United States v. Lee Murray Ferryman

444 F.3d 1183, 2006 U.S. App. LEXIS 9635, 2006 WL 997607
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 18, 2006
Docket05-30081
StatusPublished
Cited by55 cases

This text of 444 F.3d 1183 (United States v. Lee Murray Ferryman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lee Murray Ferryman, 444 F.3d 1183, 2006 U.S. App. LEXIS 9635, 2006 WL 997607 (9th Cir. 2006).

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 marijuana. At issue in this appeal is whether the district court clearly *1185 erred in finding that Ferryman possessed eleven firearms in connection with the drug offense, after Ferryman argued that he possessed the firearms primarily for the protection 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 marijuana leaves, and 170 growing marijuana plants. The search also discovered eleven firearms: one loaded dock .40 caliber pistol and one loaded Smith and Wesson revolver on the master 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 firearm 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 growing operation. Whether the firearms were possessed “in connection 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)(l)(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 pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II. DISCUSSION

We review the district court’s interpretation of the Sentencing 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 connection with the offense of conviction, making him ineligible for safety valve relief. See United States v. Reah-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 4376 States Sentencing Commission ... without regard to any statutory 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. *1186 § 5C1.2 (implementing 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.

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. § 2Dl.l(b)(l), see United States v. Smith, 175 F.3d 1147, 1149 (9th Cir.1999), which authorizes a two-level enhancement to a defendant’s base offense level if “a dangerous weapon (including a firearm) was possessed.” To avoid an enhancement under U.S.S.G. § ,2Dl.l(b)(l), 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 firearm in connection with the offense. See United States v. Nelson, 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.1994)). Ferryman’s reliance on Polanco and Routon is misplaced. 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.

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444 F.3d 1183, 2006 U.S. App. LEXIS 9635, 2006 WL 997607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lee-murray-ferryman-ca9-2006.