USCA11 Case: 21-10906 Document: 57-1 Date Filed: 01/12/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10906
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLTON EDWARD CASH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cr-60118-UU-1
____________________
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2 Opinion of the Court 21-10906
Before BRANCH and LUCK, Circuit Judges, and ANTOON, ∗ District
Judge.
PER CURIAM:
Carlton Edward Cash appeals the mandatory minimum 120-
month sentence imposed after he pleaded guilty to one count of
possession with intent to distribute 50 grams or more of metham-
phetamine and four counts of possession with intent to distribute
5 grams or more of methamphetamine, all in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(viii) and 18 U.S.C. § 2. Cash contends that
the district court erred in determining that: (1) the two-level fire-
arm enhancement under U.S.S.G. § 2D1.1(b)(1) applied; and (2) he
did not establish eligibility for relief from the mandatory minimum
under the safety valve provided by 18 U.S.C. § 3553(f) and U.S.S.G.
§ 5C1.2(a). After review and with the benefit of oral argument, we
affirm.
We review the district court’s factual determinations under
the Sentencing Guidelines for clear error. United States v. Carillo-
Ayala, 713 F.3d 82, 87 (11th Cir. 2013). “For a factual finding to be
clearly erroneous, we must be left with a definite and firm convic-
tion that the court made a mistake.” United States v. Tejas, 868 F.3d
1242, 1244 (11th Cir. 2017). “[L]egal interpretation[s] of . . . statutes
and sentencing guidelines” are reviewed de novo. United States v.
∗ The Honorable John Antoon II, United States District Judge for the Middle
District of Florida, sitting by designation.
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21-10906 Opinion of the Court 3
Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006) (quoting United States
v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004)).
We start with the firearm enhancement. Section 2D1.1(b)(1)
of the Sentencing Guidelines provides that “[i]f a dangerous
weapon (including a firearm) was possessed” during a drug-traffick-
ing crime, the defendant’s offense level should be increased by two
levels. This enhancement “should be applied if the weapon was
present, unless it is clearly improbable that the weapon was con-
nected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11(A). As this
Court has previously explained, “[t]he government has the burden
under § 2D1.1 to demonstrate the proximity of the firearm to the
site of the charged offense by a preponderance of the evidence.”
United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001). “If
the government is successful, the evidentiary burden shifts to the
defendant to demonstrate that a connection between the weapon
and the offense was ‘clearly improbable.’” Id. (quoting United
States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995)).
On the day of Cash’s arrest, federal agents searched his resi-
dence and found a loaded handgun and approximately seven grams
of methamphetamine in a safe in his upstairs master bathroom.
Cash argues that the government did not meet its initial burden
because it was “never able to demonstrate [a] ‘nexus’ between
[Cash’s] mere possession of the firearm and his drug crimes.” That
argument is doomed from the start. As this Court has made clear,
“[p]roximity between guns and drugs, without more, is sufficient
to meet the government’s initial burden under § 2D1.1(b)(1).”
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4 Opinion of the Court 21-10906
United States v. Carrasquillo, 4 F.4th 1265, 1272 (11th Cir. 2021)
(quoting Carillo-Ayala, 713 F.3d at 91). While Cash is correct that
“a drug offender possess[ing] a firearm does not necessarily give
rise to the firearms enhancement,” one who stores a firearm in the
same location as his drugs bears the burden of showing that the
two are not connected.
Cash’s reliance on United States v. Stallings is unavailing. In
Stallings, Walter Dean Johnson and more than twenty others were
convicted for their participation in a vast drug conspiracy. 463 F.3d
1218, 1220 (11th Cir. 2006). Because police found three handguns
in Johnson’s home, the district court applied the firearm enhance-
ment pursuant to § 2D1.1(b)(1). Id. This Court reversed, noting
that the application of the firearm enhancement required “some
nexus beyond mere possession between the firearms and the drug
crime” and holding that the government in that case failed to meet
its initial burden because it “provided no evidence connecting the
pistols found in Johnson’s home to his alleged drug activity.” Id. at
1221. But the police in that case “found no evidence of drug para-
phernalia in Johnson’s home,” id. at 1220, and “no one suggested
that any activities related to the conspiracy ever took place” there,
id. at 1221. Additionally, the government failed to show that the
firearms actually belonged to Johnson, rather than one of the other
three adults who lived with him. Id.
Here, on the other hand, there is no dispute that the hand-
gun belonged to Cash, was stored in proximity to illegal drugs, and
was found at the same residence in which Cash engaged in some of
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21-10906 Opinion of the Court 5
the charged drug activity. Under these facts, the government satis-
fied its initial burden, and Cash bore the onus of showing that “a
connection between the weapon and the offense was ‘clearly im-
probable.’” Audain, 254 F.3d at 1289 (quoting Hall, 46 F.3d at 63).
In attempting to meet his burden, Cash points out that no
firearm is seen or mentioned in recordings of the charged drug
transactions, and that Cash’s family explained at sentencing that
Cash had owned firearms for years before he began selling drugs
and always kept them locked away in safes. These facts, Cash ar-
gues, prove that “the presence of the gun in the safe with the meth-
amphetamine was [a] ‘coincidence’” and that the firearm enhance-
ment was therefore improper.
