level increase in the base offense level
should be made if a dangerous weapon, such as a firearm, was
present during the offense, “unless it is clearly improbable that
the weapon was connected with the offense.” USSG § 2D1.1(b)(1),
comment. (n.3). The enhancement reflects “the increased danger of
violence when drug traffickers possess weapons.” Id. Application
Note 3 to § 2D1.1 provides, as an example of a situation where it
is clearly improbable that a defendant’s gun is connected to his
drug offense, that the enhancement “would not be applied if the
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defendant, arrested at his residence, had an unloaded hunting rifle
in the closet.” The district court’s findings of fact relating to
sentencing enhancements are reviewed for clear error. United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
In this case, Grose had working firearms in a closet
three to five feet from the dresser where he kept the drugs that he
sold. Grose did not dispute that he was known to possess firearms
or that this fact was intimidating to the Lillys. We conclude that
there was no evidence before the court sufficient for the district
court to have found that it was clearly improbable that Grose’s
firearms were connected with his drug offense. Therefore, the
district court did not clearly err in making the enhancement.
We are also satisfied that the district court did not
clearly err in finding that Grose was not entitled to an adjustment
for acceptance of responsibility. Application Note 4 to § 3E1.1
states that, generally, a finding that a defendant has engaged in
conduct that warrants an adjustment for obstruction of justice
“indicates that the defendant has not accepted responsibility for
his criminal conduct.” However, in extraordinary cases both
adjustments may apply. Id. Grose contends that his is such an
extraordinary case because (1) his obstructive conduct was limited
to one incident, namely his attempt to create a letter stating that
he received $100,000 from Lilly as a gift or a loan rather than as
payment for drugs, and (2) he admitted his criminal conduct and
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agreed to plead guilty after federal charges were filed. However,
the district court determined that Grose had never given a credible
explanation of his receipt of the $100,000, and that his
obstruction of the investigation was still ongoing at the time of
sentencing.
Grose next argues that his cooperation with the
government entitles him to the safety valve reduction. A defendant
who meets the five criteria set out in § 5C1.2 is entitled to a
two-level reduction under § 2D1.1(b)(9). To qualify, the defendant
must not have “use[d] violence or credible threats of violence or
possess[ed] a firearm . . . in connection with the offense.” USSG
§ 5C1.2(a)(2). In addition, no later than the sentencing hearing,
the defendant must have “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.” USSG § 5C1.2(a)(5). The defendant bears
“the burden of proving the existence of the five prerequisites” for
the safety valve reduction. United States v. Wilson, 114 F.3d 429,
432 (4th Cir. 1997).
Here, the district court based its decision that Grose
was not eligible for the safety valve reduction primarily on his
possession of firearms and the resulting firearm enhancement. The
court did not specifically find that Grose possessed the firearms
“in connection with the offense.” See § 5C1.2(a)(2). As used
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elsewhere in the guidelines, this phrase means that the firearm
facilitated or had a tendency to facilitate the offense. United
States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003). However, the
district court’s finding concerning the firearm enhancement
encompassed a finding that Grose possessed the firearm in
connection with the drug offense. The court stated that “[t]he
presence of the weapons . . . was known, and any time weapons are
present, particularly in quantities and in proximity to criminal
activity, including drug activity, there is an intimidation factor
that is inherent in the situation and can be related to the drug
activity.” Thus, regardless of the nature of Grose’s cooperation,
he was not eligible for the safety valve reduction.*
Last, we conclude that the sentence was reasonable.
After United States v. Booker, 543 U.S. 220 (2005), this Court will
affirm a sentence if it “is within the statutorily prescribed range
and is reasonable.” United States v. Moreland, 437 F.3d 424, 433
(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006) (internal
quotation marks and citation omitted). “[A] sentence within the
proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see
*
Our review of the record discloses that the district court
did not err in accepting the government’s assessment that Grose had
not been fully truthful in his debriefings, for reasons unrelated
to Lilly’s credibility, or in finding that the presentence report
contained undisputed evidence that Grose made credible threats to
Lilly. Either of these findings would also have been a basis for
denying Grose the benefit of the safety valve provision.
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Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
application of rebuttable presumption of reasonableness to
within-guidelines sentence).
Grose was sentenced within the advisory guideline range
after the court considered the § 3553(a) factors. He argues that
his sentence is unreasonable because it is greater than necessary
in light of certain § 3553(a) factors, specifically, his personal
history and characteristics such as his lack of a prior criminal
history, honorable military service, medical condition, and the
effect on his wife and grown children. While the district court
did not mention each of these factors, it “need not robotically
tick through § 3553(a)’s every subsection[,]” but should “provide
[this Court] an assurance that the sentencing court considered the
§ 3553(a) factors with regard to the particular defendant before
[it] . . . .” United States v. Moulden, 478 F.3d 652, 657 (4th
Cir. 2007). The court sentenced Grose at the bottom of the
guideline range, noting his medical conditions and the financial
difficulties his family faced. We conclude that Grose has not
overcome the presumption of reasonableness by showing that his
sentence is either procedurally or substantively unreasonable.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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