United States v. Nestor Barron

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0265p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> Nos. 18-5222/5515
v. │
│
│
NESTOR BARRON (18-5222); JORGE DE JESUS MACIAS │
PEDROZA (18-5515), │
Defendants-Appellants. │
┘

Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 5:17-cr-00101—Danny C. Reeves, District Judge.

Argued: June 26, 2019

Decided and Filed: October 15, 2019

Before: COLE, Chief Judge; SILER and CLAY, Circuit Judges.
_________________

COUNSEL

ARGUED: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant
in 18-5222. Dan Carman, Lexington, Kentucky, for Appellant in 18-5515. Meghan Stubblebine,
UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF:
Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant in 18-5222.
Dan Carman, Lexington, Kentucky, for Appellant in 18-5515. Meghan Stubblebine, Charles P.
Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

COLE, C.J., delivered the opinion of the court in which CLAY, J., joined, and SILER, J.,
joined in part. SILER, J. (pg. 22), delivered a separate opinion concurring in part and dissenting
in part.
 Nos. 18-5222/5515 United States v. Barron, et al. Page 2

_________________

OPINION
_________________

COLE, Chief Judge. In the fall of 2016, law enforcement agents in Lexington, Kentucky,
began investigating Fernando Rafael Lara Salas for drug-trafficking activities. During the
investigation, officers learned that Lara Salas was associated with Defendants Jorge de Jesus
Macias Pedroza and Nestor Barron. Barron and Macias Pedroza were indicted for drug-related
crimes. Barron pleaded guilty to conspiracy to distribute cocaine, and the district court
sentenced him to a mandatory minimum sentence of ten years’ imprisonment. Because Barron is
entitled to relief under the safety-valve statute, we vacate his sentence and remand for
resentencing. Macias Pedroza was found guilty by a jury of various drug and firearm charges,
and because the trial court adequately instructed the jury regarding dual-role testimony, we
affirm his conviction.

I. BACKGROUND

In July of 2017, law enforcement officers executed three search warrants as part of a
drug-trafficking investigation—one at Fernando Rafael Lara Salas’s residence, one at Jorge de
Jesus Macias Pedroza’s residence, and one at a trailer that the two men used for construction
work. At Lara Salas’s home, officers discovered Nestor Barron in an upstairs bedroom. Both
Macias Pedroza and Barron were indicted for drug-related crimes. Barron pleaded guilty to
conspiracy to distribute cocaine and Macias Pedroza was found guilty by a jury of various drug
and firearm charges. Barron now appeals his sentence, and Macias Pedroza appeals his
conviction. The two cases were consolidated and we address the facts of each in turn.

A. Barron

Around 8:30 a.m. on July 18, 2017, officers executed a search warrant at Lara Salas’s
residence in Lexington, Kentucky. Lara Salas was in bed in a downstairs bedroom and Barron
was in bed in an upstairs bedroom, where officers also found an unidentified woman. The
woman, Barron, and Lara Salas were all detained while officers conducted a search of the house.
 Nos. 18-5222/5515 United States v. Barron, et al. Page 3

In the upstairs bedroom where Barron and the woman were found, officers discovered a
black duffle bag under the bed that contained six bricks of a substance they believed to be drugs.
The bricks were later tested and confirmed to be cocaine, with a net weight of 6.043 kilograms.
On top of the bricks of cocaine, officers found $105,375 in the bag. Officers also found
approximately 1,600 pills containing methamphetamine and MDA hidden inside a DVD player.

At some point, after almost everything had been removed from drawers and placed in
piles on the bed and floor, Detective Bowles conducted a secondary search of the upstairs
bedroom. Underneath clothing, he discovered a box containing 26 rounds of nine-millimeter
caliber ammunition. The room was very cluttered, and none of the officers involved in the initial
search of the bedroom saw the box of ammunition. According to Bowles, he only found the
ammunition after moving piles of clothing and other items, and it appeared to him that the box
had been potentially set aside for collection. The record does not indicate where the ammunition
was located during the primary search of the room.

Finally, in addition to the drugs, money, and ammunition, the officers discovered
personal documents for three different individuals during the search of the upstairs bedroom.
First, officers found Barron’s wallet with his identification card and birth certificate inside, as
well as a bus ticket in Barron’s name, showing that he traveled from Los Angeles, California, to
Lexington, Kentucky, on May 26, 2017. Second, officers discovered Lara Salas’s passport and
the vehicle registration for Lara Salas’s car. And third, officers found a wallet with identification
documents for a woman.

In the downstairs bedroom—where officers found Lara Salas in bed—law enforcement
agents discovered a Jimenez semiautomatic nine-millimeter pistol in the drawer of a dresser
located within arm’s reach of the bed. The firearm was loaded with nine rounds of Luger
ammunition, the same type of ammunition found in the upstairs bedroom. The officers also
discovered cash banded together in a manner similar to the money in the duffel bag, plastic
baggies with cut corners, Lara Salas’s identification card, and utility bills in his and his wife’s
name.
 Nos. 18-5222/5515 United States v. Barron, et al. Page 4

After officers conducted the search, DEA Special Agent Jason Moore conducted an
interview of Barron. During the interview, Barron stated that he thought the bricks were cocaine
and acknowledged that his fingerprints might be on the drugs. He said that he was paid
approximately $150 by Lara Salas to pick up the cocaine on a street in Lexington on July 13 or
14. Barron stated that he met with a black male who was traveling from Cincinnati, Ohio, for
approximately a minute and a half to complete the transaction, and he gave a physical description
of the man he met with, but no name. Barron was then shown a picture of Robbie Warren, a
suspected drug trafficker in Cincinnati who had been seen with Lara Salas on prior occasions.
Barron asked “why he had to identify [the man in the photograph] if they already knew who he
was,” but then identified Warren as the person from whom he obtained the drugs. (Presentence
Report, R. 132, PageID 937.)

