United States of America v. ROBERT ANTHONY JOHNSON (02-1191) and TODD STUUT (02-1293)

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0345P (6th Cir.)
File Name: 03a0345p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT ANTHONY JOHNSON
(02-1191) and TODD STUUT
(02-1293),
Defendants-Appellants.
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Nos. 02-1191/1293
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 01-00128—Robert Holmes Bell, Chief District Judge.
Argued: June 17, 2003
Decided and Filed: September 25, 2003
Before: BOGGS and GILMAN, Circuit Judges; and
MARBLEY, District Judge.*
2 United States v. Johnson, et al. Nos. 02-1191/1293
_________________
COUNSEL
ARGUED: David L. Kaczor, Grand Rapids, Michigan,
Frank Stanley, Grand Rapids, Michigan, for Appellants.
Timothy P. VerHey, UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee. ON BRIEF: David L.
Kaczor, Grand Rapids, Michigan, Frank Stanley, Grand
Rapids, Michigan, for Appellants. Timothy P. VerHey, Brian
P. Lennon, UNITED STATES ATTORNEYS, Grand Rapids,
Michigan, for Appellee.
_________________
OPINION
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BOGGS, Circuit Judge. Co-defendants Robert Johnson and
Todd Stuut appeal their sentences received after pleading
guilty to conspiracy to distribute methamphetamine. Both
appellants raise the same claims: they object to the two-level
enhancement imposed by the district court for the possession
of a weapon during the commission of a drug offense, and to
the related denial of “safety-valve” status and the
corresponding two-level reduction that such status would
entail. We affirm.
I
Both Johnson and Stuut entered guilty pleas, pursuant to
written plea agreements. They both objected to the pre-
sentencing report for two reasons relevant to this appeal:
(1) they objected to a two-level enhancement for possession
of a weapon; and (2) they objected to the denial of “safety-
valve” status and its corresponding two-level reduction. See
U.S.S.G. §§ 2D1.1(b)(1), 2D1.1(b)(6), and 5C1.2(a)(2). In
both cases, the government moved for a downward departure,

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Nos. 02-1191/1293 United States v. Johnson, et al. 3
pursuant to U.S.S.G. § 5K1.1, for the defendants’ substantial
assistance to the authorities.
At their respective sentencing hearings, the district court
overruled appellants’ objections and granted the
government’s motions for downward departure. On
January 31, 2002, Johnson was sentenced to 120 months of
imprisonment. On February 28, 2002, Stuut was sentenced to
108 months of imprisonment. Both appellants filed timely
appeals.
II
A district court’s determination that a defendant possessed
a firearm during a drug crime is a factual finding that this
court reviews for clear error. United States v. Pruitt, 156 F.3d
638, 649 (6th Cir. 1998) (quoting United States v. Elder, 90
F.3d 1110, 1133 (6th Cir. 1996), cert. denied, 519 U.S. 1131
(1997)). The sentencing guidelines provide that a defendant’s
base offense level should be increased by two levels if the
court determines that he possessed a dangerous weapon
during the commission of an offense involving drugs.
U.S.S.G. § 2D1.1(b)(1). The government must prove by a
preponderance of the evidence “that (1) the defendant actually
or constructively ‘possessed’ the weapon, and (2) such
possession was during the commission of the offense.”
Pruitt, 156 F.3d at 649. “Constructive possession of an item
is the 'ownership, or dominion or control' over the item itself,
'or dominion over the premises' where the item is located.”
Ibid. (quoting United States v. Sanchez, 928 F.2d 1450, 1460
(6th Cir. 1991)). If the offense committed is part of a
conspiracy, it is sufficient if the government establishes “that
a member of the conspiracy possessed the firearm and that the
member’s possession was reasonably foreseeable by other
members in the conspiracy.” United States v. Owusu, 199
F.3d 329, 347 (6th Cir. 2000). Once it has been established
by the government that a defendant was in possession of a
firearm, the burden shifts to the defendant to establish that “it
4 United States v. Johnson, et al. Nos. 02-1191/1293
1Stuut vigorously denies this.
is clearly improbable that the weapon was connected to the
offense.” U.S.S.G. § 2D1.1, comment. (n.3).
The “safety-valve” provision of the sentencing guidelines
states that “[i]f the defendant meets the criteria set forth in
subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation
on Applicability of Statutory Minimum Sentences in Certain
Cases), decrease by 2 levels.” U.S.S.G. §2D1.1(b)(6). The
district court’s determination that Johnson and Stuut
possessed a firearm rendered them ineligible to receive a two-
level reduction because they did not meet the conditions of
§ 5C1.2(a)(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”).
III
The defendants’ pre-sentencing reports state that Johnson
and his partner, Kevin Tillett, would travel from California to
Michigan to supply Dawn Makos with methamphetamine.
Makos would then supply the methamphetamine to her
customers, Kenneth Hatfield and Stuut. All five were charged
with the conspiracy. Stuut also stored methamphetamine for
Makos and acted as her enforcer in the conspiracy, ensuring
that drug debts were paid.1 Sometime during the Fall of
2000, Tillett beat Hatfield with a PM-11, a 9-mm
semiautomatic pistol, because Hatfield owed money to
Makos. The firearm used in the beating was seized by police
at Makos’s residence during the execution of a federal search
warrant on January 10, 2001.
According to Stuut, Makos asked him to acquire a handgun
for her because she needed protection. He bought it for $500
and resold it to her. Dawn Makos testified that Johnson and
Tillett had requested that she acquire a gun, and that they paid

