United States v. Stein

Opinion

USCA1 Opinion

August 19, 1994
                                [Not for Publication]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1945

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   KURT ALAN STEIN,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                         and Pettine,* Senior District Judge.
                                       _____________________

                                 ____________________

            William Maselli, by Appointment of the Court, for appellant.
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            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with
            _______________________
        whom  Jay P. McCloskey, United  States Attorney, and  Timothy D. Wing,
              ________________                                _______________
        Assistant United States Attorney, were on brief for the United States.

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                                 ____________________

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        *Of the District of Rhode Island, sitting by designation.

Per  Curiam.    In  September 1992,  a  law  enforcement
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            helicopter  spotted marijuana plants  growing on the property

            of Kurt Alan Stein in Somerset County, Maine.  After a ground

            search revealed  172 marijuana plants growing on  or near the

            property, Stein was charged with manufacture of marijuana, 21

            U.S.C.   841(a)(1) and (b)(1)(B), and possession of marijuana

            with  intent  to distribute.    21  U.S.C.     841(a)(1)  and

            (b)(1)(C).  Pursuant to a  plea agreement, Stein was  allowed

            to  plead guilty on  March 1, 1993, to  the lesser offense of

            cultivation of marijuana in excess of fifty plants. 21 U.S.C.

              841(b)(1)(C).

                 Sentencing occurred  on August 10,  1993.  Based  on the

            amount  of marijuana  involved, the court  began with  a base

            offense level of 26.  It  then enhanced Stein's base level by

            two based  on the discovery  by law  enforcement officers  of

            four firearms  on Stein's property along  with the marijuana,

            U.S.S.G.     2D1.1(b)(1),  and  deducted  three  levels after

            determining  that Stein  had accepted responsibility  for his

            crime. U.S.S.G.   3E1.1(b).  The resulting base offense level

            of 25, coupled with a criminal history category of I, yielded

            a guideline sentence range of 57 to 71 months.

                 Although Stein argued that a downward departure would be

            appropriate because his consumption of marijuana was prompted

            by severe  physical and psychological  problems, the district

            court  rejected this  contention  and sentenced  Stein to  57

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months imprisonment.  This appeal followed.

                 Stein's first  argument on  appeal is that  the district

            court  abused its  discretion in  failing to  depart downward

            from  the guideline range.  It is well settled, however, that

            this court ordinarily lacks  jurisdiction to review  refusals

            to depart downward so long as the sentence imposed was within

            the guideline range.  See, e.g., United States v. Amparo, 961
                                  _________  _____________    ______

            F.2d  288, 292  (1st  Cir.), cert.  denied,  113 S.  Ct.  224
                                         _____________

            (1992); United States v.  Tucker, 892 F.2d 8, 9-11  (1st Cir.
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            1989).    An  exception exists  "if  the  record supports  an

            inference that  the sentencing court's failure  to depart did

            not represent an exercise  of fact-finding or discretion, but

            was instead  the product of the  court's miscalculation about

            whether it  possessed the  authority to depart."  Amparo, 961
                                                              ______

            F.2d at 292; see also United States v. Lauzon, 938  F.2d 326,
                         ________ _____________    ______

            330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991).  Despite
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            Stein's  argument to the  contrary, we find  that the present

            record supports no such inference.

                 Stein argued in the district court that he was driven to

            consume  marijuana  by  a  host  of  physical  and  emotional

            difficulties.  The presentence  investigator found that Stein

            had suffered a  wide range  of severe injuries  to his  back,

            leg, face, hands, and various  internal organs, most of which

            arose from  an automobile accident  in 1989.   Although Stein

            had undergone 12 operations  since the accident, he continued

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to  experience  intense headaches  and  was  receiving Social

            Security disability payments at  the time of his arrest.   In

            addition,   Stein   suffered   severe  emotional   depression

            resulting  from  the death  of  his fiancee  in  another auto

            accident  that  took  place  in  1992.    Accordingly,  Stein

            asserted  that he  qualified for  a downward  departure under

            U.S.S.G.    5H1.3 (Mental  and Emotional Condition) and 5H1.4

            (Physical Condition).   Stein  also claimed that  the factors

            prompting him to use marijuana amounted to duress, U.S.S.G.  

            5K2.12, and entitled him  to a departure under  the catch-all

            provision of U.S.S.G.   5K2.0.

                 Although  the district  court rejected  these arguments,

            the record leaves little doubt that the court recognized  its

            authority to depart.   The  court noted that  "I don't  think

            there is any  question that  the court has  the authority  to

            depart,"  and explicitly  rejected the  government's argument

            that a departure would  be forbidden under the circumstances.

