USA v. Donald Matthew Delzoppo

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11479
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD MATTHEW DELZOPPO,
a.k.a. Roco,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:22-cr-00022-TKW-MJF-1
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2 Opinion of the Court 23-11479
____________________
Before J ORDAN, NEWSOM , and L AGOA , Circuit Judges.
PER CURIAM:
Donald Matthew Delzoppo appeals his sentence of 60
months’ imprisonment for possession with the intent to distribute
cocaine. Delzoppo argues that the district court: (1) incorrectly ap-
plied a two-point enhancement for possession of a firearm under
U.S.S.G. § 2D1.1(b)(1); and (2) erred by not applying the safety valve
because he met the criteria in § 5C1.2(1)–(5). We disagree with
Delzoppo on both arguments and, therefore, affirm.1
I.
In reviewing a sentence, we conduct a two-step inquiry, first
ensuring that there was no significant procedural error, and then
1 We review a sentence under a deferential abuse-of-discretion standard. Gall
v. United States, 552 U.S. 38, 41 (2007). We review the district court’s findings
of fact under U.S.S.G. § 2D1.1(b)(1) for clear error and review de novo the ap-
plication of the Sentencing Guidelines to those facts. United States v. Pham, 463
F.3d 1239, 1245 (11th Cir. 2006). “For sentencing purposes, possession of a
firearm involves a factual finding.” United States v. Stallings, 463 F.3d 1218, 1220
(11th Cir. 2006). So long as the district court’s findings are plausible, we will
not reverse under clear error review. United States v. Ladson, 643 F.3d 1335, 1341
(11th Cir. 2011).
A district court’s factual findings and subsequent denial of safety-valve relief
are reviewed for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.
1997).
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23-11479 Opinion of the Court 3
examining whether the sentence was substantively reasonable.
United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).2
The district court commits a significant procedural error if
it calculates the guidelines incorrectly, fails to consider the § 3553(a)
factors, bases the sentence on clearly erroneous facts, neglects to
explain the sentence, or treats the guidelines as mandatory rather
than advisory. United States v. Hill, 643 F.3d 807, 879 (11th Cir. 2011).
In general, the district court’s explanation of its sentence must ar-
ticulate enough to satisfy us that it “considered the parties’ argu-
ments and has a reasoned basis for exercising [its] own legal deci-
sionmaking authority.” Rita v. United States, 551 U.S. 338, 356
(2007). The explanation must be adequate “to allow for meaning-
ful appellate review and to promote the perception of fair sentenc-
ing.” Gall, 552 U.S. at 50. The party challenging the sentence has
the burden of demonstrating the procedural error in light of the
record and the factors outlined in 18 U.S.C. § 3553(a). United States
v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2007).
The Sentencing Guidelines provide for a two-level enhance-
ment in drug cases “[i]f a dangerous weapon (including a firearm)
was possessed.” U.S.S.G. § 2D1.1(b)(1). The commentary for
§ 2D1.1(b)(1) provides that “[t]he enhancement should be applied
if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense. For example, the en-
hancement would not be applied if the defendant, arrested at the
2 Delzoppo’s arguments are both procedural challenges, so we don’t reach the
second prong in this case.
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4 Opinion of the Court 23-11479
defendant’s residence, had an unloaded hunting rifle in the closet.”
Id. § 2D1.1(b)(1), comment. (n.11(A)).3
The government may meet its initial burden by showing, by
a preponderance of the evidence, that the defendant possessed a
weapon during conduct related to the offense of conviction. United
States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). Relevant con-
duct includes acts that were part of the same course of conduct or
plan as the offense of conviction. United States v. Hunter, 172 F.3d
1307, 1309 (11th Cir. 1999). The presence of the weapon cannot be
merely coincidental, and it must have some purpose or effect with
respect to the offense. United States v. George, 872 F.3d 1197, 1204
(11th Cir. 2017). We have recognized that proximity between
weapons and drugs alone is sufficient for the government to meet
its initial burden under § 2D1.1(b)(1). United States v. Carillo-Ayala,
713 F.3d 82, 91–92 (11th Cir. 2013). Evidence that a defendant used
or could have used a weapon to protect his criminal activity is also
sufficient to show a connection between the weapon and the of-
fense and will thus satisfy the government’s burden under
§ 2D1.1(b)(1). See id. at 92.
