                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18‐2520
UNITED STATES OF AMERICA,
                                                   Plaintiff‐Appellee,
                                 v.

CLAUDIUS L. FINCHER,
                                               Defendant‐Appellant.
                     ____________________

         Appeal from the United States District Court for the
                    Western District of Wisconsin.
          No. 17‐cr‐00096 — James D. Peterson, Chief Judge.
                     ____________________

       ARGUED APRIL 17, 2019 — DECIDED JULY 9, 2019
                     ____________________

   Before MANION, SYKES, and BRENNAN, Circuit Judges.
    MANION, Circuit Judge. Claudius Fincher possessed a fire‐
arm; 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
2                                                 No. 18‐2520

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.
                       I. Background
    Fincher 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.
    At some point after moving to Wisconsin, Fincher became
involved in a drug‐selling operation with Brunt. Law enforce‐
ment spotted them departing from and returning to an apart‐
ment 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 apart‐
ment was a woman who resided in Chicago. In September
2017, Fincher and Brunt were arrested after selling heroin to
undercover police oﬃcers.
    On the day Fincher and Brunt were arrested, the police
searched the apartment. The apartment was sparsely fur‐
nished, 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 bed‐
room 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.
No. 18‐2520                                                     3

    Fincher 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.
     Fincher’s oﬀense carried a mandatory minimum sentence
of five years. 21 U.S.C. § 841(b)(1)(B)(i). The safety‐valve pro‐
vision of 18 U.S.C. § 3553(f), however, provides the potential
for relief from a mandatory minimum sentence for certain of‐
fenses, 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 infor‐
mation and evidence related to the oﬀense to the government
before the sentencing hearing. Id.
    During the early stages of this case, it appeared Fincher
might qualify for safety‐valve relief because he had no crimi‐
nal 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.”1 Throughout the discus‐
sion, however, the judge emphasized that Fincher would have
to meet the statutory criteria to qualify for safety‐valve relief.
   The initial presentence report did not recommend the fire‐
arm enhancement under U.S.S.G. § 2D1.1(b)(1). After a

   1   Plea Hr’g Tr. at 17–18 (emphasis in original).
4                                                    No. 18‐2520

forensic report revealed Fincher’s DNA on the firearm recov‐
ered 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 oﬀense.
    Fincher requested a presentence determination of his eli‐
gibility 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 in‐
eligible for safety‐valve relief and subject to a two‐level en‐
hancement. In doing so, the court rejected Fincher’s argument
that under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Al‐
leyne v. United States, 570 U.S. 99 (2013), the district court was
precluded from making factual findings regarding his safety‐
valve eligibility.
   At sentencing, the district court concluded Fincher’s
Guidelines range was 57 to 71 months’ imprisonment. Due to
the large quantity of heroin involved, however, a five‐year
mandatory minimum sentence applied. 21 U.S.C.
§ 841(b)(1)(B)(i). Fincher was sentenced to five years’ impris‐
onment. He appeals.
                        II. Discussion
   Fincher raises two challenges to the district court’s sen‐
tence. One is constitutional, asserting the district court’s find‐
ing precluding safety‐valve eligibility violated the Sixth
Amendment. The other is factual, asserting the district court
No. 18‐2520                                                     5

clearly erred in finding Fincher’s possession of the gun was in
connection with his oﬀense.
   A. Alleyne and Safety‐Valve Eligibility Factors
    Fincher challenges the district court’s finding that his pos‐
session of the handgun was in connection with his oﬀense as
a violation of the Sixth Amendment under Apprendi and Al‐
leyne. We review such challenges de novo. United States v.
Wolfe, 701 F.3d 1206, 1216 (7th Cir. 2012).
    The Supreme Court established in Apprendi that the Sixth
Amendment and the Due Process Clause of the Fifth Amend‐
ment, taken together, “indisputably entitle a criminal defend‐
ant to ‘a jury determination that [he] is guilty of every element
of the crime with which he is charged, beyond a reasonable
doubt.’” 530 U.S. at 476–77; see also U.S. CONST. amends. V, VI.
The Court concluded that any fact (other than a prior convic‐
tion) that “increases the penalty for a crime beyond the pre‐
scribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
    In Alleyne, the Court reasoned any fact other than a prior
conviction that alters the prescribed sentencing range in a
way that aggravates the penalty is an element of the crime to
which Apprendi applies. Such a fact “necessarily forms a con‐
stituent part of a new oﬀense.” Alleyne, 570 U.S. at 114–15. The
Court held facts that increase the mandatory minimum aggra‐
vate the crime’s penalty. Id. at 103. “[T]he core crime and the
fact triggering the mandatory minimum sentence together
constitute a new, aggravated crime, each element of which
must be submitted to the jury.” Id. at 113.
   Fincher seeks to extend the reasoning of Alleyne to pre‐
clude judicial factfinding of safety‐valve eligibility factors. As
6                                                     No. 18‐2520

