United States Court of Appeals For the First Circuit No. 01-1460
UNITED STATES OF AMERICA, Appellee,
v.
RAMÓN FIGUEROA-ENCARNACIÓN, Defendant, Appellant.
No. 01-1788
ALBERTO MEDINA, Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]
Before Boudin, Chief Judge, Torruella and Lipez, Circuit Judges.
Bruce J. McGiverin, with whom María H. Sandoval were on brief, for appellant Ramón Figueroa-Encarnación. Rachel Brill, for appellant Alberto Medina. Thomas F. Klumper, Assistant United States Attorney, with whom H.S. García, United States Attorney, and Sonia I. Torres, Assistant United States Attorney, Chief, Criminal Division, were on brief, for appellee.
September 8, 2003 TORRUELLA, Circuit Judge. Co-defendants and appellants
Ramón Figueroa Encarnación ("Figueroa") and Alberto Medina
("Medina") were charged in a two count indictment with (1) aiding
and abetting each other in the knowing, intentional and willful
possession with intent to distribute of fifty grams of cocaine base
(crack cocaine) in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2
("drug count"); and (2) aiding and abetting each other in the
knowing possession of a firearm during and in relation to a drug
trafficking crime, in contravention of 18 U.S.C. § 921(a)(3) ("gun
count"). Figueroa was convicted of the gun count and acquitted of
the drug count; Medina was convicted of the drug count and
acquitted of the gun count. Both now appeal, presenting various
claims of error. After careful review, we affirm Figueroa-
Encarnación's conviction in its entirety; we affirm Medina's
conviction in part and reverse and remand it in part for
proceedings consistent with this opinion.
I. Background
On February 4, 1999, the Arrest and Search Warrant
Division1 ("the Division") of the Puerto Rico Police Department
("PRPD") began a new program to investigate drug trafficking in the
1 The purpose of the Division was to 1) investigate various drug trafficking locations, also known as "drug points"; 2) determine the location of the drugs and weapons at these drug points; and 3) obtain search warrants from local judges in order to seize the drugs and weapons and to arrest the individuals involved in drug trafficking.
-2- Jardines de Campo Rico Housing Project in Rio Piedras, Puerto Rico
("Campo Rico Project"). At the time, the Campo Rico Project
contained various known or suspected drug dealing points, including
one at the boundary with a privately owned complex, the Jardines de
Berwind Condominium ("Berwind Condominium").
On February 4, 1999, three plain-clothed agents, Hiram
Cruz Alvarez ("Agent Cruz"), Angel Vargas Cruz ("Agent Vargas") and
Jose Umpierre ("Agent Umpierre"), were assigned to conduct the
surveillance of the drug dealing points at the Campo Rico Project.
Part of the plan for surveillance involved securing an upper-floor
apartment in Berwind Condominiums as a vantage point.
According to the government's evidence, Agent Cruz
observed Figueroa and Medina standing together at a known drug
dealing point, the fence next to the Campo Rico Project. When
someone in the project yelled "agua" -- a code word for police
presence in the area -- Medina and Figueroa turned simultaneously
and headed towards the stairs of the Berwind Condominium. Agent
Cruz identified himself as a police officer, and then Medina and
Figueroa split up and ran in different directions. Agent Cruz
arrested Medina, who had in his possession a number of vials of
crack cocaine. In addition, Medina possessed $108 in bills of
small denominations. Agent Vargas arrested Figueroa, who was
carrying a loaded .38 caliber revolver. A third person was
arrested by agent Umpierre but was later released.
-3- The defense argued, unsuccessfully, that Medina and
Figueroa were attacked by several plain-clothed officers. Further,
the defense claimed that the officers planted both the drug vials
and the gun.
After a twelve day trial, Figueroa was found guilty of
the gun count and acquitted of the drug count; Medina was found
guilty of the drug count and acquitted of the gun count. As a
result, Figueroa was sentenced to 60 months imprisonment and a
supervised release term of 3 years. For his part, Medina was
sentenced to 151 months and a supervised release term of 5 years.
In addition, the district court imposed a $100 special monetary
assessment on each of the men. This consolidated appeal followed.
II. Figueroa's Claims
A. Vouching
Appellant Figueroa argues that, during his closing
argument, the prosecutor improperly vouched for the credibility of
Agents Cruz and Umpierre.2 Because there was no contemporaneous
objection to the statements, we apply the plain error standard of
review "which includes a stiff requirement for showing prejudice."
