United States of America v. David Joe McVay

United States Court of Appeals
For the Eighth Circuit
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No. 20-1169
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
David Joe McVay
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: February 4, 2021
Filed: May 6, 2021
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Before SMITH, Chief Judge, GRUENDER and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
David Joe McVay pled guilty to distributing five grams or more of actual
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).1 The charge
1As part of the plea agreement, the government agreed to move to dismiss four
additional charges related to the distribution and manufacture of a controlled
substance.

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carries a five-year mandatory minimum sentence and a maximum sentence of 40
years’ imprisonment. 21 U.S.C. § 841(b)(1)(B). At sentencing, the district court2
determined that McVay was ineligible for safety-valve relief because he fabricated
a story that one of his drug suppliers attempted to sell him firearms during the course
of his drug trafficking activities. The court imposed an imprisonment sentence of 83
months and 27 days. McVay appeals the safety-valve determination, and we affirm.
I. BACKGROUND
During late summer/early fall of 2016, law enforcement in Vinton, Iowa, began
investigating McVay’s drug trafficking activities. Law enforcement officers used a
confidential informant to make several controlled buys from McVay. In addition,
McVay’s wife disclosed to law enforcement that McVay made about $4,000 per
month in drug sales and met with his sources every few days.
On May 7, 2019, McVay was indicted on federal charges related to the
distribution and manufacture of methamphetamine. Approximately one month after
being charged, McVay agreed to be interviewed by law enforcement. During the first
interview, McVay discussed his methamphetamine usage and also told law
enforcement about an incident that occurred while he was inside an inmate transport
van with Blayze Harding. According to McVay, while together in the van, Harding
said that Carl McArthur3 had been convicted of possessing two firearms that belonged
2The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
3On October 3, 2018, McArthur was indicted for possession of a firearm by a
felon and a person convicted of domestic violence, in violation of 18 U.S.C.
§ 922(g)(1) and (9). United States v. McArthur, No. 18-CR-0102 (N.D. Iowa). The
government alleged that McArthur and a friend robbed Harding (and others) and
during the robbery McArthur and his friend were in possession of a 9mm handgun
and a Taurus Judge .410 gauge/.45 firearm. The case proceeded to a bench trial and
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to him (Harding). McVay described in detail the guns, identified Harding as one of
his drug suppliers, and stated that Harding had tried to sell the guns to him a few
months before. McVay told law enforcement that he refused Harding’s offer to buy
the guns because McVay “always avoided possessing guns.”
About a week later, McVay met with law enforcement again. McVay provided
the names of Jake Cady and Harding as his sources of supply for methamphetamine.
McVay supplied additional details about the incident that happened a few months
earlier in which Harding offered to sell McVay guns. McVay recounted that he was
in Cady’s garage with Harding, and Harding pulled out three firearms and a 12-gauge
shotgun from a tool box and asked whether McVay knew anyone interested in
purchasing the firearms. McVay said he declined to buy any guns from Harding.
McVay also said that Cady was present and aware of what happened. However, when
Cady was interviewed a few days later by law enforcement, Cady said he had not seen
Harding with a gun.
During this second law enforcement interview, McVay also provided more
information about the conversation that occurred in the United States Marshals
Service transport van. According to McVay, Harding said he was in the van because
he was testifying in court. Harding then added, “That nigger went down for the
guns.” About a month after this conversation, McVay met McArthur in jail. The two
shared a cellblock but were not cellmates. They became friends. According to
McVay, McArthur said he had been charged with possession of pistols that were
Harding’s and that’s when McVay connected the van conversation to McArthur.
McArthur was convicted on May 22, 2019. Because of new evidence that had been
produced and testimony from McVay given at an evidentiary hearing on a new trial
motion, the court granted McArthur a new trial on September 6, 2019, with the court
concluding it was no longer firmly convinced of McArthur’s guilt. A jury
subsequently convicted McArthur, and that conviction has been affirmed. United
States v. McArthur, No. 20-1654, 2021 WL 1390284 (8th Cir. Apr. 13, 2021)
(unpublished per curiam).
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McVay then met with McArthur’s attorney. When McArthur’s attorney was
provided with this new information, he moved for a new trial. McArthur’s counsel
called McVay to testify at an evidentiary hearing. McVay testified about the garage
incident in which Harding pulled out four guns from a tool box and asked McVay
whether he wanted to buy them. McVay also testified about being in the transport
van with Harding and Harding said “something about that a nigger went down for the
guns,” which McVay assumed related to the guns Harding tried to sell him. On cross-
examination, McVay admitted that he did not like Harding and that Harding had
“shorted” him a few times.
Cady, called as a witness by the government at the evidentiary hearing, testified
that he could not recall a time when Harding and McVay were together at his
residence. Instead, Harding came late at night and McVay came earlier during the
day. Cady further testified that no one had ever stored firearms on his property, and
that the only firearm at his residence was his own Glock .45 that was stored inside his
house. Cady reiterated that he did not believe Harding and McVay were ever at his
house at the same time. After considering the conflicting evidence, the district court
granted McArthur’s motion for a new trial. At McArthur’s second trial, McVay
testified consistent with the testimony he provided at the evidentiary hearing—that
is, Harding had firearms in Cady’s garage and tried to sell them to McVay.
