In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1336 UNITED STATES OF AMERICA, Plainti?-Appellee, v. JERMAINE STAMPS, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 19-cr-00102 — William M. Conley, Judge. ____________________ ARGUED DECEMBER 3, 2020 — DECIDED DECEMBER 29, 2020 ____________________ Before SYKES, Chief Judge, and FLAUM and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Jermaine Stamps pled guilty to pos- session with intent to distribute methamphetamine in viola- tion of 21 U.S.C. § 841(a)(1). Because his conduct involved more than 50 grams of methamphetamine, Stamps faced a statutory minimum 60-month prison sentence unless he qual- i?ed for the “safety-valve” provision of 18 U.S.C. § 3553(f). The district court sentenced Stamps to 60 months in prison— 2 No. 20-1336 the lowest sentence possible—based on its ?nding that Stamps possessed a ?rearm in connection with his drug of- fense, therefore disqualifying him from safety-valve relief. There is no question that Stamps illegally owned a gun. The district court’s ?nding that Stamps possessed the gun in connection with his drug o?ense, however, was based on a legal error. Rather than evaluating whether Stamps had shown by a preponderance of evidence that the gun was un- related to his drug o?ense, the district court found only that Stamps could not prove that it was “clearly improbable” that the gun was connected to his drug o?ense, imposing a higher burden on Stamps than is required for him to prove safety- valve eligibility. The district court’s error was not harmless. We thus vacate Stamps’s sentence and remand for resentenc- ing. I. Background Stamps was living in Fitchburg, Wisconsin when, on ?ve di?erent occasions, he sold methamphetamine to a police in- formant. All ?ve sales took place in public—the ?rst four near a shopping mall and the ?fth near a Walgreens Pharmacy. Fol- lowing the ?nal sale, police followed Stamps to his home and, after obtaining a search warrant, executed a search of his two- bedroom apartment. In one of the bedrooms, police found two bags of methamphetamine, each containing over 25 grams, as well as packaging material, a scale, and a glass pipe. In the second room (Stamps’s bedroom), police found a loaded handgun stored between Stamps’s mattress and box spring, as well as Stamps’s wallet and $1,079 in cash. The po- lice arrested Stamps. No. 20-1336 3 Once in custody, Stamps came clean about his drug deal- ing. He confessed to having sold drugs for the last ?ve years, and estimated having ten regular customers to whom he sold primarily methamphetamine, and occasionally heroin. Stamps initially denied owning any weapons, but later admit- ted owning a 9mm Glock handgun, but for reasons unrelated to his drug dealing business. Stamps told police that he bought the gun as a measure of self-defense after receiving a series of physical threats from people in his community. The threats arose from Stamps’s wrongful implication in a 2017 murder investigation. At the time, Stamps o?cially cleared his name—the police corrobo- rated his alibi and no longer considered him a suspect. Unof- ?cially, however, others in the community continued to hold Stamps responsible for the murder and threatened to harm him in retribution. On one occasion, someone even ?red shots into Stamps’s apartment. At that point, Stamps explained, he purchased a gun for protection. In August 2019, a federal grand jury returned an indict- ment against Stamps, charging him with ?ve drug-related counts, and one count of possession of a ?rearm as a con- victed felon in violation of 18 U.S.C. § 922(g). * Three months later, in November 2019, Stamps pled guilty to one count of possession of methamphetamine with intent to distribute 50 grams or more in violation of 21 U.S.C. § 841(a)(1). The U.S. Probation O?ce prepared a presentence investi- gation report (“PSR”) in advance of Stamps’s sentencing. The * Stamps was prohibited from possessing a ?rearm as a result of an unre- lated 2010 felony conviction in Wisconsin. 4 No. 20-1336 PSR recommended a two-level increase under the Sentencing Guidelines pursuant to § 2D1.1(b)(1) based on the weapon re- covered from Stamps’s apartment. The report noted that while Stamps “may have been prompted to obtain the ?rearm in response to the allegations and threats” following his wrongful implication in the 2017 murder, Stamps “was a long-term drug distributor who illegally possessed a ?rearm in the apartment where he maintained his stash of drugs and drug distribution paraphernalia.” Accordingly, “[i]t is not clearly improbable that the ?rearm was connected with the o?ense.” Given the ?rearm, the PSR did not recommend Stamps receive safety-valve relief. Stamps appeared before the district court on February 12, 2020 for sentencing. The district court noted that Stamps ob- jected to the ?rearm enhancement “which disquali?es him from the safety valve relief under Section 3553(f).” The district court overruled the objection and added the two-level en- hancement under § 2D1.1. In applying the ?rearm enhance- ment, the court explained that “the defendant possessed a dangerous weapon and it is not clearly improbable that the Glock 9 millimeter handgun … was connected with the de- fendant’s relevant drug tra?cking conduct.” The district court did not apply the safety-valve reduction. After calculating the guideline range of 70 to 87 months with a 60-month mandatory minimum, the district court asked for further comments before imposing the sentence. When the government raised the issue of defendant’s lower burden of proof for the safety-valve reduction than for the ?rearm enhancement, the district court responded that it had “already addressed the objection” and it thought “that is a misstatement of the law.” No. 20-1336 5 The government then asked the court to clarify whether it had ruled on Stamps’s argument that he only had to prove by a preponderance of the evidence that the ?rearm was not used in connection with his o?ense in order to qualify for safety- valve relief. Referring to its earlier discussion of the ?rearm, the court stated: “I already ruled that the safety valve wasn’t available.” Then the following exchange took place: Government: But is the Court ?nding that [Stamps’s counsel] is incorrect, that her burden is not lower for the safety valve provision? Court: Yes. I mean, it’s a preponderance of the evidence -- Government: Right. Court: -- but more than that it’s -- the standard is clearly improbable, which raises the burden, which is why I feel compelled to make the ?nd- ing that I made. The district court then sentenced Stamps below the guide- line range to the 60-month mandatory minimum. The court explained that “that sentence more than adequately addresses the dangerous conduct the defendant was in,” and noted fur- ther: “Particularly if I account for his candor with law enforce- ment and the fact that he has never spent any time in prison before, I might well, but for the statute, have considered a lower sentence.” II. Discussion Stamps argues on appeal that the district court applied the wrong standard in ?nding him ineligible for safety-valve re- lief, and that we must vacate his sentence so that the district 6 No. 20-1336 court can consider his safety-valve eligibility under the cor- rect legal standard. The government concedes this error. We agree and vacate Stamps’s sentence. We review the district court’s interpretation of the safety- valve provision under the statute and the Sentencing Guide- lines de novo. United States v. Collins,
, 441 (7th Cir. 2019). We review the district court’s factual ?ndings and its ultimate determination of a defendant’s safety-valve eligi- bility for clear error.
