U.S. v. Burke, 95-3999
Decision Date | 10 July 1996 |
Docket Number | No. 95-3999,95-3999 |
Citation | 91 F.3d 1052 |
Parties | UNITED STATES of America, Appellee, v. Edgar Eugene BURKE, Jr., Appellant. |
Court | U.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.
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) ( ); 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) ( ).
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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