United States v. Zavalza-Rodriguez

F I L E D
United States Court of Appeals
Tenth Circuit

AUG 17 2004
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 03-2247

ESTEBAN ZAVALZA-RODRIGUEZ,

Defendant - Appellee.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-03-633 MV)

David N. Williams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for the
Plaintiff-Appellant.

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New
Mexico, for the Defendant-Appellee.

Before HENRY , LUCERO , Circuit Judges, and FIGA , * District Judge.

LUCERO , Circuit Judge.

*
The Honorable Philip S. Figa, United States District Judge for the
District of Colorado, sitting by designation.
The single issue in this sentencing appeal is whether the district court erred

in finding that, on the one hand, a U.S.S.G. § 2D1.1 sentence enhancement

applied because “a dangerous weapon . . . was possessed,” and that, on the other

hand, for purposes of a downward departure under U.S.S.G. § 5C1.2(2) the

defendant did not “possess a firearm or other dangerous weapon . . . in connection

with the offense.” Arguing that if a gun is “possessed” for purposes of sentence

enhancement, then it necessarily is “possessed” to preclude application of a

sentence reduction, the government asserts error in the district court’s sentencing.

We are not ultimately persuaded by this argument. Particularly influenced by our

prior case law, we conclude that a finding that a § 2D1.1 sentence enhancement

applies does not necessarily preclude a finding that a § 5C1.2 sentence reduction

also applies. Accordingly, we exercise jurisdiction pursuant to 18 U.S.C.

§ 3742(b) and AFFIRM.

On December 6, 2002, while executing a warrant to search the house of

Jose Esteves, who had recently been murdered, Bernalillo County Sheriff’s

officers found the defendant, Esteban Zavalza-Rodriguez, occupying a bedroom

where he states he spent one night. At the house, the officers discovered

narcotics, materials used to package narcotics, five firearms, and a large amount

of cash. A loaded .45 caliber semiautomatic pistol was found in the bedroom

2
where Zavalza was lodging. Urging that the gun was not his, Zavalza requested

that the gun be fingerprinted, which the officers declined to do. Zavalza admitted

to selling heroin for Esteves and claimed to have been living in the United States

for about one month. He explained that he had left his home in Las Varas,

Nayarit, Mexico and entered the United States illegally in pursuit of a

construction job, only to find himself faced with a job selling narcotics for

Esteves. Rather than return to his home, he agreed to work for Esteves.

Zavalza entered into a plea agreement pursuant to an information charging

him with possessing more than one kilogram of heroin with intent to distribute in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A). In that agreement he stipulated to

a two-level sentencing enhancement for the presence of the handgun in the

bedroom where he was staying. The primary issue at sentencing was whether

Zavalza was eligible for the “safety valve” sentencing reduction available

pursuant to 18 U.S.C. § 3553(f)(1)–(5). Noting the absence of fingerprint

evidence linking the gun to the defendant and a lack of evidence regarding how

long Zavalza had lived at the residence, the district court found that the defendant

met his burden of demonstrating by a preponderance of the evidence that the gun

was not connected to the offense. Also finding that he satisfied the other four

criteria for application of the safety valve, the district court sentenced Zavalza

without regard to the statutory minimum sentence pursuant to § 5C1.2. This

3
resulted in a sentence of sixty months imprisonment. The government appeals

asserting a single error—that the district court erroneously granted Zavalza relief

pursuant to § 5C1.2 considering its application of a § 2D1.1(b)(1) two-level

increase for possession of a weapon.

We review for clear error the district court’s decision that relief under

§ 5C1.2 is permissible, giving due deference to the district court’s application of

the Sentencing Guidelines to the facts. United States v. Vaziri, 164 F.3d 556, 568

(10th Cir. 1999). However, we review de novo the district court’s interpretation

of the scope and meaning of the sentencing guidelines. United States v. Saffo,

227 F.3d 1260, 1272 (10th Cir. 2000).

The morning star is the same celestial body as the evening star. Yet we

refer to this body—actually the planet Venus—by different names in different

contexts. Similarly, in this case the district court referred to possession of a gun

for one purpose in a sentence enhancement and for a different purpose for a

sentence reduction, all the while referring to the same weapon.

