United States of America v. Joseph F. Bolka, Iii

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0028P (6th Cir.)
File Name: 04a0028p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH F. BOLKA, III,
Defendant-Appellant.
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No. 02-6168
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20069—Samuel H. Mays, Jr., District Judge.
Argued: December 5, 2003
Decided and Filed: January 22, 2004
Before: KENNEDY, MARTIN, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Eugene A. Laurenzi, GODWIN, MORRIS,
LAURENZI & BLOOMFIELD, Memphis, Tennessee, for
Appellant. Thomas A. Colthurst, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Eugene A. Laurenzi, GODWIN, MORRIS,
LAURENZI & BLOOMFIELD, Memphis, Tennessee, for
2 United States v. Bolka No. 02-6168
Appellant. Thomas A. Colthurst, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
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KENNEDY, Circuit Judge. Defendant Joseph F. Bolka, III
pleaded guilty to five counts of possession of
methamphetamine with the intent to distribute and
distribution and one count of manufacturing
methamphetamine in violation of 21 U.S.C. § 841(a)(1).
Defendant now appeals the district court’s denial of his
motion for a sentencing reduction under the “safety valve”
provision of the United States Sentencing Guidelines
(“U.S.S.G.”) § 5C1.2(a). For the reasons explained below,
we AFFIRM the judgment and defendant’s sentence.
I. Background
Pursuant to a plea agreement, defendant Bolka pleaded
guilty to multiple violations of 21 U.S.C. § 841(a)(1). At the
sentencing hearing, the district court adopted the Pre-sentence
Investigation Report’s calculations under the 2001 edition of
the United States Sentencing Guidelines. In particular, the
district court found that U.S.S.G. § 2D1.1(b)(1) applied so as
to increase defendant’s base offense level by two increments.
Section 2D1.1(b)(1) provides for such an enhancement “[i]f
a dangerous weapon (including a firearm) was possessed.”
Defendant, conceding such possession, had withdrawn his
objection to this sentence enhancement.
Yet, before sentencing, defendant had filed a motion for a
downward departure under the “safety valve” provision of
U.S.S.G. § 5C1.2(a). Section 5C1.2(a) permits the court to
“impose a sentence in accordance with the applicable
guidelines . . . [regardless] of any statutory minimum
sentence” if the court finds that the defendant meets” the

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No. 02-6168 United States v. Bolka 3
1Additiona lly, U.S.S.G. § 2D 1.1(b)(6) would afford a decrease in the
defendant’s base offense level by two incre ments if he were to satisfy
§ 5C 1.2(a).
2To the extent that defendant’s argum ents, bo th below and on ap peal,
reference the use of a firearm–rather than the possession of a firearm–, we
will treat those arguments as pertaining only to possession since, under
§ 5C1.2(a)'s express language, a defendant need only possess–not use–a
firearm in connection with the offense to be ineligible for the “safety
valve” reduction. Cf. United States v. Kincaide, 145 F.3d 771 , 784 (6th
Cir. 1998) (holding that the prerequ isite of possession under U.S.S.G.
§ 2D1.1(b)(1) does not require that one actually use or carry the weapon).
3The district court increased defendant’s base offense level under
U.S.S.G. § 2D1.1(b)(5)(C) upon finding that the offense involved the
manufacture of methamphetamine and “created a substantial risk of harm
to the life of a minor.” Y et, the court also decreased d efendant’s base
offense level under U .S.S.G. § 5K1.1 because of defendant’s assistance
to the go vernm ent.
criteria of 18 U.S.C. § 3553(f).1 As one of those criteria,
§ 5C1.2(a)(2) mandates that the “defendant did not . . .
possess a firearm . . . in connection with the offense.” In his
motion and at the sentencing hearing, defendant argued that
there was no evidence demonstrating that he had possessed
the firearms in connection with his drug offenses.2 The
district court denied defendant’s motion for a “safety valve”
reduction under § 5C1.2(a). In finding defendant ineligible
for that reduction, the district court construed this Court’s
opinion in United States v. Stewart, 306 F.3d 295 (6th Cir.
2002), to hold that conduct that warrants a sentence
enhancement under § 2D1.1(b)(1) necessarily precludes the
application of a “safety valve” reduction under § 5C1.2(a).