Fincher’s argument goes, the safety‐valve provision controls
the application of the mandatory minimum: if the defendant
is found to be ineligible for safety‐valve relief, he is subject to
a mandatory minimum from which he would otherwise be
free. In Fincher’s case, the application of a five‐year manda‐
tory minimum hinged on the finding that he possessed the
gun in connection with his oﬀense. Thus, he argues that find‐
ing increased his mandatory minimum sentence.
    This court has not yet considered the question of whether
Alleyne bars judicial factfinding of safety‐valve eligibility.
Each of the other circuits that have considered the question,
however, has concluded it does not. Four circuits have issued
published opinions to this eﬀect. United States v. Leanos, 827
F.3d 1167, 1169–70 (8th Cir. 2016); United States v. King, 773
F.3d 48, 55 (5th Cir. 2014); United States v. Lizarraga‐Carrizales,
757 F.3d 995, 997–99 (9th Cir. 2014); United States v. Harakaly,
734 F.3d 88, 97–99 (1st Cir. 2013). Three others have issued un‐
published opinions or orders to the same eﬀect. United States
v. Caballero, 672 Fed. App’x 72, 74–75 (2d Cir. 2016); United
States v. Juarez‐Sanchez, 558 Fed. App’x 840, 843 (10th Cir.
2014); United States v. Silva, 566 Fed. App’x 804, 807–08 (11th
Cir. 2014).
    Underlying these decisions is the recognition that a man‐
datory minimum sentence is not increased by the defendant’s
ineligibility for safety‐valve relief. Rather, it is already trig‐
gered by the oﬀense; the safety‐valve provision merely pro‐
vides lenity. Since “Alleyne, by its terms, applies to facts that
‘increase[] the mandatory minimum,’” it does not apply to ju‐
dicial factfinding that precludes safety‐valve relief because
such factfinding “does not increase [the] baseline minimum
sentence.” See Harakaly, 734 F.3d at 97–99. “A fact that
No. 18‐2520                                                  7

precludes safety‐valve relief does not trigger or increase the
mandatory minimum, but instead prohibits imposition of a
sentence below a mandatory minimum already imposed as a
result of the guilty plea or jury verdict.” Id. at 98.
    We find this reasoning sound. In Fincher’s case, the man‐
datory minimum sentence is triggered by the statutes defin‐
ing his oﬀense. 21 U.S.C. §§ 841(B), 846. The safety‐valve pro‐
vision potentially allows for relief from that mandatory mini‐
mum, but it does not increase or trigger it.
     Fincher argues this reasoning is improperly formalistic.
He contends it draws a distinction based only on the diﬀer‐
ence between stating something in positive versus negative
language. He informs us “a condition that causes something
to not not happen, makes it happen.” We disagree. The dis‐
tinction is more than merely positive versus negative phras‐
ing. It goes to the heart of Alleyne’s purpose, which is to de‐
termine what constitutes an “element” of a crime. Alleyne, 570
U.S. at 114 (“[T]he essential Sixth Amendment inquiry is
whether a fact is an element of the crime.”). Under Alleyne, a
fact that combines with the base oﬀense to create a new, ag‐
gravated oﬀense is an element of the crime. Id. at 113. Safety‐
valve eligibility factors do not combine with the base oﬀense
to create a new, aggravated crime. Instead, the base oﬀense
triggers the mandatory minimum on its own. Safety‐valve el‐
igibility mitigates the oﬀense’s penalty; it does not aggravate
it. See King, 773 F.3d at 55.
    Therefore, we hold that judicial factfinding precluding
safety‐valve relief does not violate the Sixth Amendment. The
8                                                     No. 18‐2520

