U.S. v. Burke, 95-3999

Decision Date10 July 1996
Docket NumberNo. 95-3999,95-3999
Citation91 F.3d 1052
PartiesUNITED STATES of America, Appellee, v. Edgar Eugene BURKE, Jr., Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Nicholas Drees, Federal Public Defender, Des Moines, IA, for appellant.

Cliff Wendel, Asst. United States Atty., Des Moines, IA, for appellee.

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

PER CURIAM.

Edgar Eugene Burke, Jr., pleaded guilty to possessing cocaine, in violation of 21 U.S.C. § 844 (Count I); and to two other drug offenses, in violation of 21 U.S.C. § 841(a)(1). The district court 1 denied Burke's request for sentencing under U.S.S.G. § 5C1.2 ("safety-valve provision"), 2 after finding that Burke's possession of a firearm was conduct relevant to Count I, and that he possessed the firearm "in connection with" that drug offense. The district court sentenced Burke to concurrent sentences of 12 months for the section 844 offense and 60 months each for the section 841 offenses, and a total of four years supervised release. Burke appeals, and we affirm.

Burke argues that the district court erred in not sentencing him under the safety-valve provision because there was insufficient evidence to prove he possessed the firearm "in connection with" Count I. Burke, however, does not dispute that his possession of the firearm constituted relevant conduct for purposes of Count I. See U.S.S.G. § 5C1.2, comment. (n. 3). Although we have not previously addressed the meaning of "in connection with" as used in section 5C1.2(2), we have interpreted identical language used in U.S.S.G. § 2K2.1(b)(5). Under that section, a defendant receives an enhancement if he used or possessed a firearm "in connection with" another felony offense. In United States v. Johnson, 60 F.3d 422, 423 (8th Cir.1995) (per curiam), we held that the government was not required to show a firearm was actually used to facilitate a felony offense to support a section 2K2.1(b)(5) enhancement. See also United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir.1993) ("in connection with" element of § 2K2.1(b)(5) is satisfied if government showed weapon facilitated or had potential to facilitate drug offense; weapon's physical proximity to drugs may be sufficient to prove nexus); United States v. Condren, 18 F.3d 1190, 1197-1200 (5th Cir.) (firearm was possessed "in connection with" drug felony under § 2K2.1(b)(5) where firearm was merely present in location near drugs where it could be used to protect them), cert. denied, --- U.S. ----, 115 S.Ct. 161, 130 L.Ed.2d 99 (1994). We believe "in connection with" should be consistently interpreted here. Accordingly, we conclude the district court correctly determined that Burke was not eligible for sentencing under the safety-valve provision.

Finally, because Burke had been previously discharged from state custody, the district court did not err by denying his request for sentencing under U.S.S.G. § 5G1.3(b) (imposition of sentence on defendant subject to undischarged term of imprisonment).

The judgment is affirmed.

1 The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.

2 Section 5C1.2 provides as follows:

In the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the...

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  • United States v. Young, s. 11–2673
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 24 Agosto 2012
    ...evidence to prove the requisite connection.” United States v. Warford, 439 F.3d 836, 844 (8th Cir.2006), citing United States v. Burke, 91 F.3d 1052, 1053 (8th Cir.1996). “To determine that a gun was connected to the drug activity, the district court may find a temporal and spatial relation......
  • U.S. v. Warford
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 6 Marzo 2006
    ...if the evidence shows that the weapon "facilitated or had [the] potential to facilitate" the drug offense. United States v. Burke, 91 F.3d 1052, 1053 (8th Cir.1996) (per curiam). The presence of a firearm in a location where it could be used to protect drugs can be sufficient evidence to pr......
  • Lacour v. United States
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 14 Julio 2011
    ...not possess the firearm in connection with "relevant conduct," and therefore in connection with the offense. See United States v. Burke, 91 F.3d 1052, 1053 (8th Cir. 1996) ("in connection with," as used in the safety valve, has the same meaning as the "in connection with" language in the fi......
  • U.S. v. Chen
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 14 Octubre 1997
    ...appellant insists, "in connection with the offense" surely means something more than during the offense. See United States v. Burke, 91 F.3d 1052, 1053 (8th Cir.1996) (per curiam). Although we have not yet had occasion to construe the "in connection with" language of § 5C1.2, we have constr......
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