United States v. Figueroa-Encarnacion

United States Court of Appeals
For the First Circuit
No. 01-1460

UNITED STATES OF AMERICA,
Appellee,

v.

RAMÓN FIGUEROA-ENCARNACIÓN,
Defendant, Appellant.

No. 01-1788

UNITED STATES OF AMERICA,
Appellee,

v.

ALBERTO MEDINA,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]

Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.

Bruce J. McGiverin, with whom María H. Sandoval were on brief,
for appellant Ramón Figueroa-Encarnación.
Rachel Brill, for appellant Alberto Medina.
Thomas F. Klumper, Assistant United States Attorney, with whom
H.S. García, United States Attorney, and Sonia I. Torres, Assistant
United States Attorney, Chief, Criminal Division, were on brief,
for appellee.

September 8, 2003
 TORRUELLA, Circuit Judge. Co-defendants and appellants

Ramón Figueroa Encarnación ("Figueroa") and Alberto Medina

("Medina") were charged in a two count indictment with (1) aiding

and abetting each other in the knowing, intentional and willful

possession with intent to distribute of fifty grams of cocaine base

(crack cocaine) in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2

("drug count"); and (2) aiding and abetting each other in the

knowing possession of a firearm during and in relation to a drug

trafficking crime, in contravention of 18 U.S.C. § 921(a)(3) ("gun

count"). Figueroa was convicted of the gun count and acquitted of

the drug count; Medina was convicted of the drug count and

acquitted of the gun count. Both now appeal, presenting various

claims of error. After careful review, we affirm Figueroa-

Encarnación's conviction in its entirety; we affirm Medina's

conviction in part and reverse and remand it in part for

proceedings consistent with this opinion.

I. Background

On February 4, 1999, the Arrest and Search Warrant

Division1 ("the Division") of the Puerto Rico Police Department

("PRPD") began a new program to investigate drug trafficking in the

1
The purpose of the Division was to 1) investigate various drug
trafficking locations, also known as "drug points"; 2) determine
the location of the drugs and weapons at these drug points; and 3)
obtain search warrants from local judges in order to seize the
drugs and weapons and to arrest the individuals involved in drug
trafficking.

-2-
Jardines de Campo Rico Housing Project in Rio Piedras, Puerto Rico

("Campo Rico Project"). At the time, the Campo Rico Project

contained various known or suspected drug dealing points, including

one at the boundary with a privately owned complex, the Jardines de

Berwind Condominium ("Berwind Condominium").

On February 4, 1999, three plain-clothed agents, Hiram

Cruz Alvarez ("Agent Cruz"), Angel Vargas Cruz ("Agent Vargas") and

Jose Umpierre ("Agent Umpierre"), were assigned to conduct the

surveillance of the drug dealing points at the Campo Rico Project.

Part of the plan for surveillance involved securing an upper-floor

apartment in Berwind Condominiums as a vantage point.

According to the government's evidence, Agent Cruz

observed Figueroa and Medina standing together at a known drug

dealing point, the fence next to the Campo Rico Project. When

someone in the project yelled "agua" -- a code word for police

presence in the area -- Medina and Figueroa turned simultaneously

and headed towards the stairs of the Berwind Condominium. Agent

Cruz identified himself as a police officer, and then Medina and

Figueroa split up and ran in different directions. Agent Cruz

arrested Medina, who had in his possession a number of vials of

crack cocaine. In addition, Medina possessed $108 in bills of

small denominations. Agent Vargas arrested Figueroa, who was

carrying a loaded .38 caliber revolver. A third person was

arrested by agent Umpierre but was later released.

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 The defense argued, unsuccessfully, that Medina and

Figueroa were attacked by several plain-clothed officers. Further,

the defense claimed that the officers planted both the drug vials

and the gun.

After a twelve day trial, Figueroa was found guilty of

the gun count and acquitted of the drug count; Medina was found

guilty of the drug count and acquitted of the gun count. As a

result, Figueroa was sentenced to 60 months imprisonment and a

supervised release term of 3 years. For his part, Medina was

sentenced to 151 months and a supervised release term of 5 years.