district court did not err under Alleyne by finding Fincher pos‐
sessed the gun in connection with his oﬀense.
    B. Possession in Connection with the Oﬀense
    Fincher challenges the district court’s finding that his pos‐
session of the firearm was connected to his oﬀense of conspir‐
acy to distribute heroin. Based on this finding, the court held
Fincher was ineligible for safety‐valve relief and subject to a
two‐level enhancement under the Sentencing Guidelines. We
review the district court’s factual findings underlying safety‐
valve eligibility and the sentencing enhancement for clear er‐
ror. United States v. Collins, 924 F.3d 436, 441 (7th Cir. 2019)
(standard of review for safety‐valve eligibility findings);
United States v. Kopp, 922 F.3d 337, 341 (7th Cir. 2019) (stand‐
ard of review for Guidelines enhancement findings).
    Because whether Fincher possessed the gun in connection
with the crime is central to both his safety‐valve eligibility and
the application of the Guidelines enhancement, Fincher’s ar‐
guments against both are the same. The burden of proof, how‐
ever, is diﬀerent for each. For safety‐valve eligibility, Fincher
had to prove to the district court by a preponderance of the
evidence that he did not possess the gun in connection with
his oﬀense. United States v. Ramirez, 783 F.3d 687, 692 (7th Cir.
2015). Concerning the firearm enhancement, once the govern‐
ment proved through DNA evidence that Fincher possessed
the gun, the burden shifted to Fincher to show it was “clearly
improbable” his possession was in connection with his of‐
fense. United States v. Rea, 621 F.3d 595, 606 (7th Cir. 2010).
Fincher cannot meet the “clearly improbable” standard if he
fails to meet the lower preponderance of the evidence stand‐
ard. Cf. United States v. Bolton, 858 F.3d 905, 914 (4th Cir. 2017)
(discussing the interplay between these burdens of proof). We
No. 18‐2520                                                 9

therefore focus our discussion on whether the district court
clearly erred by finding Fincher had not met the preponder‐
ance of the evidence burden.
    Fincher argues there was a lack of “specific” evidence of
connection to the crime. By this, he means there was no evi‐
dence drugs were sold in the apartment where the gun was
located, no evidence he possessed or mentioned the gun while
selling drugs, and no evidence his DNA was transferred to
the gun during the conspiracy period rather than at some
point before. He argues that, in the absence of specific evi‐
dence connecting a gun to the crime, a district court should
not be able to make such a finding. Otherwise, he asserts, de‐
fendants who lawfully possess a weapon must undertake the
virtually impossible task of proving a negative to show it was
not possessed in connection with the crime.
   But the danger of which Fincher warns—a district court’s
presumption of a connection based merely on evidence of
possession—is not present here. The evidence the district
court relied on is not as scant as Fincher makes it out to be.
    The court recited several facts beyond Fincher’s mere pos‐
session to support the conclusion the gun was possessed in
connection with the oﬀense. The court noted the handgun
was not a hunting gun, so the type of firearm did not suggest
it had a purpose unrelated to the oﬀense. Some ammunition
was stored in the closet where the drugs were stored, and the
gun was kept loaded and in a readily accessible place. The
small size of the apartment and consequent proximity be‐
tween the loaded gun and the drug stash also supported the
10                                                 No. 18‐2520

conclusion that the gun’s purpose was to protect the drug op‐
eration.
    Perhaps most relevant was the court’s finding that the
apartment where the handgun was located appeared to be
specifically used as a base of operations for the drug conspir‐
acy. Neither Fincher nor Brunt was the legal renter of the
property. The evidence suggested Fincher had only resided
there temporarily during the conspiracy and for the purpose
of furthering the conspiracy. Furthermore, Fincher presented
no evidence the gun was used for any purpose other than pro‐
tecting the drug operation. Given the deference owed to the
district court’s findings, we see no justification for overturn‐
ing the court’s finding that the gun was possessed in connec‐
tion with the drug conspiracy.
    We hold the district court did not err in finding Fincher
failed to show by a preponderance of the evidence his posses‐
sion of the handgun was not in connection with his oﬀense.
Thus, the district court properly denied safety‐valve relief.
Furthermore, since Fincher consequently could not show it
was “clearly improbable” that he possessed the gun in con‐
nection with his oﬀense, the court properly applied the two‐
level firearm enhancement.
                      III.   Conclusion
   For the reasons stated above, we AFFIRM the sentence of
the district court.
