United States Court of Appeals For the First Circuit
No. 22-1367
UNITED STATES OF AMERICA,
Appellee,
v.
DEREK FITZPATRICK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Montecalvo, Circuit Judges.
Hunter J. Tzovarras on brief for appellant. Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.
May 17, 2023 SELYA, Circuit Judge. Drugs and guns are a bad
combination, and the district court refused to extend safety valve
relief to defendant-appellant Derek Fitzpatrick after finding that
he possessed a firearm during and in connection with a drug-
trafficking crime. See USSG §5C1.2(a)(2). The appellant appeals,
insisting that this finding is not supported by the record. After
careful consideration of the parties' arguments, we affirm both
the challenged finding and the ensuing sentence.
I
We briefly rehearse the facts and travel of the case.
Because this appeal follows a guilty plea, "we glean the relevant
facts from the change-of-plea colloquy, the unchallenged portions
of the presentence investigation report (PSI Report), and the
record of the disposition hearing." United States v. Vargas, 560
F.3d 45, 47 (1st Cir. 2009).
In August of 2018, the Maine Drug Enforcement Agency
(MDEA) began investigating a suspected drug-trafficking operation
in Aroostook County, Maine. As part of its probe, the MDEA
enlisted a confidential informant (CI) to conduct controlled buys
of methamphetamine from the appellant. Although the CI made
several purchases of methamphetamine from the appellant in late
August, this appeal centers on a specific transaction that occurred
in early September and the execution of two search warrants a few
weeks later.
- 2 - The pivotal transaction took place on September 11. The
CI arranged to purchase drugs from the appellant in Littleton,
Maine, on that date. According to the CI's written statement
(executed that same day), the CI rendezvoused with the appellant
at a garage in Littleton. When the two met, the appellant was "in
a dark [b]lue or possibly [g]rey GMC pickup in the lawn next to
[the garage]." The CI proceeded to buy 111.5 grams of
methamphetamine and then broached the subject of purchasing
another half-pound of methamphetamine at a later date. During the
course of the transaction, the CI "noticed a hand gun in the door
pocket of the pickup."
The appellant challenges certain aspects of this
account. He asserts, for example, that the transaction occurred
inside the garage (as opposed to outside of it). He also asserts
that there was a white GMC pickup parked outside the garage (not
a blue or grey one).1 And, finally, he asserts that there were no
firearms in his truck.
On September 28, the MDEA executed search warrants for
both the appellant's residence in Houlton, Maine, and the garage
in Littleton. Agents recovered 1,992 grams of methamphetamine
hydrochloride from the residence and 20.28 grams of
It is undisputed that the appellant owned two GMC pickup 1
trucks, one white and another variously described as "dark blue," "grey," "green," or "slate."
- 3 - methamphetamine hydrochloride from the appellant's "slate colored
GMC pickup truck," which was parked at the Littleton garage. In
that truck, the agents also found a loaded handgun in the "driver's
side door pocket," another handgun in the center console, $2,050
in cash, and sundry drug paraphernalia.
We fast-forward to June 12, 2019. On that date, a
federal grand jury sitting in the District of Maine returned an
indictment, which charged the appellant with two counts of
distributing methamphetamine (counts one and two), one count of
distributing fifty grams or more of controlled substances (count
three), and one count of possessing five hundred grams or more of
controlled substances with intent to distribute (count four). See
21 U.S.C. § 841(a)(1). Although the appellant initially
maintained his innocence, he subsequently entered guilty pleas to
all four counts.
The probation office prepared a PSI report that grouped
all four counts, see USSG §3D1.2(d), and — after accounting for
the quantities of methamphetamine actually transferred and seized,
a future transaction planned with the CI, and various cash-to-drug
conversions — attributed 3.4 kilograms of methamphetamine to the
appellant. This produced a base offense level of thirty-two. See
id. §2D1.1(c)(4). After adjusting for a two-level increase for
possession of a firearm, see id. §2D1.1(b)(1), and a three-level
decrease for acceptance of responsibility, see id. §3E1.1, the
- 4 - amended PSI Report settled on a total offense level of thirty-one.
Coupled with the appellant's placement in criminal history
category I, the total offense level yielded a guideline sentencing
range (GSR) of 108 to 135 months. But because count four carried
a ten-year mandatory minimum sentence, see 21 U.S.C.
§ 841(b)(1)(A)(viii), the appellant's GSR was set at 120 to 135
months.
At the disposition hearing, the appellant sought to be
relieved of the mandatory minimum sentence. He argued that he
qualified for relief under the "safety valve" provision. See 18
U.S.C. § 3553(f); USSG §5C1.2(a). As relevant here, the safety
valve affords relief from certain mandatory minimum sentences to
first-time drug-trafficking offenders. See United States v.