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Nos. 02-1191/1293 United States v. Johnson, et al. 5
for the gun by subtracting its cost from money she owed them
from previous methamphetamine transactions.
A. Robert Johnson
The district court determined that Johnson possessed a
firearm during the conspiracy. The district court found that
the weapon in question was “not an innocent weapon.” It
found that the “weapon was acquired and kept in conjunction
with drug activities” and that “Mr. Johnson and Mr. Tillett
were acting together . . . .” The court further found that “this
weapon was purchased and the deduction for its price . . . was
made from the price of methamphetamine with the consent
and knowledge of Mr. Johnson in concert with Mr. Tillett
. . .” or vice versa. Therefore, the court found, the
“possessory interest of Mr. Johnson was clearly constructive
. . . .”
Johnson argues that the district court erred when it applied
the enhancement to his sentence because he was never in
possession of a firearm. He argues that, although he was
present at Hatfield’s beating, he did not participate and
therefore did not use the weapon, was never in possession of
it, and that it was not reasonably foreseeable to him that a co-
conspirator would possess a firearm. Moreover, he argues
that the government conceded at the sentencing hearing that
it would not be able to present any evidence that he physically
possessed the gun.
The district court did not err when it applied the two-level
sentence enhancement to Johnson’s sentence. However, it
should have relied upon the stronger ground that Johnson was
a member of a conspiracy and could reasonably foresee
another member’s possession of a firearm. In fact, he did see
his co-conspirator use the firearm to beat another co-
conspirator for failure to pay a drug debt.
There was evidence that Johnson participated in the
purchase of the firearm and helped pay for it. He knew that
6 United States v. Johnson, et al. Nos. 02-1191/1293
Tillett, his partner, had the gun during the commission of their
crimes. He and Tillett requested that Makos acquire the gun.
He was well aware that it would be used by his co-
conspirators in the furtherance of the conspiracy. The
government proved by a preponderance of the evidence that
it was reasonably foreseeable by Johnson that a co-
conspirator would possess a firearm in the commission of the
drug conspiracy. The district court did not clearly err by
finding that Johnson possessed a firearm. Johnson did not
present any evidence that “it [wa]s clearly improbable that the
weapon was connected to the offense.” U.S.S.G. § 2D1.1,
comment. (n.3). The district court properly enhanced
Johnson’s sentence by two levels.
B. Todd Stuut
The district court determined that Stuut possessed a firearm
during the commission of the drug conspiracy. The district
court first found that the weapon in question was to be used
for “assaultive or defensive purposes.” The court also found
that “[Stuut’s] possessing it for purposes of purchasing and
then his passing it on to Ms. Makos with the financial
interaction coming the other way and her acquisition of it and
its use thereunder is in fact consistent with a joint possession
as part of a conspiratorial conduct . . . .”
Stuut argues that the district court erred when it concluded
that he knew that Makos intended to use the gun to further the
drug conspiracy. He maintains that she lied to him about her
reasons for needing the gun. He claims that Makos told him
that she needed the gun for self-protection, and did not say
that she would give the gun to her drug suppliers. He argues
that his brief possession of the gun was not drug-related, and
therefore that it is clearly improbable that his possession had
to do with his drug crimes. He also argues that he could not
reasonably foresee what his co-conspirator would do with the
weapon. Finally, he argues that the court’s joint possession
theory is clear error.

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Nos. 02-1191/1293 United States v. Johnson, et al. 7
The government met its burden of showing that Stuut
actually possessed the firearm. He admitted buying it and
reselling it to Makos. The burden then shifted to Stuut to
show that “it [wa]s clearly improbable that the weapon was
connected to the offense.” U.S.S.G. § 2D1.1, comment. (n.3).
While Stuut claims that he believed he was buying the gun for
Makos for her self-protection, the district court did not clearly
err by finding that this did not meet the burden of showing
that it was clearly improbable the weapon was connected to
the offense. Makos was Stuut’s drug supplier and he
occasionally kept drugs for her. He knew quite well that she
was involved in illegal conduct.
We emphasize that the “clearly improbable” standard is a
difficult burden to meet in the first instance at sentencing. In
order to prevail on appeal, a defendant must show that a
district court committed clear error in finding that he or she
has not met the “clearly improbable” burden of proof. A
district court’s finding is clearly erroneous if “the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948). We
give great deference to the district court’s credibility
determinations as it is in the best position to observe
witnesses. United States v. Hill, 195 F.3d 258, 264-65 (6th
Cir. 1999).
We hold that the district court did not commit clear error in
determining that Stuut did not meet his burden of showing
that it was clearly improbable the firearm was connected to
the offense. Stuut bought a gun for his drug supplier in the
midst of a drug conspiracy, and we defer to the district court’s
decision to reject Stuut’s argument that his alleged reliance on
Makos’s statement made it “clearly improbable” that the
firearm would be connected to the offense. The government
is not required to show that the firearm possession, once
shown, is related to the drug crime. The defendant must
show, not that there is a possible innocent explanation, nor
even that the gun was “probably” not connected to the
8 United States v. Johnson, et al. Nos. 02-1191/1293
offense, nor yet that it is “improbable” that the gun was so
connected, but, even more, that it was “clearly improbable.”
(Emphasis added.) The two-level enhancement was properly
applied.
IV
As we have held that the two-level enhancement applied
pursuant to § 2D1.1(b)(1) was properly applied to both
defendants, both are ineligible for “safety-valve” status. We
therefore AFFIRM both sentences.

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