[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-10353

Non-Argument Calendar

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D.C. Docket No. 9:12-cr-80079-KAM-5

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

FRANCISCO E. GARCIA, JR., 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(December 31, 2015)

Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM: 
2

Francisco E. Garcia, Jr., appeals from the district court’s determination, 

following remand from this Court, that he was ineligible for safety-valve relief 

because he possessed three guns “in connection with” the drug offenses to which 

he pled guilty. See 18 U.S.C. § 3553(f). Government agents found the three guns

in his home following his arrest for the charges in this case. Because Garcia 

conducted drug transactions on the property on which his home was located, the 

district court, at Garcia’s original sentencing, applied a sentencing enhancement 

for possessing a firearm under United States Sentencing Guidelines (“U.S.S.G.”)

§ 2D1.1(b)(1) and, for the same reasons, denied safety-valve relief. The district 

court sentenced Garcia to the statutory mandatory minimum term of 120 months of

imprisonment, the lowest sentence Garcia could receive unless the safety valve 

applied. 

In Garcia’s first appeal, we upheld application of the § 2D1.1(b)(1) 

enhancement but we reversed and remanded for resentencing with respect to 

whether the safety valve was available to Garcia. United States v. Garcia,

590 F. App’x 915 (11th Cir. 2014). We explained that, pursuant to our decision in 

United States v. Carillo-Ayala, 713 F.3d 82, 89-91 (11th Cir. 2013), the application 

of § 2D1.1(b)(1) does not necessarily preclude a defendant from obtaining relief 

via the safety valve, because conduct that meets § 2D1.1(b)(1) will not always 

show a “connection” between the gun and the offense. Id. at 919-20. Because the 
3

district court conflated the analyses for § 2D1.1(b)(1) and the safety valve, we 

remanded the matter to the district court to determine whether the safety valve was 

available to Garcia despite his possession of the guns. On remand, the district 

court held a hearing on the matter and heard testimony from Garcia and a 

government agent. The district court determined that Garcia was ineligible for 

safety-value relief because his possession of the guns was in connection with the 

drug offenses. The court resentenced him to the same term of 120 months of

imprisonment. Garcia now brings this appeal from the district court’s 

determination on remand. 

In this appeal, Garcia again contends that the district court erroneously 

found him ineligible for safety-valve relief. He argues that there was no evidence 

of any meaningful nexus between the guns and the drug offenses, such as evidence 

that he possessed a gun during his drug transactions, that he mentioned guns to his 

co-conspirators, or that drugs or co-conspirators entered his house. He further 

asserts that the guns did not promote or facilitate the drug offenses and that the 

guns were lawfully purchased years before the drug conspiracy in order to protect 

his livestock business. After careful review, we affirm the district court’s denial of 

safety-valve relief.
4

I.

We briefly review the relevant underlying facts. Garcia, who was a midlevel distributor in a cocaine-trafficking conspiracy, received several deliveries of 

cocaine at his farm from a co-conspirator between November 2011 and April 2012. 

Garcia sold the cocaine to a buyer for around $30,000 a kilogram, for which he 

earned a small cut of the proceeds. The co-conspirator or his girlfriend would 

return to Garcia’s farm to collect the drug proceeds. Following his arrest, agents 

searched Garcia’s home, which was located on the five-acre farm, and seized three 

firearms: “(1) a 40-caliber Glock 22 semi-automatic pistol, with two magazines 

and 6 rounds of ammunition, in an office; (2) a 5.7-mm by 28-mm semi-automatic 

pistol with two magazines and 14 rounds of ammunition, in a night stand in the 

master bedroom; and (3) a loaded 9-mm semi-automatic pistol with 11 rounds of 

ammunition, behind a safe in the master bathroom.” Garcia, 590 F. App’x at 916. 

It is undisputed that the guns were lawfully owned and that they were purchased 

before the conspiracy began. 

II.

We review a district court’s factual determinations for clear error. CarilloAyala, 713 F.3d at 87-88. We likewise generally review the court’s application of 

the safety-valve standard to a detailed fact pattern for clear error. Id. We will not 

find clear error unless we are left with a definite and firm conviction that a mistake 
5

has been made. United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003). 

Legal interpretations of the Sentencing Guidelines are reviewed de novo. CarilloAyala, 713 F.3d at 87. We also generally defer to the district court’s credibility 

determinations because the court, as the fact finder, “personally observes the 

testimony and is thus in a better position than a reviewing court to assess the 

credibility of witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 

(11th Cir. 2002). 

