[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 23, 2008
No. 07-15453 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00158-CR-TCB-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN R. HOLLANDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 23, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Steven R. Hollander appeals his sentence of 46 months’ imprisonment for
conspiracy to possess with intent to distribute Schedule III and IV controlled
substances, under 21 U.S.C. §§ 841(b)(1)(D), 846, and 18 U.S.C. § 2. Hollander
raises several arguments on appeal. For the reasons set forth below, we affirm.
I.
Hollander first argues that the government should not have been permitted to
argue at sentencing that his sentence could be enhanced based on guns that his co-
conspirators possessed. His reasoning is that the government waived the argument
because it did not object to the PSI’s exclusive reliance on the gun that Hollander
surrendered to probation as the basis for the gun enhancement. In support of his
argument, Hollander notes that Fed. R. Crim. P 32(f) requires parties to object to
the PSI within 14 days of receiving it.
“We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)
for clear error, and the application of the Sentencing Guidelines to those facts de
novo.” United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006) (per curiam)
(internal quotation marks omitted).
We reject Hollander’s waiver argument because district courts are not bound
to apply the Guidelines in the manner proposed in the PSI. United States v. Jones,
899 F.2d 1097, 1102 (11th Cir. 1990) (explaining that the PSI addendum does not
limit the objections cognizable on appeal because, inter alia, the district court is
2
not bound by the factual findings or Guidelines application contained in the PSI),
overruled in part on other grounds, United States v. Morrill, 984 F.2d 1136 (11th
Cir. 1993) (per curiam). Additionally, while district courts are not required to
consider the merits of objections to the PSI or motions for downward departure
that were not timely raised, United States v. Quintana, 300 F.3d 1227, 1230 (11th
Cir. 2002), they are not precluded from doing so by any statute or precedent.
Furthermore, the factual basis for the enhancement, i.e. the co-conspirators’ gun
possession, was included in the PSI. Accordingly, because the district court was
free to apply the Guidelines based on the undisputed facts in the PSI, there was no
error, and Hollander’s waiver argument fails.
II.
Hollander further argues that the possession of guns by his co-conspirators
was unforeseeable to him because there was no evidence that (1) he had ever been
in Florida or had knowledge of the manner in which the drugs were distributed; (2)
he had ever met Julio Jelves; or (3) there were conversations involving guns or
protection. Additionally, Hollander argues the conspiracy was not a typical drug
conspiracy because it did not involve the transportation or storage of large
quantities of street drugs.
“The § 2D1.1(b)(1) enhancement may be applied when the firearm is
3
possessed by a co-conspirator.” Pham, 463 F.3d at 1245. “The enhancement
applies to a co-conspirator when the government establishes by a preponderance of
the evidence that (1) the possessor of the firearm was a co-conspirator, (2) the
possession was in furtherance of the conspiracy, (3) the defendant was a member
of the conspiracy at the time of possession, and (4) the co-conspirator possession
was reasonably foreseeable by the defendant.” Id. (internal quotation marks
omitted). Hollander does not challenge the district court’s finding with respect to
the first three elements. Hollander is arguing that, given the nature of the
conspiracy, possession of guns by his co-conspirators was not foreseeable.
“This court has held that ‘protestations that [the defendants] were in fact
unaware of the firearm possession [of a co-conspirator] do[es] not upset the district
court’s finding that the possession of the firearm was reasonably foreseeable.”
United States v. Pessefall, 27 F.3d 511, 515 (11th Cir. 1994) (alterations in
original) (internal quotation marks omitted). Furthermore, we have found it
reasonably foreseeable that a co-conspirator would carry a firearm while
transporting thirteen kilograms of cocaine. United States v. Freyre-Lazaro, 3 F.3d
1496, 1506 (11th Cir. 1993). In Pham, where the drug conspiracy involved more
than 70,000 MDMA (“ecstasy”) pills, as well as more than 5 kilograms of cocaine,
we stated that the district court did not clearly err in finding that a co-conspirator’s
4
gun possession was reasonably foreseeable because of the “vastness of the
conspiracy and the large amount of drugs and money being exchanged.” Pham,
463 F.3d at 1246 .
We conclude that the district court did not clearly err by finding that the
possession of a firearm was foreseeable because the quantity of drugs was the
Guidelines-equivalent of 59.99 kilograms of marijuana and the foreseeability of a
co-conspirator possessing a firearm can be based on the quantity of drugs involved.
See Pessefall, 27 F.3d at 515. While this case did not involve street drugs, the
district court specifically found that the quantity of illegal drugs involved in the
conspiracy here was “breath-taking.” Accordingly the district court did not err in
applying the firearm enhancement.
III.
Hollander next argues that the district court erred by denying safety-valve
relief based on his co-conspirators’ possession of firearms. He bases his argument
on our decision in United States v. Clavijo, 165 F.3d 1341, 1343-44 (11th Cir.
1999) (per curiam), that “possession” of a firearm within the meaning of the safety-
valve provision of U.S.S.G. § 5C1.2(a)(2), does not include possession of a firearm
by a co-conspirator. Hollander concedes that resentencing is not necessary when a
district court incorrectly calculates the Guidelines but would have imposed the
5
same sentence if its calculation had been correct. Hollander argues, however, that
the resulting sentencing must still be substantively reasonable, and his was not.
The Sentencing Guidelines provide for a two-level reduction in the offense
level for certain drug-related crimes if the defendant meets five criteria as set forth
in U.S.S.G. § 5C1.2. The defendant must show: (1) he does not have more than
one criminal history point; (2) he did not use violence or possess a firearm or other
dangerous weapon during the offense; (3) death or serious bodily injury did not
occur to any person as a result of the offense; (4) he was not an “organizer, leader,
manager, or supervisor of others in the offense” and was not engaged in a
continuing criminal enterprise; and (5) he truthfully provided the government with
all information and evidence he has concerning the offense. 18 U.S.C. 3553(f);
U.S.S.G. § 5C1.2(a).
The district court erred in determining that Hollander was ineligible for
safety-valve relief solely based on its finding that he reasonably foresaw
possession of a firearm during the offense. We can affirm a sentence based on an
incorrect Guidelines calculation, however, where the district court has made it clear
that, even if its Guidelines interpretation was incorrect, it would have imposed the
same sentence in light of the factors listed in 18 U.S.C. § 3553(a). United States v.
Keene, 470 F.3d 1347, 1348-49 (11th Cir. 2006) (stating that it is unnecessary to
6
even decide a disputed enhancement issue where it will not affect the outcome of
the case). Still, the sentence must be reasonable under § 3553(a). Id. at 1349.
Because (1) the district court stated that it would have imposed a sentence of
46 months’ imprisonment even if it had incorrectly calculated the Guidelines,1 and
(2) the court adequately explained the reasons for its sentence in reference to
§ 3553(a) factors, we affirm. See United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005) (per curiam) (“[A]n acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.”).
AFFIRMED.
1
The district court did not specifically state that it would have imposed the same
sentence if it was wrong about the safety-valve determination. Instead, it stated that it would
have imposed the same sentence even if it had incorrectly applied the gun enhancement.
Nevertheless, because the denial of safety-valve relief was premised on the gun enhancement, it
is clear that the district court would have imposed the same sentence under the § 3553(a) factors
if its safety-valve determination was incorrect.
7