During the interview, Barron also told Agent Moore that he was from Los Angeles and
that he and his girlfriend had been in Lexington for a little over one month. They were both
staying at Lara Salas’s house, and Barron stated that he and Lara Salas were friends and had
known each other for a number of years. Lara Salas was also interviewed, and he denied any
knowledge of the drug activity but admitted that he owned the firearm. He stated that he
purchased the firearm in the Cardinal Valley neighborhood for $300 or $350 and that he owned
the gun for safety.

Based on the search and interviews, Barron was indicted and pleaded guilty to one count
of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C.
§ 841(a)(1) and 21 U.S.C. § 846. The plea agreement contemplated a base offense level of 30,
noted that a two-level reduction may be warranted if the court determined that Barron satisfied
the safety-valve criteria set forth in United States Sentencing Guidelines §§ 2D1.1(c)(17) and
5C1.2(1)–(5), and anticipated a two- or three-level decrease for acceptance of responsibility.

The presentence report agreed with the recommended base offense level of 30 and
deducted three levels for acceptance of responsibility. The probation office, however,
recommended applying a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1) for possession
of a firearm and thus calculated Barron’s offense level as 29. Because Barron had no previous
criminal history, his criminal history category was I, translating to an advisory Guidelines range
 Nos. 18-5222/5515 United States v. Barron, et al. Page 5

of 87 to 108 months’ imprisonment. But pursuant to 21 U.S.C. § 841(b)(1)(A), Barron faced a
mandatory minimum sentence of 120 months, unless the court determined that Barron met the
criteria for application of the safety valve. The presentence report stated that because Barron did
not actually possess the firearm, he may be eligible for relief under the safety valve.

At sentencing, the district court, over Barron’s objection, concluded that it was
reasonably foreseeable to Barron that another member of the conspiracy would have possessed a
firearm and thus applied U.S.S.G. § 2D1.1(b)(1)’s two-level increase. The court also found that
Barron did not meet the criteria for application of the safety valve for two reasons. First, the
court found that Barron aided and abetted Lara Salas in the possession of a weapon in connection
with the drug-trafficking offense, specifically by assisting him in acquiring ammunition.
Second, the district court found that Barron did not qualify for relief under the safety valve
because he did not provide truthful information to the government regarding the conspiracy. The
court sentenced Barron to the mandatory minimum sentence of ten years.

Barron timely appealed his sentence.

B. Macias Pedroza

The same day officers executed the search warrant at Lara Salas’s residence, they
executed a warrant at Macias Pedroza’s residence in Lexington, Kentucky. There, officers found
a pair of digital scales, at least one of which had white residue. The substance on the scale field-
tested positive for cocaine, but the scale was not submitted to a laboratory for final testing. In
addition to the scales, the officers found latex gloves, drug packaging materials, a small amount
of marijuana, and a pistol.

A third search warrant was executed a few days later at a trailer that law enforcement
officers had previously observed Macias Pedroza and Lara Salas using for construction work. In
the trailer, officers found four kilograms of a substance that initially field-tested positive for
cocaine, but was later determined through laboratory testing to be tramadol. Some of the
tramadol was marked with a “V,” as was at least one kilogram of the cocaine found at Lara
Salas’s residence. In addition to the tramadol, officers discovered kilo-sized shrink wrap with a
 Nos. 18-5222/5515 United States v. Barron, et al. Page 6

residual amount of a suspected controlled substance that later tested positive for the presence of
fentanyl, as well as green shrink wrap, and a hollowed-out cooler.

Macias Pedroza and Lara Salas were subsequently indicted. Macias Pedroza was charged
with six counts in the indictment: conspiracy to distribute cocaine, being an alien in possession
of a firearm, possession with intent to distribute tramadol, possession with intent to distribute
fentanyl, possession with intent to distribute methamphetamine, and possession with intent to
distribute MDA.

The case proceeded to trial. Prior to trial, Macias Pedroza moved to exclude any
evidence related to the results of the field testing of the scale found in his home, arguing that the
testing was inherently unreliable. For support, Macias Pedroza pointed to the fact that the
substance found in the trailer field-tested positive for cocaine but turned out to be tramadol. The
district court rejected the motion. Macias Pedroza renewed his objection at trial and the court
again rejected his argument.

At trial, Matthew Evans, a narcotics detective with the Lexington Police Department,
testified that he believed the residue on the scale was cocaine. Evans further testified that the
substance field-tested positive for cocaine, but explained that field tests are not definitive. Evans
stated that substances are typically sent to the lab for drug testing after a field test, but the scale
was not. In addition to testifying about the substance on the scale, Evans testified about the
drug-trafficking investigation, including his surveillance of Macias Pedroza and Lara Salas and
the execution of the warrant at Lara Salas’s residence.

Prior to submitting the case to the jury, the district court gave the jury an instruction
regarding how to consider testimony of law enforcement officers who testified to both facts and
opinions. The jury found Macias Pedroza guilty of all counts. The district court sentenced him
to 188 months’ imprisonment.

Macias Pedroza timely appealed his conviction.
 Nos. 18-5222/5515 United States v. Barron, et al. Page 7

II. ANALYSIS

Barron challenges his sentence and Macias Pedroza challenges his conviction. Both
challenges are analyzed separately below.