On July 22, 2019, McVay pled guilty to one count of methamphetamine
distribution. At sentencing, the parties disputed whether McVay was eligible for
safety-valve relief. See 18 U.S.C. § 3553(f); U.S.S.G. §§ 2D1.1(b)(18) & 5C1.2. The
government argued that McVay had not truthfully provided all information and
evidence he had concerning the offense or offenses that were part of the same course
of conduct or common scheme or plan. The government maintained that McVay’s
lies during the interviews with law enforcement and while testifying in court about
Harding’s attempt to sell him guns in order to protect a friend who was on trial for
gun charges disqualified him from receiving safety-valve relief. McVay countered
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that he was required to provide truthful information about his drug trafficking
activities and any statements about unrelated firearms offenses were immaterial when
considering eligibility for safety-valve.
The district court found that, by a preponderance of the evidence, McVay’s
testimony about Harding’s attempt to sell McVay guns while in Cady’s garage was
not true. Having presided over McArthur’s hearing for a new trial and both of
McArthur’s trials, the district court made credibility findings. It outlined the reasons
why Cady’s testimony was more credible and pointed out the aspects of McVay’s
testimony that rendered it simply not credible. Those aspects included: (1) the lack
of an explanation as to why Harding would store his guns in Cady’s garage in a tool
chest when the two were not friends and did not live together but instead were drug
dealers; (2) the implausibility that a shotgun could fit inside a tool chest; (3) the
improbability that Harding would put his firearms on the hood of Cady’s Mustang
when the evidence showed Cady would not let any of his friends touch his Mustang;
(4) McVay’s inaccurate description of another individual that McVay said was
involved in drug trafficking with Harding; and (5) the dubious scenario that Harding
possessed the same guns that McArthur used to rob him a few months before the
robbery occurred, which then had to be sold to McArthur, and then McArthur turned
around and robbed Harding with the same guns.
After finding McVay testified falsely, the district court determined that McVay
was not eligible for safety-vale relief because relevant conduct, as defined under the
Sentencing Guidelines, is broad enough to include McVay’s lies about Harding
possessing firearms and attempting to sell them to McVay. On appeal, McVay asserts
the district court erred because his false statements were not about his own relevant
conduct but instead involved “unrelated offers made to him by Harding.”
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II. DISCUSSION
We review the district court’s factual findings as to safety-valve eligibility for
clear error. See United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005)
(en banc). The defendant bears the burden to show that he has satisfied the criteria
for safety-valve relief. Id. There is ample evidence in the record to support the
district court’s finding that McVay provided untruthful statements to law enforcement
and lied while testifying in court. In order to be eligible for safety-valve relief, a
defendant is required, in relevant part, to provide to the government all information
and evidence he “has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan.” U.S.S.G. § 5C1.2(a)(5). The
offense or offenses that constitute part of the same course of conduct or common
scheme or plan include “the offense of conviction and all relevant conduct.” See id.,
comment. (n.3).
When jointly undertaken criminal activity is involved, relevant conduct
includes all acts and omissions of others that were: “(i) within the scope of the jointly
undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii)
reasonably foreseeable in connection with that criminal activity[.]” U.S.S.G.
§ 1B1.3(a)(1)(B). In the course of describing his drug trafficking activities, McVay
told law enforcement that he witnessed Harding, one of his drug suppliers, possessing
guns and attempting to sell the guns. McVay reiterated his story twice more while
under oath testifying in court.
Consistent with our case law, the district court found that firearm possession
by Harding can be considered part of drug trafficking because firearms are tools of
the drug trade. United States v. Linson, 276 F.3d 1017, 1019 (8th Cir. 2002) (citation
omitted) (“Firearms are tools of the drug trade providing protection and
intimidation.”). McVay’s statements and testimony about one of his drug supplier’s
gun possession falls within the scope of jointly undertaken criminal activity, furthers
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that criminal activity, and can reasonably be foreseen as connected with that criminal
activity. See United States v. Mahone, 688 F.3d 907, 910 (8th Cir. 2012) (noting the
“well-known tendency” of drug traffickers to use firearms in connection with drug-
related activities (citations omitted)); see also United States v. Pham, 463 F.3d 1239,
1246 (11th Cir. 2006) (per curiam) (noting the foreseeability of gun use in the drug
trade).
McVay also argues that relevant conduct “must be an act of a criminal nature
by the defendant,” and his refusal to purchase guns is not criminal. We are
unpersuaded by McVay’s argument because, as explained by the Guidelines’
commentary, “[t]he principles and limits of sentencing accountability under this
guideline [§ 1B1.3] are not always the same as the principles and limits of criminal
liability.” U.S.S.G. § 1B1.3, comment. (n.1). When jointly undertaken criminal
activity is involved, the focus is on the acts and omissions for which the defendant
is to be held accountable in determining the applicable sentencing range, not on
whether the defendant is criminally liable for an offense. Id.
In order to qualify for safety-valve relief, McVay was obligated to be truthful
about his own conduct as well as individuals that were part of McVay’s drug
trafficking activities. Relevant conduct, as defined under the Sentencing Guidelines,
encompasses a false statement made by McVay regarding firearm possession by one
of his drug suppliers.
III. CONCLUSION
McVay, while under an obligation to truthfully disclose his involvement in
drug trafficking, chose to concoct a story to advance his own agenda and mislead the
government about Harding. The false statements were instrumental in causing the
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district court to require a second trial in McArthur’s case. The district court did not
err when it determined that McVay was ineligible for safety-valve relief. We affirm.
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