We disagree. The fact that Cash did not brandish or discuss
a firearm during his drug sales does little to show that the handgun
found in his safe was unconnected to the charged activity. As the
district court noted during Cash’s sentencing hearing, “one of the
reasons a drug dealer has guns is for self-defense, because there is,
of course, a heightened danger of violence when you sell drugs.
You don’t know who’s coming into your apartment, you don’t
know who you’re going to be dealing with.” The fact that Cash
may have purchased his firearm before he began selling drugs does
not make it “clearly improbable” that he came to rely on it to de-
fend himself and his drug activities—especially when we consider
that the gun was found loaded, inches away from drugs packaged
for sale, in the same bathroom in which Cash admitted to conduct-
ing drug sales in the past. Based on these facts, the district court did
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6 Opinion of the Court 21-10906
not clearly err in applying the firearm enhancement under
§ 2D1.1(b)(1).
We turn now to Cash’s eligibility for the so-called “safety
valve” provided by 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a). The
safety valve allows for a two-level reduction in a defendant’s of-
fense level and directs the court to “impose a sentence . . . without
regard to any statutory minimum sentence, if the court finds that
the defendant meets the [five] criteria in 18 U.S.C. § 3553(f)(1)–(5).”
U.S.S.G. § 5C1.2(a); see U.S.S.G. § 2D1.1(b)(18). Among those cri-
teria—and the only one relevant to this appeal—is the requirement
that the defendant did not “possess a firearm or other dangerous
weapon . . . in connection with the offense,” § 3553(f)(2);
§ 5C1.2(a)(2), which he must establish by a preponderance of the
evidence, Carillo-Ayala, 713 F.3d at 90. While a defendant who re-
ceives a firearm enhancement under § 2D1.1(b)(1) is not automati-
cally precluded from safety-valve relief, he “must show that it is
more likely than not that [his] possession of the firearm was not in
connection with the offense.” Carrasquillo, 4 F.4th at 1272.
Cash has failed to meet this burden. In attempting to estab-
lish that he did not possess a firearm “in connection with” the
charged drug offenses, Cash largely revives his arguments in oppo-
sition to the firearm enhancement, pointing to the absence of a vis-
ible firearm in the drug-sale recordings and his family’s assurance
that he lawfully owned firearms for years before he began his drug
activities. Although the burden is lower, these arguments still fall
short for the same reasons explained above. Put simply, while Cash
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21-10906 Opinion of the Court 7
has pointed to some evidence that might call into question the pres-
ence or purpose of his firearm, he has not shown that it is “more
likely than not” that a loaded handgun found mere inches from il-
legal drugs in his bathroom safe was not possessed “in connection
with” his drug sales. This is especially true when we consider, as
the district court did below, Cash’s own insistence that the hand-
gun was for self-defense—a need that increases dramatically for
those who store and sell drugs in their homes.
It is true that the only drug sale over 50 grams—and thus the
only offense giving rise to the 120-month mandatory minimum—
occurred away from Cash’s home at a Trader Joe’s parking lot. See
21 U.S.C. § 841(b)(1)(A)(viii) (mandating that a person who distrib-
utes “50 grams or more of methamphetamine . . . shall be sen-
tenced to a term of imprisonment which may not be less than 10
years”). But Cash has done little to enervate the district court’s rea-
sonable inference that the gun found in Cash’s safe bore a connec-
tion to that sale. While Cash points to the lack of evidence that his
gun “was ever outside of the safe,” the burden of proving eligibility
for the safety valve was his alone. See Carillo-Ayala, 713 F.3d at 90.
In this case, as in most, the absence of evidence is simply not evi-
dence of absence, especially when we consider the other factors
linking the gun and the drugs together. Even if Cash did not take
the gun with him to the parking lot, the district court did not clearly
err in inferring that Cash possessed the gun in part to protect him-
self and his drug stash and that the gun was thus possessed “in
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8 Opinion of the Court 21-10906
connection with” the sale of those drugs, whether at home or else-
where. 1
In sum, Cash has failed to show that the district court clearly
erred in applying the firearm enhancement under U.S.S.G.
§ 2D1.1(b)(1) or in determining that he was ineligible for the safety
valve provided by 18 U.S.C. 3553(f) and U.S.S.G. § 5C1.2(a).
AFFIRMED.
1 Cash goes to great pains to argue that the term “the offense” in 18 U.S.C.
§ 3553(f)(2) and U.S.S.G. § 5C1.2(a)(2) should be limited to “the offense of con-
viction” and should not include “all relevant conduct,” contrary to the guide-
lines commentary. See § 5C1.2(a) cmt. n.3 (“‘Offense,’ as used in subsection
(a)(2)–(4) . . . mean[s] the offense of conviction and all relevant conduct.”). As
Cash acknowledges, however, the district court did not “base its denial of
safety valve relief on a finding of relevant conduct,” nor did it “rely[] on the
Sentencing Commission’s [broader] definition of ‘offense.’” Rather, the court
looked to the circumstantial evidence presented by the Government, includ-
ing the discovery of drugs and a loaded firearm in Cash’s safe, and determined
that Cash had not demonstrated by a preponderance of the evidence that the
gun was not used in connection with his drug sales—including the sale that
took place at Trader Joe’s. Because this determination would stand under ei-
ther interpretation of “the offense,” we need not address that issue.