Initially, we must analyze the precise relationship between § 2D1.1(b)’s

provision “was possessed” which would mandate a sentence enhancement, and

§ 5C1.2(2)’s language “possess . . . in connection with the offense” which

operates to bar a sentence reduction. As to the first provision, a defendant is

4
subject to a two-level increase “if a dangerous weapon (including a firearm) was

possessed.” The Guidelines instruct that this enhancement “should be applied if

the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1, cmt., n.3. We have determined

that the government has the initial burden of proving possession of a weapon for

purposes of § 2D1.1(b)(1) by preponderance of the evidence. United States v.

Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001). This burden is met by

establishing “that a temporal and spatial relation existed between the weapon, the

drug trafficking activity, and the defendant.” Id. (quotation omitted). Once the

government satisfies this initial burden, the defendant may overcome it only if he

establishes “that it is clearly improbable the weapon was connected with the

offense.” Pompey, 264 F.3d at 1181 (quotation omitted).

In the present case, Zavalza explicitly stipulated in his plea agreement that

a § 2D1.1(b)(1) two level enhancement for possession of a firearm was

appropriate. Zavalza argues, however, that he entered into this agreement only

because he believed that he would be unable to meet the “clearly improbable”

standard required for him to overcome his burden under § 2D1.1(b)(1). Because

the handgun was present in the room where he slept and because he knew it was

there, Zavalza admits that he constructively possessed it for purposes of

§ 2D1.1(b)(1), although he maintains that he did not actually possess it (or even

5
touch it). Despite this admission, the district court found, and Zavalza argues on

appeal, that he is nonetheless entitled to relief under the safety valve provision.

Section 5C1.2 provides that a court shall impose a sentence without regard

to a statutory minimum, if the defendant meets five criteria. 1 To establish

eligibility for the sentence reduction, the defendant bears the burden of satisfying

all five criteria by a preponderance of the evidence. United States v. Verners, 103

F.3d 108, 110 (10th Cir. 1996). Before us, it is undisputed that Zavalza met this

burden with reference to four of the five criteria. The sole issue is whether the

district court erred in finding that Zavalza satisfied the following criterion that:

“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.” § 5C1.2(2). Because Zavalza pled to possession of

a weapon for purposes of § 2D1.1(b)(1), the government argues that it necessarily

1
Section 5C1.2 provides that a court shall apply a sentence for offenses
inter alia of 21 U.S.C. § 841 without regard to a statutory minimum if the
defendant meets the following criterion:
(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
(5) “the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense . . .”

6
follows that he is ineligible to be sentenced in accordance with the “safety valve.”

In support, the government contends there is an inherent logical inconsistency in

finding both that the government met its burden of proving possession for

purposes of § 2D1.1(b)(1)—considering that the Guidelines instruct that this

section should not be used if it is “clearly improbable that the weapon was

connected with the offense”—and also finding that the defendant met his burden

of proving non-possession for purposes of § 5C1.2(a)(2). Syllogistically, the

premise of the government’s argument seems quite intact.

Applicable precedents are not as clear. Like other circuits, we have never

required such consistency as a matter of form. We have previously held that a

defendant may constructively conspire to “possess” a weapon for purposes of a

sentence enhancement, while not actually possessing the same weapon “in

connection with the offense” such as to preclude application of the safety valve.

We defend this seeming anomaly by explaining that while a § 2D1.1(b)(1)

sentence enhancement applies to a defendant for a co-conspirator’s possessing a

weapon, a defendant is not precluded from receiving a safety valve reduction

based on the defendant’s individual conduct. United States v. Pena-Sarabia, 297

F.3d 983, 988–89 (10th Cir. 2002); United States v. Clavijo, 165 F.3d 1341,

1343–44 (11th Cir. 1999) (holding that it is error to conclude that “because the

co-defendant’s firearm was attributed to Clavijo under section 2D1.1(b)(1), it

7
necessarily follows that the same firearm would be attributed to Clavijo under

section 5C1.2(2)”); United States v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997)

(concluding that the defendant must have actually possessed a weapon to preclude

the safety valve, and thus “in determining a defendant’s eligibility for the safety

valve, § 5C1.2(2) allows for consideration of only the defendant’s conduct, not

the conduct of his co-conspirators”); In re Sealed Case (Sentencing Guidelines’

