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
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
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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
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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,
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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
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.
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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,”
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§ 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
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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
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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
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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.
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