United States v. Adams, 305 F.3d 30, 37 (1st Cir. 2002). This
Court evaluates the prosecutor's comments in the context of the
2 At oral argument, Medina joined Figueroa's vouching claim. We need not decide whether Medina in fact waived the argument by failing to raise it in his brief because the same facts are involved. The outcome and analysis of either defendant's vouching claim would be the same.
-4- trial as a whole. United States v. Rosales, 19 F.3d 763, 767 (1st
Cir. 1994).
The alleged vouching involved the agents' testimony about
a third person who was arrested but not prosecuted. The trial
testimony of the two agents established that, while in the process
of arresting Medina, Agent Cruz observed a third person throw
something to the ground and asked Agent Umpierre to investigate.
Agent Umpierre discovered a fast food cup that contained 17 bags of
cocaine. As a result, a third person was arrested, but he was
later released when the district attorney concluded there was
insufficient evidence against him.
During closing arguments, the prosecutor referenced the
testimony regarding the released third person, stating:
And what is important about this third person? What is it that they told the district attorney about this third person? Jose Umpierre told you that they indicated to him exactly what it is that they saw. That Hiram Cruz's testimony was the only thing that linked this person to what was found.
And Hiram Cruz said I saw him throw something to the ground. I don't know what it is. I cannot say that it's the cup and I will not say that it's that cup. Based on that the district attorney decided that there wasn't enough to hold this third person and orders to Jose Umpierre to release him. He's not here today. He was not charged.
Hiram Cruz could have said I saw him throw that cup to the ground. Even better Hiram Cruz could have said we recovered it from his pocket. Jose Umpierre could have said we
-5- recovered this from his pocket. That never happened.
Figueroa argues that the above statements constituted
improper vouching or bolstering of the agents' credibility that
unfairly prejudiced him. In particular, he claims that "the clear
purpose of the government's argument regarding the release of the
third person was to persuade the jury that prior to trial the
government engaged in a process to release the arguably innocent
and charge only the unquestionably guilty." He asserts that by
stating that the third person was not prosecuted because the
district attorney thought there was insufficient evidence against
him, the closing argument implied that the district attorney had
determined the evidence against Figueroa and Medina was solid.
It is well established that federal prosecutors may not
resort to improper means or argument in order to obtain a
conviction. See, e.g., United States v. Capone, 683 F.2d 582, 585
(1st Cir. 1982) ("It is as much [the prosecutor's] duty to refrain
from improper methods calculated to produce a conviction as it is
to use every legitimate means to bring about a just one.").
Further, the government cannot use the "prestige of the United
States" to bolster the credibility of its witnesses. United States
v. Rosario-Diaz, 202 F.3d 54, 65 (1st Cir. 2000).
The statements complained of, which are quoted above, are
not even arguably vouching in its classic form. The archetypal
example of vouching is a prosecutor's claim that the witness should
-6- be believed because the prosecutor -- a representative of the
government -- believes the witness (hence, the term "vouching" as
in "vouching for"), and it has been extended to embrace other
instances in which the prosecutor improperly asks the jury to
accept the government's position on the ground that the government
in general should be believed or should be assumed always to do the
right thing. See, e.g., United States v. Garza, 608 F.2d 659, 664-
65 (5th Cir. 1979) (finding prosecutor's closing argument improper
where he vouched for the integrity of key government witnesses and
"argued that the prosecution would not have been commenced, and
that he personally would not have participated unless it had
already been determined that defendant was guilty").
By contrast, the prosecutor's statement in the present
case followed a different logic. In substance, the prosecutor
argued, to rebut direct attacks that the police officers had
fabricated their testimony, that the evidence already admitted
showed that the police had ample opportunity to lie about a third
person and did not lie, and, therefore, that the police were honest
folk who should be believed. The reference to what the prosecutor
did might conceivably have been taken in the way suggested by
defense counsel's argument on appeal -- that the prosecutor
releases the arguably innocent and charges only the guilty -- but
the statement that might conceivably lend itself to such a reading
was overtly offered only to show that the honesty of the policeman
-7- (refusing to say that he saw the third person throw down the cup)
led to the inevitable result that there was no evidence against the
third person and so he was released.
Perhaps if an objection had been made at the time of
trial to this limited portion of the three paragraphs quoted above,
the judge might have instructed the jury to disregard any such
reference as to the district attorney's motives and attitude,
although we might regard either the giving or the refusing to give
such a caution as a discretionary judgment call. Alternatively,
possibly trial counsel could have articulated some different
objection to the three paragraphs as a whole -- for example, that
they involved an impermissible attempt to accredit the character of
a witness by instances of honesty, cf. Fed. R. Evid. 608 -- but
trial counsel did not express an objection in these terms. In sum,
the objection to the closing, whether characterized as vouching or
some other terms, is not remotely plain error and that is the end
of the matter.
