United States Court of Appeals For the First Circuit

No. 22-1367

UNITED STATES OF AMERICA,

Appellee,

v.

DEREK FITZPATRICK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Montecalvo, Circuit Judges.

Hunter J. Tzovarras on brief for appellant. Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

May 17, 2023 SELYA, Circuit Judge. Drugs and guns are a bad

combination, and the district court refused to extend safety valve

relief to defendant-appellant Derek Fitzpatrick after finding that

he possessed a firearm during and in connection with a drug-

trafficking crime. See USSG §5C1.2(a)(2). The appellant appeals,

insisting that this finding is not supported by the record. After

careful consideration of the parties' arguments, we affirm both

the challenged finding and the ensuing sentence.

I

We briefly rehearse the facts and travel of the case.

Because this appeal follows a guilty plea, "we glean the relevant

facts from the change-of-plea colloquy, the unchallenged portions

of the presentence investigation report (PSI Report), and the

record of the disposition hearing." United States v. Vargas,

(1st Cir. 2009).

In August of 2018, the Maine Drug Enforcement Agency

(MDEA) began investigating a suspected drug-trafficking operation

in Aroostook County, Maine. As part of its probe, the MDEA

enlisted a confidential informant (CI) to conduct controlled buys

of methamphetamine from the appellant. Although the CI made

several purchases of methamphetamine from the appellant in late

August, this appeal centers on a specific transaction that occurred

in early September and the execution of two search warrants a few

weeks later.

- 2 - The pivotal transaction took place on September 11. The

CI arranged to purchase drugs from the appellant in Littleton,

Maine, on that date. According to the CI's written statement

(executed that same day), the CI rendezvoused with the appellant

at a garage in Littleton. When the two met, the appellant was "in

a dark [b]lue or possibly [g]rey GMC pickup in the lawn next to

[the garage]." The CI proceeded to buy 111.5 grams of

methamphetamine and then broached the subject of purchasing

another half-pound of methamphetamine at a later date. During the

course of the transaction, the CI "noticed a hand gun in the door

pocket of the pickup."

The appellant challenges certain aspects of this

account. He asserts, for example, that the transaction occurred

inside the garage (as opposed to outside of it). He also asserts

that there was a white GMC pickup parked outside the garage (not

a blue or grey one).1 And, finally, he asserts that there were no

firearms in his truck.

On September 28, the MDEA executed search warrants for

both the appellant's residence in Houlton, Maine, and the garage

in Littleton. Agents recovered 1,992 grams of methamphetamine

hydrochloride from the residence and 20.28 grams of

It is undisputed that the appellant owned two GMC pickup 1

trucks, one white and another variously described as "dark blue," "grey," "green," or "slate."

- 3 - methamphetamine hydrochloride from the appellant's "slate colored

GMC pickup truck," which was parked at the Littleton garage. In

that truck, the agents also found a loaded handgun in the "driver's

side door pocket," another handgun in the center console, $2,050

in cash, and sundry drug paraphernalia.

We fast-forward to June 12, 2019. On that date, a

federal grand jury sitting in the District of Maine returned an

indictment, which charged the appellant with two counts of

distributing methamphetamine (counts one and two), one count of

distributing fifty grams or more of controlled substances (count

three), and one count of possessing five hundred grams or more of

controlled substances with intent to distribute (count four). See

(a)(1). Although the appellant initially

maintained his innocence, he subsequently entered guilty pleas to

all four counts.

The probation office prepared a PSI report that grouped

all four counts, see USSG §3D1.2(d), and — after accounting for

the quantities of methamphetamine actually transferred and seized,

a future transaction planned with the CI, and various cash-to-drug

conversions — attributed 3.4 kilograms of methamphetamine to the

appellant. This produced a base offense level of thirty-two. See

id. §2D1.1(c)(4). After adjusting for a two-level increase for

possession of a firearm, see id. §2D1.1(b)(1), and a three-level

decrease for acceptance of responsibility, see id. §3E1.1, the

- 4 - amended PSI Report settled on a total offense level of thirty-one.

Coupled with the appellant's placement in criminal history

category I, the total offense level yielded a guideline sentencing

range (GSR) of 108 to 135 months. But because count four carried

a ten-year mandatory minimum sentence, see

(b)(1)(A)(viii), the appellant's GSR was set at 120 to 135

months.

