United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2010 Decided January 7, 2011
No. 10-3012
UNITED STATES OF AMERICA ,
APPELLEE
v.
LENIN MARKS ERAZO ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00083)
H. Heather Shaner, appointed by the court, argued the cause
for the appellant.
Jay Apperson, Assistant U.S. Attorney, argued the cause for
the appellee. Ronald C. Machen Jr., U.S. Attorney, and
Elizabeth Trosman, John P. Mannarino and Katherine M. Kelly,
Assistant U.S. Attorneys, were on brief. Roy W. McLeese III,
Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON , Circuit Judge, and WILLIAMS and
RANDOLPH , Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON .
2
KAREN LE CRAFT HENDERSON , Circuit Judge: Appellant
Lenin Erazo (Erazo) pleaded guilty to one count of unlawful
distribution of 500 grams or more of cocaine in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii). The district court
sentenced him to sixty-four months’ incarceration followed by
forty-eight months’ supervised release, along with a special
assessment of $100 and an order to comply with deportation
directives. On appeal, Erazo argues that the district court erred
in finding him ineligible for sentencing under the “safety valve”
provision set forth in section 5C1.2 of the United States
Sentencing Guidelines (Guidelines or U.S.S.G.). We affirm the
district court as explained below.
I.
On March 6, 2008, Erazo arranged by telephone to sell two
kilograms of powder cocaine to a confidential informant (CI)
working for the District of Columbia Metropolitan Police
Department.1 Shortly after 7 p.m. Erazo and two co-defendants,
Alcides Guerra-Bautista and Juan Portillo, arrived at a parking
lot in Northeast Washington, D.C. to meet with the putative
buyers—the CI and an undercover police detective. Erazo drove
himself in a Toyota Corolla. His confederates, Bautista and
Portillo, arrived separately in a black Ford pickup truck. The CI
and detective had already arrived in an undercover police van
equipped with audio and video equipment. Erazo then stepped
out of his vehicle, approached the undercover police van and sat
down in the front passenger seat next to the detective. Inside the
van, Erazo discussed the cocaine with the detective, telling him
in Spanish, “Yes, the drugs are good, the drugs are good.” After
1
The background facts are taken from Erazo and Portillo’s plea
hearing held on August 21, 2008 and Erazo’s subsequent sentencing
hearing on September 15, 2009.
3
a short conversation, Erazo called out in Spanish, “Bring the
[stuff].” Bautista and Portillo were still sitting in the pickup
truck and, on hearing Erazo’s command, Bautista withdrew a
bag of cocaine from the rear of the truck and took it over to the
van. Portillo accompanied him. Erazo took the bag and Bautista
and Portillo sat down in the van’s back seat. Erazo told the
detective that he was unable to transport the cocaine himself
because he did not have a driver’s license.
Erazo and the undercover detective consummated the
transaction once all three co-defendants were inside the van,
with Erazo handing over about 1.5 kilograms of cocaine to the
detective. The CI gave cash to Erazo, telling him that it was
$8000. The detective then said he had to retrieve the rest of the
money and exited the van. At that moment, a police team
converged on the vehicle and placed all three co-defendants
under arrest.
When the police searched Portillo incident to his arrest, they
discovered a Raven Arms .25 caliber pistol around the cuff of
his pants. Portillo later testified that he had been carrying the
weapon tucked into his waistband and “when the police threw
themselves on me” it fell down his pants-leg. The pistol was
loaded with five rounds of ammunition. Police also recovered a
napkin containing thirty-one rounds of .25 caliber ammunition
and a black scale from the back seat of the van where Portillo
and Bautista had been sitting.
Erazo pleaded guilty to one count of distribution of 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and 841(b)(1)(B)(ii), and agreed to a two-level sentence
enhancement for possession of a dangerous weapon pursuant to
4
section 2D1.1(b)(1) of the Guidelines.2 Erazo argued, however,
that he was eligible for the “safety valve” provision of the
Guidelines, which requires that a defendant be sentenced
“without regard to any statutory minimum sentence” if he meets
certain enumerated criteria. U.S.S.G. § 5C1.2(a); 18 U.S.C.
§ 3553(f). In particular, Erazo argued that he could establish
under subpart (a)(2) of the safety valve provision that he did
“not use violence or credible threats of violence or possess a
firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense.” U.S.S.G.