            Instead,  the  court found  that  Stein's admittedly  "tragic

            situation"  was   not  the  primary  cause   of  his  illegal

            activities, stating that "it tests the bounds of credulity to

            suggest that  these plants,  172 plants or  thereabouts, were

            being used primarily  for personal consumption.  . . .  [T]he

            fact  of the matter is that  [Stein] was also selling, by his

            own admission, quantities of marijuana . . . ."

                 The district court  rejected Stein's duress  argument on

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similar grounds.  Although the court  commented that "I don't

            understand  the duress  argument at  all," and  expressed the

            view that duress could only exist where a person is forced to

            commit an act by  someone "with superior power or  will," the

            court  also repeated  its belief  that the  number of  plants

            involved and the sales by Stein undermined the credibility of

            the  duress  argument.   Moreover,  the  court concluded  its

            discussion by insisting that "[t]hat's  not [to] say I  don't

            have authority to depart if I found the facts differently.  I

            do have authority to depart, but . . . I'm not satisfied that

            the facts  of  this  case  warrant  departure."    Given  the

            district  court's  clear  recognition  of  its  authority  to

            depart, we have no jurisdiction to review its decision not to

            do so on the merits. Amparo, 961 F.2d at 292. 
                                 ______

                 Stein also appeals from the district court's enhancement

            of his base offense level by  two levels for possession of  a

            dangerous weapon.  U.S.S.G.   2D1.1(b)(1).   Law  enforcement

            officers discovered  four firearms  on  Stein's property,  at

            least  three  of which  were operable  and  one of  which was

            loaded.  Stein does not dispute his ownership of the weapons;

            he  asserts,  however,  that   they  were  unrelated  to  his

            possession  of  marijuana  and  thus  should  not  have  been

            considered in computing his sentence.

                 We  have held  that,  once the  government shows  that a

            weapon was possessed or present with drugs, the burden shifts

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to  the defendant  to demonstrate  "the existence  of special

            circumstances that would render it `clearly  improbable' that

            the  weapon's  presence has  a  connection  to the  narcotics

            trafficking." United States v. Corcimiglia, 967 F.2d 724, 728
                          _____________    ___________

            (1st  Cir. 1992).  Although  some connection to  the drugs is

            required, the defendant  need not  be shown to  have had  the

            weapon on his person  or in his immediate vicinity;   rather,

            it is sufficient if  the weapon was available to  protect the

            defendant  or the  drugs. United  States v. Pineda,  981 F.2d
                                      ______________    ______

            569, 573 (1st Cir.  1992).  Moreover, we review  the district

            court's  findings  on  this   point  --  like  other  factual

            determinations in sentencing under the Guidelines -- only for

            clear error. United States v. Wheelwright, 918 F.2d 226, 227-
                         _____________    ___________

            28  (1st Cir. 1990).   We find  no such error  on the present

            record.

                 Three of  Stein's four  weapons were  found in the  same

            camper  as a number  of baggies containing  marijuana.  Stein

            also testified that  he kept  one of the  weapons loaded  and

            underneath his bed in order to  prevent rodents from nibbling

            at  his marijuana plants.   The use  of firearms  to fend off

            woodchucks was  probably not  what the  Sentencing Commission

            had  in mind  in drafting  U.S.S.G.    2D1.1(b)(1).   But the

            availability of a weapon suggests  that it could readily have

            been  used to  protect the  plants from  others or  to resist

            arrest.   The  district court's  determination that  the guns

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were used "to further the crime" was not clearly erroneous.

                 Nor does it make any difference that most of the weapons

            may  not have been easily  accessible at the  time that Stein

            was  arrested.   Although Stein  testified at  his sentencing

            hearing that  the guns were  kept underneath "a  multitude of

            items" in his trailer at the time of his arrest, the district

            court found that "it also is clear from the testimony of  the

            defendant that the weapons  were accessible for a significant

            period of  time during which the manufacture of the marijuana

            took  place."  This is sufficient; nothing in the language or

            purpose  of   the  provisions   that   impose  the   firearms

            enhancement require  that the  weapon or  weapons be  used or

            available for use at the time of arrest.

                 Because we have no jurisdiction to consider the district

            court's  failure  to  depart  downward   from  the  guideline

            sentence, and  because  that court's  enhancement of  Stein's

            offense  level for possession  of a dangerous  weapon was not

            clearly erroneous, we affirm Stein's sentence.
                                  ______

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