                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 13-1013
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                v.

MARIA I. RAMIREZ,
                                            Defendant-Appellant.
                    ____________________

         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
     No. 1:11-cr-00025-TWP-TAB-4 — Tanya Walton Pratt, Judge.
                    ____________________

   ARGUED SEPTEMBER 12, 2014 — DECIDED APRIL 15, 2015
                ____________________

   Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
    SYKES, Circuit Judge. Maria Ramirez was a courier and
bookkeeper in an Indianapolis-based methamphetamine
distribution ring. Police arrested her minutes after she left a
stash house carrying about five pounds of meth worth more
than $100,000. A search of the house yielded two handguns,
and two additional firearms were later found in other houses
used by her coconspirators. Ramirez pleaded guilty to
conspiracy to distribute 50 or more grams of meth in
2                                                 No. 13-1013

violation of 21 U.S.C. §§ 841(a)(1) and 846, but at sentencing
she claimed to have been unaware that her coconspirators
possessed guns. Over her objection the district court found
that the coconspirators’ firearm possession was reasonably
foreseeable to her and increased the offense level under the
Sentencing Guidelines by two levels for possession of a
dangerous weapon. See U.S.S.G. § 2D1.1(b)(1).
   Ramirez raises two arguments on appeal. First, she con-
tends that the § 2D1.1(b)(1) enhancement was wrongly
applied because she could not have reasonably foreseen that
her coconspirators possessed guns. Second, she argues—for
the first time on appeal—that she was eligible for a two-level
reduction in her offense level under the so-called “safety
valve” for nonviolent first-time drug offenders. Id.
§§ 2D1.1(b)(16), 5C1.2(a).
    We reject these arguments and affirm. Proper application
of the firearm enhancement requires the sentencing court to
make an individualized determination that the defendant
should have foreseen her coconspirators’ gun possession. At
the same time, however, the judge is permitted to draw
common-sense inferences when determining whether some-
one in the defendant’s position reasonably should have
foreseen that guns were in use in the conspiracy. Here,
Ramirez had substantial and important roles in a sizable
drug enterprise. Under these circumstances, it was not clear
error to attribute the coconspirators’ gun possession to her
for purposes of the § 2D1.1(b)(1) enhancement.
   Possession of a firearm in connection with the offense
generally disqualifies the defendant from receiving safety-
valve consideration. Id. § 5C1.2(a)(2). Ramirez insists, how-
ever, that even if her coconspirators’ gun possession was
No. 13-1013                                                  3

properly attributed to her for purposes of the § 2D1.1(b)(1)
enhancement, the “no firearms” condition for safety-valve
eligibility is narrower. More specifically, she argues that she
was eligible for the safety valve because she neither pos-
sessed a gun herself nor induced another to do so. See id.
§ 5C1.2 cmt. n.4; cf. id. § 1B1.3(a)(1)(B).
    The scope of the safety valve’s “no firearms” prerequi-
site—more specifically, whether that condition includes
liability for a coconspirator’s gun possession—is a question
of first impression in this circuit. Because Ramirez failed to
raise this argument in the district court, our review is for
plain error only, and we find none.


                         I. Background
    Law-enforcement officers began investigating an
Indianapolis-area meth ring in October 2010. Through the
use of undercover drug purchases, wiretaps, and electronic
surveillance, they identified Ramirez as both a courier of
drugs and money and the conspiracy’s bookkeeper. The
police eventually received intelligence that on March 4, 2011,
a large meth shipment would leave a certain residence on
Prestonwood Court in Indianapolis. They staked out the site
and saw Ramirez arrive, enter the house, and leave a few
minutes later with a five-gallon bucket. She was promptly
stopped and searched and found in possession of about
$5,900 in cash; the bucket contained more than 2,200 grams
of meth with a street value in excess of $100,000. Officers
then executed a search warrant at the residence—later
identified as the ring’s primary stash house—and seized
large quantities of meth as well as two handguns hidden
4                                                 No. 13-1013

