REVISED DECEMBER 16, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-10043

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL VASQUEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

November 30, 1998

Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Defendant-appellant Daniel Vasquez appeals the sentence

imposed after he pleaded guilty to participating in a drug

conspiracy. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

On July 22, 1997, Daniel Vasquez (Vasquez) was arrested at

his home in St. Paul, Minnesota on drug conspiracy charges. The

arresting officers searched Vasquez’s home and found about eight

pounds of marijuana and twenty empty Tupperware plastic
2

containers used to ship marijuana to Vasquez. On the day of his

arrest, officers also searched Vasquez’s business, Daniel’s

Jewelers, and found two firearms, a loaded Smith & Wesson .40

caliber semiautomatic handgun and a loaded Smith & Wesson .38

caliber handgun.

Pursuant to a plea agreement, Vasquez pleaded guilty to

conspiracy to possess with intent to distribute 1000 kilograms of

marijuana, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(vii). In computing Vasquez’s sentence, the district

judge calculated a base offense level of 26, added two levels

pursuant to United States Sentencing Guidelines (U.S.S.G.)

§ 2D1.1(b)(1) based on Vasquez’s possession of the two guns found

at his store, and subtracted three levels pursuant to U.S.S.G. §

3E1.1(a), (b)(1), and (b)(2) because Vasquez accepted

responsibility for his offense. 

The district court found that Vasquez possessed a firearm in

connection with the drug offense, and held that U.S.S.G. § 5C1.2,

the safety valve provision, was therefore not applicable. The

district judge based his conclusion that Vasquez possessed a

weapon in connection with the drug offense on his findings that

Vasquez’s drug customers brought money from drug proceeds to

Vasquez at his store, that Vasquez used his business to store and

subsequently to ship boxes of drug money to one of his

codefendants in Texas, and that Vasquez used his store as a place

to receive marijuana. The district court ultimately sentenced
3

Vasquez to the mandatory minimum sentence of sixty months of

imprisonment and four years of supervised release in accordance

with 21 U.S.C. § 841(b)(1)(B). But for the application of the

mandatory minimum sentence, the applicable sentencing range would

have been fifty-seven to seventy-one months.

Vasquez timely appealed, arguing that the district court

erred in refusing to apply § 5C1.2 at his sentencing.

II. DISCUSSION

A sentencing court’s factual findings pertaining to a

§ 5C1.2 reduction are reviewed for clear error. See United

States v. Wilson, 105 F.3d 219, 222 (5th Cir.), cert. denied, 118

S. Ct. 133 (1997); United States v. Flanagan, 80 F.3d 143, 145

(5th Cir. 1996). This court reviews the district court’s legal

interpretation of § 5C1.2 de novo. See Wilson, 105 F.3d at 222;

Flanagan, 80 F.3d at 145.

Vasquez argues that he should have been sentenced under the

“safety valve” provision of 18 U.S.C. § 3553(f), set forth at

§ 5C1.2 of the sentencing guidelines. Pursuant to § 5C1.2, a

defendant “shall” be sentenced in accordance with the applicable

guidelines range, without regard to any statutory minimum

sentence, if the court finds, among other things, that “the

defendant did not . . . possess a firearm or other dangerous

weapon (or induce another participant to do so) in connection

with the offense.” U.S.S.G. § 5C1.2(2). The district court

relied solely on § 5C1.2(2) in ruling that the safety valve did
4

not apply. Vasquez maintains that the guns found at his business

were not connected to the offense, and that the district court

therefore erred in failing to apply the safety valve. 

We have previously construed the “in connection with the

offense” language in § 5C1.2(2) in tandem with the language in

§ 2D1.1(b)(1), which increases the level of certain offenses if

“a dangerous weapon (including a firearm) was possessed.” For

example, in United States v. Flucas, 99 F.3d 177, 178-79 (5th

Cir. 1996), cert. denied, 117 S. Ct. 1097 (1997), we upheld a

district judge’s finding that § 2D1.1(b)(1) applied because,

relying on Application Note 3 to § 2D1.1, we found a sufficient

connection between a gun found under the defendant’s car seat and

cocaine found in the car. We observed that the district court’s

finding that the defendant “possessed” a firearm for

§ 2D1.1(b)(1) purposes was “also significant because it

disqualified [the defendant] from being eligible for the ‘safety

valve’ provision of U.S.S.G. § 5C1.2.” Id.

