### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2520

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

C LAUDIUS L. F INCHER

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 17

‐ cr

‐ 00096

— James D. Peterson

, Chief Judge

.

____________________

ARGUED A PRIL 17, 2019

— D ECIDED J ULY 9, 2019

____________________

Before M ANION

, S YKES

, and B RENNAN

, Circuit Judges

.

M ANION

, Circuit Judge

. Claudius Fincher possessed a fi re

‐

arm; that much is certain. The questions raised in this appeal

are whether the district court clearly erred by fi nding

Fincher’s possession of the fi rearm was “in connection with”

his drug o ff ense, and whether resolving that factual question

at sentencing without a jury determination violated the Sixth

Amendment. Due to fi nding Fincher possessed the gun in

connection with his drug o ff ense, the court held Fincher was2 No. 18

‐ 2520

ineligible for safety

‐ valve relief and sentenced him to the

mandatory minimum sentence of fi ve years. For the reasons

stated below, we a ffi rm the district court’s sentence.

I. Background

Fincher was raised in Chicago. After a tt ending a few years

of college, he moved to the Madison, Wisconsin, area to spend

time with his grandmother. Although he initially intended to

spend only a few weeks there, he ended up staying for about

a year before his arrest in this case. For much of this time he

lived in his girlfriend’s mother’s home, but at the time of his

arrest, he was residing in a small one

‐ bedroom apartment

with his uncle, Darnell Brunt, a drug dealer.

At some point after moving to Wisconsin, Fincher became

involved in a drug

‐ selling operation with Brunt. Law enforce

‐

ment spo tt ed them departing from and returning to an apart

‐

ment complex in Sun Prairie, Wisconsin, before and after drug

sales. Fincher was seen on the balcony of an apartment unit

there. Law enforcement learned the legal renter of the apart

‐

ment was a woman who resided in Chicago. In September

2017, Fincher and Brunt were arrested after selling heroin to

undercover police o ffi cers.

On the day Fincher and Brunt were arrested, the police

searched the apartment. The apartment was sparsely fur

‐

nished, but it was apparent from the clothing and toiletries

found there that at least two men were living there regularly.

The o ffi cers found more than 100 grams of heroin in a bed

‐

room closet. They also found a large amount of cash and three

un fi red .40 caliber bullets in the closet. A loaded .40 caliber

handgun was found in a kitchen drawer. Prior to his arrest in

this case, Fincher’s criminal record was clean.No. 18

‐ 2520 3

Fincher was indicted on October 4, 2017, with one count of

conspiring to knowingly and intentionally possess with intent

to distribute 100 grams or more of heroin and six counts of

distribution of and intent to distribute heroin. 21 U.S.C.

§§ 841(a)(1), 846. Fincher pleaded guilty to the conspiracy

charge on February 20, 2018.

Fincher’s o ff ense carried a mandatory minimum sentence

of fi ve years. 21 U.S.C. § 841(b)(1)(B)(i). The safety

‐ valve pro

‐

vision of 18 U.S.C. § 3553(f), however, provides the potential

for relief from a mandatory minimum sentence for certain of

‐

fenses, including Fincher’s o ff ense. Under this provision, a

court is precluded from applying the mandatory minimum if

it fi nds the following criteria are met: (1) the defendant has a

minimal criminal history; (2) the defendant did not use or

threaten violence or possess a fi rearm in connection with the

o ff ense; (3) the o ff ense did not result in death or injury to any

person; (4) the defendant was not an organizer or leader in the

o ff ense; and (5) the defendant truthfully provided all infor

‐

mation and evidence related to the o ff ense to the government

before the sentencing hearing. Id.

During the early stages of this case, it appeared Fincher

might qualify for safety

‐ valve relief because he had no crimi

‐

nal history. In fact, during Fincher’s plea colloquy, the district

judge discussed with him the “possibility that what we call

the safety valve may apply to you.” 1 Throughout the discus

‐

sion, however, the judge emphasized that Fincher would have

to meet the statutory criteria to qualify for safety

‐ valve relief.