under sofa cushions. Subsequent search warrants resulted in
the seizure of two additional firearms, one from each of two
other houses used by the conspiracy. A search of Ramirez’s
apartment yielded 180 grams of meth, a digital scale, finan-
cial logs, and several cell phones, but no weapons.
    Ramirez pleaded guilty to one count of conspiracy to dis-
tribute 50 or more grams of meth in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Based on the drug quantity attributed
to her, the base offense level for the crime was 38. Over
Ramirez’s objection, the district judge applied a two-level
increase for possession of the firearms recovered from the
stash houses. See U.S.S.G. § 2D1.1(b)(1). The judge then
applied a three-level downward adjustment for acceptance
of responsibility, id. § 3E1.1(b), and accepted the govern-
ment’s recommendation for an additional two-level reduc-
tion for substantial assistance, id. § 5K1.1. The resulting
offense level was 35. As a first-time offender, Ramirez was in
criminal history category I, yielding a recommended guide-
lines range of 168 to 210 months. The court imposed a
below-guidelines sentence of 160 months.
   Ramirez never argued that she qualified for the “safety
valve” for nonviolent first-time drug offenders under
§ 5C1.2(a). If the safety valve had been applied, the range
would have been 135 to 168 months. And if the firearm
enhancement were removed as well, the range would have
been even lower—108 to 135 months.
No. 13-1013                                                   5

                          II. Discussion
A. The Firearm Enhancement
    As directed by § 2D1.1(b)(1), the judge increased
Ramirez’s base offense level by two levels after finding her
responsible for the four firearms recovered from the stash
houses. We review the district court’s factual findings for
clear error and will reverse only if we are left with a definite
and firm conviction that a mistake has been made. United
States v. Berchiolly, 67 F.3d 634, 639–40 (7th Cir. 1995).
    Under § 2D1.1(b)(1), a two-level enhancement applies
“[i]f a dangerous weapon (including a firearm) was pos-
sessed.” Although no evidence suggested that Ramirez
herself possessed any firearms, “in the case of a jointly
undertaken criminal activity[,] … all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity” are considered offense con-
duct attributable to the defendant. § 1B1.3(a)(1)(B).
    To apply the firearm enhancement to a defendant who
did not personally possess a gun (or have actual knowledge
of a coconspirator’s gun possession), the judge must make
two findings by a preponderance of the evidence: (1) that
someone in the conspiracy actually possessed a firearm in
furtherance of the conspiracy, and (2) that the firearm pos-
session was reasonably foreseeable to the defendant. United
States v. Luster, 480 F.3d 551, 558 (7th Cir. 2007). Ramirez
does not dispute that her coconspirators possessed the four
guns in furtherance of the meth enterprise. The only issue is
whether their gun possession was reasonably foreseeable to
her.
6                                                    No. 13-1013

    We have said that “the drug industry is by nature dan-
gerous and violent, and a reasonable fact-finder is permitted
to use his or her common sense in concluding that in a drug
deal involving sizable amounts of money, the presence of
firearms is foreseeable.” Berchiolly, 67 F.3d at 640; see also
Luster, 480 F.3d at 558 (The defendant’s “frequent pres-
ence … where the drugs and guns were stored, and his
knowledge of [the] large-scale cocaine distribution opera-
tion, raise the inference that he could have reasonably
foreseen his coconspirator’s possession of firearms for
intimidation or protection.”); United States v. Banks, 987 F.2d
463, 467–68 (7th Cir. 1993) (“Since guns are tools of the drug
trade, it was reasonably foreseeable that [a coconspirator]
would possess one during the offense.”).
    But the mere fact that Ramirez was a member of a drug-
distribution ring does not make her strictly liable for all
concealed weapons possessed by other conspirators. Rather,
the judge was required to undertake an individualized
inquiry about the foreseeability of the coconspirators’ gun
possession from the perspective of the defendant. United
States v. Vold, 66 F.3d 915, 921 (7th Cir. 1995); see also Luster,
480 F.3d at 558 (“[T]he district court must determine that the
coconspirator’s firearm possession was reasonably foreseea-
ble to the defendant.”) (emphasis added). And common-sense
inferences about foreseeability must have adequate support
in the record. See United States v. Block, 705 F.3d 755, 764 (7th
Cir. 2013) (rejecting the firearm enhancement because the
district court “erroneously relied on several irrelevant
facts”).
   The requirement of an individualized inquiry suggests
that the scale, scope, and nature of the conspiracy, and the
No. 13-1013                                                             7

