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                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-10259
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 1:13-cr-00279-SCJ-JSA-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,


                                       versus


RASONDO NORRIS,
a.k.a. Rasondo Maurice Norris,

                                                              Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                 (October 29, 2014)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Rasondo Norris appeals his 120-month imprisonment sentence imposed after

pleading guilty to one count of possession with the intent to distribute at least 5

kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and

one count of entering an airport area in violation of security requirements, in

violation of 49 U.S.C. § 46314(a), (b)(2). At sentencing, the district court

determined that Norris had possessed a firearm in connection with the cocaine

offense and was therefore not eligible for safety-valve relief under U.S.S.G.

§5C1.2. We agree and affirm.

      On appeal, Norris argues that the district court erred by considering whether

it was “clearly improbable” that a machine gun was connected with Norris’s

offense, because the clearly improbable standard only applies to the two-level

U.S.S.G. § 2D1.1(b)(1) enhancement for possessing a firearm, rather than the

safety-valve provision under U.S.S.G. § 5C1.2. In making this determination, the

district court stated that it could not “find that it’s clearly improbable that the

firearm was not connected to the offense.” The district court also stated several

times that it could not determine that “there was no potential for that firearm to

facilitate . . . the offense,” because, even though the firearm had been locked in a

box, the court could not “say [that Norris] could not open that [lock box] if he had

to.” Norris also argues that, in determining his eligibility for safety-valve relief,

the district court clearly erred by considering the conduct of an undercover agent,


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which was outside the scope of Norris’s accountability.

       We generally review a district court’s factual determinations and subsequent

denial of safety-valve relief for clear error. United States v. Camacho, 261 F.3d

1071, 1073 (11th Cir. 2001). Where a defendant fails to object on the basis that a

district court applied the wrong legal standard, we review for plain error. 1 United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Legal interpretations of

the Sentencing Guidelines are reviewed de novo. United States v. Johnson, 375

F.3d 1300, 1301 (11th Cir. 2004).

       Certain drug offenses and quantities can trigger statutorily-mandated

minimum prison terms, trumping the recommended guideline sentencing range.

United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013); U.S.S.G.

§ 5G1.1(b). But Congress created a five-criteria “safety valve” that, if fulfilled,

permits a district court to sentence without regard for the statutorily-mandated

minimums. Carillo-Ayala, 713 F.3d at 88. The defendant bears the burden of

proving by a preponderance of the evidence that he is entitled to safety-valve


1
         The Supreme Court has explained that plain-error review involves four prongs. Puckett
v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009). “First, there must be an error
or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished
or abandoned . . . by the appellant. Second, the legal error must be clear or obvious, rather than
subject to reasonable dispute. Third, the error must have affected the appellant’s substantial
rights, which in the ordinary case means he must demonstrate that it affected the outcome of the
district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of
appeals has the discretion to remedy the error—discretion which ought to be exercised only if the
error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(internal quotations and citations omitted) (alterations adopted).
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relief. Id. at 96. At issue here is the criterion that the defendant not have

“possess[ed] a firearm or other dangerous weapon . . . in connection with the

offense.” U.S.S.G. § 5C1.2(a)(2) (emphasis added).

       The Guidelines do not define the phrase “in connection with” for purposes

of § 5C1.2. Carillo-Ayala, 713 F.3d at 89. However, in Carillo-Ayala, we held

that the requirement could be satisfied by a showing that the firearm (1) was in

close proximity to drugs, or (2) facilitated, or had the potential to facilitate, the

offense, whether by emboldening an actor who had the ability to display or

discharge the weapon, by serving as an integral part of a drug transaction as in a

barter situation, by instilling confidence in others who relied on the defendant, or

by serving as a badge of office to help the defendant avoid detection. Id. at 91-96.

“Where any of these possibilities are shown by the evidence, the safety valve is

unavailable unless the defendant negates the proof by a preponderance of the

evidence . . . .” 2 Id. at 96. The defendant must prove that “a connection between

the firearm and the offense, though possible, is not probable.” Id. at 91 (internal

quotation omitted).

        As a threshold matter, Norris failed to fairly object to the district court that

its comment, “clearly improbable,” might be an erroneous legal standard. This


2
       A defendant is not precluded from arguing that he did not possess a firearm “in
connection with” his offense under § 5C1.2, even if he conceded an enhancement under U.S.S.G.
§ 2D1.1(b)(1) for possessing a firearm. Carillo-Ayala, 713 F.3d at 91.
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Court, therefore, reviews for plain error. The district court did not commit plain

error in determining that Norris failed to carry his burden of proving that the gun

was not possessed in connection with the drug offense. It is not at all clear from

the transcript that the district court did in fact apply the legal standard of “clearly

improbable” as opposed to merely “not probable.” Moreover, even assuming

arguendo error, Norris has failed to persuade us that the error affected his

substantial rights. There is not a reasonable probability of a different result in light

of the district court’s findings noted below that Norris had access to the firearm.

       The district court did not clearly err by improperly considering the conduct

of an undercover agent in determining that Norris was ineligible for safety-valve

relief. The sentencing transcript reveals that the district court considered the

manner in which Norris carried the gun. There was evidence indicating that the

case housing the firearm was “flimsily locked.” The district court stated that it

could not determine that “there was no potential for that firearm to facilitate . . . the

offense” because it could not “say [that Norris] could not open that [lock box] if he

had to.” 3

       AFFIRMED.



3
         Because we cannot conclude that the district court was clearly erroneous in finding that
Norris himself could have accessed the firearm if he had to, we need not address the alternative
holding of the district court that the safety-valve relief was not reasonable because Norris knew
that the undercover agent would possess the firearm in connection with the offense.
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