A. Barron

1. Firearm Enhancement

Barron first argues that the district court clearly erred in applying the two-level
enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). That section provides
for a two-level increase in a defendant’s base offense level “[i]f a dangerous weapon (including a
firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “[T]he government has the burden of
showing ‘by a preponderance of the evidence that (1) the defendant actually or constructively
possessed the weapon, and (2) such possession was during the commission of the offense.’”
United States v. Greeno, 679 F.3d 510, 514 (6th Cir. 2012) (quoting United States v. Catalan,
499 F.3d 604, 606 (6th Cir. 2007)).

In the conspiracy context, we have “found that ‘possession of a gun by one coconspirator
is attributable to another coconspirator if such possession constitutes reasonably foreseeable
conduct.’” United States v. Cochran, 14 F.3d 1128, 1132 (6th Cir. 1994) (quoting United States
v. Chalkias, 971 F.2d 1206, 1217 (6th Cir. 1992)); see also U.S.S.G. § 1B1.3(a)(1)(B). “The test
as to whether conduct is reasonably foreseeable is an objective one.” Cochran, 14 F.3d at 1132.
It is the government’s burden to prove by a preponderance of the evidence that it was reasonably
foreseeable to a defendant that a co-conspirator would possess a firearm. United States v.
Woods, 604 F.3d 286, 290 (6th Cir. 2010).

The district court applied the two-level firearm enhancement to Barron’s sentence
because it concluded that it was reasonably foreseeable that Lara Salas would possess a firearm.
This is a factual finding that we review for clear error. United States v. Randolph, 794 F.3d 602,
614 (6th Cir. 2015). “A factual finding is clearly erroneous when the [c]ourt, on reviewing the
evidence, is left with the definite and firm conviction that a mistake has been committed.”
 Nos. 18-5222/5515 United States v. Barron, et al. Page 8

United States v. Young, 847 F.3d 328, 342 (6th Cir. 2017) (internal quotations and citation
omitted).

We are not left with such a conviction here. If the only evidence in the record supporting
the enhancement was the ammunition discovered in Barron’s bedroom, we may have come to a
different conclusion. The evidence shows that Lara Salas and another woman also kept personal
belongings in the bedroom, and there is no evidence indicating that Barron had any knowledge of
the box of ammunition that was covered by clothes. The parties stipulated that the room was
very cluttered and the box of ammunition was not out in the open when the officers initially
searched the bedroom. When the detective found the ammunition, it appeared to him that the
box had been potentially set aside for collection, and the government presented no evidence as to
where the box of ammunition was originally discovered in the room. It is thus not clear that
Barron had any reason to know about the ammunition in the bedroom of Lara Salas’s home.

But other evidence in the record supports the district court’s application of the
enhancement—namely, the large quantity of drugs under Barron’s bed. It is true, as Barron
points out, that we have “explicitly rejected the fiction that a firearm’s presence always will be
foreseeable to persons participating in illegal drug transactions.” Woods, 604 F.3d at 291
(quoting Catalan, 499 F.3d at 607). “Rather, at a minimum, we require that there be objective
evidence that the defendant knew the weapon was present, or at least knew it was reasonably
probable that his coconspirator would be armed.” Cochran, 14 F.3d at 1133. We have also held,
however, that the quantity of drugs and cash involved in a conspiracy may make the possession
of a firearm reasonably foreseeable. See Woods, 604 F.3d at 291 (“[W]e have declined to find
clear error in a district court’s conclusion that possession of a firearm was reasonably foreseeable
when there are massive amounts of drugs in a single location.”); United States v. Wade, 318 F.3d
698, 702 (6th Cir. 2003) (“We are willing to infer that a coconspirator’s firearm possession is
foreseeable based solely on the quantity of drugs involved only when the quantity of drugs at
issue is so large that the participants would expect others to be carrying protection.”). Cases
where we have concluded that the quantity of drugs in a single location properly led to a finding
of reasonable foreseeability “involved narcotics worth at least $60,000 located near the firearm.”
See Woods, 604 F.3d at 291 (discussing cases).
 Nos. 18-5222/5515 United States v. Barron, et al. Page 9

Here, the district court noted that the six kilograms of cocaine found under the bed
Barron was sleeping in “would be worth in excess of $200,000, thereabouts, 30 to 35,000 a kilo
for six kilos.” (Sentencing Hr’g Tr., R. 140, PageID 1089.) We have already held that the
presence of similar—indeed, lower—quantities of drugs is sufficient to make the presence of a
gun reasonably foreseeable to a co-conspirator. See United States v. Odom, 13 F.3d 949, 959
(6th Cir. 1994) (“When an individual conspires to take part in a street transaction involving a
kilogram of cocaine worth $39,000, it certainly is quite reasonable to assume that a weapon of
some kind would be carried.”) (internal quotations and citation omitted); United States v.
Christian, 942 F.2d 363, 368 (6th Cir. 1991) (holding foreseeability of firearm was “not too
attenuated” when the parties “agreed to exchange $60,000 for three kilograms of cocaine”),
abrogated on other grounds by Bailey v. United States, 516 U.S. 137 (1995). We therefore
conclude that the district court did not clearly err in applying an enhancement under U.S.S.G.
§ 2D1.1(b)(1).