In addition, the district court imposed a $100 special monetary

assessment on each of the men. This consolidated appeal followed.

II. Figueroa's Claims

A. Vouching

Appellant Figueroa argues that, during his closing

argument, the prosecutor improperly vouched for the credibility of

Agents Cruz and Umpierre.2 Because there was no contemporaneous

objection to the statements, we apply the plain error standard of

review "which includes a stiff requirement for showing prejudice."

United States v. Adams, 305 F.3d 30, 37 (1st Cir. 2002). This

Court evaluates the prosecutor's comments in the context of the

2
At oral argument, Medina joined Figueroa's vouching claim. We
need not decide whether Medina in fact waived the argument by
failing to raise it in his brief because the same facts are
involved. The outcome and analysis of either defendant's vouching
claim would be the same.

-4-
trial as a whole. United States v. Rosales, 19 F.3d 763, 767 (1st

Cir. 1994).

The alleged vouching involved the agents' testimony about

a third person who was arrested but not prosecuted. The trial

testimony of the two agents established that, while in the process

of arresting Medina, Agent Cruz observed a third person throw

something to the ground and asked Agent Umpierre to investigate.

Agent Umpierre discovered a fast food cup that contained 17 bags of

cocaine. As a result, a third person was arrested, but he was

later released when the district attorney concluded there was

insufficient evidence against him.

During closing arguments, the prosecutor referenced the

testimony regarding the released third person, stating:

And what is important about this third person?
What is it that they told the district
attorney about this third person? Jose
Umpierre told you that they indicated to him
exactly what it is that they saw. That Hiram
Cruz's testimony was the only thing that
linked this person to what was found.

And Hiram Cruz said I saw him throw something
to the ground. I don't know what it is. I
cannot say that it's the cup and I will not
say that it's that cup. Based on that the
district attorney decided that there wasn't
enough to hold this third person and orders to
Jose Umpierre to release him. He's not here
today. He was not charged.

Hiram Cruz could have said I saw him throw
that cup to the ground. Even better Hiram
Cruz could have said we recovered it from his
pocket. Jose Umpierre could have said we

-5-
 recovered this from his pocket. That never
happened.

Figueroa argues that the above statements constituted

improper vouching or bolstering of the agents' credibility that

unfairly prejudiced him. In particular, he claims that "the clear

purpose of the government's argument regarding the release of the

third person was to persuade the jury that prior to trial the

government engaged in a process to release the arguably innocent

and charge only the unquestionably guilty." He asserts that by

stating that the third person was not prosecuted because the

district attorney thought there was insufficient evidence against

him, the closing argument implied that the district attorney had

determined the evidence against Figueroa and Medina was solid.

It is well established that federal prosecutors may not

resort to improper means or argument in order to obtain a

conviction. See, e.g., United States v. Capone, 683 F.2d 582, 585

(1st Cir. 1982) ("It is as much [the prosecutor's] duty to refrain

from improper methods calculated to produce a conviction as it is

to use every legitimate means to bring about a just one.").

Further, the government cannot use the "prestige of the United

States" to bolster the credibility of its witnesses. United States

v. Rosario-Diaz, 202 F.3d 54, 65 (1st Cir. 2000).

The statements complained of, which are quoted above, are

not even arguably vouching in its classic form. The archetypal

example of vouching is a prosecutor's claim that the witness should

-6-
be believed because the prosecutor -- a representative of the

government -- believes the witness (hence, the term "vouching" as

in "vouching for"), and it has been extended to embrace other

instances in which the prosecutor improperly asks the jury to

accept the government's position on the ground that the government

in general should be believed or should be assumed always to do the

right thing. See, e.g., United States v. Garza, 608 F.2d 659, 664-

65 (5th Cir. 1979) (finding prosecutor's closing argument improper

where he vouched for the integrity of key government witnesses and

"argued that the prosecution would not have been commenced, and

that he personally would not have participated unless it had

already been determined that defendant was guilty").