Similarly, in United States v. Myers, 150 F.3d 459, 465 (5th

Cir. 1998), the defendant argued that the district court’s

application of the two-level enhancement under § 2D1.1(b)(1) and

his failure to apply the safety valve in § 5C1.2 were erroneous

because he had no knowledge of a gun found under a bed in an

apartment where transactions related to a drug conspiracy took

place. In discussing the § 2D1.1(b)(1) issue, we stated that the

district judge implicitly found that the defendant “knew about,
1 Neither Flucas nor Myers raised the issue of whether

§ 5C1.2 and § 2D1.1 should be interpreted differently for all

purposes, including whether another’s actions can be attributed

to the defendant. Cf. Wilson, 105 F.3d at 222 (determining that

defendant was eligible for sentencing under the safety valve

despite possession of a firearm by a co-conspirator). That issue

is similarly not at issue in this case, and we therefore decline

to address it. 

5

and possessed, the rifle in the course of the conspiracy.” Id.

This finding led us to “affirm the two-level firearm enhancement

and necessarily affirm the district court’s finding that [the

defendant] was not eligible for the ‘safety valve’ provision of

U.S.S.G. § 5C1.2(2).” Id. (emphasis added).

Flucas and Myers, therefore, suggest that the analysis

whether a sufficient nexus exists between a possessed firearm and

the offense is the same under both § 5C1.2(2) and § 2D1.1(b)(1).1

Other circuits have similarly analyzed the “in connection with

the offense” requirement in § 5C1.2(2) consistently with the

§ 2D1.1(b)(1) “possession” requirement for this purpose. See,

e.g., United States v. Tate, 153 F.3d 724, No. 97-4871, 1998 WL

436320, at *2-*3 (4th Cir. July 20, 1998) (unpublished opinion);

United States v. Coleman, 148 F.3d 897, 903-04 (8th Cir.), cert.

denied, 119 S. Ct. 228 (1998) (stating that identical standards

govern both the § 2D1.1 “possession” requirement and § 5C1.2 “in

connection with the offense” requirement for purpose of

determining whether there is sufficient nexus between defendant’s

firearm and offense); United States v. Tyler, 125 F.3d 1119, 1120

(7th Cir. 1997) (stating that district court’s determination that
6

defendant’s ownership of firearm satisfied the § 2D1.1(b)(1)

standard “not only enhanced her offense level [under

§ 2D1.1(b)(1)] but rendered her ineligible for sentencing relief

pursuant to the ‘safety valve’ provisions of 18 U.S.C. § 3553(f)

and section 5C1.2 of the Sentencing Guidelines”); United States

v. Hallum, 103 F.3d 87, 89-90 (10th Cir. 1996), cert. denied, 117

S. Ct. 1710 (1997) and cert. denied, 117 S. Ct. 1710 (1997)

(interpreting § 5C1.2 and § 2D1.1(b)(1) consistently in affirming

district court’s decision not to apply § 5C1.2). 

Section 5C1.2(2) and § 2D1.1(b)(1) can be interpreted

similarly for this purpose despite the obvious differences in

their language. On two other occasions, we have equated

guidelines requiring that a firearm be “in connection with the

offense” with the § 2D1.1(b)(1) “possession” language. See

United States v. Condren, 18 F.3d 1190, 1196-97 (5th Cir. 1994)

(interpreting § 2K2.1(b)(5), which requires a sentencing

adjustment if a firearm was possessed “in connection with another

felony offense,” with reference to § 2D1.1(b)(1)); United States

v. Guerrero, 5 F.3d 868, 872-73 (5th Cir. 1993) (analogizing

§ 4B1.4(b)(3)(A), which increases the offense level if a

defendant “used or possessed the firearm . . . in connection with

a crime of violence,” with § 2D1.1(b)(1)). We reached these

results despite our observation that because application of

§ 2D1.1(b)(1) turns on the “possession” of a firearm, and does

not specifically mention a “connection to the offense,”
7

§ 2D1.1(b)(1) “[a]rguably . . . requires less of a relationship,

or specific connection, between the possession of the weapon, and

the drug offense.” Condren, 18 F.3d at 1197. We reasoned in

Condren and Guerrero that because the policies behind

§ 2K2.1(b)(5) and § 4B1.4(b)(3)(A) were similar to those

underlying § 2D1.1(b)(1), the provisions should be analyzed using

the same standard. See id. (stating that “similar policy reasons

militate in favor of the enhancement provided by both § 2D1.1(b)

and § 2K2.1(b)(5)”); Guerrero, 5 F.3d at 872-73 (justifying the

application of the § 2D1.1 “possession” standard in a

§ 4B1.4(b)(3)(A) context because of the similarity of the

underlying rationales of the two sections). A comparison of the

policies underlying § 5C1.2(2) and § 2D1.1(b)(1) similarly

justifies our result in this case. Section 5C1.2(2) denies

safety valve treatment to offenders who possess a firearm in

connection with the offense; § 2D1.1(b)(1) is similarly motivated

in part by a concern that “[w]hen a firearm is carried during a

drug offense . . . the drug felon has the ability to use the

weapon in connection with his drug offense.” United States v.