2. Safety Valve

Barron next contends that the district court erred in declining to apply the safety-valve
provisions of U.S.S.G. §§ 5C1.2 and 2D1.1(b)(17). In general, if a defendant is convicted under
21 U.S.C. § 841(b)(1)(A), he faces a statutory mandatory minimum sentence of 120 months. But
“Congress became concerned that the inflexibility of statutory mandatory minimum sentences
was resulting in unjust punishments in some cases” and enacted 18 U.S.C. § 3553(f). United
States v. Adu, 82 F.3d 119, 121 (6th Cir. 1996); see also H.R. Rep. 103-460 (1994) (explaining
that the safety-valve provision was enacted to prevent mandatory minimums from causing the
“least culpable offenders [to] receive the same sentences as their relatively more culpable
counterparts”). “This ‘safety valve’ statute gave the United States Sentencing Commission the
authority to promulgate a Sentencing Guideline to effectuate the purposes of the statute [and]
[t]he Sentencing Commission has promulgated such a Guideline in the form of USSG § 5C1.2.”
United States v. Bazel, 80 F.3d 1140, 1141 (6th Cir. 1996).
 Nos. 18-5222/5515 United States v. Barron, et al. Page 10

Section 5C1.2 of the Guidelines provides relief from the mandatory minimum if a
defendant meets five criteria:

(1) the defendant does not have more than 1 criminal history point . . . ;
(2) the defendant 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;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in
the offense . . . and was not engaged in a continuing criminal enterprise . . . ;
and
(5) not later than the time of the sentencing hearing, the defendant has truthfully
provided to the Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan, but the fact that the defendant has no
relevant or useful other information to provide or that the Government is
already aware of the information shall not preclude a determination by the
court that the defendant has complied with this requirement.

U.S.S.G. § 5C1.2(a); see also 18 U.S.C. § 3553(f). A defendant bears the burden of proving by a
preponderance of the evidence that he is entitled to relief under the safety valve. United States v.
Bolka, 355 F.3d 909, 912 (6th Cir. 2004). In order to do so, he must show that he meets “each
and every criterion.” Bazel, 80 F.3d at 1142 (quotation marks and alteration omitted). If a
defendant meets his burden, application of the safety valve is mandatory: a district court is
“require[d]” to “sentence a defendant within the guideline applicable guideline range without
regard to the statutory minimum sentence.” United States v. Patterson, 145 F. App’x 988, 990–
91 (6th Cir. 2005) (emphasis in original). Additionally, the Guidelines provide that if a
defendant meets the safety-valve criteria set forth in § 5C1.2, his base offense level is decreased
by two levels. U.S.S.G. § 2D1.1(b)(17) (2016).1

A district court’s “refusal to apply U.S.S.G. § 5C1.2 [is] a factual finding subject to
review for clear error.” Adu, 82 F.3d at 124. It is undisputed that Barron meets the first, third,
and fourth criteria of the safety valve. The only issues are whether he meets the second and fifth

1Barron was sentenced based on the 2016 version of the Guidelines, which provide for this two-level
reduction in section § 2D1.1(b)(17). Under the current version of the Guidelines, the reduction is found in U.S.S.G.
§ 2D1.1(b)(18).
 Nos. 18-5222/5515 United States v. Barron, et al. Page 11

criteria—whether he possessed a firearm in connection with the offense and whether he
truthfully provided all information he had about the offense to the government.

a. Possession of a Firearm

As an initial matter, we are not precluded from concluding that Barron meets this prong
of the safety-valve statute merely because we upheld a firearm enhancement under
§ 2D1.1(b)(1). We have already held that “a defendant’s conduct warranting a § 2D1.1(b)(1)
enhancement does not per se preclude that defendant from proving by a preponderance of the
evidence that his possession of the firearm was not connected with his offense for purposes of a
§ 5C1.2(a) ‘safety valve’ reduction.” Bolka, 355 F.3d at 914.

Barron is correct that unlike in the § 2D1.1(b)(1) context, the district court cannot rely
solely on the foreseeability of a co-defendant’s possession to render a defendant ineligible for
relief under the safety valve. Although we have not ruled previously on this issue, the seven
circuits that have considered the issue have unanimously agreed that possession of a firearm by a
co-conspirator does not render a defendant ineligible for relief under the safety valve.2 We now
join them for three reasons.

First, the language of the Guidelines limits consideration to the defendant’s own actions.
See U.S.S.G. § 5C1.2(a)(2) (requiring that a “defendant did not . . . possess a firearm or other
dangerous weapon (or induce another participant to do so) in connection with the offense”)
(emphasis added). The 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 (quoting U.S.S.G.
§ 2D1.1(b)(1)).

2See United States v. Figueroa-Encarnacion, 343 F.3d 23, 34–35 (1st Cir. 2003); United States v. Wilson,
114 F.3d 429, 432 (4th Cir. 1997); United States v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997); United States v.
Delgado-Paz, 506 F.3d 652, 655–56 (8th Cir. 2007); 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); In re Sealed Case (Sentencing Guidelines’
Safety Valve), 105 F.3d 1460, 1462 (D.C. Cir. 1997).
 Nos. 18-5222/5515 United States v. Barron, et al. Page 12

Second, the application notes to § 5C1.2 of the Guidelines specifically “limit[] 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 cmt. n.4.
Indeed, this wording in the application notes “parallels the wording of one of the two principal
provisions defining the scope of relevant conduct for which defendants are held liable under the
Guidelines.” In re Sealed Case, 105 F.3d at 1462; see U.S.S.G. § 1B1.3(a)(1)(A) (referencing
“all acts and omissions [a defendant] committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused”). “Notably absent” from the application notes, however,
“is any mention of the other principal provision defining the scope of relevant conduct, which
holds defendants liable for ‘all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.’” In re Sealed Case, 105 F.3d at 1462 (quoting
U.S.S.G. § 1B1.3(a)(1)(B)). It is that “reasonably foreseeable language that allows a defendant
to be held responsible for a firearm under section 2D1.1(b)(1) even when he physically
possessed no firearm.” Clavijo, 165 F.3d at 1343.

