### The Honorab le Harold D. Vietor, United States District Judge 1 

### for the Southern District of Iowa. Section 5C1.2 provides as follows: 2


### Inthe case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordan ce with the applicable guidelines without regard to any statutory minimum sentence, if the court finds t hat the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below: (1) the defendant does not have more than 1 criminal histor y point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats o f ___________ No. 95-3999

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Edgar Eugene Burke, Jr., * * [PUBLISHED] Appellant. *

___________ Submitted: June 28, 1996 Filed: July 10, 1996

___________ Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

___________ PER CURIAM.
Edgar Eugene Burke, Jr., pleaded guilty to possessing cocaine, i n violation of 21 U.S.C. § 844 (Count I); and to t wo other drug offenses, in violationof 21 U.S.C. § 841(a)(1). The district court denied Burke' s 1 request for sentencing under U.S.S.G. § 5C1.2 ("safety-valve provision"), 2

### violence or possess a firearm or other dangerous weapon (or induce

another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, o r superv isor of others in the offense, as determined under th e sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and (5) not later than the time of the sentencing hearing, th e defendant has truthfully provided to the Government all info rmation and evidence the defendant has concerning the offense or offenses that were part of the same cou rse of conduct or a common scheme or plan, but the fact that the defendant has no relevant or usefu l other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. -2- after finding that Burke's possession

### -3-

of a fi rearm was conduct relevant to Count I, and that he possessed th e firearm "in connection with" that drug offense. The district cour t sentencedBurke to concurrent sentences of 12 months for the section 844 offense and 60 months each for the section 841 offenses, and a total o f four years supervised release. Burke appeals, and we affirm.

Bu rke argues that the district court erred in not sentencing hi m under the safety-valve provision because there was insufficient evidence to prove he possessed the firearm "in connection with" Count I. Burke , however, does not dispute that his possession of the firearm constituted relevant conduct for purposes of Count I. See U.S.S.G. § 5C1.2, comment. (n.3 ). Although we have not previously addressed the meaning of "i n connection with" as used in section 5C1.2(2), we have interpreted identica l language used in U.S. S.G. § 2K2.1(b)(5). Under that section, a defendant receives an enhancement if he used or possessed a firearm "in connection with" another felony offense. In United States v. Johnson , 60 F.3d 422, 423 (8th Cir. 1995) (per curiam), we held that the government was no t required to show a firearm was actually used to facilitate

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afelony offense to support a section 2K2.1(b)(5) enhancement. See also United States v. Gomez-Arrellano , 5 F.3d 464, 46 6-67 (10th Cir. 1993) ("in connection with" element of § 2K2.1(b)(5) is satisfied if government showe d weaponfacilitated or had potential to facilitate drug offense; weapon's physica l proximity to drugs may be sufficient to prove nexus); Unite d States v . Condren , 18 F.3d 1190, 1197-1200 (5th Cir.) (firearm wa s posses sed"in connection with" drug felony under § 2K2.1(b)(5) wher e firearmwas merely present in location near drugs where it could be used to prote ct them), cert. denied , 115 S. Ct. 161 (1994). We believe "i n connection with" shou ld be consistently interpreted here. Accordingly, we conclu de the district court correctly determined that Burke was no t eligible for sentencing under the safety-valve provision.
Finally, because Burke had been previously discharged from stat e cus tody, the district court did not err by denying his request fo r sentencing under U.S. S.G. § 5G1.3(b) (imposition of sentence on defendant subject to undischarged term of imprisonment).
The judgment is affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.