McLean, 409 F.3d 492, 500 (1st Cir. 2005). To qualify for such
relief, a defendant must show, by a preponderance of the evidence,
that he meets five conditions. See 18 U.S.C. § 3553(f)(1)-(5);
USSG §5C1.2(a)(1)-(5); see also United States v. Anderson, 452
F.3d 87, 90 (1st Cir. 2006). Although the appellant contended
that he satisfied all five conditions, the parties' arguments at
sentencing focused primarily on a single condition,2 which turned
2 At the disposition hearing, the government also argued that the appellant failed to fulfill another condition of the safety valve provision: that he had "truthfully provided to the Government all information and evidence the defendant has concerning the offense." 18 U.S.C. § 3553(f)(5). The district court saw no need to reach this issue, nor do we.
- 5 - on whether or not the appellant had "possess[ed] a firearm . . . in
connection with the offense." 18 U.S.C. § 3553(f)(2); see USSG
§5C1.2(a)(2).
The appellant contended that he had not possessed a
firearm in connection with the offense. First, he claimed that
the CI's statements regarding the presence of a handgun in his
truck during the September 11 transaction were inaccurate. In
support, he proffered an affidavit stating that the transaction
occurred inside the garage; that his white truck, rather than his
blue or grey truck, was parked outside during the transaction; and
that, in all events, the truck did not contain a firearm at the
time. Second, he claimed that — even if the court accepted the
CI's version of the facts — he had carried his burden of showing
that the firearm in his truck was not possessed in connection with
the September 11 drug-trafficking transaction. Relatedly, he
claimed that the firearms found in his truck on September 28 were
not possessed in connection with the large quantity of
methamphetamine found at his residence on the same date.
The government demurred. It argued that a handgun was
present during the September 11 transaction and that the appellant
had not carried his burden of showing that the handgun was not
possessed in connection with the transaction. The government
pointed to the CI's statement concerning the September 11
transaction and to evidence discovered during the execution of the
- 6 - search warrants. The government argued that the presence and
visibility of the handgun during the September 11 transaction gave
rise to the reasonable inference that the handgun played a role in
protecting the appellant's person, drugs, and money. It also
argued that the agents' discovery of the handgun on September 28
corroborated the CI's earlier account.
The district court credited the CI's statement and found
that a firearm had been in the appellant's truck on September 11.
The court reasoned that "[t]here's nothing . . . which would
substantially undermine . . . the accuracy of that statement by
[the CI] to establish the presence of a firearm on September 11,
2018, during the course of a drug transaction." The court went on
to find that the appellant's possession of the firearm in the truck
during the transaction indicated that he possessed the weapon "in
connection with the [drug] offense." 18 U.S.C. § 3553(f)(2); see
USSG §5C1.2(a)(2). Consequently, the court ruled that the
appellant did not qualify for safety valve relief.
When all was said and done, the district court sentenced
the appellant to a 120-month term of immurement. This timely
appeal followed.
II
The appellant argues that the district court erred in
finding him ineligible for safety valve relief. When assessing "a
sentencing court's determination that a defendant failed to
- 7 - qualify for the safety valve, the standard of appellate review
varies according to the foundation upon which that determination
is based." United States v. Matos, 328 F.3d 34, 38 (1st Cir.
2003). To the extent that the determination is based on
conclusions of law, our review is de novo. See id. When, however,
that determination hinges on the district court's factual
findings, our review is for clear error. See id.
To qualify for safety valve relief, a defendant bears
the burden of satisfying five statutory requirements by a
preponderance of the evidence. See United States v. Stark, 499
F.3d 72, 80 (1st Cir. 2007). He must show that he is free from
certain combinations of criminal history points, that he neither
used violence nor possessed a firearm in connection with the
offense of conviction, that the offense resulted in neither death
nor serious bodily injury, that he did not act in a managerial
role in a related conspiracy, and that he truthfully cooperated
with the authorities. See 18 U.S.C. § 3553(f)(1)-(5); USSG
§5C1.2(a)(1)-(5). Only the second requirement is at issue here:
to be eligible for safety valve relief, the defendant needed to
show that he did not "possess a firearm . . . in connection with
the offense." 18 U.S.C. § 3553(f)(2); see USSG §5C1.2(a)(2).
In determining that the appellant failed to satisfy this
requirement, the district court made two pertinent findings.
First, it found that the appellant had possessed a firearm when he
- 8 - sold drugs to the CI on September 11. Second, it found that the
appellant's possession of the firearm was in connection with that
drug sale. The appellant challenges both findings, and we address
these imbricated challenges sequentially.