By contrast, the prosecutor's statement in the present

case followed a different logic. In substance, the prosecutor

argued, to rebut direct attacks that the police officers had

fabricated their testimony, that the evidence already admitted

showed that the police had ample opportunity to lie about a third

person and did not lie, and, therefore, that the police were honest

folk who should be believed. The reference to what the prosecutor

did might conceivably have been taken in the way suggested by

defense counsel's argument on appeal -- that the prosecutor

releases the arguably innocent and charges only the guilty -- but

the statement that might conceivably lend itself to such a reading

was overtly offered only to show that the honesty of the policeman

-7-
(refusing to say that he saw the third person throw down the cup)

led to the inevitable result that there was no evidence against the

third person and so he was released.

Perhaps if an objection had been made at the time of

trial to this limited portion of the three paragraphs quoted above,

the judge might have instructed the jury to disregard any such

reference as to the district attorney's motives and attitude,

although we might regard either the giving or the refusing to give

such a caution as a discretionary judgment call. Alternatively,

possibly trial counsel could have articulated some different

objection to the three paragraphs as a whole -- for example, that

they involved an impermissible attempt to accredit the character of

a witness by instances of honesty, cf. Fed. R. Evid. 608 -- but

trial counsel did not express an objection in these terms. In sum,

the objection to the closing, whether characterized as vouching or

some other terms, is not remotely plain error and that is the end

of the matter.

B. Failure to Acquit

Figueroa also argues that he was improperly denied a

judgment of acquittal because the case falls into an exception to

the Powell-Dunn rule.3 His main contention is that a verdict

3
Under United States v. Powell, 469 U.S. 57 (1984) and Dunn v.
United States, 284 U.S. 390 (1932), a "claim that the jury verdict
is internally inconsistent" is "essentially unreviewable." United
States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000)

-8-
acquitting him of the drug count and finding him guilty of the gun

count is inconsistent because drug possession is an essential

element of the gun count. Further, Figueroa argues that the jury

verdict stemmed from the court's refusal to submit the defendant's

special verdict form to the jury and from an erroneous jury

instruction, which mentioned "sole" possession.

Determinations of law are reviewed de novo. United

States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000). Challenges to

jury instructions are reviewed for an abuse of discretion, United

States v. Ranney, 298 F.3d 74, 79 (1st Cir. 2002), although

alleged "error[s] 'involving the interpretation of the elements of

a statutory offense'" are reviewed de novo. United States v. Shea,

150 F.3d 44, 49-50 (1st Cir. 1998) (quoting United States v.

Pitrone, 115 F.3d 1, 4 (1st Cir. 1997)).

Figueroa argues here that his gun conviction required

proof of all the elements of a drug trafficking crime. Figueroa

was convicted under § 924(c)(1), which imposes a five-year prison

term on any person who "uses or carries a firearm" "during and in

relation to any . . . drug trafficking crime." 18 U.S.C. §

924(c)(1). The elements of a § 924(c)(1) offense are: "(1) that

the defendant committed the predicate drug trafficking crime. . .;

(2) that the defendant knowingly carried or used a firearm; and (3)

that the defendant did so during and in relation to the specified

-9-
predicate offense." United States v. Currier, 151 F.3d 39, 41 (1st

Cir. 1998).

We join several of our sister circuits in holding that a

defendant may be convicted for possession of a weapon in

furtherance of a drug trafficking crime under § 924(c) even if he

is acquitted of the underlying drug possession crime.4 See, e.g.,

United States v. Frayer, 9 F.3d 1367, 1372 (8th Cir. 1993)

(requiring "only that a defendant carry a firearm in connection

with a drug crime; it is not necessary that he be convicted of the

underlying drug offense" in order to be convicted under 18 U.S.C.

