USCA1 Opinion

August 19, 1994

[Not for Publication]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1945
UNITED STATES OF AMERICA,
Appellee,
v.
KURT ALAN STEIN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
____________________
and Pettine,* Senior District Judge.
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William Maselli, by Appointment of the Court, for appellant.

_______________
Margaret D. McGaughey, Assistant United States Attorney, w
_______________________
whom Jay P. McCloskey, United States Attorney, and Timothy D. Wi
________________
_____________
Assistant United States Attorney, were on brief for the United Stat
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____________________

____________________
*Of the District of Rhode Island, sitting by designation.

Per Curiam.
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helicopter

In

September 1992,

spotted marijuana plants

enforcement

growing on the property

of Kurt Alan Stein in Somerset County, Maine.

search revealed

law

After a ground

172 marijuana plants growing on

or near the

property, Stein was charged with manufacture of marijuana, 21

U.S.C.
with

841(a)(1) and (b)(1)(B), and possession of marijuana

intent

(b)(1)(C).
to

to distribute.
Pursuant to a

plead guilty on

21

U.S.C.

841(a)(1)

plea agreement, Stein was

March 1, 1993, to

and

allowed

the lesser offense of

cultivation of marijuana in excess of fifty plants. 21 U.S.C.

841(b)(1)(C).
Sentencing occurred
amount

of marijuana

offense level of 26.

two based

on August 10,

involved, the court

It

by law

2D1.1(b)(1),

determining

that Stein

crime. U.S.S.G.

on the

began with

a base

enforcement officers

on Stein's property along

U.S.S.G.

Based

then enhanced Stein's base level by

on the discovery

four firearms

1993.

and

deducted

with the marijuana,

three

levels after

had accepted responsibility

3E1.1(b).

of

for his

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
court

physical and psychological

rejected this

contention

problems, the district

and sentenced

Stein to

57

-2-2-

months imprisonment.
Stein's first

This appeal followed.

argument on

appeal is that

the district

court

abused its

from

discretion in

the guideline range.

failing to

depart downward

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

_________ _____________
______

F.2d

Cir.), cert. denied,

_____________

288, 292

(1st

(1992); United States v.

_____________
1989).

An

Tucker, 892 F.2d 8, 9-11

______

exception exists

inference that

whether it

"if

the

Ct.

(1st Cir.

of fact-finding or discretion, but

the product of the

possessed the

court's miscalculation about

authority to depart."

Amparo, 961
______
F.2d 326,

330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991).

____________
argument to the

an

to depart did

F.2d at 292; see also United States v. Lauzon, 938

________ _____________
______

Stein's

224

record supports

the sentencing court's failure

not represent an exercise

was instead

113 S.

contrary, we find

Despite

that the present

record supports no such inference.

Stein argued in the district court that he was driven to
consume

marijuana

difficulties.
had suffered a

by

host

The presentence
wide range

and

emotional

investigator found that Stein

to his

back,

internal organs, most of which

an automobile accident

had undergone 12 operations

physical

of severe injuries

leg, face, hands, and various

arose from

of

in 1989.

Although Stein

since the accident, he continued

-3-3-

to

experience

intense headaches

Security disability payments at

addition,
resulting

Stein
from

the death

accident

that

asserted

that he

U.S.S.G.

suffered

took

severe

place

receiving Social

emotional

his fiancee

in

1992.

qualified for

(Physical Condition).

was

the time of his arrest.

of

5H1.3 (Mental

and

in

depression
another auto

Accordingly,

a downward

In

Stein

departure under

and Emotional Condition) and 5H1.4

Stein

also claimed that

the factors

prompting him to use marijuana amounted to duress, U.S.S.G.

5K2.12, and entitled him
provision of U.S.S.G.
Although

to a departure under

the catch-all

5K2.0.

the district

court rejected

these arguments,

the record leaves little doubt that the court recognized

authority to depart.
there is any
depart,"

question that

and explicitly

that a departure would

Instead,
situation"

The

the
was

court noted that

"I don't

the court has

the authority

rejected the

think
to

government's argument

be forbidden under the circumstances.

court found
not

its

the

that

Stein's admittedly

primary

cause

of

his

"tragic
illegal

activities, stating that "it tests the bounds of credulity to

suggest that

these plants,

being used primarily

fact

172 plants or

thereabouts, were

for personal consumption.

of the matter is that

. . .

[T]he

[Stein] was also selling, by his

own admission, quantities of marijuana . . . ."

The district court

rejected Stein's duress

argument on

-4-4-

similar grounds.
understand

Although the court

the duress

argument at

commented that "I don't

all," and

expressed the

view that duress could only exist where a person is forced to

commit an act by
court

someone "with superior power or

also repeated

its belief

that the

will," the

number of

plants

involved and the sales by Stein undermined the credibility of

the

duress

argument.

Moreover,

the

discussion by insisting that "[t]hat's

court concluded
not [to] say I

its
don't

have authority to depart if I found the facts differently.

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.
______
Stein also appeals from the district court's enhancement
of his base offense level by

two levels for possession of

dangerous weapon.

2D1.1(b)(1).

officers discovered
least

three

loaded.
he

U.S.S.G.

four firearms

of which

on

were operable

Law

enforcement

Stein's property,
and

one of

at

which was

Stein does not dispute his ownership of the weapons;

asserts,

possession

however,
of

that

marijuana

they

and

were

thus

unrelated

should

not

to

have

his
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

-5-5-

to

the defendant

to demonstrate

"the existence

circumstances that would render it `clearly

the

weapon's

presence has

connection

of special

improbable' that
to the

narcotics

trafficking." United States v. Corcimiglia, 967 F.2d 724, 728

_____________
___________
(1st

Cir. 1992).

Although

required, the defendant

weapon on his person

or the

findings

be shown to

have had

the weapon was available to

1992).
on

Moreover, we review

this

point

--

like

the

rather,

protect the

drugs. United States v. Pineda,

______________
______

569, 573 (1st Cir.

court's

need not

the drugs is

or in his immediate vicinity;

it is sufficient if
defendant

some connection to

981 F.2d

the district
other

factual

determinations in sentencing under the Guidelines -- only for

clear error. United States v. Wheelwright, 918 F.2d 226, 227_____________
___________
28

(1st Cir. 1990).

We find

no such error

on the present

record.
Three of
camper

Stein's four

as a number

also testified that

weapons were

of baggies containing
he kept

one of the

underneath his bed in order to

at

his marijuana plants.

woodchucks was
had

in mind

in drafting

used to

arrest.

The

protect the

marijuana.

Stein

weapons loaded

of firearms

what the

U.S.S.G.

availability of a weapon suggests

been

same

and

prevent rodents from nibbling

The use

probably not

found in the

-6-6-

Sentencing Commission
2D1.1(b)(1).

But the

that it could readily have

plants from

district court's

to fend off

others or

determination that

to resist
the guns

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

was

arrested.

hearing that

accessible at the

Although Stein
the guns were

time that Stein

testified at

kept underneath "a

his sentencing
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
defendant that the weapons
period of
took

were accessible for a significant

time during which the manufacture of the marijuana

place."

purpose

the

of

This is sufficient; nothing in the language or

the

provisions

enhancement require

that the

that

impose

weapon or

the

weapons be

firearms
used or

available for use at the time of arrest.

Because we have no jurisdiction to consider the district
court's

failure

sentence, and
offense

to

because

depart

downward

that court's

level for possession

from

the

enhancement of

of a dangerous

clearly erroneous, we affirm Stein's sentence.

______

guideline
Stein's

weapon was not

-7-7-