defendant’s role in it, should usually be considered when
determining whether gun possession was reasonably fore-
seeable to the defendant.1 Compare Vold, 66 F.3d at 921 (four-
month, two-man conspiracy to cook methcathinone in a
trailer and garage not sufficient to make the coconspirator’s
gun possession reasonably foreseeable), with Luster, 480 F.3d
at 558 (coconspirator’s gun possession reasonably foreseea-
ble when the defendant knew he was part of a large-scale
cocaine-distribution enterprise and spent significant time in
the music studio where guns were stored).
    The judge engaged in that analysis here, and the record
supports the application of the enhancement. First, as noted
in the Presentence Investigation Report (“PSR”), “Ramirez
was an integral member of the distribution cell and engaged
in daily activities on behalf of the organization that involved
large sums of money and drugs.” Indeed, she was the
bookkeeper for the meth ring as well as a courier, suggesting
that she was intimately familiar with the scope and daily
operations of the organization beyond her own involvement.
She regularly made deliveries between at least four proper-
ties, three of which contained guns, and her own home was
used to store drug-dealing paraphernalia for her coconspira-
tors. She was arrested holding five pounds of meth with a
street value of more than $100,000. As the district judge


1 In some rare cases, it might be possible to infer that a high-level
participant in a large drug conspiracy has, by virtue of his position,
special reason to think that guns are not involved (say, for example, if a
ringleader specifically orders his associates not to carry guns). However,
there is no evidence that Ramirez took any measures to assure herself
that guns were not used by the meth ring. She simply claims never to
have seen or heard about the firearms.
8                                                No. 13-1013

asked rhetorically, “[D]idn’t she think people would have
guns when they had that great a value of drugs?” Address-
ing Ramirez’s defense counsel, the judge continued: “[T]hat’s
the nature of the business, isn’t it, … that when they have
large amounts of cash and large amounts of drugs, that, you
know, it’s commonly known that people have guns to protect
their product?” On this record we’re convinced that the
judge conducted a sufficiently individualized assessment of
the foreseeability of gun possession to Ramirez in light of
her specific and significant role in the conspiracy.
    In addition to the individualized findings about Ramirez,
the judge also made a few comments about drug crimes in
general. For example, the judge said that in her experience,
“99.9 percent of … drug deals” involved guns. She also
noted that some drug crimes involve home invasions and
murders. These statements may have been exaggerated, but
considered in context it’s clear that they were meant only to
emphasize that drug trafficking is, in the judge’s words, a
“dangerous business,” and thus Ramirez should have been
alert to the likelihood that guns would be involved. These
remarks do not undermine our confidence that the judge
applied the firearm enhancement after a particularized
foreseeability analysis based on Ramirez’s knowledge of the
nature and scope of the conspiracy.


B. Safety-Valve Eligibility
    1. Background
   Congress passed the so-called safety valve, 18 U.S.C.
§ 3553(f), in 1994, and the Sentencing Commission thereafter
added it to the guidelines as § 5C1.2(a). The safety valve
No. 13-1013                                                9

“was meant to aid those less culpable defendants for whom
a mandatory minimum sentence might seem harsh.” United
States v. Ramirez, 94 F.3d 1095, 1101 (7th Cir. 1996). To be
eligible, a defendant must satisfy five conditions:
       (1) the defendant does not have more than
           1 criminal history point … ;
       (2) the defendant did not use violence or cred-
           ible threats of violence or possess a firearm
           or other dangerous weapon (or induce an-
           other participant to do so) in connection
           with the offense;
       (3) the offense did not result in death or seri-
           ous bodily injury to any person;
       (4) the defendant was not an organizer, leader,
           manager, or supervisor of others in the of-
           fense … ; and
       (5) not later than the time of the sentencing
           hearing, the defendant has truthfully pro-
           vided to the Government all information
           and evidence the defendant has concerning
           the offense or offenses that were part of the
           same course of conduct or of a common
           scheme or plan … .
§ 5C1.2(a).
   If the defendant satisfies all five conditions, “the court
shall impose a sentence … without regard to any statutory
minimum sentence.” Id. The defendant is also entitled to a
two-level reduction under § 2D1.1(b)(16) regardless of
10                                                             No. 13-1013

whether the waiver of the statutory minimum affects the
advisory sentence under the guidelines.2
    The defendant bears the burden of demonstrating, by a
preponderance of the evidence, her eligibility for the safety
valve.3 See Ramirez, 94 F.3d at 1100 (“The court’s conclusion
in favor of the defendant necessarily depends upon the
defendant’s persuasive ability to demonstrate to the court
that he is eligible for the reduced sentence.”). Here, the PSR
made no mention of the safety value, and Ramirez did not
raise—much less prove—her eligibility for it in the district
court.


