Filed: Oct. 21, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 12-16270 Date Filed: 10/21/2013 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16270 Non-Argument Calendar _ D.C. Docket No. 1:12-cr-20468-JAL-4 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus KEVIN TRAMAINE CHAVOUS, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (October 21, 2013) Before WILSON, KRAVITCH and ANDERSON, Circuit Judges. PER CURIAM: Kevin Chavous appeals
Summary: Case: 12-16270 Date Filed: 10/21/2013 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16270 Non-Argument Calendar _ D.C. Docket No. 1:12-cr-20468-JAL-4 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus KEVIN TRAMAINE CHAVOUS, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (October 21, 2013) Before WILSON, KRAVITCH and ANDERSON, Circuit Judges. PER CURIAM: Kevin Chavous appeals ..
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Case: 12-16270 Date Filed: 10/21/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16270
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20468-JAL-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN TRAMAINE CHAVOUS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 21, 2013)
Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
Kevin Chavous appeals his 120-month sentence imposed after pleading
guilty to conspiracy to possess cocaine with intent to distribute, in violation of 21
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U.S.C. §§ 841(a)(1) and 846. He asserts that the district court: (1) improperly
imposed a two-level guidelines enhancement for possession of a firearm; (2)
erroneously concluded that he was ineligible for relief under the guidelines’ safety-
valve provision; and (3) improperly denied a guidelines reduction based on his
minor role in the offense. After careful review, we affirm.
Chavous and his co-defendants, Steven Cook, Michael Chavous (hereafter,
Michael), and Christopher Henderson, drove from Georgia to Miami with $65,000
in cash to purchase cocaine from a seller who was working with the FBI. Upon
arriving in Miami, Cook and Michael went to purchase the drugs and were
arrested. A search of the vehicle they drove to the drug buy revealed a loaded
firearm. After their arrest, Cook and Michael told FBI agents that they had
travelled to Miami with Henderson and Chavous, who were supposed to transport
the drugs back to Georgia. At the agents’ request, Cook called Henderson and told
him and Chavous to meet him at the site of the drug buy. Chavous and Henderson
arrived and were arrested. A search of their vehicle revealed a firearm under the
driver’s seat, and Henderson admitted to putting it there. Chavous stated after his
arrest that he had travelled to Miami at Michael’s request and did not know the
purpose of the trip.
Chavous pleaded guilty to conspiracy to possess cocaine with intent to
distribute. Prior to sentencing, the probation officer prepared a presentence
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investigation report (PSI) that set his base offense level at 32. The PSI increased
Chavous’s guidelines level by two for possession of a firearm. See U.S.S.G.
§ 2D1.1(b)(1). After other adjustments, Chavous’s total offense level became 31
and, with a criminal history category of I, his resulting guidelines range was 108 to
135 months’ imprisonment. Chavous was subject to a 120-month statutory
mandatory minimum, however, which changed his guidelines range to 120 to 135
months’ imprisonment. See id. § 5G1.1(c)(2). The district court imposed a 120-
month sentence. This is Chavous’s appeal.
Chavous first asserts that the district court improperly imposed a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. “We
review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1) for clear
error, and the application of the Sentencing Guidelines to those facts de novo.”
United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (internal quotation
marks omitted). Even if the defendant did not physically possess a firearm, the
enhancement is still appropriate if:
the government establishes by a preponderance of the evidence that
(1) the possessor of the firearm was a co-conspirator, (2) the
possession was in furtherance of the conspiracy, (3) the defendant was
a member of the conspiracy at the time of possession, and (4) the co-
conspirator possession was reasonably foreseeable by the defendant.
Id. (internal quotation marks omitted). Moreover, if the firearm was present at the
place of the crime, the enhancement applies “unless it is clearly improbable that
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the weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. (n.11(A)).
The defendant bears the burden of showing “that a connection between the firearm
and the offense is clearly improbable.” United States v. Hall, 46 F.3d 62, 63 (11th
Cir. 1995).
