[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10631 MARCH 14, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00103-VMC-AEP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SOLIS,
a.k.a. Jose Rangel, Jr.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 14, 2012)
Before MARCUS, COX and SILER,* Circuit Judges.
PER CURIAM:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
Jose Solis appeals his 171-month total sentence, imposed after he pled guilty
to conspiracy to distribute cocaine and methamphetamine, distribution of cocaine and
methamphetamine, possession of methamphetamine, and possession of a firearm in
furtherance of a drug trafficking crime. On appeal, Solis challenges the district
court’s finding that he was ineligible for a two-level reduction to his offense level.
After thorough review, we affirm.
We review factual determinations of a district court’s safety-valve decision for
clear error and its legal interpretation de novo. United States v. Poyato, 454 F.3d
1295, 1297 (11th Cir. 2006). The defendant has the burden of proving his eligibility
for safety-valve relief. United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir.
2004).
In 2010, the guideline provision corresponding to Solis’s convictions, U.S.S.G.
§ 2D1.1, allowed a two-level reduction to a defendant’s offense level if the defendant
met all five of the safety-valve provisions under U.S.S.G. § 5C1.2(a). U.S.S.G.
§ 2D1.1(b)(11). To qualify for safety-valve relief under § 5C1.2(a), the defendant
must show, among other things, that he “did not . . . 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). In this appeal, this is the only one of the five
safety-valve criteria that the parties dispute.
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Unless the defendant “induces” another’s possession according to the language
of § 5C1.2(a)(2), we have held that “possession” of a firearm, with respect to the
safety-valve provision, “does not include reasonably foreseeable possession of a
firearm by co-conspirators.” United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir.
1999) (per curiam). However, the commentary following § 5C1.2 states that
“defendant,” as used in § 5C1.2(a)(2), makes a defendant accountable for “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. Section 2 of Title 18
provides that “[w]hoever . . . aids, abets, counsels, commands, induces or procures
[the commission of an offense against the United States] is punishable as a principal.”
18 U.S.C. § 2(a).
In this case, Solis and several co-conspirators were charged in an eleven-count
superseding indictment. Solis was named in Counts 1 through 9, which charged him
with conspiracy to distribute cocaine and methamphetamine (Counts 1 and 2),
distribution of cocaine and methamphetamine (Counts 3-7), possession of
methamphetamine (Count 8), and possession of a firearm in furtherance of a drug
trafficking crime (Count 9). Solis pled guilty to all 9 counts, including Count 9,
which charged him with violations of 18 U.S.C. §§ 924(c) and 2: possession of a
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firearm in connection with a drug trafficking offense based on an aiding and abetting
theory of liability.
While a co-conspirator’s reasonably foreseeable possession of a firearm does
not preclude safety-valve relief under Clavijo, a defendant who aids and abets such
possession is treated as a principal under the guidelines and faces the same sentencing
exposure as the principal. See U.S.S.G. §§ 2X2.1, 1B1.3(a)(1)(A). And, as noted,
the commentary following § 5C1.2 specifically states that, with regard to safety-valve
relief, a defendant is accountable for conduct that he aided or abetted. U.S.S.G.
§ 5C1.2 cmt. n.4.
The uncontroverted facts from the PSI show that during a December 9, 2009
drug transaction for which Solis was present, one of Solis’s codefendants, Victor
Galvan-Moreno, possessed a loaded handgun. Based on Solis’s guilty plea to Count
9 (the § 924(c) count) and these facts in the PSI regarding Galvan-Moreno’s firearm
possession, Solis admitted his liability for Galvan-Moreno’s firearm possession
during the December 9, 2009 drug transaction. Therefore, Solis cannot demonstrate
that he did not possess a firearm in connection with a drug trafficking offense, and,
as a result, he does not qualify for safety-valve relief. There was no clear error in the
district court’s determination that Solis was ineligible for such a reduction to his
offense level, and we affirm.
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AFFIRMED.
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