Regans, 125 F.3d 685, 686 (8th Cir. 1997), cert. denied, 118 S.

Ct. 1398 (1998) (citing Condren, analyzing § 2K2.1(b)(5) with

reference to § 2D1.1(b)(1) in determining whether there was a

sufficient nexus between a possessed firearm and the offense). 

We therefore are confident that despite any difference in

semantics between § 2D1.1(b)(1) and § 5C1.2(2), the two
8

provisions should be analyzed analogously.

Vasquez does not appeal the district court’s finding that

Vasquez “possessed” a firearm for § 2D1.1(b)(1) purposes. 

Section 2D1.1(b)(1) applies “‘if the weapon was present, unless

it is clearly improbable that the weapon was connected with the

offense.’” United States v. Eastland, 989 F.2d 760, 770 (5th

Cir. 1993) (quoting U.S. Sentencing Guidelines Manual § 2D1.1

application note 3). The government has the burden of proof

under § 2D1.1 of showing by a preponderance of the evidence “that

a temporal and spatial relation existed between the weapon, the

drug trafficking activity, and the defendant.” Id. (internal

quotation marks omitted); see United States v. Caicedo, 103 F.3d

410, 412 (5th Cir. 1997). Applying this standard, “the

government must provide evidence that the weapon was found in the

same location where drugs or drug paraphernalia are stored or

where part of the transaction occurred.” Eastland, 989 F.2d at

770 (internal quotation marks omitted); see Caicedo, 103 F.3d at

412.

In contrast to § 2D1.1, the defendant has the burden of

proving that he qualifies for sentencing under § 5C1.2. See

Flanagan, 80 F.3d at 146; United States v. Ortiz, 136 F.3d 882,

883 (2d Cir. 1997), cert. denied, 118 S. Ct. 1104 (1998); United

States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996), cert. denied,

117 S. Ct. 742 (1997). Vasquez thus had to show, by a

preponderance of the evidence, that he did not possess a firearm
9

in connection with the drug conspiracy in order to qualify under

the safety valve. Vasquez clearly failed to meet this burden of

proof.

The district court found that Vasquez used his business to

store drugs and the money proceeds from drug sales, and that

Vasquez sent these money proceeds from his business to his

suppliers in Texas, using his business as a return address on the

packages. In addition, the district court found that it was

“clearly probable that Vasquez possessed the firearms to protect

the money derived through the drug trafficking conspiracy.” The

court relied on these findings, amply supported by the record, in

finding that § 5C1.2 did not apply. The district court did not

clearly err in this finding; these facts indicate that some of

the drug conspiracy transactions occurred at the jewelry store

and therefore that the guns found at the jewelry store were

connected to the drug conspiracy. See Flucas, 99 F.3d at 179;

United States v. Mitchell, 31 F.3d 271, 278 (5th Cir. 1994);

Eastland, 989 F.2d at 769-70. 

Vasquez’s argument that there was an insufficient connection

between the guns and the conspiracy because three months passed

between the time the government could prove Vasquez sent drug

money from the business and the time his business was searched is

unavailing. Vasquez produced absolutely no evidence disproving a

link between the guns found at his business and the drug

conspiracy. He did not provide an alternative explanation for
10

why the guns were at the store--indeed, during the district court

proceedings, his attorney told the district judge that the gun

was “just there.” In addition, in the context of a drug

conspiracy in which the defendant did not actively withdraw

before his arrest, we have stated that a significant time lapse

between specific evidence of a location’s use in the conspiracy

and the search of the location did not preclude a finding that a

gun found at that location was connected to the conspiracy. See

Caicedo, 103 F.3d at 412. Thus, Vasquez failed in his burden to

prove the lack of a connection between the guns found at his

jewelry store and the drug conspiracy, and the district court

therefore did not clearly err in declining to apply § 5C1.2.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.