A
We begin with the appellant's claim that the district
court erred in finding that there was a handgun in his truck during
the September 11 transaction. In the appellant's view, this
finding resulted from the court's improper crediting of the CI's
statement. Because this challenge is factbound, our review is for
clear error. See Matos, 328 F.3d at 38.
From an appellant's coign of vantage, clear error is an
inhospitable standard of review. "Clear error will be found only
when, upon whole-record-review, an inquiring court 'form[s] a
strong, unyielding belief that a mistake has been made.'" United
States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)
(alteration in original) (quoting Cumpiano v. Banco Santander
P.R., 902 F.2d 148, 152 (1st Cir. 1990)).
We do not discern clear error here. The record contains
evidence from which the district court could reasonably have
concluded that there was a firearm in the appellant's truck during
the September 11 drug transaction. In a near-contemporaneous
account of the sale, the CI reported that he had "noticed a hand
gun in the door pocket of the pickup" during the transaction. The
- 9 - "specificity and detail" of the CI's account, coupled with the
fact that the CI was relaying a "first-hand description" of the
location of the weapon, are factors that support the veracity of
the information conveyed. United States v. Taylor, 985 F.2d 3, 6
(1st Cir. 1993) (emphasis omitted); see United States v. Tiem
Trinh, 665 F.3d 1, 10 (1st Cir. 2011). This inference of
reliability is further buttressed by the fact that the CI had
proven to be reliable in connection with the August transactions.
We have long held that a confidential informant's history of
providing accurate information lends an "indicium of reliability"
to that informant's later report. United States v. Schaefer, 87
F.3d 562, 566 (1st Cir. 1996). And, finally, the district court
did not spy anything in the record that would substantially
undermine the CI's report.
The court's decision to give greater credence to the
CI's report than to the appellant's account is the type of
determination that is "peculiarly within the province of the
district court and will rarely be disturbed on appeal." United
States v. Quirion, 714 F.3d 77, 81 (1st Cir. 2013); see United
States v. Platte, 577 F.3d 387, 392-93 (1st Cir. 2009)
("[C]redibility determinations are part of the sentencing court's
basic armamentarium."). Given that the record, viewed as a whole,
does not impugn the district court's factual finding, that finding
was not clearly erroneous.
- 10 - The appellant's arguments to the contrary are
unconvincing. Principally, he argues that the district court's
finding should be set aside because it is contradicted by his own
version of the facts. This argument, though, runs headlong into
the well-established principle that "when two or more legitimate
interpretations of the evidence exist, the factfinder's choice
between them cannot be deemed clearly erroneous." United States
v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007).
The appellant also argues that the CI's account "lacked
indicia of reliability." But this is whistling past the graveyard:
the CI's near-contemporaneous account of the September 11
transaction specifically noted the presence of a firearm in the
"door pocket" of the appellant's "dark [b]lue or possibly [g]rey
GMC pickup." See Schaefer, 87 F.3d at 566; Taylor, 985 F.2d at 6.
When officers searched that same truck — less than three weeks
later — they discovered a firearm in that precise location. This
later discovery tended to corroborate the CI's earlier statement.
Cf. United States v. Mena, 933 F.2d 19, 25 n.5 (1st Cir. 1991)
(explaining that "events that occur after an offense has been
perpetrated may be relevant in an assessment of what transpired at
the earlier time").
In his reply brief, the appellant argues (for the first
time) that the district court erred by failing to consider the
sworn declaration that he filed in connection with his sentencing
- 11 - memorandum. But arguments made for the first time in an
appellant's reply brief are generally deemed waived, see United
States v. Franklin, 51 F.4th 391, 401 n.6 (1st Cir. 2022), and so
it is here. We add that even if not waived, the appellant's
argument would not gain him any traction: the declaration was
part of the record before the district court at sentencing and was
specifically referenced by the government during the disposition
hearing. There is nothing in the record to suggest that the
district court failed to consider the appellant's declaration; the
more logical inference is that the court considered the declaration
but simply found it less persuasive than other record evidence.
See United States v. Rodríguez-Rosado, 909 F.3d 472, 480-81 (1st
Cir. 2018).
That ends this aspect of the matter. We hold that the
district court did not clearly err in finding that there was a
firearm in the appellant's truck during the September 11 drug sale.
B
The appellant's second claim of error is that the
district court blundered in finding that he possessed a firearm
"in connection with the offense." 18 U.S.C. § 3553(f)(2); see
USSG §5C1.2(a)(2). He argues that, even if there was a firearm in
his truck on September 11, the firearm was not used in connection
with the drug deal that occurred on that date because it was "not
intended to facilitate the transaction." Separately, he argues
- 12 - that he did not possess a firearm in connection with the drugs
seized on September 28.