B. Failure to Acquit
Figueroa also argues that he was improperly denied a
judgment of acquittal because the case falls into an exception to
the Powell-Dunn rule.3 His main contention is that a verdict
3 Under United States v. Powell, 469 U.S. 57 (1984) and Dunn v. United States, 284 U.S. 390 (1932), a "claim that the jury verdict is internally inconsistent" is "essentially unreviewable." United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000)
-8- acquitting him of the drug count and finding him guilty of the gun
count is inconsistent because drug possession is an essential
element of the gun count. Further, Figueroa argues that the jury
verdict stemmed from the court's refusal to submit the defendant's
special verdict form to the jury and from an erroneous jury
instruction, which mentioned "sole" possession.
Determinations of law are reviewed de novo. United
States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000). Challenges to
jury instructions are reviewed for an abuse of discretion, United
States v. Ranney, 298 F.3d 74, 79 (1st Cir. 2002), although
alleged "error[s] 'involving the interpretation of the elements of
a statutory offense'" are reviewed de novo. United States v. Shea,
150 F.3d 44, 49-50 (1st Cir. 1998) (quoting United States v.
Pitrone, 115 F.3d 1, 4 (1st Cir. 1997)).
Figueroa argues here that his gun conviction required
proof of all the elements of a drug trafficking crime. Figueroa
was convicted under § 924(c)(1), which imposes a five-year prison
term on any person who "uses or carries a firearm" "during and in
relation to any . . . drug trafficking crime." 18 U.S.C. §
924(c)(1). The elements of a § 924(c)(1) offense are: "(1) that
the defendant committed the predicate drug trafficking crime. . .;
(2) that the defendant knowingly carried or used a firearm; and (3)
that the defendant did so during and in relation to the specified
-9- predicate offense." United States v. Currier, 151 F.3d 39, 41 (1st
Cir. 1998).
We join several of our sister circuits in holding that a
defendant may be convicted for possession of a weapon in
furtherance of a drug trafficking crime under § 924(c) even if he
is acquitted of the underlying drug possession crime.4 See, e.g.,
United States v. Frayer, 9 F.3d 1367, 1372 (8th Cir. 1993)
(requiring "only that a defendant carry a firearm in connection
with a drug crime; it is not necessary that he be convicted of the
underlying drug offense" in order to be convicted under 18 U.S.C.
§ 924(c)); see also United States v. Laing, 889 F.2d 281, 288-89
(D.C. Cir. 1989) (upholding a verdict where defendant was found
guilty of gun charge and acquitted on drug possession count).
Thus, we uphold the jury verdict despite the alleged
inconsistency.5
4 This holding is in keeping with our general view that an inconsistent verdict should stand where there is sufficient evidence to "sustain a rational verdict of guilt beyond a reasonable doubt." United States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991). Here, there was sufficient evidence to sustain a rational verdict of guilt on both counts. Inter alia, the two defendants were observed to flee together upon hearing the warning call. Drug quantities consistent with distribution purposes were found on co-defendant Medina, and Figueroa had a gun. The government presented expert testimony that drug traffickers typically split up the drugs, money and weapons amongst several dealers. Taken as a whole, the evidence could have rationally sustained a verdict on both the gun and drug counts for both defendants. 5 Because we find that a conviction of the predicate drug possession offense was unnecessary to the conviction on the gun
-10- Figueroa also contends that the verdict resulted from the
use of the word "sole" in the jury instructions over Figueroa's
objection.6 Figueroa "contends that the erroneous instruction led
the jury into error and further warrants a judgment of acquittal."
In this Circuit:
[i]t is an established appellate rule that 'issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived . . . . It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work . . . . Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.'
King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997) (quoting
Willhauck v. Halpin, 953 F.2d 689, 700 (1st Cir. 1991)).
Here, Figueroa argues that the use of the word "sole" was
confusing to the jury and was inconsistent "with the facts and the
count, we need not address Figueroa's unclear special verdict form argument. 6 When the district court instructed the jury as to the gun count under § 924(c)(1), it included the following description as the first element: "the defendant committed the crime of possession with intent to distribute cocaine base." According to the instructions, "'[p]ossession' includes both sole possession and joint possession. If one person alone has actual or constructive possession, it is sole possession. If two or more persons share actual or constructive possession, possession is joint. Whenever I have used the word 'possession' in these instructions, I mean joint as well as sole possession." The instructions also stated that "[t]he firearm must have played a role in the crime or must have been intended by the defendants to play a role in the crime. That need not have been its sole purpose, however."