the two-level ?rearm enhancement, and further argued that he was not subject to the 60-month mandatory minimum sentence because he quali?ed for relief under the safety valve. Under the safety-valve provision, a court can sentence a defendant below the statutory minimum sentence accompanying certain drug-related o?enses if the defendant meets ?ve criteria: (1) his criminal history is mini- mal; (2) he did not use or threaten violence or possess a ?re- arm in connection with his o?ense; (3) the o?ense did not re- sult in death to any person; (4) he was not an organizer or leader in the o?ense; and (5) he truthfully provided all infor- mation and evidence about the o?ense to the government be- fore his sentencing hearing. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. It is undisputed that Stamps meets four out of the ?ve criteria, and the only factor in question is whether he possessed his gun “in connection with” his o?ense. Simi- larly, § 2D1.1(b)(1) provides for a two-level enhancement if Stamps possessed a dangerous weapon. Thus, whether Stamps possessed a gun in connection with his drug o?ense is central to both his eligibility for safety- valve relief and the application of the § 2D1.1(b)(1) Guidelines enhancement. Once the government proves his possession of No. 20-1336 7 the ?rearm, the burden then shifts to Stamps under both the safety valve and § 2D1.1(b)(1), but the burden of proof is dif- ferent and distinct for each section. In United States v. Fincher,
(7th Cir. 2019), we explained that for safety-valve eligibility, the defendant needs to prove only by a preponder- ance of evidence that he did not possess the gun in connection with his o?ense.
. To challenge a § 2D1.1(b)(1) enhancement, however, the defendant must show that it was “clearly improbable” that he possessed the gun in connection his o?ense.
argued that it was clearly improba- ble he possessed the gun in connection with his o?ense, so the Guidelines enhancement should not apply. He separately ar- gued that he had established by a preponderance of the evi- dence that the gun was not connected to his o?ense, and so he was eligible for safety-valve relief. The district court found that Stamps could not meet the higher, “clearly improbable” standard, and, notwithstanding the government’s attempts to clarify the issue, did not separately consider whether the evi- dence met the lower, preponderance of the evidence stand- ard. Despite the government’s contention otherwise, we can- not infer from the record that the district court’s discussion of the “clearly improbable” standard means that it necessarily considered and rejected Stamps’s argument that he nonethe- less quali?ed for the safety valve under the lower standard. As we explained in Fincher, it is true that if Stamps cannot meet the lower preponderance of the evidence standard, he cannot meet the higher “clearly improbable” standard.
. It does not follow, however, that Stamps’s inability to meet the higher “clearly improbable” 8 No. 20-1336 standard automatically forecloses his chance to meet the lower preponderance of the evidence standard. The government contends that even if the district court erred, its error was harmless. “We will ?nd harmless error ‘when the government has proved that the district court’s sen- tencing error did not a?ect the defendant’s substantial rights.’” United States v. Clark,
, 671 (7th Cir. 2018) (quoting United States v. Abbas,
, 667 (7th Cir. 2009)). “An error is harmless if it ‘did not a?ect the district court’s selection of the sentence imposed.’” United States v. Anderson,
, 965 (7th Cir. 2008) (quoting Williams v. United States,
, 203 (1992)). Our question is: “knowing what we now know, would the district court have selected the same sentence?”
Id. The record before
us does not allow us to conclude that had the court not erred, Stamps’s sentence would be the same. On one hand, as the government points out, the type of gun weighs against a ?nding that the gun had a purpose unrelated to the drug o?ense. Further, the government argues that the ?rearm and the drugs were located in the same apartment. But these facts are not dispositive here. On the other hand, several facts weigh in Stamps’s favor. Stamps provided a non-drug related reason for owning the gun—he wanted to be able to protect himself after he was wrongfully accused of murder. The district court found him credible, and other evidence in the record corroborated his story. Stamps, for example, bought the gun after being impli- cated in the murder, though he had already been selling drugs for a couple of years at that point. Stamps also argued that he conducted all of his drug deals outside of his home, none of his customers knew where he lived, and he never carried the No. 20-1336 9 gun with him to drug transactions. In addition, in contrast to Fincher, the ?rearm was located in a di?erent room than the drugs. Whether safety-valve relief is appropriate is a fact-in- tensive inquiry. We remand for the district court to decide in the ?rst instance whether Stamps has met the preponderance of the evidence standard. The district court’s statements at sentencing underscore our ?nding that its error was not harmless. The district court speci?cally stated that “but for the statute” it “might well” have considered a lower sentence. In other words, if Stamps had quali?ed for safety-valve relief, the district court might have imposed a shorter sentence. We therefore cannot say that the district court’s error was harmless and did not a?ect Stamps’s sentence. VACATED AND REMANDED.