The initial presentence report did not recommend the fi re

‐

arm enhancement under U.S.S.G. § 2D1.1(b)(1). After a

1 Plea Hr’g Tr. at 17–18 (emphasis in original).4 No. 18

‐ 2520

forensic report revealed Fincher’s DNA on the fi rearm recov

‐

ered from the apartment, however, the government asserted

Fincher was subject to the fi rearm enhancement. At that time,

the government also informed defense counsel of its belief

that Fincher was ineligible for safety

‐ valve relief because he

possessed a fi rearm in connection with the o ff ense.

Fincher requested a presentence determination of his eli

‐ gibility for safety

‐ valve relief and objected to the application

of the sentencing enhancement. The district court issued a

presentence opinion and order fi nding Fincher possessed the

fi rearm in connection with his o ff ense, and therefore was in

‐ eligible for safety

‐ valve relief and subject to a two

‐ level en

‐

hancement. In doing so, the court rejected Fincher’s argument

that under Apprendi v. New Jersey

, 530 U.S. 466 (2000), and Al

‐ leyne v. United States

, 570 U.S. 99 (2013), the district court was

precluded from making factual fi ndings regarding his safety

‐

valve eligibility.

At sentencing, the district court concluded Fincher’s

Guidelines range was 57 to 71 months’ imprisonment. Due to

the large quantity of heroin involved, however, a fi ve

‐ year

mandatory minimum sentence applied. 21 U.S.C.

§ 841(b)(1)(B)(i). Fincher was sentenced to fi ve years’ impris

‐

onment. He appeals.

II. Discussion

Fincher raises two challenges to the district court’s sen

‐

tence. One is constitutional, asserting the district court’s fi nd

‐ ing precluding safety

‐ valve eligibility violated the Sixth

Amendment. The other is factual, asserting the district courtNo. 18

‐ 2520 5

clearly erred in fi nding Fincher’s possession of the gun was in

connection with his o ff ense.

A. Alleyne and Safety

‐ Valve Eligibility Factors

Fincher challenges the district court’s fi nding that his pos

‐

session of the handgun was in connection with his o ff ense as

a violation of the Sixth Amendment under Apprendi and Al

‐ leyne

. We review such challenges de novo

. United States v.

Wolfe

, 701 F.3d 1206, 1216 (7th Cir. 2012).

The Supreme Court established in Apprendi that the Sixth

Amendment and the Due Process Clause of the Fifth Amend

‐

ment, taken together, “indisputably entitle a criminal defend

‐

ant to ‘a jury determination that [he] is guilty of every element

of the crime with which he is charged, beyond a reasonable

doubt.’” 530 U.S. at 476–77; see also U.S. C ONST

. amends. V, VI.

The Court concluded that any fact (other than a prior convic

‐

tion) that “increases the penalty for a crime beyond the pre

‐

scribed statutory maximum must be submi tt ed to a jury, and

proved beyond a reasonable doubt.” Apprendi

, 530 U.S. at 490.

In Alleyne

, the Court reasoned any fact other than a prior

conviction that alters the prescribed sentencing range in a

way that aggravates the penalty is an element of the crime to

which Apprendi applies. Such a fact “necessarily forms a con

‐

stituent part of a new o ff ense.” Alleyne

, 570 U.S. at 114–15. The

Court held facts that increase the mandatory minimum aggra

‐

vate the crime’s penalty. Id. at 103. “[T]he core crime and the

fact triggering the mandatory minimum sentence together

constitute a new, aggravated crime, each element of which

must be submi tt ed to the jury.” Id. at 113.

Fincher seeks to extend the reasoning of Alleyne to pre

‐

clude judicial fact fi nding of safety

‐ valve eligibility factors. As6 No. 18

‐ 2520

Fincher’s argument goes, the safety

‐ valve provision controls

the application of the mandatory minimum: if the defendant

is found to be ineligible for safety

‐ valve relief, he is subject to

a mandatory minimum from which he would otherwise be

free. In Fincher’s case, the application of a fi ve

‐ year manda

‐

tory minimum hinged on the fi nding that he possessed the

gun in connection with his o ff ense. Thus, he argues that fi nd

‐ ing increased his mandatory minimum sentence.

