FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-30081
Plaintiff-Appellee, D.C. No.
v. CR-04-05167-001-
LEE MURRAY FERRYMAN, RBL
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted January 25, 2006*
Seattle, Washington
Filed April 18, 2006
Before: Johnnie B. Rawlinson and Richard R. Clifton,
Circuit Judges, and Larry A. Burns,** District Judge.
Opinion by Judge Clifton
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
4373
UNITED STATES v. FERRYMAN 4375
COUNSEL
Suzanne Lee Elliott, Seattle, Washington, for the appellant.
John McKay, United States Attorney and William H. Redkey,
Jr., Assistant United States Attorney, Seattle, Washington, for
the appellee.
OPINION
CLIFTON, Circuit Judge:
Defendant Lee Murray Ferryman appeals the district
court’s finding that he was ineligible for safety valve relief
from a mandatory minimum sentence for manufacturing mari-
juana. At issue in this appeal is whether the district court
clearly erred in finding that Ferryman possessed eleven fire-
arms in connection with the drug offense, after Ferryman
argued that he possessed the firearms primarily for the protec-
tion of his family. We conclude that it did not, and thus we
affirm.
I. BACKGROUND
In October, 2003, police officers searched Ferryman’s
home pursuant to a warrant. The search turned up 875 grams
of marijuana packaged in baggies, 1200 grams of dried mari-
juana leaves, and 170 growing marijuana plants. The search
also discovered eleven firearms: one loaded Glock .40 caliber
pistol and one loaded Smith and Wesson revolver on the mas-
ter bedroom nightstand, one loaded Ruger 9 mm pistol in a
safe hidden in the master bedroom closet, one loaded shotgun
in the master bedroom, one loaded shotgun near the front
door, and five unloaded firearms.
Ferryman pleaded guilty to manufacturing marijuana, in
violation of 21 U.S.C. § 841(a)(1), and to possession of a fire-
4376 UNITED STATES v. FERRYMAN
arm by an unlawful user of marijuana, in violation of 18
U.S.C. § 922(g)(3). By written plea agreement, he admitted
that he possessed the eleven firearms but did not admit that
his possession was “in connection with” the marijuana grow-
ing operation. Whether the firearms were possessed “in con-
nection with” the marijuana offense is the crucial issue on
appeal, and we discuss it in more detail below. Ferryman also
admitted to the quantity of the marijuana plants discovered,
which subjected him to a mandatory minimum sentence of
imprisonment for sixty months (five years) under 21 U.S.C.
§ 841(b)(1)(B)(vii), unless he qualified for safety valve relief
from the mandatory minimum sentence under United States
Sentencing Guidelines (“U.S.S.G.”) § 5C1.2 (implementing
18 U.S.C. § 3553(f)).
At sentencing, the district court found that Ferryman did
not qualify for safety valve relief and sentenced Ferryman to
the mandatory minimum sentence of imprisonment for sixty
months. Ferryman timely appeals. We have jurisdiction pur-
suant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II. DISCUSSION
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo, its application of the Sentencing
Guidelines to the facts of this case for an abuse of discretion,
and its factual findings for clear error. See United States v.
Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). Specifically,
this court reviews for clear error the district court’s factual
determination that a defendant possessed firearms in connec-
tion with the offense of conviction, making him ineligible for
safety valve relief. See United States v. Real Hernandez, 90
F.3d 356, 360 (9th Cir. 1996).
18 U.S.C. § 3553(f) provides the statutory basis for safety
valve relief from mandatory minimum sentences. It states
that, if each of its criteria are met, “the court shall impose a
sentence pursuant to guidelines promulgated by the United
UNITED STATES v. FERRYMAN 4377
States Sentencing Commission . . . without regard to any stat-
utory minimum sentence. . . .” 18 U.S.C. § 3553(f). These
criteria are: (1) the defendant does not have more than one
criminal history point; (2) the defendant did not use violence
or possess a firearm in connection with the offense; (3) the
offense did not result in death or serious bodily injury to a
person; (4) the defendant was not a leader in the offense and
was not engaged in a continuing criminal enterprise; and (5)
the defendant has truthfully provided to the Government all
information and evidence that he has concerning the offense.
See 18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2 (imple-
menting 18 U.S.C. § 3553(f)). Only the second criterion,
whether Ferryman possessed a firearm in connection with the
offense, is at issue in this appeal.