At the disposition hearing, the appellant sought to be

relieved of the mandatory minimum sentence. He argued that he

qualified for relief under the "safety valve" provision. See

(f); USSG §5C1.2(a). As relevant here, the safety

valve affords relief from certain mandatory minimum sentences to

first-time drug-trafficking offenders. See United States v.

McLean,

(1st Cir. 2005). To qualify for such

relief, a defendant must show, by a preponderance of the evidence,

that he meets five conditions. See

(f)(1)-(5);

USSG §5C1.2(a)(1)-(5); see also United States v. Anderson,

(1st Cir. 2006). Although the appellant contended

that he satisfied all five conditions, the parties' arguments at

sentencing focused primarily on a single condition,2 which turned

2 At the disposition hearing, the government also argued that the appellant failed to fulfill another condition of the safety valve provision: that he had "truthfully provided to the Government all information and evidence the defendant has concerning the offense."

(f)(5). The district court saw no need to reach this issue, nor do we.

- 5 - on whether or not the appellant had "possess[ed] a firearm . . . in

connection with the offense."

(f)(2); see USSG

§5C1.2(a)(2).

The appellant contended that he had not possessed a

firearm in connection with the offense. First, he claimed that

the CI's statements regarding the presence of a handgun in his

truck during the September 11 transaction were inaccurate. In

support, he proffered an affidavit stating that the transaction

occurred inside the garage; that his white truck, rather than his

blue or grey truck, was parked outside during the transaction; and

that, in all events, the truck did not contain a firearm at the

time. Second, he claimed that — even if the court accepted the

CI's version of the facts — he had carried his burden of showing

that the firearm in his truck was not possessed in connection with

the September 11 drug-trafficking transaction. Relatedly, he

claimed that the firearms found in his truck on September 28 were

not possessed in connection with the large quantity of

methamphetamine found at his residence on the same date.

The government demurred. It argued that a handgun was

present during the September 11 transaction and that the appellant

had not carried his burden of showing that the handgun was not

possessed in connection with the transaction. The government

pointed to the CI's statement concerning the September 11

transaction and to evidence discovered during the execution of the

- 6 - search warrants. The government argued that the presence and

visibility of the handgun during the September 11 transaction gave

rise to the reasonable inference that the handgun played a role in

protecting the appellant's person, drugs, and money. It also

argued that the agents' discovery of the handgun on September 28

corroborated the CI's earlier account.

The district court credited the CI's statement and found

that a firearm had been in the appellant's truck on September 11.

The court reasoned that "[t]here's nothing . . . which would

substantially undermine . . . the accuracy of that statement by

[the CI] to establish the presence of a firearm on September 11,

2018, during the course of a drug transaction." The court went on

to find that the appellant's possession of the firearm in the truck

during the transaction indicated that he possessed the weapon "in

connection with the [drug] offense."

(f)(2); see

USSG §5C1.2(a)(2). Consequently, the court ruled that the

appellant did not qualify for safety valve relief.

When all was said and done, the district court sentenced

the appellant to a 120-month term of immurement. This timely

appeal followed.

II

The appellant argues that the district court erred in

finding him ineligible for safety valve relief. When assessing "a

sentencing court's determination that a defendant failed to

- 7 - qualify for the safety valve, the standard of appellate review

varies according to the foundation upon which that determination

is based." United States v. Matos,

(1st Cir.

2003). To the extent that the determination is based on

conclusions of law, our review is de novo. See

When, however,

that determination hinges on the district court's factual

findings, our review is for clear error. See

To qualify for safety valve relief, a defendant bears

the burden of satisfying five statutory requirements by a

preponderance of the evidence. See United States v. Stark,

(1st Cir. 2007). He must show that he is free from

certain combinations of criminal history points, that he neither

used violence nor possessed a firearm in connection with the

offense of conviction, that the offense resulted in neither death

nor serious bodily injury, that he did not act in a managerial

role in a related conspiracy, and that he truthfully cooperated

with the authorities. See

(f)(1)-(5); USSG

§5C1.2(a)(1)-(5). Only the second requirement is at issue here:

to be eligible for safety valve relief, the defendant needed to

show that he did not "possess a firearm . . . in connection with

the offense."

(f)(2); see USSG §5C1.2(a)(2).

In determining that the appellant failed to satisfy this

requirement, the district court made two pertinent findings.

First, it found that the appellant had possessed a firearm when he

- 8 - sold drugs to the CI on September 11. Second, it found that the

appellant's possession of the firearm was in connection with that

drug sale. The appellant challenges both findings, and we address

these imbricated challenges sequentially.

