At page 1343 Determining if co-conspirator firearm possession affects safety valve25 citing casesfinding defendant was “entitled to safety-valve relief even though his co-defendant possessed a firearm
- United States v. Jerry Sanchez Carrasquillo, 4 F.4th 1265 (11th Cir. 2021).publishedAs we have put it, “[m]ere possession by a co-defendant, . . . while sufficient to trigger [§] 2D1.1(b)(1), is insufficient to knock a defendant out of the safety-valve protections of [§] 5C1.2.” United States v. Clavijo, 165 F.3d 1341, 13…
- United States v. Nestor Barron, 940 F.3d 903 (6th Cir. 2019).publishedThe firearm enhancement under U.S.S.G. § 2D1.1(b), on the other hand, “uses the passive voice—requiring enhancement if a firearm ‘was possessed,’ . . . —and omits any reference to the defendant.” In re Sealed Case, 105 F.3d at 1463 (quotin…
- United States v. Maria Ramirez, 783 F.3d 687 (7th Cir. 2015).publishedSee United States v. Delgado-Paz, 506 F.3d 652, 656 (8th Cir.2007); United States v. Figueroa-Encamación, 343 F.3d 23, 34 (1st Cir.2003); United States v. Penar-Sarabia, 297 F.3d 983, 989 (10th Cir.2002); United States v. Clavijo, 165 F.3d…
- United States v. Arturo Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013).published United States v. Clavijo, 165 F.3d 1341, 1343-44 (11th Cir. 1999) (per curiam); In re Sealed Case, 105 F.3d 1460, 1462-63 (D.C.
- United States v. Jose Solis, 460 F. App'x 894 (11th Cir. 2012).unpublishedUnless the defendant “induces” another’s possession according to the language of § 5C1.2(a)(2), we have held that “pos *896 session” of a firearm, with respect to the safety-valve provision, “does not include reasonably foreseeable possess…
- United States v. Mendez-Velarde, 798 F. Supp. 2d 1249 (D.N.M. 2011).published(holding that it is error to conclude that “because the co-defendant’s firearm was attributed to Clavijo under section 2Dl.l(b)(l), it necessarily follows that the same firearm would be attributed to Clavijo under sectio…)
- United States v. Steven R. Hollander, 287 F. App'x 74 (11th Cir. 2008).unpublishedHe bases his argument on our decision in United States v. Clavijo, 165 F.3d 1341, 1343-44 (11th Cir.1999) (per curiam), that “possession” of a firearm within the meaning of the safety-valve provision of U.S.S.G. § 501.2(a)(2), does not inc…
- United States v. Delgado-Paz, 506 F.3d 652 (8th Cir. 2007).published See United States v. Figueroa-Encarnación, 343 F.3d 23, 34 (1st Cir.2003); United States v. Pena-Sarabia, 297 F.3d 983, 989 (10th Cir.2002); United States v. Clavijo, 165 F.3d 1341, 1343-44 (11th Cir.1999) (per curiam); United States v. Wi…
- United States v. Matias, 465 F.3d 169 (5th Cir. 2006).publishedAccord United States v. Figueroa-Encarnacion, 343 F.3d 23, 34-35 (1st Cir.2003); United States v. Pena-Sarabia, 297 F.3d 983, 988-89 (10th Cir.2002); United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir.1999); United States v. Wilson, 1…
- United States v. Carlos Herrera, 446 F.3d 283 (2d Cir. 2006).publishedSee United States v. Figueroa-Encarnacion, 343 F.3d 23, 35 (1st Cir.2003); United States v. Pena-Sarabia, 297 F.3d 983, 989 (10th Cir.2002); United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir.1999); United States v. Wilson, 114 F.3d 4…
Show 10 more citing cases
- United States v. Jose Rolando Garcia, 405 F.3d 1260 (11th Cir. 2005).published United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir.1999). 56 The safety-valve provision outlines five criteria that, if met, enable the district court to sentence a defendant without regard to the mandatory minimum sentences in certai…
- United States v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004).published(holding that it is error to conclude that “because the co-defendant’s firearm was attributed to Cla-vijo under section 2D1.1(b)(1), it necessarily follows that the same firearm would be attributed to Clavijo under secti…)
- United States v. Likins, 84 F. App'x 504 (6th Cir. 2003).unpublishedUnited States v. Figueroa-Encarnacion, 343 F.3d 23 (1st Cir.2003); United States v. Pena-Sarabia, 297 F.3d 983, 989 (10th Cir.2002); United States v. Clavijo, 165 F.3d 1341, 1343-44 (11th Cir.1999); United States v. Wilson, 114 F.3d 429, 4…
- United States v. RamÓn Figueroa-encarnaciÓn, United States of Am. v. Alberto Medina, 343 F.3d 23 (1st Cir. 2003).published(finding defendant was “entitled to safety-valve relief even though his co-defendant possessed a firearm)
- United States v. Figueroa-Encarnacion, No. 01-1460 (1st Cir. July 3, 2003).published(finding defendant was "entitled to safety-valve relief even though his co-defendant possessed a firearm)
- United States v. Hunt, 56 F. App'x 210 (4th Cir. 2003).unpublishedUnited States v. Wilson, 114 F.3d 429, 432 (4th Cir.1997) (holding that “for purposes of § 5C1.2(2), the term ‘defendant’ ‘limits the accountability of the de- fendant to his own conduct and conduct that he aided or abetted, counseled, com…
- United States v. Jeffrey Harris, 230 F.3d 1054 (7th Cir. 2000).published App. C, amendment 555 (Nov. 1997). /2 We recently affirmed Michael Harris’s convictions in United States v. Thornton, 197 F.3d 241 (7th Cir. 1999). /3 See United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir. 1999); United States v. Wil…
- United States v. Brownlee, 204 F.3d 1302 (11th Cir. 2000).published United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir. 1999).