“Safety Valve”), 105 F.3d 1460, 1462–63 (D.C. Cir. 1997) (holding that the co-

defendant’s possession of a weapon does not preclude application of the safety

valve and noting the difference between the passive voice “was possessed” in §

2D1.1(b)(1) and the active voice requiring the defendant to do the possessing in

§ 5C1.2(a)(2)). Such cases make clear that we focus on the defendant’s own

conduct for purposes of evaluating eligibility for the safety valve, and that we

recognize a distinction between constructive and actual possession. This

recognition allows a court to refer to the same weapon that “was possessed” by

the defendant for purposes of § 2D1.1(b)(1) as a weapon that the defendant did

not “possess . . . in connection with the offense” for purposes of § 5C1.2(a)(2),

without any taint of contradiction in the use of “possess.” 2 Although conspiracy

2
The government cites our decision in United States v. Hallum, 103 F.3d
87, 89 (10th Cir. 1996), as controlling authority for its proposition that
application of § 2D1.1(b)(1) is inconsistent with application of § 5C1.2(a)(2). In
that case we agreed with the Eighth Circuit that a gun’s proximity and potential to
(continued...)

8
was not charged in the information, Zavalza’s situation is closely analogous to the

facts of these cases.

The statutory language itself lends support to the consistency of the district

court’s findings; that is, “possessed” is used in two different senses in the two

different provisions. Section 2D1.1(b)(1) is written in the passive voice,

requiring a sentence enhancement “[i]f a dangerous weapon (including a firearm)

was possessed.” For purposes of § 2D1.1(b)(1), the government need only show

that “the weapon was found in the same location where drugs or drug

paraphernalia are stored.” United States v. Roederer, 11 F.3d 973, 982–93 (10th

Cir. 1993) (quotation omitted). Possession in the context of § 2D1.1(b)(1) is

therefore possession by proximity—constructive possession.

By contrast, § 5C1.2(2) is written in the active voice, mandating that

2
(...continued)
be used in connection with the offense is sufficient to prevent application of the
safety valve. Id.; United States v. Burke, 91 F.3d 1052, 1052 (8th Cir. 1996). In
Hallum, however, the defendant did not argue that he constructively possessed a
weapon for purposes of § 2D1.1(b)(1). He argued instead that when he was
arrested for carrying marijuana in a rural location, the rifle discovered in his truck
was not possessed in connection with the offense; rather, it was for shooting
snakes. Unlike Zavalza, therefore, Hallum did not argue that the gun was not
actually his nor that it was merely constructively possessed. We have
distinguished Hallum in the context of constructive possession in a conspiracy
context, holding that the broad preclusion in Hallum was contrary to controlling
law and to the law of every other circuit addressing the issue. Pena-Sarabia, 297
F.3d at 987-89. We agree that Hallum is distinguishable in the present context
based on similar reasoning as Pena-Sarabia.

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possession be in “connection with the offense.” As the D.C. Circuit has noted,

possession in § 5C1.2(2) is an active possession whereby there is a close

connection linking the individual defendant, the weapon and the offense. In re

Sealed Case, 105 F.3d at 1463. As we noted in Roederer, § 2D1.1 was amended

in 1991 to require only that the weapon “was possessed,” eliminating the more

specific language requiring the weapon to be carried “during the commission of

the offense.” Roederer, 11 F.3d at 982-3. The new rendering of § 2D1.1(b)(1)

broadens the scope of culpable conduct beyond that covered by the old language,

which, importantly, now distinguishes it from the language of § 5C1.2(2)

(“possess . . . in connection with the offense”). Thus, the distinctions between the

language of § 2D1.1(b)(1), requiring mere proximity to the weapon, and

§ 5C1.2(2), requiring active possession, make clear that a closer degree of

connection is necessary to preclude application of the safety valve than is

necessary for a finding of possession under § 2D1.1(b)(1).

Finally, consonant with the difference in language between § 2D1.1 and

§ 5C1.2(2), there is a difference in evidentiary standards when applying the two

provisions. 3 Specifically, for purposes of § 2D1.1(b)(1), once the government has

3
In prior unpublished opinions we have noted the issue, but we have not
determined whether the substantive standards of the two provisions are the same.
See United States v. Talamantes, 2004 U.S. App. LEXIS 11473; United States v.
Burgess, 2002 U.S. App. Lexis 1878.