Chavous contends Henderson’s firearm was wholly unrelated to the
conspiracy to purchase drugs because Henderson brought it for personal
protection.1 But Chavous cannot establish that the firearm’s connection to the
offense was “clearly improbable.” We have recognized that “guns are a tool of the
drug trade” and “[t]here is a frequent and overpowering connection between the
use of firearms and narcotics traffic.” Pham, 463 F.3d at 1246 (internal quotation
marks omitted). And had the purchase been successful, Chavous and Henderson
would have been tasked with transporting five kilograms of cocaine from Florida
to Georgia, for which a firearm could have been used to protect the drugs.
Chavous therefore cannot show that the § 2D1.1 enhancement was improper. See
United States v. Freyre-Lazaro, 3 F.3d 1496, 1506 (11th Cir. 1993) (noting that it
was reasonably foreseeable that a co-conspirator would possess a firearm when
transporting a large amount of cocaine).
1
Chavous also contends that he had no knowledge of either of the firearms in the vehicles at the
scene, but we have stated knowledge of a co-conspirator’s possession of a firearm is not required
to support the enhancement. See United States v. Clavijo,
165 F.3d 1341, 1342 (11th Cir. 1999)
(“Although Clavijo had no knowledge of the firearm, he had nonetheless possessed a firearm
under the broad language of section 2D1.1(b)(1).”).
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Chavous next argues the district court should have granted him relief under
the guidelines’ safety-valve provision. We review a district court’s factual
findings about a denial of safety-valve relief for clear error and its interpretation of
the safety-valve statutes and guidelines de novo. United States v. Poyato, 454 F.3d
1295, 1297 (11th Cir. 2006). To qualify for safety-valve relief, a defendant must
“truthfully provide[] to the Government all information and evidence [he] has
concerning the offense . . . .” U.S.S.G. § 5C1.2(a)(5). The district court found that
Chavous had not truthfully told the government everything he knew about the
offense because he stated he did not learn that the purpose of the trip was to
purchase drugs until he arrived in Miami. Chavous contends he told the truth.
But at sentencing, Chavous submitted into evidence a report summarizing an
interview between Cook and federal agents indicating Cook met with Chavous
before the trip to discuss the logistics of the drug buy. The district court’s decision
to credit this report over Chavous’s explanation is not clearly erroneous. See
United States v. Saingerard,
621 F.3d 1341, 1343 (11th Cir. 2010) (“Where there
are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” (internal quotation marks omitted)). Thus, the
district court did not err in finding Chavous ineligible for safety-valve relief.
Finally, Chavous contends the district court should have awarded him a
minor-role reduction because he did not know about the drug transaction until he
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arrived in Miami, was not involved in the negotiations, and provided no money
towards the purchase of the cocaine. See U.S.S.G. § 3B1.2(b). “We review for
clear error a district court’s determination of a defendant’s qualification for a role
reduction.” United States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006).
“The defendant has the burden of establishing his role in the offense by a
preponderance of the evidence.” Id. To determine whether a defendant had a
minor role in the offense, the district court “must measure the defendant’s role
against the relevant conduct for which [he] was held accountable at sentencing and
may also measure the defendant’s role against the other participants in that relevant
conduct.” United States v. Boyd,
291 F.3d 1274, 1277 (11th Cir. 2002) (alterations
and internal quotation marks omitted).
Chavous has not demonstrated that the district court clearly erred in
declining to award him a minor-role reduction. He was held accountable only for
the amount of cocaine he conspired to transport, and the transportation of the
cocaine was an integral part of the conspiracy. See Alvarez-Coria, 447 F.3d at
1343-44 (holding that a refusal to grant a minor-role reduction was not clearly
erroneous where the defendant was entrusted with transporting drugs and was held
responsible only for the amount of drugs that he agreed to transport).
For the above reasons, the district court did not err in imposing Chavous’s
sentence.
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AFFIRMED.
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