United States v. Michael Levasseur , 449 F. App'x 297 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4206
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL PAUL LEVASSEUR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cr-01132-TLW-1)
Submitted: September 28, 2011 Decided: October 11, 2011
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. James Hoffmeyer, LAW OFFICE OF W. JAMES HOFFMEYER, Florence,
South Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Michael Paul
Levasseur pled guilty to conspiracy to possess with intent to
distribute and distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846 (2006). The district court
sentenced Levasseur to the statutory mandatory minimum sentence
of 120 months’ imprisonment. Levasseur timely appealed.
Counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), finding no meritorious issues for appeal, but
challenging Levasseur’s sentence on the grounds that the
district court clearly erred in giving him a two-level
enhancement for possessing a dangerous weapon, U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2009), and in finding that he
did not qualify for a reduction under the safety valve provision
in USSG §§ 2D1.1(b)(11), 5C1.2. Although he was advised of his
right to file a pro se supplemental brief, Levasseur did not
exercise this right. For the reasons that follow, we affirm the
criminal judgment.
After a confidential informant made a controlled buy
of cocaine from Levasseur at his residence on June 30, 2008,
officers executed a search warrant at Levasseur’s home and found
two sets of digital scales with white powder residue on them, a
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sixteen ounce bottle of Inositol, ∗ the cash that had been used
earlier in the day to make the controlled cocaine buy from
Levasseur, an additional $3141 in cash, and, on top of a TV
stand, a loaded .38 caliber revolver. A confidential informant
had previously told investigators that Levasseur carried a
handgun. It was on the basis of the evidence seized from
Levasseur’s residence and the confidential informant’s statement
that the district court applied the two-level enhancement for
possession of a dangerous weapon during the offense under USSG
§ 2D1.1(b)(1) and denied Levasseur a safety valve reduction.
Levasseur argues that the district court erred in
applying the § 2D1.1(b)(1) enhancement because the sole witness
who mentioned seeing him with a gun did not state that Levasseur
used the gun in relation to drug transactions. Furthermore,
Levasseur argues that the mere presence of the gun in his home
did not indicate that it was connected to drug activity.
Pursuant to USSG § 2D1.1(b)(1), a defendant’s offense
level is increased by two levels if he possessed a firearm
during a drug offense. Application Note 3 states that the
enhancement is intended to “reflect[] the increased danger of
violence when drug traffickers possess weapons,” and applies “if
∗
Inositol is a white powder frequently mixed into cocaine
to increase its weight without altering the drug’s appearance.
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the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1 cmt. n.3.
The enhancement is proper when “the weapon was possessed in
connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.”
United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010)
(internal quotation marks omitted).
The Government must prove the facts needed to support
a sentencing enhancement by a preponderance of the evidence.
United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006).
Whether the district court properly applied the enhancement
under USSG § 2D1.1(b)(1) is reviewed for clear error. Manigan,
592 F.3d at 626. Under a clear error standard of review, this
court will reverse only if “left with the definite and firm
conviction that a mistake has been committed.” United States v.
Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation
marks omitted).
Here, investigators found a loaded gun out in the open
in Levasseur’s home, as well as cash used earlier in the day to
make a controlled buy of cocaine from Levasseur, and other
indicia of illegal drug activity. See United States v.
Carrasco, 257 F.3d 1045, 1048 (9th Cir. 2001) (stating that
scales are known tools of drug trade); United States v. Ward,
171 F.3d 188, 195 (4th Cir. 1999) (noting that Rolex watch, a
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wad of currency in the amount of $1055, and a handgun were all
indicia of drug dealing). The Government showed by a
preponderance of the evidence that a gun was “present,” as
required by USSG § 2D1.1(b)(1), and Levasseur did not provide
evidence sufficient for the district court to have found that it
was clearly improbable that the gun was connected to his drug
offense. Accordingly, the district court did not clearly err by
applying the enhancement.
Levasseur also argues that the district court erred in
refusing to apply the safety valve provision in USSG
§§ 2D1.1(b)(11), 5C1.2, as he requested. “The safety valve
permits shorter sentences for a first-time offender who would
otherwise face a mandatory minimum [sentence], provided that he
meets five statutory requirements.” United States v. Fletcher,
74 F.3d 49, 56 (4th Cir. 1996) (citing 18 U.S.C. § 3553(f)
(2006); USSG § 5C1.2). As relevant here, the second criteria is
that “the defendant did not . . . possess a firearm . . . in
connection with the offense.” 18 U.S.C. § 3553(f)(2); USSG
§ 5C1.2(a)(2). The defendant bears “the burden of proving the
existence of the five prerequisites” for the safety valve
reduction. United States v. Wilson, 114 F.3d 429, 432 (4th Cir.
1997).
Levasseur stressed that only one witness stated that
he was known to carry a gun and that witness did not say that
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Levasseur carried a gun in connection with his drug dealing.
Furthermore, he asserts that neither of the confidential
informants who made controlled buys from him mentioned seeing a
weapon. Finally, he notes that the only drug evidence
investigators found when they searched his residence was a small
“user amount” of marijuana and white residue on the digital
scales. Thus, Levasseur argues that a preponderance of the
evidence established that the firearm found in his residence was
not used in connection with his drug offense.
The district court found that the cooperating witness
who related that Levasseur carried a gun had experience dealing
drugs with Levasseur and that it was implicit from the witness’
statement that Levasseur carried the gun as a result of his drug
dealing. Moreover, the district court emphasized that the
search warrant was executed at Levasseur’s residence the same
day a confidential informant made a controlled buy from
Levasseur at the home, and that, in addition to the loaded gun,
investigators found other indicia of drug dealing in the
residence, including the cash from the controlled buy. We
conclude that the district court did not err by finding, based
on this evidence, that Levasseur possessed the firearm in
connection with his offense and therefore was not eligible for
the safety valve reduction.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Levasseur’s conviction and sentence. This
court requires that counsel inform Levasseur, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Levasseur requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Levasseur.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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