§ 5C1.2(a)(2). The district court held an evidentiary hearing to
determine whether Erazo was eligible for the safety valve. The
Government called Portillo to testify about how he came into
possession of the pistol that the police found on him at the
March 6, 2008 drug deal.
Portillo testified that, before his arrest, he had been staying
at a friend’s two-bedroom apartment in nearby Maryland,
sleeping on the floor of one of the bedrooms. It was there that
2
Section 2D1.1(b)(1) provides in pertinent part for a two-level
enhancement in base offense level “[i]f a dangerous weapon
(including a firearm) was possessed.” This circuit has not yet decided
whether imposition of an enhancement under section 2D1.1(b)(1)
automatically disqualifies a defendant from being eligible for the
safety valve. See United States v. Plunkett, 125 F.3d 873, 876 n.6
(D.C. Cir. 1997), cert. denied, 118 S. Ct. 895 (1998). Several other
circuits have held that sections 2D1.1(b)(1) and 5C1.2 need not be
mutually exclusive. See, e.g., United States v. Anderson, 452 F.3d 87,
90-92 (1st Cir. 2006); United States v. Zavalza-Rodriguez, 379 F.3d
1182, 1187-88 (10th Cir. 2004); United States v. Bolka, 355 F.3d 909,
914 (6th Cir. 2004); United States v. Nelson, 222 F.3d 545, 549-51
(9th Cir. 2000). We do not reach the question here because it is
unnecessary to our disposition.
5
Portillo met Erazo, who was living in the other bedroom. On
March 6, 2008 Portillo was in the apartment with Bautista, a
friend from Guatemala, when Bautista received a telephone call
from Erazo. Erazo asked to speak to Portillo. Once Portillo came
on the line, Erazo asked him for a “favor”: to get a gun out of
Erazo’s bedroom and bring it to him. According to Erazo, the
gun was under Erazo’s bed. Portillo found the gun under Erazo’s
bed and shortly thereafter, with the pistol in his waistband,
accompanied Bautista in the pickup truck to the meeting with
Erazo and his buyers.
According to Portillo, however, he was duped into
becoming an unwitting participant in the drug deal. As Portillo
recounted, Erazo lied about the reason he asked Portillo to
retrieve his gun, saying that he had arranged to sell the pistol
together with his own car and needed a ride home. Portillo also
disputed the sequence of events in the Government’s factual
proffer. Portillo testified that he did not hear Erazo yell, “Bring
the [stuff].” Instead, Portillo was in the pickup truck having a
telephone conversation with his girlfriend when the CI
approached the truck and motioned for Bautista and Portillo to
join them in the van.
II.
The sole issue on appeal is whether the district court erred
in finding Erazo ineligible for safety valve relief under section
5C1.2 of the Guidelines. We review the district court’s
sentencing decision under the three-part scheme established by
18 U.S.C. § 3742(e). “ ‘Purely legal questions are reviewed de
novo; factual findings are to be affirmed unless “clearly
erroneous”; and we are to give “due deference” to the district
court’s application of the guidelines to facts.’ ” United States v.
Day, 524 F.3d 1361, 1367 (D.C. Cir. 2008) (quoting United
6
States v. Goodwin, 317 F.3d 293, 297 (D.C. Cir. 2003)), cert.
denied, 129 S. Ct. 295 (2008).
The facts plainly manifest that Erazo “induce[d] another
participant”—namely, Portillo—to “possess a firearm . . . in
connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Portillo’s
testimony vividly illustrates the extent to which Erazo directed
Portillo’s actions. As a “favor” to Erazo, a man he had met just
a few days before, Portillo retrieved from Erazo’s bedroom a
gun hidden under the bed as Erazo had told him and then took
the gun to a location Erazo specified. Moreover, Portillo’s
testimony demonstrates that his possession of the firearm was
“in connection with” the offense. Under section 5C1.2, the
firearm need only “facilitate, or have the potential of facilitating,
the drug trafficking offense.” United States v. DeJesus, 219 F.3d
117, 122 (2d Cir. 2000) (quoting Smith v. United States, 508
U.S. 223, 238 (1993)), cert. denied, 531 U.S. 1001 (2000). We
have held, in construing a similar provision in 18 U.S.C.