§ 924(c)); see also United States v. Laing, 889 F.2d 281, 288-89

(D.C. Cir. 1989) (upholding a verdict where defendant was found

guilty of gun charge and acquitted on drug possession count).

Thus, we uphold the jury verdict despite the alleged

inconsistency.5

4
This holding is in keeping with our general view that an
inconsistent verdict should stand where there is sufficient
evidence to "sustain a rational verdict of guilt beyond a
reasonable doubt." United States v. Lopez, 944 F.2d 33, 41 (1st
Cir. 1991). Here, there was sufficient evidence to sustain a
rational verdict of guilt on both counts. Inter alia, the two
defendants were observed to flee together upon hearing the warning
call. Drug quantities consistent with distribution purposes were
found on co-defendant Medina, and Figueroa had a gun. The
government presented expert testimony that drug traffickers
typically split up the drugs, money and weapons amongst several
dealers. Taken as a whole, the evidence could have rationally
sustained a verdict on both the gun and drug counts for both
defendants.
5
Because we find that a conviction of the predicate drug
possession offense was unnecessary to the conviction on the gun

-10-
 Figueroa also contends that the verdict resulted from the

use of the word "sole" in the jury instructions over Figueroa's

objection.6 Figueroa "contends that the erroneous instruction led

the jury into error and further warrants a judgment of acquittal."

In this Circuit:

[i]t is an established appellate rule that
'issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed
argumentation, are deemed waived . . . . It is
not enough merely to mention a possible
argument in the most skeletal way, leaving the
court to do counsel's work . . . . Judges are
not expected to be mindreaders. Consequently,
a litigant has an obligation to spell out its
arguments squarely and distinctly, or else
forever hold its peace.'

King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997) (quoting

Willhauck v. Halpin, 953 F.2d 689, 700 (1st Cir. 1991)).

Here, Figueroa argues that the use of the word "sole" was

confusing to the jury and was inconsistent "with the facts and the

count, we need not address Figueroa's unclear special verdict form
argument.
6
When the district court instructed the jury as to the gun count
under § 924(c)(1), it included the following description as the
first element: "the defendant committed the crime of possession
with intent to distribute cocaine base." According to the
instructions, "'[p]ossession' includes both sole possession and
joint possession. If one person alone has actual or constructive
possession, it is sole possession. If two or more persons share
actual or constructive possession, possession is joint. Whenever
I have used the word 'possession' in these instructions, I mean
joint as well as sole possession." The instructions also stated
that "[t]he firearm must have played a role in the crime or must
have been intended by the defendants to play a role in the crime.
That need not have been its sole purpose, however."

-11-
indictment," but he does not reference which instance of the word

"sole" he finds objectionable or provide any explanation as to how

or why the word might have caused confusion. He cites no case law

or support for his argument. As a result, we find Figueroa has

waived any viable argument he may have had regarding the jury

instructions.

C. Response to the Deadlocked Jury's Note

Figueroa joins Medina in claiming that the district court

erroneously instructed the deadlocked jury to continue

deliberating. We address his claim along with Medina's in Part

III(A) below.

D. Discovery Regarding U.S. Attorney Gil

Figueroa's next argument is one we have heard before:

that "the district court erred by refusing to allow [him] access to

discovery concerning [his] constitutional challenge to the

appointment of United States Attorney Guillermo Gil." United

States v. Lopez-Lopez, 282 F.3d 1, 23 (1st Cir. 2002). Figueroa's

claim is as meritless as it is familiar. There is no need to

revisit the issue since Figueroa concedes that his facial challenge

to the interim appointment mechanism is identical to the one we

rejected in United States v. Hilario, 218 F.3d 19 (1st Cir. 2000),

and his as-applied challenge mimics the one rejected in

Lopez-Lopez, 282 F.3d at 23. We reiterate that "[w]e discourage

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parties in the future from making arguments, such as this one, that

this court has already rejected." Lopez-Lopez, 282 F.3d at 23.

