United States District Court, N.D. California
ORDER RE ELIGIBILITY FOR SAFETY VALVE RELIEF
CHHABRIA UNITED STATES DISTRICT JUDGE.
Tanner pled guilty to five firearms counts and two drug
counts. The firearms counts stem from the sale of guns to a
confidential informant on several occasions in January 2016.
Eleven months later, in December 2016, Tanner reconnected
with the confidential informant and sold him cocaine base,
leading to the drug counts. One question presented at
Tanner's sentencing hearing was whether he was eligible
for safety valve relief, such that he would not be subject to
the mandatory minimum 60-month sentence that would otherwise
have attached to his drug convictions. See 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2(a) (commonly referred
to as the “safety valve”). At the sentencing
hearing, the Court decided that Tanner was in fact safety
valve eligible. This opinion further explains that decision.
safety valve allows drug offenders to escape mandatory
minimum sentences if they satisfy five criteria. The only
criterion in dispute here was whether Tanner
“possess[ed] a firearm or other dangerous weapon (or
induce[d] another participant to do so) in connection with
the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G.
§ 5C1.2(a)(2). The government argued at the sentencing
hearing that when Tanner sold firearms in January 2016, he
possessed those guns “in connection with” his
December 2016 drug offenses.
phrase “in connection with” is not defined in the
statute or correlating sentencing guideline. Typically,
courts conduct fact-bound and contextual inquiries, focusing
on details like “the circumstances in which the
firearms were found, ” the “implausibility of the
defendants' explanations” for how the guns were
unconnected to the drugs, or the types or quantity of weapons
possessed. United States v. Ferryman, 444 F.3d 1183,
1186 (9th Cir. 2006); see United States v.
Fernandez, 526 F.3d 1247, 1252 (9th Cir. 2008). Courts
have described “in connection with, ” for
purposes of safety valve eligibility, as involving a
“close connection linking the individual defendant, the
weapon and the offense.” United States v.
Zavalza-Rodriguez, 379 F.3d 1182, 1187 (10th Cir. 2004).
A defendant may “possess a firearm in connection with
a drug offense if the firearm is in proximity to drugs or if
the firearm facilitates the drug offense, whether by
emboldening an actor who had the ability to display or
discharge the weapon, by serving as an integral part of a
drug transaction as in a barter situation, by instilling
confidence in others who relied on the defendant, or serving
as a ‘badge of office' to help the defendant avoid
detection.” United States v. Carillo-Ayala,
713 F.3d 82, 93 (11th Cir. 2013) (citations omitted).
often compare the safety valve provision to U.S.S.G. §
2D1.1(b)(1), which authorizes a two-level enhancement to a
defendant's offense level if “a dangerous weapon
(including a firearm) was possessed.” Although they
share somewhat similar language, sections 2D1.1(b)(1) and
5C1.2(a)(2) have different burdens of proof. To avoid the
enhancement under section 2D1.1(b)(1), the defendant must
prove it is “clearly improbable” he possessed a
firearm in connection with the offense. See id.,
cmt. 11(A) (“The enhancement should be applied if the
weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.”). But with
respect to the safety valve, the defendant need only show by
a preponderance of the evidence that he did not possess a
firearm in connection with the offense. See
Ferryman, 444 F.3d at 1186; United States v.
Nelson, 222 F.3d 545, 550 (9th Cir. 2000). Therefore,
the standard for thwarting the weapon-possession enhancement
is generally higher for a criminal defendant - it is possible
to possess a firearm for purposes of the enhancement under
U.S.S.G. § 2D1.1(b)(1) but not “in connection
with” a drug offense for purposes of safety valve
relief. See Nelson, 222 F.3d at 551;
Zavalza-Rodriguez, 379 F.3d at 1188 (“The
scope of activity covered by § 2D1.1 is broader than the
scope of activity covered by § 5C1.2.”); see,
e.g., United States v. Mendez-Velarde, 798
F.Supp.2d 1249, 1256 (D.N.M. 2011).
this legal backdrop, the government was clearly wrong to
argue that Tanner's January 2016 gun crimes were
“in connection with” his December 2016 drug
crimes merely because he sold the drugs to the same person
who previously bought the guns from him. To be sure, the
government need not have demonstrated that the defendant
physically possessed the gun at the precise time he executed
the drug transaction. See Fernandez, 526 F.3d at
1250. But the amount of time that separated Tanner's
firearm and drug offenses made it virtually impossible to
conclude that the former was “in connection with”
the latter. Perhaps there could be some highly unusual
circumstance where the possession of a firearm 11 months
earlier could facilitate the sale of drugs 11 months later,
but no such circumstance is present here. Indeed, neither the
probation officer nor the government proposed to apply the
two-level enhancement for possession of a firearm during the
course of committing a drug-related crime under U.S.S.G.
§ 2D1.1(b)(1), which itself belied the government's
assertion that the safety valve criterion was not
around this, the government argued for application of another
standard altogether, namely, a “common scheme or
plan” standard akin to the one applied to join the
offenses for trial under Rule 8(a) of the Federal Rules of
Criminal Procedure. Under that standard, Tanner's guns
and drugs convictions could be considered parts of a common
scheme or plan, and thus Tanner would be ineligible for
safety valve relief. The government's argument, however,
didn't make sense in light of the distinction courts draw
between possession of a firearm under U.S.S.G. §
2D1.1(b)(1), and possession “in connection with the
offense, ” under U.S.S.G. § 5C1.2. In fact, the
government's position would flip the dynamic between the
two provisions: It would be more difficult for a criminal
defendant to demonstrate safety valve eligibility than to
defeat a sentencing enhancement under U.S.S.G. §
these reasons, Tanner's gun offenses were not “in
connection with” his drug offenses so as to deny him
safety valve eligibility.
IS SO ORDERED.
 It bears noting that in
Fernandez, a Ninth Circuit panel mis-cited
Ferryman and Nelson for the defendant's
burden to prove safety valve relief. See 526 F.3d at
1252. Although Ferryman and Nelson clearly
delineate a difference between the “clearly
improbable” standard under U.S.S.G. § 2D1.1(b)(1)
and the preponderance of the evidence standard under U.S.S.G.
§ 5C1.2(a)(2), Fernandez states that for safety
valve relief “[t]he burden is on the defendant to prove
that it was ‘clearly improbable' that he possessed
a firearm in connection with the offense.” 526 F.3d at
1252 (quoting Ferryman, 444 F.3d at 1186). This
error has not been replicated in subsequent Ninth Circuit
cases. See, e.g., United States v.
Washington, 580 Fed.Appx. 578, 578 (9th Cir. 2014);
United States v. Suastegui, 513 Fed.Appx. 637, 638
(9th Cir. 2013); United States v. Mah, 439 Fed.Appx.
653, 653 (9th Cir. 2011); United States v. Tarrer,
363 Fed.Appx. 479, 480-81 (9th Cir. 2010). Therefore, the
error is best understood as harmless dicta.
 For that matter, even if the more
demanding standard under U.S.S.G. § 2D1.1(b)(1) had
applied, Tanner ...