USCA1 Opinion
August 19, 1994
[Not for Publication]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1945
UNITED STATES OF AMERICA,
Appellee,
v.
KURT ALAN STEIN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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William Maselli, by Appointment of the Court, for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, and Timothy D. Wing,
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Assistant United States Attorney, were on brief for the United States.
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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
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F.2d 288, 292 (1st Cir.), cert. denied, 113 S. Ct. 224
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(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
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F.2d at 292; see also United States v. Lauzon, 938 F.2d 326,
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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.
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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
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(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
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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-
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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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