A

We begin with the appellant's claim that the district

court erred in finding that there was a handgun in his truck during

the September 11 transaction. In the appellant's view, this

finding resulted from the court's improper crediting of the CI's

statement. Because this challenge is factbound, our review is for

clear error. See Matos,

.

From an appellant's coign of vantage, clear error is an

inhospitable standard of review. "Clear error will be found only

when, upon whole-record-review, an inquiring court 'form[s] a

strong, unyielding belief that a mistake has been made.'" United

States v. Cintrón-Echautegui,

(1st Cir. 2010)

(alteration in original) (quoting Cumpiano v. Banco Santander

P.R.,

(1st Cir. 1990)).

We do not discern clear error here. The record contains

evidence from which the district court could reasonably have

concluded that there was a firearm in the appellant's truck during

the September 11 drug transaction. In a near-contemporaneous

account of the sale, the CI reported that he had "noticed a hand

gun in the door pocket of the pickup" during the transaction. The

- 9 - "specificity and detail" of the CI's account, coupled with the

fact that the CI was relaying a "first-hand description" of the

location of the weapon, are factors that support the veracity of

the information conveyed. United States v. Taylor,

(1st Cir. 1993) (emphasis omitted); see United States v. Tiem

Trinh,

(1st Cir. 2011). This inference of

reliability is further buttressed by the fact that the CI had

proven to be reliable in connection with the August transactions.

We have long held that a confidential informant's history of

providing accurate information lends an "indicium of reliability"

to that informant's later report. United States v. Schaefer,

(1st Cir. 1996). And, finally, the district court

did not spy anything in the record that would substantially

undermine the CI's report.

The court's decision to give greater credence to the

CI's report than to the appellant's account is the type of

determination that is "peculiarly within the province of the

district court and will rarely be disturbed on appeal." United

States v. Quirion,

(1st Cir. 2013); see United

States v. Platte,

(1st Cir. 2009)

("[C]redibility determinations are part of the sentencing court's

basic armamentarium."). Given that the record, viewed as a whole,

does not impugn the district court's factual finding, that finding

was not clearly erroneous.

- 10 - The appellant's arguments to the contrary are

unconvincing. Principally, he argues that the district court's

finding should be set aside because it is contradicted by his own

version of the facts. This argument, though, runs headlong into

the well-established principle that "when two or more legitimate

interpretations of the evidence exist, the factfinder's choice

between them cannot be deemed clearly erroneous." United States

v. Espinoza,

(1st Cir. 2007).

The appellant also argues that the CI's account "lacked

indicia of reliability." But this is whistling past the graveyard:

the CI's near-contemporaneous account of the September 11

transaction specifically noted the presence of a firearm in the

"door pocket" of the appellant's "dark [b]lue or possibly [g]rey

GMC pickup." See Schaefer,

; Taylor,

.

When officers searched that same truck — less than three weeks

later — they discovered a firearm in that precise location. This

later discovery tended to corroborate the CI's earlier statement.

Cf. United States v. Mena,

, 25 n.5 (1st Cir. 1991)

(explaining that "events that occur after an offense has been

perpetrated may be relevant in an assessment of what transpired at

the earlier time").

In his reply brief, the appellant argues (for the first

time) that the district court erred by failing to consider the

sworn declaration that he filed in connection with his sentencing

- 11 - memorandum. But arguments made for the first time in an

appellant's reply brief are generally deemed waived, see United

States v. Franklin,

, 401 n.6 (1st Cir. 2022), and so

it is here. We add that even if not waived, the appellant's

argument would not gain him any traction: the declaration was

part of the record before the district court at sentencing and was

specifically referenced by the government during the disposition

hearing. There is nothing in the record to suggest that the

district court failed to consider the appellant's declaration; the

more logical inference is that the court considered the declaration

but simply found it less persuasive than other record evidence.

See United States v. Rodríguez-Rosado,

(1st

Cir. 2018).

That ends this aspect of the matter. We hold that the

district court did not clearly err in finding that there was a

firearm in the appellant's truck during the September 11 drug sale.

B

The appellant's second claim of error is that the

district court blundered in finding that he possessed a firearm

"in connection with the offense."

(f)(2); see

USSG §5C1.2(a)(2). He argues that, even if there was a firearm in

his truck on September 11, the firearm was not used in connection

with the drug deal that occurred on that date because it was "not

intended to facilitate the transaction." Separately, he argues

- 12 - that he did not possess a firearm in connection with the drugs

seized on September 28.