If the government meets this initial burden, the burden shifts
to the defendant, who has the opportunity to show that a connec-
tion between the weapon and the offense was “clearly
3 “[C]ommentary in the [Sentencing] Guidelines Manual that interprets or ex-
plains a guideline is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading, of that guide-
line.” Stinson v. United States, 508 U.S. 36, 38 (1993).
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23-11479 Opinion of the Court 5
improbable.” Stallings, 463 F.3d at 1220. Failure to produce such
evidence permits a district court to apply the enhancement. United
States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995). The guidelines im-
pose a heavy burden to negate the connection and show that it is
clearly improbable. Carillo-Ayala, 713 F.3d at 90.
Here, the district court did not err in applying the two-point
enhancement based on possession of a dangerous weapon. The
district court found that the gun was located next to Delzoppo’s
bed, in the same room as 20 grams of cocaine, digital scale, and
approximately 500 small plastic baggies. This proximity between
the gun and drugs is sufficient for the government to meet its initial
burden under § 2D1.1(b)(1). Carillo-Ayala, 713 F.3d at 91–92.
Moreover, Delzoppo did not meet his burden of showing
that the connection between the weapon and his offense conduct
was “clearly improbable.” Stallings, 463 F.3d at 1220. Rather, as the
district court noted, “it’s probable and, in fact, likely that this gun
was possessed in connection with this offense.” Thus, the district
court did not err in applying the two-point enhancement for pos-
session of a dangerous weapon and adequately explained its rea-
soning. Accordingly, we affirm in this respect.
II.
For an offense violating 21 U.S.C. § 841, the safety-valve pro-
visions of 18 U.S.C. § 3553(f ) and U.S.S.G. § 5C1.2 enable a district
court to disregard the statutory minimum sentence if five require-
ments are met. U.S.S.G. § 5C1.2(a). Relevant here, the second re-
quirement for safety-valve relief is that the defendant did not
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6 Opinion of the Court 23-11479
possess a gun “in connection with the offense.” 18 U.S.C.
§ 3553(f )(2); U.S.S.G. § 5C1.2(a)(2). The defendant has the burden
of showing that he meets the factors for relief by a preponderance
of the evidence. Carillo-Ayala, 713 F.3d at 90.4
As stated above, our “cases interpreting guidelines that re-
quire a ‘connection’ have consistently recognized that a firearm
which facilitates or has the potential to facilitate an offense is pos-
sessed ‘in connection with’ that offense.” Id. at 93. We, in consid-
ering the safety-valve, have held that “[a] firearm found in close
proximity to drugs or drug-related items simply ‘has’—without any
requirement for additional evidence—the potential to facilitate the
drug offense.” Id. at 92 (emphasis in original). We explained that
“[a] defendant seeking relief under the safety valve, despite his pos-
session of a weapon found in proximity to drug-related items, will
have a difficult task in showing that, even so, there is no connection
with the drug offense so the safety valve applies.” Id. We further
explained that:
[w]hile other facts, such as whether the firearm is
loaded, or inside a locked container, might be relevant
4 We have determined that “not all defendants who receive the enhancement
under § 2D1.1(b)(1) are precluded from” safety-valve relief. Id. at 91. This is
due to the distinction in the “clearly improbable” language in § 2D1.1(b)(1)
and the preponderance-of-the-evidence standard for § 5C1.2(a)(2). We noted
that, if the enhancement applies but the defendant also seeks safety-valve re-
lief, “the district court must determine whether the facts of the case show that
a connection between the firearm and the offense, though possible, is not
probable.” Id. (quotation marks omitted). We also noted that “[t]he number
of defendants who meet both guidelines will undoubtedly be rare.” Id.
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23-11479 Opinion of the Court 7
to negate a connection, there is a strong presumption
that a defendant aware of the weapon’s presence will
think of using it if his illegal activities are threatened.
The firearm’s potential use is critical. The Sentencing
Commission gives special status to guns found in
proximity to drugs.
Id. (emphasis in original).
Here, the district court did not clearly err in finding that Del-
zoppo did not qualify for the safety valve because the firearm was
in close proximity to the drug paraphernalia, and he failed to show
that it was more likely than not that he did not possess a firearm in
connection with the offense. Carillo-Ayala, 713 F.3d at 92. Although
Delzoppo did not carry the firearm when he purchased the cocaine,
the firearm still had the potential to facilitate the offense because it
was stored near paraphernalia Delzoppo would likely use to dis-
tribute it. Id. at 96. The district court reasonably found that the
gun was connected to the offense. Accordingly, we also affirm in
this respect.
AFFIRMED.
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