-11- indictment," but he does not reference which instance of the word
"sole" he finds objectionable or provide any explanation as to how
or why the word might have caused confusion. He cites no case law
or support for his argument. As a result, we find Figueroa has
waived any viable argument he may have had regarding the jury
instructions.
C. Response to the Deadlocked Jury's Note
Figueroa joins Medina in claiming that the district court
erroneously instructed the deadlocked jury to continue
deliberating. We address his claim along with Medina's in Part
III(A) below.
D. Discovery Regarding U.S. Attorney Gil
Figueroa's next argument is one we have heard before:
that "the district court erred by refusing to allow [him] access to
discovery concerning [his] constitutional challenge to the
appointment of United States Attorney Guillermo Gil." United
States v. Lopez-Lopez, 282 F.3d 1, 23 (1st Cir. 2002). Figueroa's
claim is as meritless as it is familiar. There is no need to
revisit the issue since Figueroa concedes that his facial challenge
to the interim appointment mechanism is identical to the one we
rejected in United States v. Hilario, 218 F.3d 19 (1st Cir. 2000),
and his as-applied challenge mimics the one rejected in
Lopez-Lopez, 282 F.3d at 23. We reiterate that "[w]e discourage
-12- parties in the future from making arguments, such as this one, that
this court has already rejected." Lopez-Lopez, 282 F.3d at 23.
E. Impact of Apprendi
Finally, Figueroa argues for the first time on appeal
that the district court should have dismissed the drug count
because Apprendi v. New Jersey, 530 U.S. 466 (2000), rendered the
relevant statute, 21 U.S.C. § 841, unconstitutional. This argument
is wholly meritless, however, and we need not belabor it because
this Court has upheld the validity of § 841 post-Apprendi.
Lopez-Lopez, 282 F.3d at 22-3.
III. Medina's Claims
A. Response to the Deadlocked Jury's Note
Medina argues7 that the district court committed
reversible error in its instructions to a deadlocked jury. The
trial lasted twelve days, and after the jury had been deliberating
for almost four hours, it sent a note to the judge at 8:05 p.m. on
the night of Friday, September 26, 2000 stating: "We wish to advise
you that up to this moment we have not been able to reach an
agreement. We understand that even if we stay deliberating for
more time we will not be able to reach a verdict." The judge, who
7 Figueroa joins this argument in its entirety. Our determination is the same as to both defendants.
-13- felt it was "too early to give them an Allen charge,"8 instructed
the jury as follows:
The court received a note from you that basically says that you have not been able to reach an agreement. And you also state that even if you deliberate more time you're not going to reach an agreement. Well, after a 12 day trial some days we worked eight hours, some days we only worked four hours. But it's still 12 days of receiving evidence. I think it is too premature for the judge after 12 days of receiving evidence to accept that there is a deadlock. These matters do occur, and they occur sometimes more times than we would like, but they occur. So, what the Court is going to do is to send you home, relax, not think about the case and come back tomorrow at 9:30 AM and at which time I will provide you an instruction. Please do not begin any deliberation until you come back here tomorrow morning.
Medina did not object to the instructions at trial, thus,
we review for plain error. Fed. R. Crim. P. 52(b). Under plain
error review there must be a showing that there is an error, that
the error is "clear" or "obvious," and that it has affected
substantial rights by, for example, impacting the outcome of the
trial. United States v. Olano, 507 U.S. 725, 734-35 (1993)
(internal quotations omitted); United States v. Hernandez-Albino,
177 F.3d 33, 37 (1st Cir. 1999).
8 See generally Allen v. United States, 164 U.S. 492 (1896).
-14- The court's comments indicate that the judge did not
perceive the jury to be deadlocked. Moreover, his instruction to
continue deliberating did not contain the coercive elements of a
garden-variety Allen charge,9 but was merely intended to prod the
jury into continuing the effort to reach some unanimous resolution.
In United States v. Prosperi, 201 F.3d 1555 (11th Cir. 2000), the
court determined that a brief, neutral instruction issued under
similar circumstances did not constitute an Allen charge:
The instruction given here . . . cannot be properly considered an Allen charge. The judge's simple request that the jury continue deliberating, especially when unaware of the composition of the jury's nascent verdict, was routine and neutral. Nothing in the brief instruction suggested that a particular outcome was either desired or required and it was not "inherently coercive."
