                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4152


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

NICHOLAS JOE ALLISON,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Henry F. Floyd, District Judge.
(8:05-cr-00055-HFF-1)


Submitted:    October 14, 2008             Decided:   November 24, 2008


Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Benjamin   T.   Stepp,   Assistant   Federal   Public   Defender,
Greenville, South Carolina, for Appellant.    W. Walter Wilkins,
United States Attorney, Regan A. Pendleton, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Nicholas   Allison      appeals      the     144-month    sentence

imposed by the district court after he pled guilty to conspiracy

to possess with intent to distribute and to distribute fifty

grams or more of methamphetamine and 500 grams or more of a

mixture or substance containing methamphetamine (Count 1), in

violation of 21 U.S.C. §             846 (2000), and possession with intent

to distribute fifty grams or more of methamphetamine and 500

grams       or     more     of   a     mixture     or       substance     containing

methamphetamine (Count 2), in violation of 21 U.S.C. § 841(a)(1)

(2000). 1         On appeal, Allison challenges the district court’s

conclusion that he did not qualify for a two-level reduction

under the safety-valve provision in U.S. Sentencing Guidelines

Manual § 5C1.2 (2004).               Because we conclude that the district

court    procedurally        erred,     we   vacate     Allison’s   sentence    and

remand for resentencing.

     1
      Allison also pled guilty to using and carrying a firearm
during and in relation to, and possession of a firearm in
furtherance of, a drug trafficking crime (Count 3), in violation
of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2008).      At the
sentencing hearing, however, the district court permitted him to
withdraw the plea on Count 3. The court found that testimony at
the trial of a co-conspirator, Vanessa Givens (“Givens”),
established that Givens possessed the gun and put it under the
passenger seat of the car without Allison’s knowledge and that
Givens had been riding in the passenger seat but switched places
with Allison just before the state trooper effectuated the stop
that led to the discovery of the gun and 910 grams of
methamphetamine.


                                             2
              This   court       reviews        the     sentence    imposed    by     the

district court for abuse of discretion.                       Gall v. United States,

128 S. Ct. 586, 597 (2007).                  Appellate courts review sentences

for procedural and substantive reasonableness:

       It must first ensure that the district court committed
       no significant procedural error, such as failing to
       calculate (or improperly calculating) the Guidelines
       range, treating the Guidelines as mandatory, failing
       to   consider  the  § 3553(a)  factors,   selecting  a
       sentence based on clearly erroneous facts, or failing
       to adequately explain the chosen sentence--including
       an explanation for any deviation from the Guidelines
       range.

Id.        “A sentence based on an improperly calculated guidelines

range will be found unreasonable and vacated.”                      United States v.

Abu Ali, 528 F.3d 210, 260 (4th Cir. 2008) (citing Gall, 128 S.

Ct. at 597).

              Allison        contends    that     the    district   court     erred    in

finding that he did not qualify for the safety-valve reduction

in    USSG    § 5C1.2    because        he   received     a   two-level   enhancement

under USSG § 2D1.1(b)(1) for possession of a weapon based upon

his concession that it was reasonably foreseeable a gun would be

involved in the drug conspiracy. 2                 Allison asserts that, despite

his    concession       of    reasonable      foreseeability,       he    should    have

received the safety-valve reduction because the undisputed facts


       2
      Allison does not challenge the district court’s application
of the weapon enhancement on appeal.



                                              3
established that he never possessed the firearm or knew that

Givens      had       hidden     it     in    the        car.           The   district            court’s

determination of whether a defendant satisfied the safety-valve

requirements is a question of fact reviewed for clear error.

United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).

              A defendant who meets the five criteria set out in

USSG § 5C1.2 is entitled to a two-level reduction under USSG

§ 2D1.1(b)(7). 3              The only requirement contested on appeal is

whether Allison “use[d] violence or credible threats of violence

or possess[ed] a firearm . . . (or induce[d] another participant

to   do    so)     in    connection          with       the    offense        .    .   .     .”     USSG

§ 5C1.2(a)(2).           “[T]he term ‘defendant,’ as used in subsection

(a)(2), limits the accountability of the defendant to his own

conduct      and       conduct        that    he        aided      or     abetted,          counseled,

commanded,         induced,      procured,              or    willfully           caused.”          USSG

§ 5C1.2 cmt. n.4.                Allison “bears the burden of proving the

existence        of     the    five     prerequisites              set    forth        in    § 5C1.2.”

Wilson, 114 F.3d at 432.

              This court has found that, “for [the] limited purposes

of        applying        [the         safety-valve]                provision               [in     USSG

§ 5C1.2(a)(2)], possession of a firearm by a coconspirator is

not attributed to the defendant.”                            Id.    Moreover, every circuit

      3
          This subsection has been redesignated USSG § 2D1.1(b)(11).



                                                    4
to address whether a defendant who received an enhancement for

possession of a weapon under USSG § 2D1.1(b)(1) based upon co-

conspirator    liability             also       may      receive    a     two-level     reduction

under the safety-valve provision has held that the provisions

are not mutually exclusive:

       While § 2D1.1(b)(1) may be applied based on a co-
       conspirator’s reasonably foreseeable possession of a
       firearm in furtherance of jointly undertaken criminal
       activity, the circuits are unanimous in holding that
       possession of a weapon by a defendant’s co-conspirator
       does not render the defendant ineligible for safety-
       valve relief unless the government shows that the
       defendant induced the co-conspirator’s possession.

United States v. Delgado-Paz, 506 F.3d 652, 655-56 (8th Cir.

2007) (collecting cases).

            Here, the facts are undisputed that Givens obtained

the firearm and put it under the passenger seat of the car

without Allison’s knowledge.                     Givens also occupied the passenger

seat   until   she    switched          places            with    Allison    just     before    the

officer    stopped        the    car.           On       these   facts,     we   conclude       that

Givens’    possession           of    the       firearm          cannot    be    attributed      to

Allison because he did not obtain the gun, put it in the car, or

induce    Givens     to    do    so.            See      id.      Thus,    we    find   that    the

district    court     committed             a    significant            procedural      error    by




                                                     5
failing to award Allison a two-level reduction under the safety-

valve provision. 4

            For the reasons stated, we vacate Allison’s sentence

and remand for resentencing.          With the safety-valve reduction,

the advisory guideline range becomes 135 to 168 months.                      The

district    court    should   consider    the    extent    of    the   downward

departure    for    substantial   assistance     from     that    point.     We

dispense    with    oral   argument    because     the    facts    and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                        VACATED AND REMANDED




     4
      The Government contends, however, that because the district
court properly applied the firearm enhancement, the court also
properly denied relief under the safety-valve provision.      The
three unpublished Fourth Circuit cases the Government cites in
support of its position are distinguishable because none of
those cases involved co-conspirator liability as the basis for
the firearm enhancement. The Government also suggests that the
denial of the safety-valve reduction may be affirmed on the
ground that Allison was a leader in the conspiracy and therefore
also failed to satisfy USSG § 5C1.2(a)(4).      The Government’s
argument fails because Allison did not receive a role-in-the-
offense adjustment. See USSG § 5C1.2(a)(4) cmt. n.5.



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