Broadly speaking, "a defendant possesses a firearm in

connection with a drug offense if the firearm has the potential to

facilitate the offense." United States v. Leanos,

(8th Cir. 2016). Courts construing the safety valve provision

have held that a firearm may be said to facilitate a drug offense

if, among other things, it "embolden[s] an actor who had the

ability to display or discharge the weapon" or "serv[es] as an

integral part of a drug transaction." United States v. Carillo-

Ayala,

(11th Cir. 2013). In addition, a firearm

may be found to have been possessed in connection with a drug

offense if the firearm was located in a place "where it could be

used to protect drugs." Leanos,

(quoting United

States v. Jackson,

(8th Cir. 2009) (per curiam)).

Thus, the presence of a firearm in a location where a drug

transaction is found to have transpired, without more, may give

rise to an inference that the firearm was possessed in connection

with a drug offense. See United States v. Corcimiglia,

(1st Cir. 1992). This principle has special bite when a

firearm is located somewhere that "makes it readily available to

protect either the participants themselves during the commission

of the illegal activity or the drugs and cash involved in the drug

business." Id.; see United States v. Manigan,

, 629

- 13 - (4th Cir. 2010) (collecting cases); United States v. Correy,

(1st Cir. 2009).

Viewed in this light, the appellant's contention that

the district court clearly erred in finding that the firearm in

his truck on September 11 was possessed in connection with his

drug offense is dead on arrival. The record contains evidence

from which the district court supportably could find — as it did

— that when the CI arrived at the garage, the appellant was in his

truck and a handgun was inside the truck with him. What is more,

the CI's written statement makes pellucid that the CI could see

the weapon while he and the appellant were consummating the drug

transaction. This close proximity strongly suggests that the

firearm was "readily available" to protect the appellant and/or

his contraband during the exchange. Corcimiglia,

-

27 (holding that firearms stored in closet of home where drug

distribution occurred, paired with knowledge of their location,

rendered firearms "readily available"). No more was exigible to

ground the district court's determination that the firearm was

possessed in connection with the drug offense. See United States

v. Carrasquillo,

(11th Cir. 2021)

(holding that firearm was possessed in connection with offense

when firearm was stored in center console of truck in which

defendant intended to transport drugs); United States v. Hargrove,

(10th Cir. 2019) (explaining that safety

- 14 - valve relief was unavailable when firearms were found in truck

with narcotics and could have facilitated drug trafficking, "even

if the firearms did not do so directly").

To be sure, the appellant's possession of a firearm in

connection with the September 11 drug sale is most directly tied

to the conduct underlying count three. It is count four, however,

that carried the mandatory minimum sentence. Under the sentencing

guidelines, though, a firearm can be possessed "in connection with

the offense," USSG §5C1.2(a)(2), so as to foreclose the

availability of the safety valve even if the weapon was not

possessed during the commission of the specific transaction that

underlies the count that carried the mandatory minimum sentence,

see United States v. Wilson,

(3d Cir. 1997)

(holding that possession of firearm during uncharged prior drug

transactions precluded safety valve relief). This result inures

because the guidelines define "offense" to include both the

"offense of conviction and all relevant conduct." USSG §5C1.2,

cmt. n.3; see United States v. Martinez,

(1st Cir.

2021); see also United States v. Pennue,

(1st

Cir. 2014) (explaining that where multiple counts are subject to

grouping for sentencing purposes, "relevant conduct" includes acts

or omissions that were "part of the same 'course of conduct or

common scheme or plan as the offense of conviction'" (quoting USSG

§1B1.3(a)(2))). In this case, the appellant has never denied that

- 15 - the September 11 transaction was relevant conduct in relation to

his conviction for the separate count of possessing a much larger

amount of methamphetamine on September 28. And given that he bore

the burden of demonstrating his eligibility for safety valve

relief, see Anderson,

, this tacit admission is

fatal.

We summarize succinctly. We uphold the district court's

finding that the appellant possessed a firearm in connection with

his drug offense and, thus, was ineligible for safety valve relief.

III

We need go no further.3 For the reasons elucidated

above, the challenged sentence is

Affirmed.

3 Because we hold that the appellant possessed a firearm during the September 11 transaction, we need not reach the appellant's argument that he did not possess a firearm in connection with the drugs seized on September 28.

- 16 -