And third, allowing a defendant to be charged with possession of a co-conspirator’s gun
under § 5C1.2 would be “contrary to the congressional policy underlying the mandatory
minimum safety valve,” which is “to permit courts to sentence less culpable defendants to
sentences under the guidelines, instead of imposing mandatory minimum sentences.”
Pena-Sarabia, 297 F.3d at 988 (internal quotations and citations omitted). Because of “the great
likelihood that at least one member of a drug distribution conspiracy will possess a
firearm, . . . incorporating co-conspirator liability into the safety valve’s weapon possession
element would render the safety valve virtually useless.” In re Sealed Case, 105 F.3d at 1463.
We thus conclude that a defendant cannot be charged with possession of a co-conspirator’s
firearm under § 5C1.2 merely because it was reasonably foreseeable that his co-conspirator
would possess one.

The district court, however, did not rely on reasonable foreseeability to conclude that
Barron did not meet the requirements of the safety valve. Instead, the district court found that
Barron aided and abetted Lara Salas by purchasing the ammunition that was found in the upstairs
bedroom. Barron argues that such a conclusion is unsupported by any evidence in the record.
 Nos. 18-5222/5515 United States v. Barron, et al. Page 13

We agree. Even if Barron knew about the presence of the ammunition (which is debatable),
there is nothing in the record indicating that Barron himself purchased the ammunition.
No testimony regarding who purchased the ammunition was offered. Nor were any receipts
proffered as evidence. The district court based its conclusion on Lara Salas’s status as an illegal
alien, stating that because Lara Salas “wasn’t able to buy ammunition himself based on his
status,” it was “clear to conclude . . . he would direct the defendant to go out and get the
ammunition.” (Sentencing Hr’g Tr., R. 140, PageID 1095, 1098.) Because the evidence shows
that Lara Salas himself purchased the firearm, though, there is no reason to conclude that he
could not also purchase the ammunition, even if not legally.

Even if the district court could disregard Lara Salas’s statement to the police officers that
he purchased the gun, the record is still devoid of any evidence that Barron is the one who
purchased the ammunition. See United States v. Grubbs, 506 F.3d 434, 440 (6th Cir. 2007)
(“[D]isbelief alone cannot constitute affirmative proof[.]”). Because there was no evidence in
the record from which it could be reasonably inferred that Barron purchased the ammunition, the
district court clearly erred in finding that he aided and abetted Lara Salas. Goodman v. Simonds,
61 U.S. 343, 360 (1857) (“Mere speculative inferences are never allowable, and cannot be
regarded as evidence.”); United States v. Gibbs, 182 F.3d 408, 440 (6th Cir. 1999) (“The district
court’s findings must have “some minimum indicium of reliability beyond mere allegation.”)
(quoting United States v. Ward, 68 F.3d 146, 149 (6th Cir. 1995)).

The government’s last effort to dissuade us from finding clear error is unpersuasive. The
government argues that even if Barron did not aid and abet Lara Salas’s possession, Barron
himself constructively possessed the weapon. As an initial matter, the district court did not
conclude that Barron constructively possessed the weapon—instead, it relied on a theory of
aiding and abetting. In any event, the evidence in the record does not support the conclusion that
Barron constructively possessed the weapon.

“Constructive possession exists when a person does not have actual possession but
instead knowingly has the power and the intention at a given time to exercise dominion and
control over an object, either directly or through others.” United States v. Bailey, 553 F.3d 940,
944 (6th Cir. 2009) (emphasis in original) (quoting United States v. Craven, 478 F.2d 1329, 1333
 Nos. 18-5222/5515 United States v. Barron, et al. Page 14

(6th Cir. 1973), abrogated on other grounds by Scarborough v. United States, 431 U.S. 563
(1977)). “[D]ominion over the premises where the firearm is located” is sufficient to establish
the necessary control over the object. Grubbs, 506 F.3d at 439 (quoting United States v.
Gardner, 488 F.3d 700, 713 (6th Cir. 2007)). “However, it is without question that ‘[p]resence
alone’ near a gun . . . does not ‘show the requisite knowledge, power, or intention to exercise
control over’ the gun to prove constructive possession.” Id. (quoting United States v. Arnold,
486 F.3d 177, 183 (6th Cir. 2007) (en banc)). Nor is “[m]ere presence on the scene plus
association with illegal possessors . . . enough” to establish constructive possession. United
States v. Birmley, 529 F.2d 103, 107 (6th Cir. 1976). Instead, “[o]ther incriminating evidence,
coupled with presence is needed to tip the scale in favor of” possession. Grubbs, 506 F.3d at 439
(internal quotations and citations omitted).

