United States v. Fincher, No. 18-2520 (7th Cir. 2019)
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Fincher lived in a one‐bedroom apartment with his uncle, a drug dealer, and began selling drugs. Both were arrested after selling heroin to undercover police officers. Police searched the apartment. In the bedroom closet, they found more than 100 grams of heroin, cash, and .40 caliber bullets. A loaded .40 caliber handgun was found in the kitchen. Fincher, whose criminal record was clean, was charged with 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. Fincher pleaded guilty to the conspiracy charge, which carried a mandatory minimum sentence of five years. The safety‐valve provision, 18 U.S.C. 3553(f), however, provides that a court is precluded from applying the mandatory minimum if it finds that the defendant has a minimal criminal history; the defendant did not use or threaten violence or possess a firearm in connection with the offense; the offense did not result in death or injury; the defendant was not an organizer or leader; and the defendant truthfully provided all information and evidence related to the offense before the sentencing hearing. Fincher’s DNA was found on the firearm. The district court found that Fincher possessed the firearm in connection with his offense, and was ineligible for safety‐valve relief and subject to a two‐level firearm enhancement, and imposed a five-year sentence. The Seventh Circuit affirmed. The safety‐valve potentially allows for relief from a mandatory minimum, but it does not increase or trigger it. Judicial fact-finding precluding safety‐valve relief does not violate the Sixth Amendment under the Supreme Court's Alleyne holding. Fincher failed to show by a preponderance of the evidence his possession of the handgun was not in connection with his offense.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18 2520 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CLAUDIUS L. FINCHER, 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 APRIL 17, 2019 — DECIDED JULY 9, 2019 ____________________ Before MANION, SYKES, and BRENNAN, Circuit Judges. MANION, Circuit Judge. Claudius Fincher possessed a fire arm; that much is certain. The questions raised in this appeal are whether the district court clearly erred by finding Fincher’s possession of the firearm was “in connection with” his drug o ense, and whether resolving that factual question at sentencing without a jury determination violated the Sixth Amendment. Due to finding Fincher possessed the gun in connection with his drug o ense, the court held Fincher was 2 No. 18 2520 ineligible for safety valve relief and sentenced him to the mandatory minimum sentence of five years. For the reasons stated below, we a rm the district court’s sentence. I. Background Fincher was raised in Chicago. After attending 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 spotted 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 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 cers found more than 100 grams of heroin in a bed room closet. They also found a large amount of cash and three unfired .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 ense carried a mandatory minimum sentence of five 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 ense. Under this provision, a court is precluded from applying the mandatory minimum if it finds 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 firearm in connection with the o ense; (3) the o ense did not result in death or injury to any person; (4) the defendant was not an organizer or leader in the o ense; and (5) the defendant truthfully provided all infor mation and evidence related to the o 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 fire 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 firearm recov ered from the apartment, however, the government asserted Fincher was subject to the firearm 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 firearm in connection with the o 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 finding Fincher possessed the firearm in connection with his o 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 findings 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 five year mandatory minimum sentence applied. 21 U.S.C. § 841(b)(1)(B)(i). Fincher was sentenced to five 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 find ing precluding safety valve eligibility violated the Sixth Amendment. The other is factual, asserting the district court No. 18 2520 5 clearly erred in finding Fincher’s possession of the gun was in connection with his o ense. A. Alleyne and Safety Valve Eligibility Factors Fincher challenges the district court’s finding that his pos session of the handgun was in connection with his o 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. CONST. 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 submitted 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 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 submitted to the jury.” Id. at 113. Fincher seeks to extend the reasoning of Alleyne to pre clude judicial factfinding of safety valve eligibility factors. As 6 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 five year manda tory minimum hinged on the finding that he possessed the gun in connection with his o ense. Thus, he argues that find ing increased his mandatory minimum sentence. This court has not yet considered the question of whether Alleyne bars judicial factfinding 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 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 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 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 factfinding that precludes safety valve relief because such factfinding “does not increase [the] baseline minimum sentence.” See Harakaly, 734 F.3d at 97–99. “A fact that No. 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 find this reasoning sound. In Fincher’s case, the man datory minimum sentence is triggered by the statutes defin ing his o 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 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 ense to create a new, ag gravated o ense is an element of the crime. Id. at 113. Safety valve eligibility factors do not combine with the base o ense to create a new, aggravated crime. Instead, the base o ense triggers the mandatory minimum on its own. Safety valve el igibility mitigates the o ense’s penalty; it does not aggravate it. See King, 773 F.3d at 55. Therefore, we hold that judicial factfinding precluding safety valve relief does not violate the Sixth Amendment. The 8 No. 18 2520 district court did not err under Alleyne by finding Fincher pos sessed the gun in connection with his o ense. B. Possession in Connection with the O ense Fincher challenges the district court’s finding that his pos session of the firearm was connected to his o ense of conspir acy to distribute heroin. Based on this finding, 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 findings 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 findings); United States v. Kopp, 922 F.3d 337, 341 (7th Cir. 2019) (stand ard of review for Guidelines enhancement findings). 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 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 ense. United States v. Ramirez, 783 F.3d 687, 692 (7th Cir. 2015). Concerning the firearm 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). We No. 18 2520 9 therefore focus our discussion on whether the district court clearly erred by finding Fincher had not met the preponder ance of the evidence burden. Fincher argues there was a lack of “specific” 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 specific evi dence connecting a gun to the crime, a district court should not be able to make such a finding. 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 ense. The court noted the handgun was not a hunting gun, so the type of firearm did not suggest it had a purpose unrelated to the o 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 the 10 No. 18 2520 conclusion that the gun’s purpose was to protect the drug op eration. Perhaps most relevant was the court’s finding that the apartment where the handgun was located appeared to be specifically 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 findings, we see no justification for overturn ing the court’s finding that the gun was possessed in connec tion with the drug conspiracy. We hold the district court did not err in finding Fincher failed to show by a preponderance of the evidence his posses sion of the handgun was not in connection with his o 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 ense, the court properly applied the two level firearm enhancement. III. Conclusion For the reasons stated above, we AFFIRM the sentence of the district court.
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