- Jeffery Harris v. United States, 366 F.3d 593 (7th Cir. 2004).published See United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir.1999).
- United States v. Matos, 589 F. Supp. 2d 121 (D. Mass. 2008).published(finding defendant was "entitled to safety-valve relief even though his co-defendant possessed a firearm)
At page 1342 Reviewing factual determinations and legal conclusions de novo3 citing casesnoting the term “defendant” as used in subsection (2) limits the defendant’s accountability “to his own conduct and conduct that he aided and abetted, counseled, commanded, induced, procured, or willfully caused” (quotation omitted)
- United States v. Luis Abel Nevarez, 683 F. App'x 842 (11th Cir. 2017).unpublished(noting the term “defendant” as used in subsection (2) limits the defendant’s accountability “to his own conduct and conduct that he aided and abetted, counseled, commanded, induced, procured, or willfully caused” (quota…)
- United States v. Kevin Tramaine Chavous, 545 F. App'x 813 (11th Cir. 2013).unpublished(Although Clavijo had no knowledge of the firearm, he had nonetheless possessed a firearm under the broad language of section 2D1.1(b)(1).)
- United States v. Willie Thompson, Jr., No. 09-12011 (11th Cir. Feb. 24, 2010).unpublishedSee, e.g., United States v. Edwards, 166 F.3d 1362, 1363 (11th Cir. 1999) (controlled substance); United States v. Sweeting, 933 F.2d 962, 965 (11th Cir. 1991) (firearm); see also United States v. Clavijo, 165 F.3d 1341, 1342-43 (11th Cir.…
Other citing cases
- United States v. Jose Benitez-Garcia, 382 F. App'x 921 (11th Cir. 2010).unpublished
v.
Esteban CLAVIJO, Defendant-Appellant
This appeal is about sentencing. Defendant, Esteban Clavijo, appeals the district court’s denial of U.S.S.G. § 5C1.2 safety-valve relief and imposition of a mandatory minimum five-year sentence for Clavijo’s drug offense involving over 100 plants of marijuana. Because the district court erred in its reading of the Sentencing Guidelines, we vacate the sentence and remand.
Background
Esteban Clavijo, pursuant to an agreement with the Government, pled guilty to conspiracy to possess with intent to distribute marijuana under 21 U.S.C. § 846 and possession with intent to distribute marijuana under 21 U.S.C. § 841(a)(1). His base offense level was established at 18. Two points were added under U.S.S.G. § 2D1.1(b)(1) because Clavijo had worked in two of three marijuana grow houses and a shotgun — belonging to a co-conspirator — was found in the third grow house. Although Clavijo had no knowledge of the firearm, he had nonetheless possessed a firearm under the broad language of section 2D1.1(b)(1). [1] Clavijo was also awarded a three-point reduction because he timely accepted responsibility for the crime. His total offense level then was 17 and, with no prior convictions, should have produced a sentence of 24-30 months. But, because Clavijo’s offense involved over 100 plants of marijuana, he was subject to a five-year mandatory minimum statutory sentence, see 21 U.S.C. § 841(b)(1)(B)(vii); U.S.S.G. § 5G1.1(b), unless he met the safety-valve requirements of section 5C1.2.
In preparing the Presentence Investigation Report, the probation officer concluded that, because Clavijo had received a two-level adjustment for possession of a firearm pursuant to section 2D1.1(b)(1), he was precluded from the safety-valve relief of section 5C1.2. Both the Government and Clavijo disagreed. Over objections by Clavijo, the sentencing court agreed with the probation officer and ruled the safety-valve provision inapplicable:
[Clavijo] has two problems. One, he doesn’t meet the [safety-valve] criteria because the possession of a firearm is attributed to him. Secondly, in order to get the safety valve, he has to be [above offense level] 26. [2] So there are two grounds that[*1343] he was not ... eligible for it. That’s my reading of it.
