United States of America v. Michael Allen Voelz
No. 22-2276
United States Court of Appeals For the Eighth Circuit
May 8, 2023
BENTON, Circuit Judge.
Submitted: February 15, 2023;
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
BENTON, Circuit Judge.
Michael A. Voelz pled guilty to a drug offense in violation of
Two confidential reliable informants (CRIs) made four controlled purchases of methamphetamine from Michael A. Voelz at his farmstead. The CRIs saw firearms there. A search warrant found 20 firearms, a silencer, and a pipe bomb there. Two of the controlled purchases occurred inside a shed, which had three of the firearms (a handgun and two rifles), the pipe bomb, pipes with meth residue, scales, and other drug paraphernalia. A garage there had most of the meth and a locked safe with 15 of the firearms. Voelz‘s truck had two loaded firearms (one with a silencer) and drug paraphernalia.
Voelz pled guilty to a single count of possession with intent to distribute 500 grams or more of a substance containing a mixture, or a detectable amount, of meth in violation of
Voelz appeals, alleging error in (i) enhancing his sentence, (ii) denying safety-valve relief, (iii) assigning him the burden of proof for the safety-valve requirements, and (iv) applying these sentencing guidelines after New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022).
II.
Voelz argues that the district court erred by enhancing his sentence under
“Federal Sentencing Guideline
“The enhancement poses a very low bar for the government to hurdle.” Id. “The government must simply show that it is not clearly improbable that the weapon was connected to the drug offense.” United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008). This requires “a preponderance of the evidence that there was a temporal and spatial nexus among the weapon, defendant, and drug-trafficking activity.” United States v. Escobar, 909 F.3d 228, 240 (8th Cir. 2018). “This exists when the weapon was found in the same location where drugs or drug paraphernalia were located or where part of the conspiracy took place.” Garcia, 772 F.3d at 1125. “[T]he presence of a firearm in a location where it could be used to protect drugs can be sufficient evidence to prove the requisite connection.” United States v. Young, 689 F.3d 941, 946 (8th Cir. 2012) (alteration in original), quoting United States v. Warford, 439 F.3d 836, 844 (8th Cir. 2006). “The government need not show that the defendant used or even touched a weapon to prove a connection between the weapon and the offense.” United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000).
The firearms and pipe bomb were “found in the same location[s] where drugs or drug paraphernalia were located and part of the [offense] took place.” Garcia, 772 F.3d at 1125. The government adduced sufficient evidence of “a temporal and spatial nexus among the weapon, defendant, and drug-trafficking activity.” Escobar, 909 F.3d at 240. The government here hurdled the “very low bar” for enhancement. Garcia, 772 F.3d at 1125.
Voelz argues that the enhancement should not apply because the firearms in the garage were locked in the safe. But the weapons in the shed, where at least two of the four controlled purchases occurred, were not in a safe—which independently supports the enhancement. Even without independent evidence, the locked garage safe might support the enhancement. See United States v. Anderson, 618 F.3d 873, 880-81 (8th Cir. 2010) (finding a nexus between a handgun and drug-trafficking activity where the handgun was locked in a safe that was locked inside of a storage unit); Brown v. United States, 169 F.3d 531, 533-34 (8th Cir. 1999) (finding a nexus between firearms and drug-trafficking activity where the drug-trafficking activities occurred in the basement and the firearms were locked in a safe on the first floor with drug money).
Voelz stresses he had legitimate purposes for possessing the firearms. But this does not affect the analysis. See United States v. Belitz, 141 F.3d 815, 818 (8th Cir. 1998) (“Nor is the fact that [defendant] allegedly possessed the gun for a legitimate purpose controlling.“); United States v. Newton, 184 F.3d 955, 958 (8th Cir. 1999) (“The use or intended use of firearms for one purpose, however, even if lawful, does not preclude their use for the prohibited purpose of facilitating the drug trade, and therefore does not automatically remove them from the purview of section 2D1.1(b)(1).“).
It is not clearly improbable that the weapons were connected to Voelz‘s drug offense. See Garcia, 772 F.3d at 1125. The district court properly applied the two-level enhancement under
III.
Voelz argues that the district court erred by denying safety-valve relief under
“Safety-valve relief allows the district court to disregard an applicable statutory minimum if certain requirements are met.” United States v. Barrera, 562 F.3d 899, 902 (8th Cir. 2009), citing
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
The issue is whether Voelz “possess[ed] a firearm or other dangerous weapon ... in connection with the offense.”
Citing an Eleventh Circuit case, Voelz argues that a defendant who receives
The district court did not clearly err in finding Voelz ineligible for safety-valve relief because enhancement under
IV.
Voelz argues that placing the burden of proof of the safety-valve requirements on him violates the Fifth and Sixth Amendments because (i) the requirements are elements of the charged offense that the government must prove beyond a reasonable doubt and (ii) a judicial finding of safety-valve requirements violates Alleyne by affecting mandatory minimum sentences. See Alleyne v. United States, 570 U.S. 99, 108 (2013). But since Voelz did not make this objection in the district court, “he has failed properly to preserve the issue for appeal.” United States v. Payne, 81 F.3d 759, 764 (8th Cir. 1996) (claim as to constitutionality of sentencing enhancement statute not raised below was not properly preserved for appeal); United States v. White, 890 F.2d 1033, 1034 (8th Cir. 1989) (same).
