[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 97-5197 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
1/29/99
D. C. Docket No. 97-45-CR-KMM THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESTEBAN CLAVIJO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 29, 1999)
Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
PER CURIAM:
This appeal is about sentencing. Defendant, Esteban
Clavijo, appeals the district court’s denial of U.S.S.G. § 5C1.2
safety-valve relief and imposition of a mandatory minimum five-
year sentence for Clavijo’s drug offense involving over 100
plants of marijuana. Because the district court erred in its
reading of the Sentencing Guidelines, we vacate the sentence
and remand.
Background
Esteban Clavijo, pursuant to an agreement with the
Government, pled guilty to conspiracy to possess with intent to
distribute marijuana under 21 U.S.C. § 846 and possession with
intent to distribute marijuana under 21 U.S.C. § 841(a)(1). His
base offense level was established at 18. Two points were
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added under U.S.S.G. § 2D1.1(b)(1) because Clavijo had worked
in two of three marijuana grow houses and a shotgun--
belonging to a co-conspirator--was found in the third grow
house. Although Clavijo had no knowledge of the firearm, he
had nonetheless possessed a firearm under the broad language
of section 2D1.1(b)(1).1 Clavijo was also awarded a three-point
reduction because he timely accepted responsibility for the
crime. His total offense level then was 17 and, with no prior
convictions, should have produced a sentence of 24-30 months.
But, because Clavijo’s offense involved over 100 plants of
marijuana, he was subject to a five-year mandatory minimum
statutory sentence, see 21 U.S.C. § 841(b)(1)(B)(vii); U.S.S.G. §
5G1.1(b), unless he met the safety-valve requirements of
section 5C1.2.
In preparing the Presentence Investigation Report, the
1
U.S.S.G. § 2D1.1(b)(1) applies when “the weapon [is] present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), comment.
(n.3).
3
probation officer concluded that, because Clavijo had received
a two-level adjustment for possession of a firearm pursuant to
section 2D1.1(b)(1), he was precluded from the safety-valve
relief of section 5C1.2. Both the Government and Clavijo
disagreed. Over objections by Clavijo, the sentencing court
agreed with the probation officer and ruled the safety-valve
provision inapplicable:
[Clavijo] has two problems. One, he doesn’t meet the
[safety-valve] criteria because the possession of a
firearm is attributed to him. Secondly, in order to get
the safety valve, he has to be [above offense level]
26.2 So there are two grounds that he was not . . .
eligible for it. That’s my reading of it.
The court sentenced Clavijo to the mandatory minimum 60
months in prison, followed by four years of supervised release.
Discussion
2
While the court actually said “under 26," we think the context, statute, and parties’
arguments indicate that the court meant to say “above 26.”
4
The application of the federal sentencing guidelines to
uncontroverted facts is a legal issue to be reviewed de novo.
See United States v. Antonietti, 86 F.3d 206, 208 (11th Cir. 1996).
Clavijo is entitled to safety-valve relief even though his co-
defendant possessed a firearm. As an initial matter, 21 U.S.C.
§ 841(b)(1)(B)(vii) provides a mandatory five-year minimum
sentence for section 841(a) drug offenses involving over 100
kilograms or 100 plants of marijuana. Also, U.S.S.G. § 5G1.1(b)
states that “[w]here a statutorily required minimum sentence is
greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline
sentence.” But, the safety-valve provision of the sentencing
guidelines (section 5C1.2) states that for offenses “under 21
U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall
impose a sentence in accordance with the applicable guidelines
without regard to any statutory minimum sentence . . .
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[provided] the defendant meets the [five] criteria . . . set forth
verbatim below.” These are the five guideline criteria: (1)
defendant does not have more than one criminal history point;
(2) defendant did not use violence or possess a firearm or
induce another to possess; (3) offense did not result in death
or serious bodily injury; (4) defendant was not an organizer or
leader of the offense; (5) defendant has complied with the
Government’s demands for information. See U.S.S.G. § 5C1.2.
Here, only the second element is in dispute. Two reasons
compel our conclusion that “possession” of a firearm does not
include reasonably foreseeable possession of a firearm by co-
conspirators. First, the commentary to the pertinent section
adds that “[c]onsistent with § 1B1.3 (Relevant Conduct), the
term ‘defendant,’ as used in subdivision (2), limits the
accountability of the defendant to his own conduct and conduct
that he aided or abetted, counseled, commanded, induced,
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procured, or willfully caused.” U.S.S.G. § 5C1.2, comment.
(n.4).3 This commentary, which tracks the language of section
1B1.3(a)(1)(A), implicitly rejects the language of section
1B1.3(a)(1)(B) which holds defendants responsible for “all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” It is this
“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.
Second, the plain language of section 5C1.2 requires that
the defendant “possess a firearm . . . or induce another
participant to do so . . . .” If “possession” in section 5C1.2
encompassed constructive possession by a co-defendant, then
“induce another participant to [possess]” would be
unnecessary. Mere possession by a co-defendant, therefore,
3
Section 1B1.3(a)(1)(A) holds a defendant responsible for “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant;”
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while sufficient to trigger section 2D1.1(b)(1), is insufficient to
knock a defendant out of the safety-valve protections of section
5C1.2.4
For the purposes of section 5C1.2(2), Clavijo neither
possessed a weapon nor induced another participant to do so.
The district court erred in its assumption that, because the co-
defendant’s firearm was attributed to Clavijo under section
2D1.1(b)(1), it necessarily follows that the same firearm would
be attributed to Clavijo under section 5C1.2(2).
On the question of Defendant’s offense level, the district
court erred in holding that, because Clavijo’s offense level was
below 26, he was precluded from relief. Section 2D1.1(b)(6)
provides additional relief--in the form of a two point reduction
4
While we have never directly addressed this issue, the Fourth, Fifth, and District of
Columbia Circuits have all concluded that a defendant is not precluded from safety-valve relief
merely because a co-defendant possessed a weapon. See United States v. Wilson, 114 F.3d 429,
432 (4th Cir. 1997); In re Sealed Case (Sentencing Guidelines’ “Safety Valve”), 105 F.3d 1460,
1462-63 (D.C. Cir. 1997); United States v. Wilson, 105 F.3d 219, 222 (5th Cir.), cert. denied, 118
S. Ct. 133 (1997). Only the Tenth Circuit has reached the opposite conclusion. See United
States v. Hallum, 103 F.3d 87, 89-90 (10th Cir. 1996) (holding that defendant is responsible for
reasonably foreseeable acts of others in joint criminal activity).
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in the offense level--if the section 5C1.2(2) statutory criteria are
met and if the defendant’s offense level is 26 or greater. Even
if a defendant’s offense level is under 26, however, he is still
entitled to the safety-valve protection. He just does not get,
(nor does Clavijo claim he gets), the additional two-point
reduction. The safety valve -- section 5C1.2(2) -- makes no
reference to offense levels or point reductions. Clavijo’s
offense level of 17 is therefore immaterial.
We must vacate the sentence and remand for re-
sentencing.
VACATED AND REMANDED.
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