After applying all of the relevant factors,3 the district court
ultimately sentenced defendant to sixty months of
imprisonment, followed by four years of supervised release,
and a $600 special assessment. Defendant appeals the district
court’s denial of his motion for a “safety valve” reduction
under U.S.S.G. § 5C1.2(a).
4 United States v. Bolka No. 02-6168
II. Analysis
We review a district court’s interpretation of a sentencing
guideline de novo and “a court’s factual determination of
whether a . . . guideline applies in a particular case under a
clearly erroneous standard.” United States v. Adu, 82 F.3d
119, 124 (6th Cir. 1996) (holding that we review a district
court’s refusal to apply U.S.S.G. § 5C1.2 for clear error
because it is a factual finding).
In United States v. Stewart, 306 F.3d at 327 n.19, we held
that a defendant, as the party seeking a “safety valve”
reduction under § 5C1.2(a), has the burden of proving by a
preponderance of the evidence that he is entitled to that
downward departure. Accord United States v. Salgado, 250
F.3d 438, 459 (6th Cir. 2001); Adu, 82 F.3d at 124. Thus, as
one of the eligibility criteria for a “safety valve” reduction, a
defendant must prove by a preponderance of the evidence that
he “did not . . . possess a firearm . . . in connection with the
offense.” U.S.S.G. § 5C1.2(a)(2). In contrast, to enhance a
sentence under § 2D1.1(b)(1), the government must first
demonstrate by a preponderance of the evidence that the
defendant possessed a firearm “during the commission of a
drug-trafficking offense.” United States v. Moses, 289 F.3d
847, 850 (6th Cir. 2002) (treating “during the commission of”
as “during the period [or time] of ” the drug-trafficking
offense). If the government meets this burden, a presumption
arises that such possession was “connected to the defendant’s
offense.” Id. The defendant may rebut this presumption only
by demonstrating “that it is clearly improbable that the . . .
[firearm] was connected to the offense.” Id. (emphasis added)
(specifying some of the factors in determining “whether a
firearm was related to an offense, including the proximity of
the firearm to the drugs, the type of firearm involved, whether
the firearm was loaded, and any alternative purpose offered to
explain the presence of the firearm”).
In Stewart, this Court held that the district court did not
clearly err in applying a § 2D1.1(b)(1) enhancement upon

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No. 02-6168 United States v. Bolka 5
4Conceding that “Sm ith might be read as a per se rule . . . [that]
forecloses the safety valve any time a § 2D1.1(b)(1) enhancement has
been imposed[,]” the Ninth Circuit subsequently limited Sm ith’s reach to
the particular cond uct invo lved in that case. United States v. Nelson, 222
F.3d 545, 550 (9th Cir. 2000). According to the co urt, Smith did not
address the “separate and distinct burdens of proof for § 2D1.1(b)(1) and
§ 5C1.2.” Id. The court noted that, although conduc t that will supp ort a
finding under §§ 2D1.1(b)(1) and 5C1.2 may be the same, “the burden
and quantum of proof . . . [under these sec tions] remain different.” Id. at
551. The court then held that, “even where a defendant has already
received a § 2D1 .1(b)(1) enhancement, the defendant need only show his
eligibility for [§ 5C1.2 “safety valve”] relief by a preponderance o f the
evidence.” Id. at 551-52 (holding that the defendant, on remand, may
show his eligibility for the “safety valve” reduction by a preponderance
of the evidence even where a § 2D1.1(b)(1) enhancem ent applied).
finding that the defendant did not meet “his burden of
showing that it was clearly improbable that the weapon was
connected to his drug trafficking offense.” 306 F.3d at 327
(emphasis added). After noting that the district court
considered the applicability of § 5C1.2(a) separately from that
of § 2D1.1(b)(1), we then held that the court “did not clearly
err in finding that . . . [the defendant] failed to show by a
preponderance of the evidence that he was eligible for”
§ 5C1.2(a)'s “safety valve” reduction. Id. at 327 n.19
(emphasis added). Without expressly holding so, we
observed that “[e]very circuit thus far that has considered the
issue has held that[,] where a defendant had . . . possession
over a firearm such that an increase to his or her base offense
level under § 2D1.1 is appropriate, such possession ‘defeats
[the] application of the safety valve.’” Id. (quoting United
States v. Smith, 175 F.3d 1147, 1149 (9th Cir. 1999)).4
Relying upon this statement, the district court construed
Stewart to hold that conduct that warrants a § 2D1.1(b)(1)
enhancement necessarily bars a § 5C1.2(a) “safety valve”
reduction. We note that this interpretation of Stewart is
unwarranted because the statement upon which that
interpretation relies does not expressly ratify this underlying
per se proposition but, rather, simply recognizes its existence.
