F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 4 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
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. Kingston, Graves, Miller &
Kingston, P.C., Cheyenne, Wyoming, for Defendant-Appellant.
Matthew H. Mead, United States Attorney, District of Wyoming; Darrell L. Fun,
Assistant United States Attorney, District of Wyoming; and David A. Kubichek,
Assistant United States Attorney, District of Wyoming, for Plaintiff-Appellee.
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
McCONNELL, Circuit Judge.
Jona R. Payton pleaded guilty to one count of conspiracy to possess with
intent to distribute and to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(viii), and 846. The district court sentenced her to 120
months imprisonment. Ms. Payton now appeals the district 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” provision of U.S.S.G. §
5C1.2(a)(2), and (3) she is entitled to a remand for resentencing pursuant to
United States v. Booker, 125 S.Ct. 738 (2005). We exercise jurisdiction pursuant
to 28 U.S.C. § 1291 and AFFIRM the judgment of the district court.
I.
In February 2003, Ms. Payton was arrested shortly after selling four ounces
of methamphetamine for $5,100. Ms. Payton gave investigators consent to search
her residence. During the course of the search, the 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 addition to the firearms, the
officers found substantial quantities of methamphetamine stored throughout her
apartment. The grand jury indicted Ms. Payton and Jose Alvarez as co-defendants
-2-
on six drug-related counts. Ms. Payton pleaded guilty to a charge of conspiracy
to possess with intent to distribute methamphetamine.
At the sentencing hearing, the district court determined 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 for 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 accordingly sentenced her to 120
months imprisonment, the statutory minimum applicable to her conviction.
II.
A.
We begin with Ms. Payton’s factual challenge to the district court’s
determination of her sentence. Ms. Payton challenges her sentence enhancement
under § 2D1.1(b)(1) for use of a firearm in connection 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 criteria that a defendant
must satisfy to qualify for an exception to an otherwise mandatory minimum
sentence:
-3-
(1) the defendant does not have more than [one] criminal history point . . .;
(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 death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense . . .”; and
(5) the defendant has truthfully provided to the Government all information
and evidence the defendant has concerning the offense . . .
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 carrying 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 Booker does 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 safety valve provision for clear
error after Booker).
On appeal, Ms. Payton argues that she was only keeping the firearms for
her co-defendant, Jose Alvarez, and “never physically possessed or used” them.
1
See page 10, below.
-4-
Aplt. Br. 12. Her only support for this argument is her testimony to that effect at
the sentencing hearing. This showing is insufficient for at least two reasons.
First, the assessment of Ms. Payton’s credibility is a matter for the district court.
Our review of a district court’s determination of a witness’s credibility at
sentencing is extremely deferential. See Virgen-Chavarin, 350 F.3d at 1134
(stating that a district court’s determination of witness credibility at sentencing is
“virtually unreviewable on appeal”). At several points during the sentencing
hearing the district court expressed immediate skepticism concerning Ms.
Payton’s testimony. When Ms. Payton attempted to explain 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, the district court asked whether
she was aware “how implausible all this sounds.” Rec. Vol. 3 at 31. On cross-
examination, when Ms. Payton denied a drug-related motive for her delivery of a
9 millimeter handgun to some associates of the co-defendant 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 chapter?” 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 testimony, which was not
found to be credible, Ms. Payton is asking us for a de novo determination of
-5-
credibility. This is not our role. She provides no reason to disturb the district
court’s assessment that her testimony was not believable.
Second, there are uncontested facts strongly suggesting that, as a matter of
law, Ms. Payton actually possessed firearms in connection with the conspiracy to
distribute methamphetamine. When law enforcement officers searched Ms.
Payton’s apartment they found five firearms stored in close proximity to
substantial amounts of methamphetamine. One of the weapons was a short-
barreled 12-gauge shotgun that Ms. Payton admitted purchasing for her co-
defendant. Her purchase of the gun is sufficient to show actual possession. See
United States v. Lindsey, 389 F.3d 1334, 1338–39 (10th Cir. 2004). In addition,
she admitted she delivered a handgun to associates of her co-defendant, thus she
actually possessed a firearm while carrying out this task. There are strong
indications that her actual possession of these guns was connected to the
conspiracy. The shotgun was hidden under her bed in 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,
2
The other guns and drugs were also concealed throughout her residence.
The police found three-quarters of a pound of methamphetamine and a .44
magnum revolver hidden in a chair in the living room, 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-
252 F.3d 1153, 1160 (10th Cir. 2001) (explaining that “proximity” of a weapon
and narcotics can demonstrate the connection necessary to support an
enhancement under U.S.S.G. § 2K2.1(b)(5) for use or possession of a firearm “in
connection with another felony offense”). Moreover, the lethality of the short-
barreled shotgun supports the inference that this weapon had an illicit purpose.
See United States v. Wyatt, 102 F.3d 241, 248 (7th Cir. 1996) (noting that short-
barreled guns are often associated with the narcotics trade). Finally, the co-
defendant’s practice of trading firearms for methamphetamine supports an
inference that Ms. Payton’s delivery of a handgun to two men, at her co-
defendant’s direction, 3 was connected to the conspiracy. Accordingly, we cannot
say that the district court clearly erred in concluding that Ms. Payton was not
eligible for the safety valve because she personally possessed firearms.
Our conclusion that the district court properly refused to apply the safety
valve provision obviates the need to consider Ms. Payton’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 minimum sentence required by
3
Ms. Payton admitted being present on another occasion when her co-
defendant traded methamphetamine for a firearm. Rec. 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 offense within the meaning of” 18
U.S.C. § 924(c)(1), which prescribes a range of mandatory minimum sentences
for use of a firearm in connection with violent crimes and drug trafficking
offenses. Smith v. United States , 508 U.S. 223, 241 (1993).
-7-
statute. The two-level enhancement Ms. Payton received pursuant to §
2D1.1(b)(1) therefore had no material effect on her term of incarceration.
Consequently, the issue is moot and we need not address 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 defendant 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 determine her sentence
violated her Sixth Amendment rights. She did not raise this argument, or any
other Sixth Amendment argument, during her sentencing. 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 demonstrate 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
-8-
district court violates Booker’s Sixth Amendment holding: “Any fact (other than a
prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury 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-constitutional error under Booker. The
Booker remedial majority corrected the Sixth Amendment error created through
mandatory application of the Sentencing Guidelines by severing the statutory
section that required district courts to sentence within 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 “consult” the Guidelines, Booker,
125 S.Ct. at 767, they now have the discretion to depart from the range
recommended by the Guidelines. Thus, a court commits 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 increase her sentence beyond the
maximum authorized by her plea—indeed, she received the required minimum
-9-
sentence. The judicially found facts had no constitutionally 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 impose the mandatory minimum
sentence. See United States v. Rojas-Coria, 401 F.3d 871, 874 n.4 (8th Cir. 2005)
(concluding that Booker does not apply to the application of mandatory minima);
United States v. Vieth, 397 F.3d 615, 620 (8th Cir. 2005) (same).
Ms. Payton also argues that the district court’s refusal 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. Booker does
not prohibit any and all judicial fact-finding; rather, Booker only proscribes
judicial fact-finding that increases a sentence beyond 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 determine 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
-10-
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 for the District of
Wyoming is AFFIRMED.
-11-