2 If the two-level reduction under the safety valve had been applied,
Ramirez’s offense level would have been 33 and the advisory guidelines
range would have been 135 to 168 months—still above the statutory
minimum of 120 months. See 21 U.S.C. § 841(b)(1)(A)(viii).
3 The requirement that defendants raise and prove safety-valve eligibility
avoids the oddity of requiring the government to disprove the safety-
valve factors preemptively as a matter of course. See United States v.
Harakaly, 734 F.3d 88, 98 (1st Cir. 2013) (“This allocation of the burden
makes perfect sense; were it otherwise, the government would be
required to disprove the safety-valve factors before the defendant ever
expressed an intent to seek a sentencing reduction via the safety valve.”).
It is also consistent with the general principle that while the government
must prove sentencing enhancements by a preponderance of the evi-
dence, “[w]hen a defendant requests a decrease in his offense level, he
has the burden of demonstrating that he is eligible for the reduction by a
preponderance of the evidence.” United States v. Soto, 48 F.3d 1415, 1423
(7th Cir. 1995); see, e.g., United States v. Seidling, 737 F.3d 1155, 1162 (7th
Cir. 2013) (defendants bear the burden of proving their entitlement to an
“acceptance of responsibility” adjustment under § 3E1.1); United States v.
Sandoval-Velazco, 736 F.3d 1104, 1107 (7th Cir. 2013) (defendants bear the
burden of proving their entitlement to a “mitigating role” adjustment
under § 3B1.2).
No. 13-1013                                                  11

    2. Forfeiture
    Despite Ramirez’s burden, she and the government be-
lieve that she forfeited, rather than waived, her safety-valve
argument. “Waiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or abandon-
ment of a known right.” United States v. Olano, 507 U.S. 725,
733 (1993) (internal quotation marks omitted).
    The distinction is vital because a waived argument is un-
reviewable on appeal. United States v. Walton, 255 F.3d 437,
441 (7th Cir. 2001). As a general matter, we have held that
“[i]f a specific objection was not raised at sentencing, we will
view it as having been waived if the defendant had a strate-
gic reason to forego the argument, that is, only if the defend-
ant’s counsel would not be deficient for failing to raise the
objection.” United States v. Allen, 529 F.3d 390, 395 (7th Cir.
2008).
    It’s hard to see how Ramirez’s silence could be called a
waiver; we cannot imagine any strategic reason to forego
asking for the safety valve. That said, we think it would be
an extremely rare case in which a district court would ever
commit plain error—the standard of review for forfeited
objections—by not applying the safety valve sua sponte. This
is so because the fifth safety-valve condition requires the
defendant to show that she “has truthfully provided to the
Government all information and evidence … concerning the
offense … .” U.S.S.G. § 5C1.2(a)(5). If the defendant does not
affirmatively assert that she has given the government all the
12                                                           No. 13-1013

information she has, it is highly unlikely that the record will
unambiguously show that she did. 4
   We note as well that the safety valve cannot be applied
until “the Government has been afforded the opportunity to
make a recommendation.” 18 U.S.C. § 3553(f). Since the
government has not yet had a chance to make a recommen-
dation, the most we could possibly do even if we found a
plain error is remand for the district court to evaluate
Ramirez’s safety-valve eligibility, taking into account a
recommendation by the government.
    In any case, even if we assume that Ramirez merely for-
feited her safety-valve request,5 and that her failure to argue
that she satisfied the fifth condition for eligibility is not fatal,
she is not entitled to relief.

4 The offense-level reduction for substantial assistance, U.S.S.G. § 5K1.1,
requires only “substantial” assistance to the government, so the defend-
ant’s eligibility for a § 5K1.1 adjustment is not conclusive on whether she
has provided “all the information and evidence [she] has,” as required
for the safety valve, id. § 5C1.2(a)(5).
5 Other circuits have applied plain-error review where the defendant has
failed to request safety-valve consideration, though not in published
decisions. See, e.g., United States v. Molina-Borrayo, 569 F. App’x 232, 234
(5th Cir. 2014) (“Molina-Borrayo argues that the district court erred in
failing to apply the ‘safety-valve’ provision to his sentence. Because
Molina-Borrayo did not raise this issue before the district court, it is
reviewed for plain error.”); United States v. Thomas, 532 F. App’x 384, 387
(4th Cir. 2013) (“Because Thomas did not request application of the
safety valve reduction in the district court, his claim of error in this
appeal is reviewed for plain error.”), cert. denied, 134 S. Ct. 946 (2014);
United States v. White, 136 F. App’x 227, 230 (11th Cir. 2005) (“White
argues that the district court erred in failing to apply … [the] safety
valve … . We review sentencing claims raised for the first time on appeal
for plain error.”).
No. 13-1013                                                    13