We expressly disclaim the proposition that conduct
6 United States v. Bolka No. 02-6168
5Moreover, we know of no binding published case or persuasive
unpublished case from this circuit expressly adopting the proposition that
a § 2D1.1(b )(1) sentence enhancement necessarily forecloses a § 5C1.2(a)
“safety valve” reduction. See United States v. Highsm ith, 60 Fed.Ap px.
517, 519, 20 03 W L 15232 4, at *2 (6th Cir. 2003) (unpub lished opinion)
(reading Stew art as adop ting this per se bar); Un ited States v. M itchell, 63
Fed.Appx. 224 , 200 3 W L 21 147 956 , at *4 (6th Cir. 2003) (unpublished
opinion) (noting that the district court, after finding that the defendant
possessed a firearm in connection with relevant cond uct, “imposed the
U.S.S.G. § 2D1.1(b)(1) enhancement, which effectively deprived . . . [the
defendant] of the safety valve [reduction]” ); Un ited States v. B ursey, 215
F.3d 1327, 20 00 W L 7123 77, at *4 (6th Cir. 2000) (unpublished opinion)
(observing that “constructive o r actual posse ssion of a firearm will
prevent application of the safety valve,” but also recognizing that
§ 5C1.2(a)(2) pertains to possession “in connection with the offense”).
For example, in United States v. Johnson, 344 F.3d 56 2, 564 (6th Cir.
2003), two co -defendants appealed their sentences for conspiracy to
distribute methamphetamine on the grounds that the district co urt erred in
applying § 2D1 .1(b)(1) enhancements and in refusing to apply § 5C1.2(a)
“safety valve” reductions. T his Co urt held that, because § 2D1.1(b)(1)
enhancem ents “properly applied to b oth defendants, both are ineligible for
‘safety valve’ status.” Id. at 565 . Adm ittedly, one cou ld reasonably
construe this language as implicitly holding that the proper application of
a § 2D 1.1(b)(1) enhancem ent auto matically precludes the application of
a § 5C1.2(a) reduction. However, we believe that this language is better
unde rstood as being limited to the particular facts of that case.
Defendant Johnson, a methamphetamine supplier, solely argued that
the government had failed to discharge its duty of proving that he had
possessed a firearm. Id. This Court held that the government had proven
by a preponderance o f the evidence that Johnson reasonably could have
foreseen that a “co-conspirator would p ossess a firearm in the commission
of the drug conspiracy.” Id. This Court also held that the district court
did not clearly err in applying a § 2 D1 .1(b)(1) enhancement to Johnson’s
sentence because he had presented no evidence that “it [wa]s clearly
improba ble that the weap on wa s connected to the offense.” Id. (internal
quotation marks omitted). Inherent in these holdings are the
determinations that a prepo nderance of the evidence demonstrated
Johnson’s possession of a firearm and that Johnson produced no
warranting a § 2D1.1(b)(1) sentence enhancement necessarily
forecloses the application of a § 5C1.2(a) “safety valve”
reduction as this per se conclusion does not necessarily
follow from the different evidentiary standards of
§§ 2D1.1(b)(1) and 5C1.2(a)(2).5

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No. 02-6168 United States v. Bolka 7
evidence–let alone a preponderance–that this possession was not
connected to his offense. In affirming the § 2D 1.1(b)(1) enhancem ent, we
implicitly determined that Johnson had failed to prove by a preponderance
of the evidence that he did not po ssess a firea rm in co nnection with his
offense, as § 5C1.2(a)(2) req uires.