Because Voelz “did not assert this as an error below, this argument is reviewed for plain error.” United States v. Porchay, 533 F.3d 704, 708 (8th Cir. 2008).
Plain error review is governed by the four-part test of [United States v. Olano, 507 U.S. 725, 732-36 (1993)], as articulated in [Johnson v. United States, 520 U.S. 461, 466-67 (1997)]: “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc), quoting Johnson, 520 U.S. at 466-67.
This court, like five other circuits, has held that “the requirements of Alleyne do not apply to a district court‘s determination of whether the safety valve provided in
Although Voelz acknowledges this precedent, he claims that United States v. Haymond, 139 S. Ct. 2369, 2377-80 (2019) (plurality opinion), compels this court to reconsider Leanos. See generally United States v. Taylor, 803 F.3d 931, 933 (8th Cir. 2015) (“[A] prior panel ruling does not control when the earlier panel decision is cast into doubt by an intervening Supreme Court decision.“). The Supreme Court in Haymond invalidated a statute that required a minimum sentence of five years if a judge finds, by a preponderance of the evidence, that a sex offender on supervised release possessed child pornography. See Haymond, 139 S. Ct. at 2378.
The Ninth Circuit has rejected Voelz‘s argument. See United States v. Cole, 843 Fed. Appx. 886, 887-88 (9th Cir. 2021) (unpublished). The district court there declined safety-valve relief under
This argument conflates relief from an earned sentence with the elements of the crime underpinning that sentence. Haymond is readily distinguishable, as it dealt with supervised-release violations resulting in new mandatory minimums without the violations having been proven to a jury. Here, however, the jury‘s findings authorized the sentence imposed, and the onus of establishing an entitlement to less time appropriately rested upon Cole.
Id. (citations omitted).
This court agrees with the Ninth Circuit that a judicial finding of safety-valve requirements does not implicate Alleyne and Haymond because the safety valve does not increase the legally prescribed range of allowable sentences. See Haymond, 139 S. Ct. at 2378 (“So just like the facts the judge found at the defendant‘s sentencing hearing in Alleyne, the facts the judge found here increased ‘the legally prescribed range of allowable sentences’ in violation of the Fifth and Sixth Amendments.“), quoting Alleyne, 570 U.S. at 115. “This logic respects not only our precedents, but the original meaning of the jury trial right. . . . The Constitution seeks to safeguard the people‘s control over the business of judicial punishments by ensuring that any accusation triggering a new and additional punishment is proven to the satisfaction of a jury beyond a reasonable doubt.” Id. at 2380 (emphasis added).
The district court did not commit plain error by following Eighth Circuit precedent and properly assigning the burden of proof for safety-valve relief on Voelz. See Alvarado-Rivera, 412 F.3d at 947 (“Defendants have the burden to show
V.
Voelz argues that the sentencing enhancement under
The parties dispute the standard of review. The government proposes that, because Voelz did not present this issue to the district court, he has not preserved it for appeal, and this court should review for plain error. See Pirani, 406 F.3d at 549 (en banc) (“An error by the trial court, even one affecting a constitutional right, is forfeited—that is, not preserved for appeal—‘by the failure to make timely assertion of the right.‘“), quoting Olano, 507 U.S. at 731. Voelz counters that he was unable to properly preserve the issue because Bruen was not published until after he was sentenced.
But even if Bruen changed the relevant law, plain-error review still applies. See Pirani, 406 F.3d at 549 (“The plain error principle applies even when, as here, the error results from a change in the law that occurred while the case was pending on appeal.“). Again, to succeed on plain error review, Voelz must show: “(1) error, (2) that is plain, (3) that affects his substantial rights, and (4) that ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.‘” United States v. Soto, 62 F.4th 430, 434 (8th Cir. 2023), quoting Pirani, 406 F.3d at 550. See also Olano, 507 U.S. at 734 (“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.‘“).
This court previously held that the sentencing enhancement under
Bruen, like Heller, did not address either sentencing guideline—the dangerous-weapon enhancement or the safety-valve
When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s “unqualified command.”
Bruen, 142 S. Ct. at 2129-30, quoting Konigsberg v. State Bar of California, 366 U.S. 36, 50 n.10 (1961).
Bruen did not hold, and this court has not interpreted it to hold, that
The historical inquiry required by Bruen—a demonstration that the challenged regulations are consistent with the Nation‘s historical tradition of firearm regulation—exceeds plain error review, which looks for errors that are plain, clear, or obvious.5 “Without any—much less controlling—authority to support [defendant‘s] claim, we cannot conclude the district court committed an error which was ‘obvious’ or ‘clear under current law.‘” Jacobson, 406 Fed. Appx. at 93, quoting United States v. Pazour, 609 F.3d 950, 953-54 (8th Cir. 2010) (“Because our review of the Sentencing Guidelines and relevant precedent did not uncover any authority clearly and obviously supporting [defendant‘s] position, and because at least one case arguably supports the government‘s position . . . , we conclude the district court did not commit plain error in applying the two-level enhancement . . . .“).
Voelz fails to show that the district court‘s application of the statutory enhancement
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The judgment is affirmed.
KELLY, Circuit Judge, concurring.
I agree the evidence is sufficient to support the district court‘s conclusion that Voelz possessed weapons “in connection with the offense” such that he is precluded from receiving safety-valve relief.
I otherwise concur in the court‘s opinion.