The court sentenced Clavijo to the mandatory minimum 60 months in prison, followed by four years of supervised release.
Discussion
The application of the federal sentencing guidelines to uncontroverted facts is a legal issue to be reviewed de novo. See United States v. Antonietti, 86 F.3d 206, 208 (11th Cir.1996).
Clavijo is entitled to safety-valve relief even though his co-defendant possessed a firearm. As an initial matter, 21 U.S.C. § 841(b)(l)(B)(vii) provides a mandatory five-year minimum sentence for section 841(a) drug offenses involving over 100 kilograms or 100 plants of marijuana. Also, U.S.S.G. § 5Gl.l(b) states that “[wjhere a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” But, the safety-valve provision of the sentencing guidelines (section 5C1.2) states that for offenses “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 ... [provided] the defendant meets the [five] criteria ... set forth verbatim below.” These are the five guideline criteria: (1) defendant does not have more than one criminal history point; (2) defendant did not use violence or possess a firearm or induce another to possess; (3) offense did not result in death or serious bodily injury; (4) defendant was not an organizer or leader of the offense; (5) defendant has complied with the Government’s demands for information. See U.S.S.G. § 5C1.2.
Here, only the second element is in dispute. Two reasons compel our conclusion that “possession” of a firearm does not include reasonably foreseeable possession of a firearm by co-conspirators. First, the commentary to the pertinent section adds that “Consistent with § 1B1.3 (Relevant Conduct), the term ‘defendant,’ as used in subdivision (2), limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2, comment, (n.4). [3] This commentary, which tracks the language of section lB1.3(a)(l)(A), implicitly rejects the language of section lB1.3(a)(l)(B) which holds defendants responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” It is this “reasonably foreseeable” language that allows a defendant to be held responsible for a firearm under section 2Dl.l(b)(l) even when he physically possessed no firearm.
Second, the plain language of section 5C1.2 requires that the defendant “possess a firearm ... or induce another participant to do so_” If “possession” in section 5C1.2 encompassed constructive possession by a co-defendant, then “induce another participant to [possess]” would be unnecessary. Mere possession by a co-defendant, therefore, while sufficient to trigger section 2D1.1(b)(1), is insufficient to knock a defendant out of the safety-valve protections of section 5C1.2. [4]
For the purposes of section 5C1.2(2), Clavi-jo neither possessed a weapon nor induced another participant to do so. The district court erred in its assumption that, because the co-defendant’s firearm was attributed to Clavijo under section 2D1.1(b)(1), it necessar[*1344] ily follows that the same firearm would be attributed to Clavijo under section 5C1.2(2).
On the question of Defendant’s offense level, the district court erred in holding that, because Clavijo’s offense level was below 26, he was precluded from relief. Section 2Dl.l(b)(6) provides additional relief — in the form of a two point reduction in the offense level — if the section 5C1.2(2) statutory criteria are met and if the defendant’s offense level is 26 or greater. Even if a defendant’s offense level is under 26, however, he is still entitled to the safety-valve protection. He just does not get, (nor does Clavijo claim he gets), the additional two-point reduction. The safety valve — section 5C1.2(2) — makes no reference to offense levels or point reductions. Clavijo’s offense level of 17 is therefore immaterial.
We must vacate the sentence and remand for re-sentencing.
VACATED AND REMANDED.
. U.S.S.G. § 2D1.1(b)(1) applies when "the weapon [is] present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), comment. (n.3).
. While the court actually said "under 26,” we think the context, statute, and parties' arguments indicate that the court meant to say “above 26.”
. Section IB 1.3(a)(1)(A) holds a defendant responsible for "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant;"
. While we have never directly addressed this issue, the Fourth, Fifth, and District of Columbia Circuits have all concluded that a defendant is not precluded from safety-valve relief merely because a co-defendant possessed a weapon. See United States v. Wilson, 114 F.3d 429, 432 (4th Cir.1997); In re Sealed Case (Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460, 1462-63 (D.C.Cir.1997); United States v. Wilson, 105 F.3d 219, 222 (5th Cir.), cert. denied, - U.S. -, 118 S.Ct. 133, 139 L.Ed.2d 82 (1997). Only the Tenth Circuit has reached the opposite conclusion. See United States v. Hallum, 103 F.3d 87, 89-90 (10th Cir.1996) (holding that defendant is responsible for reasonably foreseeable acts of others in joint criminal activity).