In United States v. Carrasquillo, 19-14143 (July 14, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed defendant's 60-month sentence for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute.
Defendant first argued that the district court erred by failing to elicit objections after imposing his sentence, thereby committing Jones error. The Court agreed that the district court erred, but concluded that remand was unnecessary because the record was sufficient to permit appellate review of the sentencing issue raised.
Defendant next argued that the district court improperly conflated the standards under U.S.S.G. § 2D1.1(b)(1)--which provides for a two-level increase if a dangerous weapon, including a firearm, "was possessed"--and U.S.S.G. § 5C1.2(a)(2)--the "safety-valve" provision that permits a district court to impose a sentence without regard to an otherwise-applicable mandatory minimum if certain criteria are satisfied, including if the defendant did not "possess a firearm . . . in connection with the offense"-- when it denied him safety-valve relief after finding that he was subject to a two-level enhancement for possessing a firearm.
The Court agreed that there is "daylight" between the standards under § 2D1.1(b)(1) and § 5C1.2(a)(2). While a defendant must show that it is "clearly improbable" the gun was connected to the offense to prevent application of § 2D1.1(b)(1), he need only "tip the scale towards improbability--a lighter burden" to qualify for safety valve relief. The Court also agreed that application of the firearm enhancement does not necessarily preclude safety-valve relief. But, the Court nonetheless affirmed because, on the record, the district court's factual findings under § 2D1.1(b)(1) foreclosed relief under § 5C1.2(a)(2). There is overlap between § 2D1.1(b) and § 5C1.2(a)(2), and that overlap results from the common issue of connectivity. A § 2D1.1(b)(1) factual finding that there is a connection between the firearm and the offense, if supported by the record, means that the defendant cannot satisfy § 5C1.2(a)(2).