[1] The phrase “in connection with” is not defined under 18
U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. We interpret it with
reference to the same phrase under U.S.S.G. § 2D1.1(b)(1),
see United States v. Smith, 175 F.3d 1147, 1149 (9th Cir.
1999), which authorizes a two-level enhancement to a defen-
dant’s base offense level if “a dangerous weapon (including
a firearm) was possessed.” To avoid an enhancement under
U.S.S.G. § 2D1.1(b)(1), the burden is on the defendant to
prove that it was “clearly improbable” that he possessed a
firearm in connection with the offense. U.S.S.G. § 2D1.1 cmt.
3. To qualify for safety valve relief under U.S.S.G. § 5C1.2,
the burden is also on the defendant to prove, but only by a
preponderance of the evidence, that he did not possess a fire-
arm in connection with the offense. See United States v. Nel-
son, 222 F.3d 545, 550 (9th Cir. 2000).
On appeal, Ferryman argues that the district court erred by
not requiring the Government to bear the burden of proving
“that the firearm[s were] possessed in a manner that permits
an inference that [they] facilitated or . . . had some potential
emboldening role . . . in a defendant’s felonious conduct.”
United States v. Polanco, 93 F.3d 555, 566-67 (9th Cir. 1996)
(citing United States v. Routon, 25 F.3d 815, 819 (9th Cir.
4378 UNITED STATES v. FERRYMAN
1994)). Ferryman’s reliance on Polanco and Routon is mis-
placed. These cases discuss a sentencing enhancement under
U.S.S.G. § 2K2.1(b)(5), which has no application to this case.
See Routon, 25 F.3d at 818. The district court correctly held
Ferryman to his burden of proving, by a preponderance of the
evidence, that he did not possess the firearms in connection
with the offense.
The district court found that Ferryman did not meet this
burden and that he possessed firearms in connection with the
offense, thus disqualifying him for safety valve relief. Specifi-
cally, it found that the firearms, six of which were loaded and
placed about the home, were configured in “the classic defen-
sive posture consistent with protection of a marijuana grow
operation.” The district court also found implausible Ferry-
man’s reasons for possessing the firearms. Ferryman had
explained that he had armed himself primarily to protect his
family on the advice of county police after his son was badly
beaten in a 2001 gang-related home invasion. He admitted,
however, that the marijuana growing operation likely led to
two subsequent burglaries of the home. The district court did
not accept Ferryman’s explanation that, although the mari-
juana operation probably enticed intruders into the home and
endangered his family, he would have been able to determine
when he should use firearms in defense of his family, in a
way separate from defense of the marijuana growing opera-
tion.
Our review of the district court’s denial of safety valve
relief is deferential. We accept the lower court’s findings of
fact unless we are left with a definite and firm conviction that
a mistake has been made. United States v. Doe, 155 F.3d
1070, 1074 (9th Cir. 1998) (en banc). We also pay special
deference to a trial court’s credibility findings. See United
States v. Elliot, 322 F.3d 710, 715 (9th Cir. 2003).
[2] We conclude that the findings here were not clearly
erroneous. We join other circuits that have similarly affirmed
UNITED STATES v. FERRYMAN 4379
the denial of safety valve relief based upon the circumstances
in which the firearms were found, coupled with the implausi-
bility of defendants’ explanations. The Sixth Circuit, in
United States v. Stewart, 306 F.3d 295, 327 n.19 (6th Cir.
2000), affirmed the district court’s denial of safety valve relief
for a drug-trafficking defendant who stashed a loaded firearm
under his mattress. Id. The district court did not believe the
defendant’s explanation that he kept the firearm, a gift from
his father, only for sentimental reasons, intending to pass it on
to his son. Id. In United States v. Hallum, 103 F.3d 87, 89
(10th Cir. 1996), the Tenth Circuit affirmed the denial of
safety valve relief based on the fact that defendants kept a
rifle in a truck used to transport marijuana. Id. The district
court there also found implausible defendants’ explanation
that they used the rifle to protect against snakes. Id. The Tenth
Circuit, in United States v. Payton, 405 F.3d 1168, 1171 (10th
Cir. 2005), also affirmed the denial of safety valve relief for
a defendant who possessed five firearms in close proximity to
substantial amounts of methamphetamine but argued that one
of those firearms, a 12-gauge shotgun, was only a Valentine’s
Day gift for a co-defendant. Id. The district court’s findings
were not clearly erroneous, given the circumstances in which
the guns were found in Ferryman’s home, coupled with the
implausibility of his explanations.
AFFIRMED.