III.

Garcia pled guilty to, among other offenses, conspiring to possess with 

intent to distribute over five kilograms of cocaine, which for Garcia carried a tenyear statutory mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A)(ii)(II). 

To escape the mandatory minimum, Garcia sought relief through the “safety 

valve.”1 Congress passed the safety valve in 1994 to permit “a narrow class of 

defendants, those who are the least culpable participants in such offenses,” to be 

sentenced without regard to the statutory mandatory minimum. Carillo-Ayala, 713 

F.3d at 88 (quotation omitted); see 18 U.S.C. § 3553(f).

 1 Based on his offense level and criminal history, Garcia’s guideline range initially was 

calculated at 108 to 135 months of imprisonment. Due to the mandatory minimum, his guideline 

range became 120 to 135 months. See U.S.S.G. § 5G1.1 & cmt. With the safety valve, Garcia’s 

offense level would have been reduced by two, U.S.S.G. § 2D1.1(b)(17) (2014), his resulting 

guideline range would have been 87 to 108 months of imprisonment, and the district court could 

have sentenced Garcia below the mandatory minimum. 
6

To obtain relief under the safety valve, the defendant must show by a 

preponderance of the evidence that he meets the five criteria set forth in § 3553(f). 

Carillo-Ayala, 713 F.3d at 90; see 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a) 

(incorporating the safety-valve criteria). These criteria, in broad terms, limit 

safety-valve relief to defendants with negligible criminal records who have limited 

roles in non-violent offenses and then fully cooperate with the government. See 18 

U.S.C. § 3553(f)(1)–(5). Only one of the five criteria is at issue in this case: 

whether Garcia “use[d] violence or credible threats of violence or possess[ed] a 

firearm or other dangerous weapon . . . in connection with the offense.” 18 U.S.C. 

§ 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). Garcia did not use violence or credible 

threats of violence, so the only question is whether he possessed the three guns 

found in his home “in connection with” the drug-trafficking conspiracy. 

A defendant possesses a firearm in connection with a drug offense if the 

firearm is in proximity to drugs or, if not in proximity, the firearm otherwise

facilitates or has the potential to facilitate the drug offense. Carillo-Ayala, 713

F.3d at 92-96 (“A firearm in proximity to drugs is connected with a drug offense 

because it has the potential to be used as a weapon.”). “The scope of the phrase 

‘potential to facilitate the offense’ is limited to circumstances showing the 

firearm’s availability for use as a weapon or the attempt to use the firearm in a 

manner that would facilitate the offense.” Id. at 96. Thus, evidence that a 
7

defendant used or could have used a firearm to protect his criminal activity is 

sufficient to show a connection between the firearm and the offense. Id. at 92 

(“While other facts, such as whether the firearm is loaded, or inside a locked 

container, might be relevant 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.”). 

In Garcia’s first appeal, we upheld application of the firearm-possession 

enhancement under § 2D1.1(b)(1), concluding that the district court did not err in 

finding that Garcia failed to show that a connection between the guns and the 

cocaine was “clearly improbable.” Id. at 919; see Carillo-Ayala, 713 F.3d at 90 

(stating that, under § 2D1.1(b)(1), “the government benefits from a rebuttable 

presumption that a firearm, if present—just present, not present in proximity to 

drugs—is ‘connected with the offense.’ The defendant must disprove a connection 

with the drug offense to the extent of showing it is ‘clearly improbable’ they were 

symbiotic.”). While the application of § 2D1.1(b)(1) does not preclude Garcia 

from obtaining safety-valve relief, he faces a difficult task of showing that, while 

the connection between the firearm and the offense was not “clearly improbable,” 

it nonetheless was “not probable.” See Carillo-Ayala, 713 F.3d at 91. We are not 

persuaded that Garcia has threaded that narrow needle. 
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First, to the extent Garcia contends that the government’s proof was 

insufficient to establish any connection between the guns and the drug offenses, he 

is mistaken. As our prior decision in Garcia’s case makes clear, the government’s 

evidence was sufficient to show that “the guns were located at the site of the 

offense conduct,” even if the guns did not leave the house and the drugs or drug 

proceeds did not enter the house. Garcia, 590 F. App’x 918-19. And despite the 

distinct locations, the guns had the potential to facilitate the offense because Garcia 

“could have used the firearms in his house to protect the drugs or the drug money 

on his property, regardless of whether they were also located inside the house.” Id.

at 919. Thus, the evidence sufficiently shows that Garcia possessed the guns in 

connection with the drug offenses because the guns were available for use as a 

weapon.