Id. at 1341. The Fifth Circuit has referred to instructions of
this nature as "modified Allen charges," see United States v.
Clayton, 172 F.3d 347, 352 (5th Cir. 1999), and similarly held that
such charges do not result in plain error when unaccompanied by
mitigating language emphasizing the jury's right to fail to reach
consensus. The salient principle is that such "counteractive"
language, see United States v. Manning, 79 F.3d 212, 222 (1st Cir.
9 In a typical Allen charge, the jurors are told inter alia that absolute certainty cannot be expected in the vast majority of cases, that they have a duty to reach a unanimous verdict if they can conscientiously do so, and that dissenting jury members should accord some weight to the fact that a majority of jurors hold an opposing viewpoint. See Allen v. United States, 164 U.S. 494, 501 (1896).
-15- 1996), is only deemed necessary where a "dynamite charge" is
delivered to a deadlocked jury. Under these circumstances,
mitigating instructions alleviate the prejudice to the defendant
arising from the court's insistence that a presumably hung jury
endeavor to reach consensus on either acquittal or conviction.
Where, as here, the judge reasonably concludes that the jury is not
deadlocked in the first instance, the defendant is not prejudiced
by a simple instruction to continue deliberating. The district
court's instruction in this case did not imply a duty to achieve
unanimity, nor was it addressed to jurors holding a minority
viewpoint. See Allen, 164 U.S. at 501. It stands to reason that
if a district court's instruction lacks the coercive elements of an
Allen charge, it need not include the Allen cure. Here, the
requisite coercion is simply absent and, thus, reversal on this
ground is unwarranted.
B. References to Medina's Silence
Appellant Medina raises for the first time on appeal the
argument that Figueroa's counsel and the prosecutor impermissibly
commented on Medina's decision not to testify on his own behalf at
trial. Since no contemporaneous objection was made to the
statements, we review for plain error. United States v. Hughes,
211 F.3d 676, 684 (1st Cir. 2000).
Defendants have the constitutional right to remain silent
at trial; when they exercise the right and refuse to testify, it is
-16- improper for comments to be made regarding the silence. See, e.g.,
Griffin v. California, 380 U.S. 609, 614-15 (1965) (holding
prosecutor may not comment on defendant's silence); see also United
States v. Bonfant, 851 F.2d 12, 14-15 (1st Cir. 1988) (indicating
that one co-defendant's comments regarding another co-defendant's
decision not to testify is also problematic). In evaluating
whether a comment infringed on a defendant's Fifth Amendment
rights, this Court considers "'(w)hether the language used was
manifestly intended or was of such a character that the jury would
naturally and necessarily take it to be a comment on the failure of
the accused to testify.'" Lussier v. Gunter, 552 F.2d 385, 389
(1st Cir. 1977) (quoting Knowles v. United States, 224 F.2d 168,
170 (10th Cir. 1955)).
First, Medina argues that Figueroa's counsel made several
questionable comments regarding Medina's silence. Medina objects
to the fact that Figueroa's counsel argued that Figueroa fully
admitted his past crimes, pleading guilty or admitting under oath
that he went for a joy ride in a rental car and that he arrived
illegally in Puerto Rico by boat. Figueroa's attorney stated:
Ramón Figueroa Encarnación had no obligation to take the stand and no obligation to bring in documents, had no obligation to bring in witnesses. . . . Why did he do it? Why did he ask me to do it? Because he knew you would never, if you sat here for three whole weeks, get the truth from the mouth of Hiram Cruz, Jose Umpierre and Angel Vargas
-17- Medina contends that this impermissibly suggested to the jury that
a defendant, such as Medina, that did not take the stand was more
likely to be guilty.
The examples cited by appellant Medina simply did not
trespass on his Fifth Amendment rights. Where one co-defendant
opts to take the stand and testifies in a manner that benefits the
non-testifying co-defendant, comment upon the former's decision to
testify may be permissible. See, e.g., United States v. Bonfant,
851 F.2d 12, 14-15 (1st Cir. 1988) (allowing comment by co-
defendant regarding his testimony because the testimony benefitted
both defendants and because "[t]he privilege against
self-incrimination of a co-defendant who does not choose to testify
does not go so far as to deprive one who does so choose of
effective argument in [her] behalf, so long as it is, as it was
here, sensitive to the rights of others"). In the case at bar,
Figueroa chose to testify at trial and his testimony favored both
himself and Medina. Figueroa's testimony in no way incriminated
Medina. When Figueroa's counsel referred to his testimony, he was
attempting to bolster Figueroa's credibility by pointing out to the
jury that Figueroa had admitted to his past wrongdoings.
