United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
Claudius Fincher pleaded guilty to one count of conspiracy to
distribute 100 grams or more of heroin, in violation of 21
U.S.C. § 846. This crime carries a mandatory minimum
penalty of five years in prison unless Fincher qualifies for
safety valve relief under 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2(a).
asks for a presentencing ruling on two closely related
issues: (1) whether he is subject to the guideline
enhancement for possession of a dangerous weapon under
U.S.S.G § 2D1.1(b)(1); and (2) whether he is eligible
for safety valve relief under 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2(a). Dkt. 50. Both the enhancement and
the safety valve raise the same basic question for the
purpose of this case, which is whether the defendant
possessed a dangerous weapon “in connection with”
the charged crime. United States v. Rea, 621 F.3d
595, 606 (7th Cir. 2010); United States v.
Galbraith, 200 F.3d 1006, 1016 (7th Cir
only real difference between the provisions in the context of
this case relates to the burden of proof. Under §
2D1.1(b)(1), the government has the initial burden to prove
by a preponderance of the evidence that Fincher possessed the
firearm, but if the government makes that showing, the burden
shifts to Fincher to show that it was “clearly
improbable” that the weapon was connected to the drug
offense. Rea, 621 F.3d at 606. Under § 5C1.2(a)
and § 3553(f), Fincher has the burden to prove by a
preponderance of the evidence that he did not possess a
dangerous weapon in connection with the offense United
States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir 2000).
does not dispute that the government has met its burden under
§ 2D1.1(b)(1) and the court concludes that it has.
Fincher's DNA was on the firearm found in the apartment
used to store drugs that Fincher conspired to distribute.
dispute is whether Fincher has met his burden to show that he
did not possess the weapon “in connection with”
the drug offense. Because Fincher's burden is lighter
under § 5C1.2(a) and § 3553(f) than it is under
§ 2D1.1(b)(1), United States v. Bolton, 858
F.3d 905, 914 (4th Cir. 2017), the court will focus on
whether Fincher has shown that he is entitled to the benefit
of the safety valve.
begins with a preliminary issue: he contends that this court
does not have the authority to find facts concerning safety
valve eligibility because safety valve eligibility affects
the minimum sentence to which Fincher would be exposed.
Fincher argues that under Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States,
570 U.S. 99 (2013), any fact (other than a prior conviction)
that affects the statutory sentencing range must be found by
a jury. So, Fincher argues, safety valve eligibility involves
facts that affect his sentencing range and he is entitled to
have them found by a jury if he does not admit them. The
Seventh Circuit has not decided the issue. The only courts to
have done so have concluded that safety valve eligibility
does not increase a mandatory minimum sentence thus does not
implicate the right to a jury trial under Apprendi
and Alleyne. See United States v. Harakaly,
734 F.3d 88, 97-98 (1st Cir. 2013), and United States v.
Lizarraga-Carrizales, 757 F.3d 995, 997-99 (9th Cir.
2014). These two decisions are well-reasoned, and in the
complete absence of contrary authority, I will follow them.
valve eligibility provides an opportunity for some defendants
to get relief from a congressionally established mandatory
minimum sentence. In determining safety valve eligibility, a
district court is not finding facts that increase the
defendant's criminal exposure. And, as explained in
Harakaly, Fincher's view poses difficult
practical problems: the government would have to charge and
prove the lack of safety valve eligibility before the
defendant enters a plea. The point is not completely beyond
reasonable argument; and Fincher has preserved the issue for
appeal. But I'll follow Harakaly and find the
facts necessary to determine whether Fincher is entitled to
safety valve relief. And because Fincher has not requested an
evidentiary hearing, I will assume that the universe of facts
and evidence that I may consider are set out in the
starting point, it is important to identify the drug offense
at issue, which is conspiring to possess with intent to
distribute and to distribute heroin. So the offense is
broader than specific acts of distribution, during which
Fincher did not carry the firearm. In other words, Fincher
could have possessed the firearm “in connection
with” with the conspiracy even if he wasn't
carrying the firearm at the time of a drug sale.
sides focus their arguments on the physical proximity of the
firearm to the drug stash. The drugs were stored in a closet
in the bedroom and the gun was in a kitchen drawer. Fincher
suggests that the facts of this case are similar to the
example provided in the guidelines of a firearm not
connected to a drug crime: “the enhancement would not
be applied if the defendant, arrested at the defendant's
residence, had an unloaded hunting rifle in the
closet.” U.S.S.G. § 2D1.1, Application Note 11.
Fincher also points out that he did not take the firearm with
him when he and his co-defendant went out to deal drugs and
that there is no evidence that any drug transactions took
place at the apartment where the firearm was found.
are important differences between the facts of this case and
the example provided in the guidelines. The firearm is not a
hunting weapon, so the type of firearm does not suggest that
it had a purpose unrelated to the drug offense. And
ammunition for the firearm was found in the closet where the
drugs were stored, which undermines the argument based on
spatial proximity. In any event, proximity is one factor, but
on its own it is not decisive.
facts and evidence as a whole suggest that the firearm was
connected to Fincher's drug offense. First, if one wanted
to use handgun to protect a stash of money and drugs, it
would make sense to keep the handgun readily accessible, not
hidden and locked away with the drugs. Second, the apartment
itself is not Fincher's primary residence. The apartment
was not rented by Fincher or his co-defendant, but by a woman
who resides in Chicago. And the things found in the apartment
suggest that it was used by several men, not just Fincher.
The apartment appears to be a temporary residence that
Fincher and his co-defendant, and perhaps others, used as the
base of their drug-dealing operation. These facts support a
view that Fincher possessed the firearm because of the
conspiracy and not for a personal reason unrelated to the
drug operation. Third, the firearm was loaded, which suggests
that it was ready for immediate use to protect the drug
operation. Finally, Fincher has not provided any evidence to
suggest any use for the firearm other than to protect the
drug operation and its participants.
facts may leave some room for doubt as to whether Fincher
possessed the firearm in connection with the drug conspiracy.
But that is not the standard. For the reasons cited above, I
find that Fincher has failed to show by a preponderance of
the evidence that he did not possess the handgun in
connection with his drug offense. As a result, Fincher is
subject to the guideline enhancement for possession of a
dangerous weapon under U.S.S.G ...