2

 See Carillo-Ayala, 713 F.3d at 95-96. 

Garcia bore the burden on remand of establishing that such a connection, 

though possible, was not probable. Id. at 91; id. at 96 (“[T]he safety valve is 

unavailable unless the defendant negates the proof [of a connection] by a 

preponderance of the evidence, or unless the government precludes relief by 

proving the fact by a preponderance of the evidence.”). Garcia attempted to meet 

this burden through his own testimony. He testified that there was no connection 

 2 Garcia’s assertion that he did not “possess” the firearms at issue was raised for the first 

time in his reply brief, so it is not properly before us. See United States v. Britt, 437 F.3d 1103, 

1104 (11th Cir. 2006). In any case, we previously held that Garcia did possess the guns at issue. 
9

between the firearms in his house and his drug-trafficking activities outside his 

house. In particular, he explained that all of the drug transactions took place 

outside of his house on the farm property, that he sold the drugs he received almost 

immediately and then delivered the proceeds to his supplier shortly thereafter, that 

any drugs or drugs proceeds—for the short length of time there were on his 

property—were kept in his truck and did not enter his house, and that his coconspirators never entered his house. 

However, the district court determined that Garcia’s testimony was not 

credible. In particular, the court found it implausible that Garcia would protect 

with guns the $23,000 in cash found in a safe inside his house, which Garcia 

claimed was for his livestock business, but leave unprotected the drugs and

$30,000 in drug proceeds Garcia kept, however briefly, in his truck on the 

property. Moreover, with respect to Garcia’s contention that he owned the guns to 

lawfully protect his property and family, having been robbed previously in 

connection with his livestock business, the district court concluded that that 

defense was unavailing because Garcia failed to show why he would not also keep 

the guns to protect the drugs or drug money on his property. See Garcia, 590 F. 

App’x at 919; see Carillo-Ayala, 713 F.3d at 92 (“[A] defendant aware of the 

weapon’s presence will think of using it if his illegal activities are threatened.”); cf. 

United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (rejecting a 
10

defendant’s contention that the connection between his gun and the drug offense 

was “clearly improbable” because he possessed the firearm for his job as a security 

guard). In light of the district court’s credibility determination, which Garcia does 

not contest, we cannot conclude that Garcia met his burden of showing that a 

connection between the guns and the drug offenses was “not probable.” CarilloAyala, 713 F.3d at 91; Ramirez-Chilel, 289 F.3d at 749. 

To the extent that Garcia contends that the government failed to show that he 

possessed the guns “in furtherance of” his drug-trafficking activities, his argument 

is unavailing because “in furtherance of” is a higher evidentiary standard than “in 

connection with.”3

 Carillo-Ayala, 713 F.3d at 96. We drew the distinction 

between the two standards as follows in Carillo-Ayala: 

[T]he presence of a gun within the defendant’s dominion 

and control during a drug trafficking offense is not 

sufficient by itself to show possession in furtherance, that 

is, to show the firearm was possessed to advance or 

promote the commission of the underlying offense. But 

the presence of a gun within a defendant’s dominion and 

control during a drug trafficking offense ordinarily will 

suffice to show possession during and in relation to the 

offense and, therefore, that the defendant possessed the 

firearm in connection with the offense.

 3 Additionally, as previously stated, the government did not bear the burden of showing a 

connection on remand. Rather, it was Garcia’s burden to show the lack of a connection by a 

preponderance of the evidence. See Carillo-Ayala, 713 F.3d at 90.
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Id. (citations, footnote, and internal quotation marks omitted). Here, the evidence 

was sufficient for the court to find that Garcia possessed the guns in connection 

with the offenses, even if he did not possess the guns in furtherance of the offenses.

In light of the district court’s credibility determination and our prior decision

in this case, we are not left with a definite and firm conviction that the district court 

erred in concluding on remand that Garcia had failed to show that he was eligible 

for safety-valve relief. See Carillo-Ayala, 713 F.3d at 87-88; White, 335 F.3d at 

1319. Therefore, we AFFIRM Garcia’s sentence.