Defendant Stuut, a methamphetamine customer and drug-debt
enforcer, conceded that, during the conspiracy, he had possessed a
firearm, which he had bought and sold to his drug supplier; however,
Stuut argued that this possession was not connected to his offense. Id. at
566-67. In supp ort, Stuut claimed that he had sold the firearm to his drug
supplier based upon the understanding that she needed it for self-
protection and, consequently, that Stuut had not known that she intended
to use the firearm to further the conspiracy. Id. at 566. After affirming
that the governm ent had discharged its prima facie duty, this Court then
held that the district court did not clearly err in applying a § 2D1.1(b)(1)
enhancement to Stuut’s sentence because he failed to prove that it was
“clearly impro bab le that the weapon wa s connected to the offense.” Id.
at 567 . After rec ognizing that a district co urt’s cred ibility determinations
receive deference, this Court affirmed the district court’s determination
that, during the time of the drug conspiracy, Stuut had sold the firearm to
his drug supplier, whom Stuut knew was engaged in illegal conduct and
for whom Stuut occasio nally kep t drugs. Id. Implicit in this
determination was the conclusion tha t the district court did not clearly err
in deeming Stuut unworthy of credence and, thus, rejecting his self-
serving allegation that he had believed that the firearm was for the
supp lier’s personal protection rather than to advance the conspiracy. In
essence, this Court affirmed the finding that the only evidence that Stuut
proffered to pro ve that his possession was not connected with his offense
was unworthy of credence and, thus, tantamount, to no evidence at all.
Thus, we imp licitly determined that Stuut had failed to pro ve by a
preponderance of the evidence that his conceded possession of the firearm
was not co nnected to his offense , as § 5C1.2(a)(2) mandates. In sum, the
implicit determinations underlying the application of the § 2D1.1(b)(1)
enhancements–not the application of those enhancements in and of
themselves–precluded the application of the § 5C1.2(a) “safety valve”
reductions to the sentences o f both Johnson and Stuut.
The application of a § 2D1.1(b)(1) sentence enhancement
does not necessarily preclude the application of a § 5C1.2(a)
“safety valve” reduction. A defendant may be unable to
prove that it is clearly probable that the firearm was not
connected to the offense–the logical equivalent of showing
that it is clearly improbable that the firearm was connected to
8 United States v. Bolka No. 02-6168
the offense–so as to defeat a § 2D1.1(b)(1) enhancement. See
United States v. Johnson, 344 F.3d 562, 567 (6th Cir. 2003)
(referring to this standard in its logically equivalent form).
However, that same defendant may, nevertheless, be able to
prove by a preponderance of the evidence that the firearm was
not connected to the offense so as to satisfy § 5C1.2(a)(2).
The “clearly improbable” standard is a higher quantum of
proof than that of the “preponderance of the evidence”
standard. See Moses, 289 F.3d at 852 (construing a
“preponderance of the evidence” as that which is “more likely
than not”); Johnson, 344 F.3d at 567 (defining the “clearly
improbable” § 2D1.1(b)(1) standard as a difficult one that
entails more than showing the existence of a “possible
innocent explanation” or a mere probability that the firearm
was not connected to the offense). It does not deductively
follow from a defendant’s failure to satisfy a higher quantum
of proof on a particular issue that he cannot satisfy a lower
quantum of proof on that same issue. It also does not
necessarily follow from the existence of a preponderance of
evidence demonstrating that a defendant possessed a firearm
during the time of the offense–the government’s prima facie
burden of proof–for purposes of a § 2D1.1(b)(1) enhancement
that there exists a preponderance of evidence demonstrating
such possession in connection with the offense—contrary to
the defendant’s burden of proof–so as to defeat a § 5C1.2(a)
reduction. See Moses, 289 F.3d at 850. While they are
quantitatively the same, these evidentiary standards are
qualitatively distinct. Similarly, it does not deductively
follow from the presumption that a defendant’s possession of
a firearm was connected to the offense–arising from a
preponderance of evidence demonstrating such possession
during the time of the offense–for purposes of a § 2D1.1(b)(1)
enhancement that a preponderance of evidence demonstrating
such a connection, in fact, exists for purposes of a § 5C1.2(a)
reduction. Consequently, a defendant’s conduct warranting
a § 2D1.1(b)(1) enhancement does not per se preclude that
defendant from proving by a preponderance of the evidence
that his possession of the firearm was not connected with his
offense for purposes of a § 5C1.2 (a) “safety valve” reduction.

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No. 02-6168 United States v. Bolka 9
6Given the inherent difficulty in reconciling such a per se proposition
with the evidentiary standard s of §§ 2D1.1(b)(1) and 5 C1.2(a)(2), the
district court’s precise reasoning in denying defendant a “safety valve”
reduction was, und erstand ably, unclear. For example, in considering the
application of the “safety valve” reduction, the district court first noted
that defendant, while conced ing his po ssession of the firearms, was
claiming that this possession was not connected to his drug offenses. The
court then stated that, under Sixth Circuit precedent, a determination of
possession of a firearm “is automatically in connection with the offense.”
