In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2799
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN MAY,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 00257 — Edmond E. Chang, Judge.
ARGUED MARCH 5, 2014 — DECIDED APRIL 8, 2014
Before EASTERBROOK, MANION, and HAMILTON, Circuit
Judges.
MANION, Circuit Judge. John May appeals his ten-year
sentence for conspiracy to distribute cocaine base, and chal-
lenges in particular the district court’s (1) assessment of an
adjustment under U.S.S.G. § 3B1.1 for his aggravating role in
the offense and (2) refusal to award safety-valve relief. But
May’s large role in coordinating his co-conspirator’s activities
2 No. 13-2799
supported the court’s application of the § 3B1.1 adjustment and
disqualified him from the safety valve. We affirm.
The following facts are undisputed. May and his cousin,
Valdemere Collier, sold crack cocaine to an FBI informant on
three occasions. Before the first sale, May instructed Collier to
deliver a sample of the cocaine to the informant and to tell the
informant the price for larger amounts. Three cocaine sales
then took place between December 2008 and March 2009. For
each sale, May and the informant discussed the quantity of
drugs to be sold and the price, and May told the informant to
pick up the cocaine at Collier’s house. May instructed Collier
to accept the informant’s payment and ensure that the infor-
mant took possession of the cocaine. According to the govern-
ment at sentencing, during these transactions May waited in
another room or outside until each sale was complete. After
each sale Collier turned the money over to May, who then gave
Collier a share of the profits but kept a larger portion for
himself.
After his arrest, May pleaded guilty to conspiracy to
possess with intent to distribute crack cocaine, see 21 U.S.C.
§§ 841(a)(1), 846. The plea agreement noted that the parties
disagreed on whether May had acted as a supervisor warrant-
ing a two-level adjustment under U.S.S.G. § 3B1.1. With regard
to May’s eligibility for safety-valve relief under § 3553(f), the
agreement stipulated that May satisfied four of the five
requirements, but noted the parties’ disagreement over the
remaining element: whether May was an “organizer, leader,
manager, or supervisor of others in the offense.”
No. 13-2799 3
In May’s presentence investigation report, the probation
officer recommended against imposing the § 3B1.1 adjustment
because May was only an “average participant” in the offense
and had involved Collier to “insulate himself from the transac-
tions … in the most minimal way,” as “more of an afterthought
than a calculated element of the offense scheme.” And because
May did not warrant the § 3B1.1 adjustment, the probation
officer reasoned, he qualified for the safety-valve reduction, see
18 U.S.C. § 3553(f)(4), and should not be subject to the ten-year
statutory minimum, see 21 U.S.C. § 841(b)(1)(A). The
presentence report recommended that the applicable sentenc-
ing guideline range was 70 to 87 months in prison.
At sentencing, the government argued for the § 3B1.1(c)
adjustment on grounds that May was an organizer, leader,
manager, or supervisor. May was more culpable than Collier,
the government contended, because he had access to the
cocaine supply, negotiated the price and quantity, told Collier
what to do, and kept most of the sales’ profits. May countered
that he was collaborating with Collier, not supervising him,
and did not deserve the adjustment. Because he did not act as
a supervisor, May asserted, he satisfied the remaining element
for safety-valve relief and the district court could sentence him
without regard to the statutory minimum.
The district court accepted the government’s position that
May held a supervisory role in the offense and applied the
§ 3B1.1 adjustment. According to the court, May told Collier
what to do, decided whether and how much Collier was paid,
and tried to distance himself from the sales by using Collier to
handle the transactions. Without further explanation, the court
concluded that May did not qualify for the safety-valve
4 No. 13-2799
provision and therefore was subject to the ten-year statutory
minimum.
On appeal May first contends that the district court erred
by imposing the § 3B1.1 adjustment for playing an aggravating
role in the offense. He maintains that he and Collier were equal
partners and collaborated in the offense, and neither held a
higher position than the other. According to May the facts are
“equally consistent” with the view that he was not a supervi-
sor.
May’s bald assertion about “equally consistent” facts is a
non-starter, given our deferential standard of review.
See United States v. Doe, 613 F.3d 681, 686 (7th Cir. 2010). If two
possible conclusions can be drawn from the evidence, then the
choice between them cannot be clearly erroneous. United States
v. Hatten-Lubick, 525 F.3d 575, 580 (7th Cir. 2008). And the facts
here support the district court’s conclusion that May super-
vised Collier: May set the price and quantity, obtained the
cocaine from his supplier, instructed Collier to deliver a
sample and oversee the sales, and May distributed the pro-
ceeds from the sales, always keeping more for himself. See
United States v. Vaughn, 722 F.3d 918, 935–36 (7th Cir. 2013)
(defendant gave drugs to co-conspirator, told co-conspirator
where to meet buyer, and co-conspirator turned profits over to
defendant); United States v. Figueroa, 682 F.3d 694, 697 (7th Cir.
2012) (defendant paid and directed co-conspirator to obtain
and deliver drugs).
May next asserts that notwithstanding the § 3B1.1 adjust-
ment, the court erred in determining that his supervision of
just one person disqualified him from safety-valve relief under
No. 13-2799 5
18 U.S.C. § 3553(f)(4). He focuses on the reference in the safety-
valve provision to the plural “others”: a defendant is not
eligible for the safety valve if he was “an organizer, leader,
manager, or supervisor of others.” 18 U.S.C. § 3553(f)(4)
(emphasis added); U.S.S.G. § 5C1.2(a)(4). May interprets this
provision to mean that the safety valve remains available to a
defendant who supervised only one person, and he supervised
only Collier.
But under the rules of construction for the United States
Code, “words importing the plural include the singular”
unless the context indicates otherwise. 1 U.S.C. § 1; see also
Rowland v. Calif. Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194, 200–01 (1993) (courts may depart from § 1's
presumptive definitions to avoid “forcing a square peg into a
round hole”); United States v. Holcomb, 657 F.3d 445, 448 (7th
Cir. 2011). Further support for denying the safety valve to a
supervisor of a single person appears in 18 U.S.C. § 3553(f)(4),
which disqualifies a defendant from the safety valve if he was
a “supervisor of others in the offense, as determined under the
sentencing guidelines.” 18 U.S.C. § 3553(f)(4) (emphasis added).
The plain language of § 3553(f)(4) conditions safety-valve relief
on whether the defendant is characterized as a supervisor
anywhere in the guidelines, see id.; U.S.S.G. § 5C1.2(a)(4); Doe,
613 F.3d at 690, and the commentary to § 3B1.1 authorizes the
two-level adjustment as long the defendant supervised “one or
more” participants. U.S.S.G. § 3B1.1 cmt. n.2. (emphasis added);
see also United States v. Gonzalez-Mendoza, 584 F.3d 726, 728–29
(7th Cir. 2009) (§ 3B1.1 adjustment for defendant’s supervision
of one co-conspirator foreclosed argument for safety-valve
6 No. 13-2799
relief). Because May properly received the two-level adjust-
ment under § 3B1.1, he is not eligible for safety-valve relief.
AFFIRMED.