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met its initial burden of showing that a weapon “was possessed,” the defendant

must then show that it is clearly improbable that a weapon was not connected to

the offense. Pompey, 264 F.3d at 1181. By contrast, under § 5C1.2(2) the

defendant bears the sole burden to establish by a preponderance of the evidence

eligibility for the sentence reduction. Verners, 103 F.3d at 110. Instructive on

this point is the Ninth Circuit’s recent rejection of a per se rule that would

foreclose application of the safety valve anytime § 2D1.1(b)(1) applied. United

States v. Nelson, 222 F.3d 545, 551 (9th Cir. 2000). 4 It held that the burden of

proof for purposes of § 5C1.2 is different from the burden of proof under §

2D1.1(b)(1) and did not restrict the context merely to that of co-conspirator

firearm possession. Id. Although the conduct that would support a sentence

enhancement under § 2D1.1 may be the same conduct that would prevent

application of the safety valve in § 5C1.2, the burdens of proof remain different

under the two provisions. Id. A defendant therefore need only demonstrate by a

preponderance of the evidence eligibility for the safety valve, whereas the

defendant must show that it is clearly improbable that a gun was not used in

connection with the offense to avoid the § 2D1.1 sentence enhancement.

4
We note that the government’s brief cites as “illustrative” of the law in
the Ninth Circuit United States v. Smith, 175 F.3d 1147 (9th Cir. 1999), which
was narrowed to its facts and effectively overruled by Nelson’s rejection of a per
se exclusion of the safety valve when § 2D1.1(b)(1) applies.

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This brings us then to the reconciliation of these legal authorities with the

seeming logical inconsistency suggested by the government. There may be a

seeming inconsistency when, on the one hand, a court applies a sentence

enhancement for possessing a weapon for purposes of § 2D1.1(b)(1) and, on the

other hand, also finds that a sentence reduction applies for not possessing a

weapon for purposes of § 5C1.2(2). We find persuasive the Sixth Circuit’s

reasoning in rejecting a per se rule that would exclude eligibility for sentence

relief under § 5C1.2(2) when § 2D1.1(b)(1) also applies: “It does not deductively

follow from a defendant’s failure to satisfy a higher quantum of proof on a

particular issue that he cannot satisfy a lower quantum of proof on that same

issue.” United States v. Bolka, 355 F.3d 909, 914 (6th Cir. 2004) (holding that a

§ 2D1.1(b)(1) enhancement does not preclude application of the safety valve). It

simply does not logically follow that the government’s ability to show by a

preponderance of the evidence that a weapon “was possessed” proximate to the

offense entails that a defendant cannot show by a preponderance of the evidence

that the weapon was not possessed in “connection with the offense.” Nor is there

any logical contradiction in our referring to a weapon possessed for purposes of a

sentence enhancement with one outcome and then referring to that same weapon

for purposes of a sentence reduction with a different outcome.

We conclude, therefore, that sentence enhancement pursuant to

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§ 2D1.1(b)(1) does not foreclose sentence reduction pursuant to § 5C1.2(a)(2).

The scope of activity covered by § 2D1.1 is broader than the scope of activity

covered by § 5C1.2. For purposes of § 2D1.1 constructive possession, either

physical proximity or participation in a conspiracy, is sufficient to establish that a

weapon “was possessed.” Whereas for purposes of § 5C1.2 we look to the

defendant’s own conduct in determining whether the defendant has established by

a preponderance of the evidence that the weapon was not possessed “in

connection with the offense.”

Where § 2D1.1 applies, of course, it will frequently be the case that a

defendant who falls under the broader scope of § 2D1.1 will not qualify for a

§ 5C1.2 reduction because the weapon was actively possessed. Where, however,

a defendant falls within the broader scope of § 2D1.1 when the weapon “was

possessed” in the passive voice, it will sometimes be the case that the defendant

will simultaneously fall within the § 5C1.2 exception because the defendant did

not “possess a firearm . . . in connection with the offense” in the active voice.

See In re Sealed Case, 105 F.3d at 1462–63. This possibility is precisely what

one would expect when the scope of each provision forms different, but

overlapping, categories of prohibited behavior in circumstances in which a

weapon is proximate to the principal offense.

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III

AFFIRMED.