   3. Plain-Error Analysis
    A forfeited argument is reviewed for plain error. An error
is plain if it is so obvious that “the trial judge and prosecutor
were derelict in countenancing it, even absent the defend-
ant’s timely assistance in detecting it. … It cannot be subtle,
arcane, debatable, or factually complicated.” United States v.
Turner, 651 F.3d 743, 748 (7th Cir. 2011) (internal quotation
marks omitted). If we find a plain error, we will reverse the
decision below only if the error affected the defendant’s
substantial rights and seriously impugned the fairness,
integrity, or public reputation of the judicial proceeding.
United States v. Goodwin, 717 F.3d 511, 518 (7th Cir. 2013), cert.
denied, 134 S. Ct. 334 (2013).
    One of the conditions for safety-valve eligibility is that
the defendant “did not … possess a firearm or other danger-
ous weapon (or induce another participant to do so) in
connection with the offense[.]” § 5C1.2(a)(2). Ramirez argues
that even if the firearms recovered from the stash houses
were properly attributed to her for purposes of the firearm
enhancement, the scope of the safety-valve’s “no firearms”
condition is narrower. Her argument is based on Commen-
tary Note 4 to § 5C1.2, which states that “[c]onsistent with
§ 1B1.3 (Relevant Conduct), the 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.” Accountability for coconspirators’ conduct is
noticeably absent from that list, although the reference to the
Relevant Conduct guideline—§ 1B1.3, which authorizes
coconspirator liability—introduces some ambiguity.
14                                                  No. 13-1013

    Even so, other circuits that have addressed this issue
have concluded that the scope of the safety-valve’s “no
firearms” condition is narrower than the firearms enhance-
ment and does not impute responsibility for the acts of
coconspirators. See United States v. Delgado-Paz, 506 F.3d 652,
656 (8th Cir. 2007); United States v. Figueroa-Encarnación,
343 F.3d 23, 34 (1st Cir. 2003); United States v. Pena-Sarabia,
297 F.3d 983, 989 (10th Cir. 2002); United States v. Clavijo,
165 F.3d 1341, 1343–44 (11th Cir. 1999) (per curiam); United
States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997); In re Sealed
Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997); United States v.
Wilson, 105 F.3d 219, 222 (5th Cir. 1997) (per curiam); see also
United States v. Harris, 230 F.3d 1054, 1061 (7th Cir. 2000)
(Ripple, J., dissenting) (summarizing the arguments in favor
of distinguishing the scope of responsibility associated with
the firearm enhancement and safety valve).
    As we’ve noted, this is a question of first impression in
our circuit. See Harris, 230 F.3d at 1058 (noting but not decid-
ing the question whether coconspirator liability is a basis for
determining possession of a firearm under § 5C1.2). If
Ramirez had raised the issue at sentencing, then this would
be an occasion for us to decide whether application of the
firearms enhancement categorically forecloses eligibility for
the safety valve. But her failure to make that argument
before the district court limits us to review for plain error.
   We rarely find plain error on a matter of first impression.
In order to prevail, the defendant must show that “the error
was so obvious and so prejudicial that a district judge
should have intervened without being prompted by an
objection from defense counsel.” United States v. Boswell,
772 F.3d 469, 476–77 (7th Cir. 2014) (internal quotation marks
No. 13-1013                                                      15

omitted). Matters of first impression are unlikely to be that
obvious. See United States v. Turrietta, 696 F.3d 972, 981 (10th
Cir. 2012) (“Since a district court cannot be faulted for failing
to act on its own motion where the law is unsettled, a matter
of first impression will generally preclude a finding of plain
error.”). And Ramirez’s eligibility for the safety valve was
not so obvious in this case.
    It’s true that the scope of the “no firearms” condition in
§ 5C1.2(a)(2) was flagged as an open question in our decision
in Harris. 230 F.3d at 1058 (“Whether co-conspirator liability
is a basis for determining possession of a firearm under
§ 5C1.2 is an issue that we have never addressed … . [W]e
cannot reach its merits [here].”); see also id. at 1061 (Ripple, J.,
dissenting). But the issue remains unsettled in this circuit.
Given the lack of guiding circuit precedent, the district court
cannot be faulted for failing to raise and apply the safety
valve sua sponte. Accordingly, we find no plain error.
                                                        AFFIRMED.