E. Impact of Apprendi

Finally, Figueroa argues for the first time on appeal

that the district court should have dismissed the drug count

because Apprendi v. New Jersey, 530 U.S. 466 (2000), rendered the

relevant statute, 21 U.S.C. § 841, unconstitutional. This argument

is wholly meritless, however, and we need not belabor it because

this Court has upheld the validity of § 841 post-Apprendi.

Lopez-Lopez, 282 F.3d at 22-3.

III. Medina's Claims

A. Response to the Deadlocked Jury's Note

Medina argues7 that the district court committed

reversible error in its instructions to a deadlocked jury. The

trial lasted twelve days, and after the jury had been deliberating

for almost four hours, it sent a note to the judge at 8:05 p.m. on

the night of Friday, September 26, 2000 stating: "We wish to advise

you that up to this moment we have not been able to reach an

agreement. We understand that even if we stay deliberating for

more time we will not be able to reach a verdict." The judge, who

7
Figueroa joins this argument in its entirety. Our determination
is the same as to both defendants.

-13-
felt it was "too early to give them an Allen charge,"8 instructed

the jury as follows:

The court received a note from you that
basically says that you have not been able to
reach an agreement. And you also state that
even if you deliberate more time you're not
going to reach an agreement.
Well, after a 12 day trial some days we
worked eight hours, some days we only worked
four hours. But it's still 12 days of
receiving evidence. I think it is too
premature for the judge after 12 days of
receiving evidence to accept that there is a
deadlock. These matters do occur, and they
occur sometimes more times than we would like,
but they occur.
So, what the Court is going to do is to
send you home, relax, not think about the case
and come back tomorrow at 9:30 AM and at which
time I will provide you an instruction.
Please do not begin any deliberation until you
come back here tomorrow morning.

Medina did not object to the instructions at trial, thus,

we review for plain error. Fed. R. Crim. P. 52(b). Under plain

error review there must be a showing that there is an error, that

the error is "clear" or "obvious," and that it has affected

substantial rights by, for example, impacting the outcome of the

trial. United States v. Olano, 507 U.S. 725, 734-35 (1993)

(internal quotations omitted); United States v. Hernandez-Albino,

177 F.3d 33, 37 (1st Cir. 1999).

8
See generally Allen v. United States, 164 U.S. 492 (1896).

-14-
 The court's comments indicate that the judge did not

perceive the jury to be deadlocked. Moreover, his instruction to

continue deliberating did not contain the coercive elements of a

garden-variety Allen charge,9 but was merely intended to prod the

jury into continuing the effort to reach some unanimous resolution.

In United States v. Prosperi, 201 F.3d 1555 (11th Cir. 2000), the

court determined that a brief, neutral instruction issued under

similar circumstances did not constitute an Allen charge:

The instruction given here . . . cannot be
properly considered an Allen charge. The
judge's simple request that the jury continue
deliberating, especially when unaware of the
composition of the jury's nascent verdict, was
routine and neutral. Nothing in the brief
instruction suggested that a particular
outcome was either desired or required and it
was not "inherently coercive."

Id. at 1341. The Fifth Circuit has referred to instructions of

this nature as "modified Allen charges," see United States v.

Clayton, 172 F.3d 347, 352 (5th Cir. 1999), and similarly held that

such charges do not result in plain error when unaccompanied by

mitigating language emphasizing the jury's right to fail to reach

consensus. The salient principle is that such "counteractive"

language, see United States v. Manning, 79 F.3d 212, 222 (1st Cir.

9
In a typical Allen charge, the jurors are told inter alia that
absolute certainty cannot be expected in the vast majority of
cases, that they have a duty to reach a unanimous verdict if they
can conscientiously do so, and that dissenting jury members should
accord some weight to the fact that a majority of jurors hold an
opposing viewpoint. See Allen v. United States, 164 U.S. 494, 501
(1896).