This court has not yet considered the question of whether

Alleyne bars judicial fact fi nding of safety

‐ valve eligibility.

Each of the other circuits that have considered the question,

however, has concluded it does not. Four circuits have issued

published opinions to this e ff ect. United States v. Leanos

, 827

F.3d 1167, 1169–70 (8th Cir. 2016); United States v. King

, 773

F.3d 48, 55 (5th Cir. 2014); United States v. Lizarraga

‐ Carrizales

,

757 F.3d 995, 997–99 (9th Cir. 2014); United States v. Harakaly

,

734 F.3d 88, 97–99 (1st Cir. 2013). Three others have issued un

‐ published opinions or orders to the same e ff ect. United States

v. Caballero

, 672 Fed. App’x 72, 74–75 (2d Cir. 2016); United

States v. Juarez

‐ Sanchez

, 558 Fed. App’x 840, 843 (10th Cir.

2014); United States v. Silva

, 566 Fed. App’x 804, 807–08 (11th

Cir. 2014).

Underlying these decisions is the recognition that a man

‐ datory minimum sentence is not increased by the defendant’s

ineligibility for safety

‐ valve relief. Rather, it is already trig

‐ gered by the o ff ense; the safety

‐ valve provision merely pro

‐

vides lenity. Since “ Alleyne

, by its terms, applies to facts that

‘increase[] the mandatory minimum,’” it does not apply to ju

‐

dicial fact fi nding that precludes safety

‐ valve relief because

such fact fi nding “does not increase [the] baseline minimum

sentence.” See Harakaly

, 734 F.3d at 97–99. “A fact thatNo. 18

‐ 2520 7

precludes safety

‐ valve relief does not trigger or increase the

mandatory minimum, but instead prohibits imposition of a

sentence below a mandatory minimum already imposed as a

result of the guilty plea or jury verdict.” Id. at 98.

We fi nd this reasoning sound. In Fincher’s case, the man

‐ datory minimum sentence is triggered by the statutes de fi n

‐ ing his o ff ense. 21 U.S.C. §§ 841(B), 846. The safety

‐ valve pro

‐

vision potentially allows for relief from that mandatory mini

‐

mum, but it does not increase or trigger it.

Fincher argues this reasoning is improperly formalistic.

He contends it draws a distinction based only on the di ff er

‐

ence between stating something in positive versus negative

language. He informs us “a condition that causes something

to not not happen, makes it happen.” We disagree. The dis

‐

tinction is more than merely positive versus negative phras

‐ ing. It goes to the heart of Alleyne ’s purpose, which is to de

‐

termine what constitutes an “element” of a crime. Alleyne

, 570

U.S. at 114 (“[T]he essential Sixth Amendment inquiry is

whether a fact is an element of the crime.”). Under Alleyne

, a

fact that combines with the base o ff ense to create a new, ag

‐ gravated o ff ense is an element of the crime. Id. at 113. Safety

‐

valve eligibility factors do not combine with the base o ff ense

to create a new, aggravated crime. Instead, the base o ff ense

triggers the mandatory minimum on its own. Safety

‐ valve el

‐ igibility mitigates the o ff ense’s penalty; it does not aggravate

it. See King

, 773 F.3d at 55.

Therefore, we hold that judicial fact fi nding precluding

safety

‐ valve relief does not violate the Sixth Amendment. The8 No. 18

‐ 2520

district court did not err under Alleyne by fi nding Fincher pos

‐

sessed the gun in connection with his o ff ense.

B. Possession in Connection with the O ff ense

Fincher challenges the district court’s fi nding that his pos

‐

session of the fi rearm was connected to his o ff ense of conspir

‐

acy to distribute heroin. Based on this fi nding, the court held

Fincher was ineligible for safety

‐ valve relief and subject to a

two

‐ level enhancement under the Sentencing Guidelines. We

review the district court’s factual fi ndings underlying safety

‐

valve eligibility and the sentencing enhancement for clear er

‐

ror. United States v. Collins

, 924 F.3d 436, 441 (7th Cir. 2019)

(standard of review for safety

‐ valve eligibility fi ndings);

United States v. Kopp

, 922 F.3d 337, 341 (7th Cir. 2019) (stand

‐

ard of review for Guidelines enhancement fi ndings).

