                                                                           [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


                               2
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 . . .

                                 5
[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,

                                6
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;”

                                              7
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).

                                                8
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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