-15-
1996), is only deemed necessary where a "dynamite charge" is

delivered to a deadlocked jury. Under these circumstances,

mitigating instructions alleviate the prejudice to the defendant

arising from the court's insistence that a presumably hung jury

endeavor to reach consensus on either acquittal or conviction.

Where, as here, the judge reasonably concludes that the jury is not

deadlocked in the first instance, the defendant is not prejudiced

by a simple instruction to continue deliberating. The district

court's instruction in this case did not imply a duty to achieve

unanimity, nor was it addressed to jurors holding a minority

viewpoint. See Allen, 164 U.S. at 501. It stands to reason that

if a district court's instruction lacks the coercive elements of an

Allen charge, it need not include the Allen cure. Here, the

requisite coercion is simply absent and, thus, reversal on this

ground is unwarranted.

B. References to Medina's Silence

Appellant Medina raises for the first time on appeal the

argument that Figueroa's counsel and the prosecutor impermissibly

commented on Medina's decision not to testify on his own behalf at

trial. Since no contemporaneous objection was made to the

statements, we review for plain error. United States v. Hughes,

211 F.3d 676, 684 (1st Cir. 2000).

Defendants have the constitutional right to remain silent

at trial; when they exercise the right and refuse to testify, it is

-16-
improper for comments to be made regarding the silence. See, e.g.,

Griffin v. California, 380 U.S. 609, 614-15 (1965) (holding

prosecutor may not comment on defendant's silence); see also United

States v. Bonfant, 851 F.2d 12, 14-15 (1st Cir. 1988) (indicating

that one co-defendant's comments regarding another co-defendant's

decision not to testify is also problematic). In evaluating

whether a comment infringed on a defendant's Fifth Amendment

rights, this Court considers "'(w)hether the language used was

manifestly intended or was of such a character that the jury would

naturally and necessarily take it to be a comment on the failure of

the accused to testify.'" Lussier v. Gunter, 552 F.2d 385, 389

(1st Cir. 1977) (quoting Knowles v. United States, 224 F.2d 168,

170 (10th Cir. 1955)).

First, Medina argues that Figueroa's counsel made several

questionable comments regarding Medina's silence. Medina objects

to the fact that Figueroa's counsel argued that Figueroa fully

admitted his past crimes, pleading guilty or admitting under oath

that he went for a joy ride in a rental car and that he arrived

illegally in Puerto Rico by boat. Figueroa's attorney stated:

Ramón Figueroa Encarnación had no obligation
to take the stand and no obligation to bring
in documents, had no obligation to bring in
witnesses. . . . Why did he do it? Why did
he ask me to do it? Because he knew you would
never, if you sat here for three whole weeks,
get the truth from the mouth of Hiram Cruz,
Jose Umpierre and Angel Vargas

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Medina contends that this impermissibly suggested to the jury that

a defendant, such as Medina, that did not take the stand was more

likely to be guilty.

The examples cited by appellant Medina simply did not

trespass on his Fifth Amendment rights. Where one co-defendant

opts to take the stand and testifies in a manner that benefits the

non-testifying co-defendant, comment upon the former's decision to

testify may be permissible. See, e.g., United States v. Bonfant,

851 F.2d 12, 14-15 (1st Cir. 1988) (allowing comment by co-

defendant regarding his testimony because the testimony benefitted

both defendants and because "[t]he privilege against

self-incrimination of a co-defendant who does not choose to testify

does not go so far as to deprive one who does so choose of

effective argument in [her] behalf, so long as it is, as it was

here, sensitive to the rights of others"). In the case at bar,

Figueroa chose to testify at trial and his testimony favored both

himself and Medina. Figueroa's testimony in no way incriminated

Medina. When Figueroa's counsel referred to his testimony, he was

attempting to bolster Figueroa's credibility by pointing out to the

jury that Figueroa had admitted to his past wrongdoings.