Here, Barron was found in the home where the firearm was discovered, but that alone is
not enough to show constructive possession. “It would be one thing if [Barron] owned the home
where the handgun was found, . . . or if he had some contact with the room where it was
found[.]” Id. at 440 (citing Craven, 478 F.2d at 1333–34; Birmley, 529 F.2d at 107). But Barron
did not own the home and he was not found in the same room as the gun, nor is there any
evidence indicating Barron had access to the downstairs bedroom. The only evidence that could
possibly tie Barron to the firearm is the ammunition that was found in the room where he was
sleeping. And this evidence suffers from the same flaw as the gun—there is no evidence beyond
mere proximity to indicate that Barron possessed the ammunition. There is no evidence in the
record that shows that Barron even knew the ammunition was in the bedroom, let alone that it
was his ammunition. And another individual was found in the room at the time Barron was
arrested. “[W]here the defendant is in nonexclusive possession of premises on which illicit
contraband is found, it cannot be inferred that he knew of the presence of such contraband and
had control of it, unless there are other incriminating statements or circumstances tending to
buttress such an inference.” Bailey, 553 F.3d at 944 n.3 (alterations omitted). No other
incriminating statements or circumstances exist tending to show that Barron knew about either
the ammunition or the firearm. We therefore conclude that Barron did not constructively possess
the firearm and the district court clearly erred in finding that Barron possessed a firearm under
U.S.S.G. § 5C1.2(a)(2).
 Nos. 18-5222/5515 United States v. Barron, et al. Page 15

b. Providing Truthful Information to the Government

Turning to the fifth criterion, Barron must show by a preponderance of the evidence that
he has truthfully provided the government “all information and evidence [he] has concerning the
offense or offenses that were part of the same course of conduct or of a common scheme or
plan.” U.S.S.G. § 5C1.2(a)(5). This includes information about “the offense of conviction and
all relevant conduct,” U.S.S.G. § 5C1.2 cmt. n.3, making the safety valve’s requirement “greater
than the requirement for an acceptance of responsibility reduction under U.S.S.G. § 3E1.1.”
Adu, 82 F.3d at 124. In order to satisfy the fifth criterion of the safety-valve provision, a
defendant may have to do more than “merely answer[] all questions posed by the government.”
United States v. O’Dell, 247 F.3d 655, 675 (6th Cir. 2001). The provision “clearly require[s] an
affirmative act by the defendant truthfully disclosing all the information he possesses that
concerns his offense or related offenses.” Adu, 82 F.3d at 124. This includes “complete
information regarding the immediate chain of distribution.” United States v. Maduka, 104 F.3d
891, 894 (6th Cir. 1997). These “requirements reflect the fact that the safety valve ‘was intended
to benefit only those defendants who truly cooperate.’” O’Dell, 247 F.3d at 675 (quoting United
States v. Martin, 144 F.3d 1085, 1094 (7th Cir. 1998)).

Even still, a defendant is “only require[d] . . . to provide the information which he
possesses, regardless of whether it actually proves helpful to the government.” Maduka, 104
F.3d at 894–95. And “[t]ypically, the individuals for whom the safety valve was directed will
not have useful testimony to provide because of their relatively low position in the criminal
enterprise.” United States v. Carpenter, 142 F.3d 333, 336 (6th Cir. 1998); see also United
States v. Powers, 194 F.3d 700, 704 (6th Cir. 1999) (noting that the safety valve was enacted to
provide an “escape from mandatory minimum sentences for first-time offenders whose
information given to the government does not turn out to amount to ‘substantial assistance’”).

Once a defendant claims he has satisfied his burden, the government may challenge his
entitlement to relief under the safety valve. The government need not necessarily offer
affirmative evidence to show that a defendant is not being truthful and may instead be able to
impeach a defendant’s argument by pointing out inconsistencies or implausibility. See United
States v. Collins, No. 18-2149, 2019 WL 2094033, at *4–5 (7th Cir. May 14, 2019). But a
 Nos. 18-5222/5515 United States v. Barron, et al. Page 16

district court cannot “determine that the defendant has not rendered a truthful and complete
statement based solely on speculation, devoid of any factual support.” Id. at *5. It is therefore
“incumbent upon the Government to rebut [a defendant’s case] if it does not want the defendant
to prevail”—“if the Government is to prevail in the face of a fact-based submission by the
defendant, it must produce a fact-based rebuttal, not rank speculation.” Id.

“Where the government challenges a defendant’s claim of complete and timely disclosure
and the defendant does not produce evidence that demonstrates such disclosure, a district court’s
denial of a motion under § 3553(f) and § 5C1.2[(a)](5) is not clearly erroneous.” United States v.
Pena, 598 F.3d 289, 292 (6th Cir. 2010) (alteration in original) (quoting Adu, 82 F.3d at 125).
But that “does not mean that once the government challenges a defendant’s failure to disclose a
certain fact, the defendant must either have proof that he disclosed that fact or lose the safety
valve. Rather, his burden is to prove complete and timely disclosure.” United States v. Miller,
179 F. App’x 944, 948 (6th Cir. 2006) (internal quotation marks omitted).

Barron has met his burden. He provided the government with all relevant information
within his knowledge, including: details about his relationship with Lara Salas; details about
how he came from Kentucky to California and resided in Lara Salas’s home; the approximate
length of time he resided in Lara Salas’s home and the identity of the person who was residing
there with him; that he was paid by Lara Salas to pick up cocaine; the approximate date and
location of the drug transaction; a description of the person he picked up the cocaine from,
including a description of the vehicle the person was driving; and an admission that he conspired
with Lara Salas and others to distribute cocaine.

The government does not dispute that Barron cooperated and provided this information,
but argues that Barron omitted other relevant information and misled the government as to some
of the information provided. None of the government’s arguments are sufficient to rebut
Barron’s contention that he is entitled to relief under the safety valve. First, the government
argues that Barron misled the government by telling law enforcement that he resided with Lara
Salas “for approximately a month,” even though his bus ticket shows he resided with Lara Salas
for a little over six weeks. But any difference in time between “a little over a month” and a
 Nos. 18-5222/5515 United States v. Barron, et al. Page 17

month and three and a half weeks is not material and cannot prevent Barron from obtaining relief
under the safety valve.