After, again, noting that defendant had admitted to the requisite
possession, the district court o pined that Stewart also “appears to be
saying [that] the [c]ourt is bound by that determination in making its
[§] 5C1.2 . . . (a)(2) determination.” This reasoning may indicate that the
district court believe d, albeit incorrectly, that it could not find that
defendant’s possession of the firearms was not connected to his offenses
so as to satisfy § 5C1.2(a)(2) where, for purposes of a § 2D1.1(b)(1)
enhancement, its determination of possession had already given rise to a
presumption of such a connection. In any event, as the record
demo nstrates, the district court never separately considered the
app licability of §§ 2D1.1(b)(1) and 5C1.2(a)(2) to the particular conduct
at issue based up on those p rovisions’ distinct evidentiary standard s.
Rather, the district court, acting upon the erroneous belief that its
application of a § 2 D1 .1(b)(1) enhancement automatically foreclosed its
application of a § 5C1.2(a) reduction, treated such provisions as though
they were intrinsically, mutually exclusive.
Even though the district court erred in finding that
defendant’s conduct warranting a § 2D1.1(b)(1) enhancement
necessarily foreclosed the application of a § 5C1.2(a) “safety
valve” reduction,6 the court’s refusal to apply such a
reduction was harmless because defendant failed to discharge
his duty of demonstrating his entitlement to it. Defendant
failed to prove by a preponderance of the evidence that he did
not possess a firearm in connection with his drug offenses.
Defendant conceded that, during the period of his drug
offenses, he possessed a semi-automatic pistol and two
revolvers in his residence. First, defendant failed to
demonstrate by a preponderance of the evidence that such
possession was not connected to his offenses of possession
with the intent to distribute and distribution of
methamphetamine. Affirming the facts in the Pre-sentence
Investigation Report, defendant, thus, conceded that, pursuant
10 United States v. Bolka No. 02-6168
to a search of his residence, federal agents found the three
firearms in defendant’s bedroom along with
methamphetamine and scales. Defendant never disproved
that one of the revolvers was loaded and that ammunition for
the other firearms was located in his residence. Defendant
admitted that he sold methamphetamine at his residence on
several occasions.
Second, defendant failed to demonstrate by a
preponderance of the evidence that his possession of the
firearms in his residence was not connected to his offense of
manufacturing methamphetamine. Presumably to prove this
lack of connection, defendant denied that he had
manufactured the methamphetamine in his residence. Rather,
defendant argued that he had manufactured the
methamphetamine either in a barn or near a pond
approximately 500 to 1000 feet from his residence. However,
defendant conceded that he had used an acid gas generator to
“smoke off” methamphetamine–part of the final stages of the
manufacturing process–in the bathroom of his residence. See
United States v. Morrison, 207 F.3d 962, 964 (7th Cir. 2000)
(observing that, as part of the “methamphetamine production
process, salt and sulfuric acid are mixed to produce hydrogen
chloride gas, which is used to crystallize liquid
methamphetamine”). Defendant also conceded that, on about
one or two occasions, he mixed some of the chemicals that
comprise methamphetamine on the porch of his residence.
Defendant admitted that the agents found items relating to the
manufacture of methamphetamine both inside and outside of
defendant’s residence. To the extent that defendant simply
argues that there is a lack of evidence showing any
connection between his possession of the firearms and his
offenses, defendant both disregards the strong record evidence
demonstrating otherwise and misplaces the burden of proof
under § 5C1.2(a) upon the government. Additionally, to the
extent that defendant, for the first time, asserts in his appellate
brief that his possession of the firearms was for his personal
protection, rather than for any purpose connected with his
offenses, such an alternative explanation comes too late. See

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No. 02-6168 United States v. Bolka 11
Fed. R. App. P. 10(a); cf. United States v. Butler, 207 F.3d
839, 849-50 (6th Cir. 2000) (holding that this Court’s
consideration of a new argument in support of a sentencing
objection raised before the district court was proper where the
additional argument entailed a question of pure law and, thus,
did not deprive any party of the opportunity to offer relevant
evidence). In sum, because defendant did not demonstrate his
entitlement to a “safety valve” reduction under § 5C1.2(a), the
district court’s refusal to apply such a reduction on an
erroneous ground was harmless.
For the foregoing reasons, we AFFIRM the judgment and
defendant’s sentence.

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