April 17, 2019
from the United States District Court for the Western
District of Wisconsin. No. 17-cr-00096 - James D. Peterson,
Manion, Sykes, and Brennan, Circuit Judges.
MANION, CIRCUIT JUDGE.
Fincher possessed a firearm; 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
offense, 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 offense, the court held Fincher was
ineligible for safety-valve relief and sentenced him to the
mandatory minimum sentence of five years. For the reasons
stated below, we affirm the district court's sentence.
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.
point after moving to Wisconsin, Fincher became involved in a
drug-selling operation with Brunt. Law enforcement spotted
them departing from and returning to an apartment 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 apartment was a
woman who resided in Chicago. In September 2017, Fincher and
Brunt were arrested after selling heroin to undercover police
day Fincher and Brunt were arrested, the police searched the
apartment. The apartment was sparsely furnished, but it was
apparent from the clothing and toiletries found there that at
least two men were living there regularly. The officers found
more than 100 grams of heroin in a bedroom 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.
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.
offense carried a mandatory minimum sentence of five years.
21 U.S.C. § 84l(b)(1)(B)(i). The safety-valve provision
of 18 U.S.C. § 3553(f), however, provides the potential
for relief from a mandatory minimum sentence for certain
offenses, including Fincher's offense. 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 offense; (3) the offense did not result
in death or injury to any person; (4) the defendant was not
an organizer or leader in the offense; and (5) the defendant
truthfully provided all information and evidence related to
the offense to the government before the sentencing hearing.
the early stages of this case, it appeared Fincher might
qualify for safety-valve relief because he had no criminal
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." Throughout the discussion, however, the
judge emphasized that Fincher would have to meet the
statutory criteria to qualify for safety-valve relief.
initial presentence report did not recommend the firearm
enhancement under U.S.S.G. § 2D1.1(b)(1). After a
forensic report revealed Fincher's DNA on the firearm
recovered 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
requested a presentence determination of his eligibility 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 offense, and therefore was
ineligible for safety-valve relief and subject to a two-level
enhancement. In doing so, the court rejected Fincher's
argument that under Apprendi v. New Jersey, 530 U.S.
466 (2000), and Al-leyne v. ...