Next, the government argues that Barron did not satisfy the fifth criterion because he did
not provide any explanation of where the $105,375 that officers found on top of the cocaine
originated. But the government never offered any evidence that Barron knew where the cash
came from. And it is not unreasonable to assume that Barron—whom the government agrees is a
low-level offender—would not have this information “because of [his] relatively low position in
the criminal enterprise.” Carpenter, 142 F.3d at 336. Further, there is no evidence in the record
demonstrating that the government ever asked Barron about the cash, and the government could
not provide us with this information at oral argument. Unlike in cases where we have concluded
that the defendant has not met the fifth criterion, there is no evidence—nor does the government
even allege—that Barron was evasive or failed to cooperate. See Adu, 82 F.3d at 122 (noting
that the defendant had “not been completely forthright and had attempted to minimize his own
involvement in the conspiracy”); United States v. Garcia, 58 F. App’x 69, 71 (6th Cir. 2003)
(noting that the government claimed the defendant was “untruthful and evasive” and there were
“discrepancies” in his statements); O’Dell, 247 F.3d at 675 (noting that defendant “demonstrated
a lack of cooperation”). Nor did Barron withhold known, relevant information about his role.
Contra United States v. Henderson, 307 F. App’x 970, 985–86 (6th Cir. 2009).

To be sure, had Barron “been deceitful or evasive when questioned about [the money],
the result would certainly be different.” Miller, 179 F. App’x at 948. But that was not the case,
and thus, mere speculation and assertions by the government, without more, cannot preclude
Barron from obtaining relief under the safety valve. See United States v. Miranda-Santiago,
96 F.3d 517, 529 (1st Cir. 1996) (“The government cannot assure success simply by saying, ‘We
don’t believe the defendant,’ and doing nothing more.”); United States v. Miller, 179 F.3d 961,
969 (5th Cir. 1999) (rejecting government’s assertion that defendant was untruthful as “merely
speculative”).

Finally, the government argues that Barron provided inaccurate information about
Warren’s role in the conspiracy by claiming that Warren supplied Barron with drugs, when,
according to the government, Warren purchased drugs from the conspiracy. The government
 Nos. 18-5222/5515 United States v. Barron, et al. Page 18

points to the pre-sentence report and an affidavit that supported the search warrant, which
contain statements from law enforcement evincing their belief that Lara Salas and Macias
Pedroza were supplying Warren with drugs. But these documents also show that Warren was
distributing drugs to some individuals, both in the past—resulting in a conviction for
distribution—and while being surveilled by law enforcement right before the warrants were
issued in this case. Thus, Warren may have distributed the six kilograms of cocaine to Barron as
he indicated.

No evidence directly conflicts with Barron’s contention that he picked up the drugs from
Warren, nor has Barron made inconsistent or conflicting statements on the issue. Contra
Maduka, 104 F.3d at 895 (relying on “[t]he conflict between [defendant’s] statements at the time
of the drug transactions and his statement at sentencing” to support the conclusion that he was
not credible); United States v. Salgado, 250 F.3d 438, 460 (6th Cir. 2001) (the “record
support[ed] the government’s position that [defendant] did not provide a complete statement of
his knowledge of the offense” in part because the defendant stated he drove a rental car “despite
evidence to the contrary that he drove [a drug supplier’s] Mustang”); United States v. Haynes,
468 F.3d 422, 427 (6th Cir. 2006) (“Because there was substantial factual evidence on the record
to support the district court’s decision not to grant a safety valve reduction, there was no clear
error.”) (emphasis added).

In these circumstances, “the record, taken as a whole, will not support a finding that
[Barron] has failed to provide a truthful and complete proffer,” and “the government’s lack of
confidence in the proffer is insufficient, in and of itself, to justify a denial of access to the safety
valve.” United States v. Marquez, 280 F.3d 19, 24 (1st Cir. 2002). We reiterate that the purpose
of the safety valve “is to reduce some of the harsh inflexibility of mandatory minimum sentences
by enabling courts to account more fully for mitigating factors when sentencing those defendants
who are considered the least culpable participants in drug trafficking cases.” Garcia, 58 F.
App’x at 71 (citing Maduka, 104 F.3d at 893). In other words, the safety valve is a mechanism
by which defendants who cooperate are rewarded. The record supports Barron’s contention that
he cooperated and provided the government all information he had concerning the conspiracy.
Because the government has pointed to no evidence that conflicts with Barron’s statements, and
 Nos. 18-5222/5515 United States v. Barron, et al. Page 19

Barron has not made any inconsistent or conflicting statements, we conclude that he meets the
fifth prong of the safety valve.

B. Macias Pedroza

Macias Pedroza brings one issue on appeal: whether the district court erred in failing to
distinguish between lay and expert testimony provided by Detective Matthew Evans, who
offered fact-witness testimony regarding the investigation and expert-witness testimony
identifying a substance as cocaine without a laboratory result.3

Evidentiary determinations, including whether a district court failed to differentiate
between a witness’s fact and expert testimony, are reviewed for an abuse of discretion. United
States v. Tocco, 200 F.3d 401, 418–19 (6th Cir. 2000). “Even if the district court abused its
discretion, this does not automatically result in a new trial. Evidentiary errors remain subject to
harmless error review.” United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015). “When a
defendant fails to object at trial, we review an evidentiary ruling for plain error.” Id.

The government contends that Macias Pedroza’s claim is subject to plain-error review
because he objected only to the admissibility of Evans’s testimony, not to the alleged lack of
cautionary instruction regarding Evans’s dual testimony. Even under the more favorable abuse
of discretion standard, however, Macias Pedroza’s arguments fail.