Because whether Fincher possessed the gun in connection

with the crime is central to both his safety

‐ valve eligibility and

the application of the Guidelines enhancement, Fincher’s ar

‐

guments against both are the same. The burden of proof, how

‐

ever, is di ff erent for each. For safety

‐ valve eligibility, Fincher

had to prove to the district court by a preponderance of the

evidence that he did not possess the gun in connection with

his o ff ense. United States v. Ramirez

, 783 F.3d 687, 692 (7th Cir.

2015). Concerning the fi rearm enhancement, once the govern

‐

ment proved through DNA evidence that Fincher possessed

the gun, the burden shifted to Fincher to show it was “clearly

improbable” his possession was in connection with his of

‐

fense. United States v. Rea

, 621 F.3d 595, 606 (7th Cir. 2010).

Fincher cannot meet the “clearly improbable” standard if he

fails to meet the lower preponderance of the evidence stand

‐

ard. Cf. United States v. Bolton

, 858 F.3d 905, 914 (4th Cir. 2017)

(discussing the interplay between these burdens of proof). WeNo. 18

‐ 2520 9

therefore focus our discussion on whether the district court

clearly erred by fi nding Fincher had not met the preponder

‐

ance of the evidence burden.

Fincher argues there was a lack of “speci fi c” evidence of

connection to the crime. By this, he means there was no evi

‐

dence drugs were sold in the apartment where the gun was

located, no evidence he possessed or mentioned the gun while

selling drugs, and no evidence his DNA was transferred to

the gun during the conspiracy period rather than at some

point before. He argues that, in the absence of speci fi c evi

‐

dence connecting a gun to the crime, a district court should

not be able to make such a fi nding. Otherwise, he asserts, de

‐

fendants who lawfully possess a weapon must undertake the

virtually impossible task of proving a negative to show it was

not possessed in connection with the crime.

But the danger of which Fincher warns—a district court’s

presumption of a connection based merely on evidence of

possession—is not present here. The evidence the district

court relied on is not as scant as Fincher makes it out to be.

The court recited several facts beyond Fincher’s mere pos

‐

session to support the conclusion the gun was possessed in

connection with the o ff ense. The court noted the handgun

was not a hunting gun, so the type of fi rearm did not suggest

it had a purpose unrelated to the o ff ense. Some ammunition

was stored in the closet where the drugs were stored, and the

gun was kept loaded and in a readily accessible place. The

small size of the apartment and consequent proximity be

‐

tween the loaded gun and the drug stash also supported the10 No. 18

‐ 2520

conclusion that the gun’s purpose was to protect the drug op

‐

eration.

Perhaps most relevant was the court’s fi nding that the

apartment where the handgun was located appeared to be

speci fi cally used as a base of operations for the drug conspir

‐

acy. Neither Fincher nor Brunt was the legal renter of the

property. The evidence suggested Fincher had only resided

there temporarily during the conspiracy and for the purpose

of furthering the conspiracy. Furthermore, Fincher presented

no evidence the gun was used for any purpose other than pro

‐ tecting the drug operation. Given the deference owed to the

district court’s fi ndings, we see no justi fi cation for overturn

‐ ing the court’s fi nding that the gun was possessed in connec

‐

tion with the drug conspiracy.

We hold the district court did not err in fi nding Fincher

failed to show by a preponderance of the evidence his posses

‐

sion of the handgun was not in connection with his o ff ense.

Thus, the district court properly denied safety

‐ valve relief.

Furthermore, since Fincher consequently could not show it

was “clearly improbable” that he possessed the gun in con

‐

nection with his o ff ense, the court properly applied the two

‐

level fi rearm enhancement.

III. Conclusion

For the reasons stated above, we AFFIRM the sentence of

the district court.