§ 924(c)(1)—which imposes criminal liability for “us[ing] or
carr[ying] a firearm” “during and in relation to any crime of
violence or drug trafficking crime”—that the requisite
connection with the underlying offense is established if the
weapon was used or carried “in order to protect contraband.”
United States v. Evans, 888 F.2d 891, 896 (D.C. Cir. 1989), cert.
denied, 494 U.S. 1019 (1990); see also United States v.
Condren, 18 F.3d 1190, 1199-1200 (5th Cir. 1994) (finding that
firearm was used or possessed “in connection with” offense
within meaning of U.S.S.G. § 2K2.1(b)(5) where loaded weapon
was found near cache of drugs and drug paraphernalia and “was
readily available . . . to protect [the defendant’s] drug-related
activities”), cert. denied, 513 U.S. 856 (1994). Here, it is
sufficient to establish Erazo’s ineligibility for the safety valve
provision that Portillo carried a loaded pistol in the same vehicle
used to transport the cocaine to the site of the illegal transaction
7
at Erazo’s request, and when Erazo was planning a drug deal at
the site, and that Portillo had the pistol inside the van at the
moment the drugs and money changed hands.
Erazo contends, however, that the district court erred by
crediting the portion of Portillo’s testimony in which he
described Erazo’s instructions regarding the gun but refusing to
credit Portillo’s claims that he was unaware of the true reason
for carrying the weapon. We have held, however, that a district
court’s credibility determinations are entitled to “ ‘the greatest
deference,’ ” United States v. Hart, 324 F.3d 740, 747 (D.C. Cir.
2003) (quoting Carter v. Bennett, 840 F.2d 63, 67 (D.C. Cir.
1988)), and the court is always free to credit some portions of
testimony while disregarding others. See Garvey Marine, Inc. v.
NLRB, 245 F.3d 819, 825 (D.C. Cir. 2001) (“The trier of fact is
surely entitled . . . to credit some but not all of a witness’s
testimony . . . .”). Indeed, the district court here parsed Portillo’s
testimony with evident care, finding “some of these
portions—what’s the word—were incredible,” but crediting
other portions—in particular, the answers that Portillo gave to
questions posed directly by the court. Sentencing Tr. at 33, 36,
United States v. Erazo, No. 08-083 (D.D.C. Jan. 6, 2010). The
district judge explained that “the Court did have the opportunity
to look [Portillo] in the eye and ask him questions, focus his
attention and to receive from Mr. Portillo what the Court
believes was truthful testimony.” Id. at 36. We cannot say that
the district court’s findings were clearly erroneous.
Erazo also likens his appeal to In re Sealed Case, in which
we found a defendant eligible for the safety valve provision even
though his co-conspirator in an illegal narcotics transaction
possessed a firearm in connection with the offense. 105 F.3d
1460, 1462-65 (D.C. Cir. 1997). The defendant had waited
inside a restaurant while his co-conspirator carried out the
transaction in a nearby parked car, keeping a revolver hidden
8
beneath the driver’s seat. Id. at 1461. Although the defendant
was aware of the gun in the nearby car, he was never in physical
proximity to it nor was there any other “additional evidence
linking the participant to the weapon” to support his constructive
possession. Id. at 1463-65. Merely to recite the facts from In re
Sealed Case, however, is to distinguish that case from the events
here. Portillo had the gun in the van where the deal took place,
thus putting it in proximity to Erazo. Moreover, unlike the
defendant in In re Sealed Case who had never even held the gun
that was found in his co-conspirator’s car, id. at 1465 (“And
nothing in the record establishes that appellant had ever held the
gun . . . .”), it was Erazo who owned the pistol and stored it
underneath his bed and Erazo who directed Portillo to retrieve
the pistol and carry it to the scene of a drug deal. A more apt
comparison is the Eighth Circuit case, United States v. Denis, in
which the defendant set up a deal with undercover law
enforcement officers to exchange a few ounces of cocaine base
for a machine gun and then dispatched two associates in his
stead to make the trade. 560 F.3d 872, 872-73 (8th Cir. 2009),
cert. denied, 130 S. Ct. 314 (2009). The Eighth Circuit held that
the defendant had “induced” another participant to possess the
machine gun and thus was ineligible for the safety valve. Id. at
873-74. Just so here.
For the foregoing reasons, Erazo’s sentence is affirmed.
So ordered.