Figueroa's counsel was merely seeking to have the jury accept a

version of events that would lead to an acquittal for both Medina

and Figueroa. The statements regarding Figueroa's admissions on

the stand were not of the type that a jury would "naturally and

-18-
necessarily" take as comments on Medina's own failure to take the

stand. See Lussier, 552 F.2d at 389.

Medina's second claim concerns statements made by the

prosecutor. Medina challenges the prosecutor's comment that

"Counsel asked why didn't the United States call these other police

officers. Counsel has the same ability to call these police

officers and she did not call these police officers. You have to

ask yourself why didn't she call these police officers." Medina

also objects to the prosecutor's discussion of whether "Figueroa

really 'owns up' to things." Finally, Medina takes issue with the

prosecutor's remarks that a defense witness did not telephone the

police.

We find none of the prosecutor's comments to be

impermissible infringements on Medina's right to remain silent.

The first statement merely refers to the failure to call police

officers as witnesses to support the defense's theory of planted

evidence. This in no way comments upon Medina's own failure to

testify. The second challenged comment is permissible because it

only rebutted Figueroa's claim that he accepts responsibility for

his crimes and can in no way be construed as a comment on Medina's

silence. Finally, the third statement Medina objects to commented

upon a particular defense witness's credibility. Again, we think

it is self-evident that the prosecutor's statement could in no way

be perceived as commenting upon Medina's own silence.

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 We thus find that the challenged comments by the

prosecutor, as well as those by the co-defendant, did not

transgress Medina's Fifth Amendment rights.

C. Availability of Safety Valve

Finally, Medina argues that the district court

impermissibly foreclosed the application of a two level safety

valve adjustment because of the firearm enhancement. Medina's

guideline base offense level was increased by two levels, pursuant

to U.S.S.G. § 2D1.1(b)(1), because "a dangerous weapon . . . was

possessed" during the course of the offense. Medina does not

contest on appeal the applicability of the § 2D1.1(b)(1)

enhancement for possession of a firearm, but he contends that the

firearm enhancement does not preclude the application of the

U.S.S.G. § 5C1.2 safety valve.

Under § 5C1.2, a defendant is eligible for a two level

guideline reduction if he meets the enumerated criteria. Here, we

are only concerned whether the defendant could meet the requirement

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). Application Note 4 to this guideline section

indicates "the term 'defendant,' as used in subsection (a)(2),

limits the accountability of the defendant to his own conduct and

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conduct that he aided or abetted, counseled, commanded, induced,

procured, or willfully caused."

Five of our sister circuits have found that application

of § 5C1.2 is not precluded by a weapons possession sentence

enhancement based on co-conspirator liability. See United States

v. Pena-Sarabia, 297 F.3d 983, 989 (10th Cir. 2002) (holding "a

joint criminal actor's firearm possession is not attributable to a

defendant for purposes of applying the mandatory minimum safety

valve provision"); United States v. Clavijo, 165 F.3d 1341, 1343-44

(11th Cir. 1999) (finding defendant was "entitled to safety-valve

relief even though his co-defendant possessed a firearm"); United

States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997) (refusing to

attribute co-conspirators possession of a firearm to the defendant

for the purpose of blocking the safety valve's application); United

States v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997) (agreeing that

safety valve relief was not precluded unless defendant himself

"actually possessed a firearm during the conspiracy"); In re Sealed

Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997) (holding that "co-

conspirator liability cannot establish possession under the

Guideline's safety valve"). We agree -- in order for the safety

valve to be precluded because of a firearm enhancement, a defendant

must possess or induce another to possess a firearm in accordance

with § 5C1.2(2)(a)(2).

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 Although we find that any automatic equation of the

possession of a firearm by another and unavailability of the safety

valve is mistaken, the basis for the district court's action is

unclear here. We thus find it necessary to remand to the district

court for proper justification for the preclusion of safety valve

relief or, absent such a justification, for resentencing consistent

with this opinion.

IV. Conclusion

For the above reasons, we affirm the district court's

decision in part and reverse and remand in part.

Affirmed in part, reversed and remanded in part.

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