Figueroa's counsel was merely seeking to have the jury accept a
version of events that would lead to an acquittal for both Medina
and Figueroa. The statements regarding Figueroa's admissions on
the stand were not of the type that a jury would "naturally and
-18- necessarily" take as comments on Medina's own failure to take the
stand. See Lussier, 552 F.2d at 389.
Medina's second claim concerns statements made by the
prosecutor. Medina challenges the prosecutor's comment that
"Counsel asked why didn't the United States call these other police
officers. Counsel has the same ability to call these police
officers and she did not call these police officers. You have to
ask yourself why didn't she call these police officers." Medina
also objects to the prosecutor's discussion of whether "Figueroa
really 'owns up' to things." Finally, Medina takes issue with the
prosecutor's remarks that a defense witness did not telephone the
police.
We find none of the prosecutor's comments to be
impermissible infringements on Medina's right to remain silent.
The first statement merely refers to the failure to call police
officers as witnesses to support the defense's theory of planted
evidence. This in no way comments upon Medina's own failure to
testify. The second challenged comment is permissible because it
only rebutted Figueroa's claim that he accepts responsibility for
his crimes and can in no way be construed as a comment on Medina's
silence. Finally, the third statement Medina objects to commented
upon a particular defense witness's credibility. Again, we think
it is self-evident that the prosecutor's statement could in no way
be perceived as commenting upon Medina's own silence.
-19- We thus find that the challenged comments by the
prosecutor, as well as those by the co-defendant, did not
transgress Medina's Fifth Amendment rights.
C. Availability of Safety Valve
Finally, Medina argues that the district court
impermissibly foreclosed the application of a two level safety
valve adjustment because of the firearm enhancement. Medina's
guideline base offense level was increased by two levels, pursuant
to U.S.S.G. § 2D1.1(b)(1), because "a dangerous weapon . . . was
possessed" during the course of the offense. Medina does not
contest on appeal the applicability of the § 2D1.1(b)(1)
enhancement for possession of a firearm, but he contends that the
firearm enhancement does not preclude the application of the
U.S.S.G. § 5C1.2 safety valve.
Under § 5C1.2, a defendant is eligible for a two level
guideline reduction if he meets the enumerated criteria. Here, we
are only concerned whether the defendant could meet the requirement
that he "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." U.S.S.G. §
5C1.2(a)(2). Application Note 4 to this guideline section
indicates "the term 'defendant,' as used in subsection (a)(2),
limits the accountability of the defendant to his own conduct and
-20- conduct that he aided or abetted, counseled, commanded, induced,
procured, or willfully caused."
Five of our sister circuits have found that application
of § 5C1.2 is not precluded by a weapons possession sentence
enhancement based on co-conspirator liability. See United States
v. Pena-Sarabia, 297 F.3d 983, 989 (10th Cir. 2002) (holding "a
joint criminal actor's firearm possession is not attributable to a
defendant for purposes of applying the mandatory minimum safety
valve provision"); United States v. Clavijo, 165 F.3d 1341, 1343-44
(11th Cir. 1999) (finding defendant was "entitled to safety-valve
relief even though his co-defendant possessed a firearm"); United
States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997) (refusing to
attribute co-conspirators possession of a firearm to the defendant
for the purpose of blocking the safety valve's application); United
States v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997) (agreeing that
safety valve relief was not precluded unless defendant himself
"actually possessed a firearm during the conspiracy"); In re Sealed
Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997) (holding that "co-
conspirator liability cannot establish possession under the
Guideline's safety valve"). We agree -- in order for the safety
valve to be precluded because of a firearm enhancement, a defendant
must possess or induce another to possess a firearm in accordance
with § 5C1.2(2)(a)(2).
-21- Although we find that any automatic equation of the
possession of a firearm by another and unavailability of the safety
valve is mistaken, the basis for the district court's action is
unclear here. We thus find it necessary to remand to the district
court for proper justification for the preclusion of safety valve
relief or, absent such a justification, for resentencing consistent
with this opinion.
IV. Conclusion
For the above reasons, we affirm the district court's
decision in part and reverse and remand in part.
Affirmed in part, reversed and remanded in part.
-22-