We have recognized that “when a police officer testifies in two different capacities in the
same case, there is a significant risk that the jury will be confused by the officer’s dual role.”
United States v. Thomas, 74 F.3d 676, 682 (6th Cir. 1996), abrogated on other grounds by Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). Such risks include: (1) that the agent who
testifies as an expert “receives unmerited credibility for lay testimony,” (2) that the “witness’s
dual role . . . confuse[s] the jury,” and (3) that “the jury may unduly credit the opinion testimony
of an investigating officer based on a perception that the expert was privy to facts about the

3At oral argument, Macias Pedroza argued that the result of the field test was inadmissible because it is
inherently unreliable, similar, in his view, to a preliminary breath test or polygraph. But Macias Pedroza did not
make this argument in his opening brief or reply brief and it is therefore waived. Amezola-Garcia v. Lynch,
846 F.3d 135, 139 n.1 (6th Cir. 2016) (“[A]rguments not raised in a party’s opening brief are deemed waived.”).
 Nos. 18-5222/5515 United States v. Barron, et al. Page 20

defendant not presented at trial.” United States v. Rios, 830 F.3d 403, 414 (6th Cir. 2016)
(internal quotations and citations omitted).

Despite these concerns, we have “refuse[d] to adopt a per se prohibition” on allowing an
officer to testify both as a fact and an expert witness. Thomas, 74 F.3d at 683; United States v.
Pritchett, 749 F.3d 417, 430 (6th Cir. 2014) (“Our circuit does not categorically prohibit an
officer from testifying as both a fact witness and an expert witness[.]”). But “both the district
court and the prosecutor should take care to assure that the jury is informed of the dual roles of a
law enforcement officer as a fact witness and an expert witness, so that the jury can give proper
weight to each type of testimony.” United States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir.
2006) (quoting Thomas, 74 F.3d at 683). We have recognized two primary ways to assure that
the jury is properly informed of the dual roles: (1) by providing “an adequate cautionary jury
instruction,” Young, 847 F.3d at 357; or (2) “clear demarcation between expert and fact witness
roles,” Lopez-Medina, 461 F.3d at 744.

Here, adequate jury instructions were provided. The district court properly instructed the
jury regarding dual testimony, stating that “several law enforcement officers . . . testified to both
facts and opinions” and cautioning the jury to give “[e]ach type of testimony . . . proper weight.”
(Tr. of Jury Trial Proceedings, R. 182, PageID 1612.) The court proceeded to explain the weight
that should be given to each type of testimony, properly told the jurors that they need not accept
law enforcement officers’ opinions, and stated that the jurors “alone decide how much of a
witness’s testimony to believe.” (Id. at PageID 1612–13.) The instructions given by the district
court substantially mirror the Sixth Circuit’s pattern jury instruction on dual-witnesses. See
Sixth Circuit Pattern Jury Instruction 7.03A. The district court did not abuse its discretion or
plainly err in giving the pattern instruction. See Tocco, 200 F.3d at 419 (finding no abuse its
discretion when the district court instructed the jury that it should consider an officer’s dual
roles).
 Nos. 18-5222/5515 United States v. Barron, et al. Page 21

III. CONCLUSION

For these reasons, we affirm Macias Pedroza’s conviction but vacate Barron’s sentence
and remand his case for resentencing with instructions to apply the provisions of the safety valve
and sentence Barron without regard to the ten-year mandatory minimum sentence.
 Nos. 18-5222/5515 United States v. Barron, et al. Page 22

_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
_______________________________________________________

SILER, Circuit Judge, concurring in part and dissenting in part. I concur in all respects
with the majority opinion, except for the discussion of Barron’s eligibility for the safety valve.
Thus, I would affirm the district court’s decision in full. As the majority correctly discusses the
eligibility for the safety valve, Barron had to prove that he met all five of the criteria under
section 5C1.2 of the Guidelines. See United States v. Bazel, 80 F.3d 1140, 1141 (6th Cir. 1996).
Further, the defendant has the burden of proving by a preponderance of the evidence that he is
entitled to relief under all of those criteria. United States v. Bolka, 355 F.3d 909, 912 (6th Cir.
2004). The two criteria in question are that (2) Barron did not possess a firearm or other
dangerous weapon in connection with the offense and (5) Barron was cooperative with the
Government concerning the offenses. Part (5) will not be discussed, although there is some
question as to whether Barron cooperated with the Government concerning his knowledge of the
drug operation.

The district court found that Barron aided and abetted Salas by purchasing the
ammunition. As the majority indicates, there is no evidence to support that conclusion.
However, Barron aided and abetted Salas by keeping the majority of the ammunition in his
bedroom. True, Salas had the firearm in his room, but Barron had all of the ammunition, except
what was in the pistol, in his own bedroom. In addition to the ammunition in his bedroom, the
cocaine was under Barron’s bed. Although the bedroom was cluttered with clothes and other
items, the partial box of ammunition in the bedroom was no more piled up than the cocaine
under the bed. As Barron had the burden of proving that he did not know about the ammunition,
I would find that he did not meet criteria (2) because his possession of the partial box of
ammunition assisted Salas, who was in the house with the weapon that would use the
ammunition if necessary. Had the burden been upon the Government rather than Barron, the
answer might be different. Likewise, if the Government had the burden of proving beyond a
reasonable doubt that Barron possessed a firearm in connection with the offense, the safety valve
might be applicable. Therefore, I would affirm the district court in full.