Broadly speaking, "a defendant possesses a firearm in
connection with a drug offense if the firearm has the potential to
facilitate the offense." United States v. Leanos, 827 F.3d 1167,
1170 (8th Cir. 2016). Courts construing the safety valve provision
have held that a firearm may be said to facilitate a drug offense
if, among other things, it "embolden[s] an actor who had the
ability to display or discharge the weapon" or "serv[es] as an
integral part of a drug transaction." United States v. Carillo-
Ayala, 713 F.3d 82, 96 (11th Cir. 2013). In addition, a firearm
may be found to have been possessed in connection with a drug
offense if the firearm was located in a place "where it could be
used to protect drugs." Leanos, 827 F.3d at 1170 (quoting United
States v. Jackson, 552 F.3d 908, 910 (8th Cir. 2009) (per curiam)).
Thus, the presence of a firearm in a location where a drug
transaction is found to have transpired, without more, may give
rise to an inference that the firearm was possessed in connection
with a drug offense. See United States v. Corcimiglia, 967 F.2d
724, 727 (1st Cir. 1992). This principle has special bite when a
firearm is located somewhere that "makes it readily available to
protect either the participants themselves during the commission
of the illegal activity or the drugs and cash involved in the drug
business." Id.; see United States v. Manigan, 592 F.3d 621, 629
- 13 - (4th Cir. 2010) (collecting cases); United States v. Correy, 570
F.3d 373, 390 (1st Cir. 2009).
Viewed in this light, the appellant's contention that
the district court clearly erred in finding that the firearm in
his truck on September 11 was possessed in connection with his
drug offense is dead on arrival. The record contains evidence
from which the district court supportably could find — as it did
— that when the CI arrived at the garage, the appellant was in his
truck and a handgun was inside the truck with him. What is more,
the CI's written statement makes pellucid that the CI could see
the weapon while he and the appellant were consummating the drug
transaction. This close proximity strongly suggests that the
firearm was "readily available" to protect the appellant and/or
his contraband during the exchange. Corcimiglia, 967 F.2d at 726-
27 (holding that firearms stored in closet of home where drug
distribution occurred, paired with knowledge of their location,
rendered firearms "readily available"). No more was exigible to
ground the district court's determination that the firearm was
possessed in connection with the drug offense. See United States
v. Carrasquillo, 4 F.4th 1265, 1270, 1273-74 (11th Cir. 2021)
(holding that firearm was possessed in connection with offense
when firearm was stored in center console of truck in which
defendant intended to transport drugs); United States v. Hargrove,
911 F.3d 1306, 1325, 1331 (10th Cir. 2019) (explaining that safety
- 14 - valve relief was unavailable when firearms were found in truck
with narcotics and could have facilitated drug trafficking, "even
if the firearms did not do so directly").
To be sure, the appellant's possession of a firearm in
connection with the September 11 drug sale is most directly tied
to the conduct underlying count three. It is count four, however,
that carried the mandatory minimum sentence. Under the sentencing
guidelines, though, a firearm can be possessed "in connection with
the offense," USSG §5C1.2(a)(2), so as to foreclose the
availability of the safety valve even if the weapon was not
possessed during the commission of the specific transaction that
underlies the count that carried the mandatory minimum sentence,
see United States v. Wilson, 106 F.3d 1140, 1145 (3d Cir. 1997)
(holding that possession of firearm during uncharged prior drug
transactions precluded safety valve relief). This result inures
because the guidelines define "offense" to include both the
"offense of conviction and all relevant conduct." USSG §5C1.2,
cmt. n.3; see United States v. Martinez, 9 F.4th 24, 38 (1st Cir.
2021); see also United States v. Pennue, 770 F.3d 985, 992 (1st
Cir. 2014) (explaining that where multiple counts are subject to
grouping for sentencing purposes, "relevant conduct" includes acts
or omissions that were "part of the same 'course of conduct or
common scheme or plan as the offense of conviction'" (quoting USSG
§1B1.3(a)(2))). In this case, the appellant has never denied that
- 15 - the September 11 transaction was relevant conduct in relation to
his conviction for the separate count of possessing a much larger
amount of methamphetamine on September 28. And given that he bore
the burden of demonstrating his eligibility for safety valve
relief, see Anderson, 452 F.3d at 90, this tacit admission is
fatal.
We summarize succinctly. We uphold the district court's
finding that the appellant possessed a firearm in connection with
his drug offense and, thus, was ineligible for safety valve relief.
III
We need go no further.3 For the reasons elucidated
above, the challenged sentence is
Affirmed.
3 Because we hold that the appellant possessed a firearm during the September 11 transaction, we need not reach the appellant's argument that he did not possess a firearm in connection with the drugs seized on September 28.
- 16 -