230 F.3d 1054 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Jeffrey Harris, Defendant-Appellant.
No. 00-1058
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 13, 2000Decided October 25, 2000

Appeal from the United States District Court  for the Southern District of Indiana, Indianapolis Division.  No. 97 CR 63--Larry J. McKinney, Judge.[Copyrighted Material Omitted]
Before Coffey, Ripple and Kanne, Circuit Judges.
Kanne, Circuit Judge.


1
Jeffrey Harris pleaded  guilty to one count of conspiracy to possess with  intent to distribute cocaine and cocaine base, 21  U.S.C. sec.sec. 846, 841(a)(1), and the district  court adjusted his base offense level upward two  levels pursuant to U.S.S.G. sec. 2D1.1(b)(1) for  possessing a firearm during the course of his  offense. Harris appeals, arguing that the  district court should not have applied sec.  2D1.1(b)(1) because he never personally or  constructively possessed a firearm, and played a  relatively small role in the conspiracy, and that  the district court should have adjusted his  offense level downward two levels under the  "safety valve" provision, U.S.S.G. sec. 5C1.2 and  U.S.S.G. sec. 2D1.1(b)(6). We affirm.

I.

2
From October 1993 to mid-1996, Harris "worked  the table"--he cooked, cut up, and packaged  kilogram quantities of crack cocaine into smaller  portions for distribution--as part of a large  narcotics distribution ring in Illinois and  Indiana. He initially worked the table at a drug  house on the south side of Chicago managed by  Kirk Reynolds, one of the primary conspirators.  In early 1995, Harris followed the operation to  Indianapolis, and worked the table at two drug  houses that were equipped with sophisticated  hidden compartments containing large caches of  firearms. He was continuously in the presence of  co-conspirators who routinely and openly carried  firearms, and once while he was present at one of  the Indianapolis houses several co-conspirators  exchanged gunfire with other individuals. Harris  also once helped deliver a large quantity of  cocaine from California, delivered large  quantities of cocaine to buyers and other drug  houses, occasionally collected drug sales  proceeds from street dealers, and was responsible  for distributing cloned cellular telephones to  members of the operation. His involvement in the  conspiracy ceased in 1996 when he moved away from  Indianapolis.


3
A federal grand jury indicted Harris along with  13 other members of the operation in May 1997.  Harris was charged only with one count of  conspiracy to possess with intent to distribute  cocaine and cocaine base, and agreed to plead  guilty to the charge in May 1998. In the written  plea agreement, Harris and the government  stipulated that his base offense level was 38  under U.S.S.G. sec. 2D1.1 (a), and that he should  receive a three-level downward adjustment for  acceptance of responsibility under U.S.S.G. sec.  3E1.1. But the parties could not agree whether  Harris possessed a firearm in connection with the  offense under U.S.S.G. sec. 2D1.1(b)(1), and  included the following stipulation in the plea  agreement


4
[I]f the Court determines that the defendant did  not possess a firearm in connection with the  offense, the parties agree that Harris meets the  remaining requirements of U.S.S.G. sec. 5C1.2. In  the event that the defendant meets said  requirements, he would be entitled to a two level  reduction, pursuant to U.S.S.G. sec.  2D1.1(b)(4).1


5
At sentencing, the district court adopted the  findings in the Presentence Investigation Report  (PSR), which recommended the upward adjustment,  and found that Harris "possessed" firearms within  the meaning of sec. 2D1.1(b)(1) because he  regularly worked in a place where firearms were  present, had access to the hidden storage  compartments in the Indianapolis drug houses, and  was continuously surrounded by co-conspirators  who openly possessed and used firearms. The court  reasoned that the presence of firearms was  foreseeable to Harris. With no further oral or  written objections to the PSR, the district court  imposed a 240-month sentence.

II.

6
Section 2D1.1(b)(1) requires a two-level upward  adjustment if "a dangerous weapon (including a  firearm) was possessed." U.S.S.G. sec.  2D1.1(b)(1); United States v. Zehm, 217 F.3d 506,  516 (7th Cir. 2000). This specific offense  characteristic applies if weapons were present,  unless it is "clearly improbable" that they were  connected to the offense. U.S.S.G. sec. 2D1.1,  comment. (n.3); Zehm, 217 F.3d at 516; United  States v. Taylor, 111 F.3d 56, 59 (7th Cir.  1997). The government bears the initial burden of  establishing by a preponderance of the evidence  that the defendant possessed a firearm, but the  burden then shifts to the defendant to prove that  it was clearly improbable that the weapon was  used in connection with the underlying offense.  United States v. Berkey, 161 F.3d 1099, 1102 (7th  Cir. 1998). A defendant "possesses" firearms  under sec. 2D1.1(b)(1) if he actually or  constructively possessed a gun, Zehm, 217 F.3d at  516; United States v. Griffin, 150 F.3d 778, 786  (7th Cir. 1998); United States v. Wetwattana, 94  F.3d 280, 283 (7th Cir. 1996), or if co-  conspirators possessed firearms in furtherance of  jointly undertaken criminal activity so long as  their possession was reasonably foreseeable to  the defendant, U.S.S.G. sec. 1B1.3(a)(1)(B) &  comment. (n.2); United States v. Brack, 188 F.3d  748, 763-64 (7th Cir. 1999); United States v.  Washington, 184 F.3d 653, 659 (7th Cir. 1999);  Taylor, 111 F.3d at 59. We review the district  court's conclusion that Harris possessed a gun  under sec. 2D1.1(b)(1) for clear error. See Zehm,  217 F.3d at 516.


7
In disputing application of sec. 2D1.1(b)(1),  Harris argues that he did not actually or  constructively possess a weapon. Although he  concedes that firearms were present in the drug  houses where he worked the table, he contends  that the presence of the weapons proves only mere  proximity, not constructive possession. The  government conceded that Harris never personally  carried a gun, but asserts that Harris had  constructive possession of the firearms carried  by his co-conspirators, or those discovered in  the drug houses. The government points out that  Harris was an intimate member of a conspiracy  whose members engaged in "firearm activity," was  present during a gun battle, was constantly in  the presence of co-conspirators carrying weapons,  had ready access to the weapons caches, and  delivered large quantities of drugs to locations  where armed individuals had been hired for  security. There is no question that firearms were  present during this offense, but to show  constructive possession the government had to  prove that Harris demonstrated ownership,  dominion, authority, or control of at least one  of the caches of weapons, see id.; United States  v. Richardson, 208 F.3d 626, 632 (7th Cir. 2000),  and the only suggestion in this record that  Harris exercised such possession comes entirely  from the mouth of the government's attorney.  Statements of counsel are not evidence, see  United States v. Fetlow, 21 F.3d 243, 248 (8th  Cir. 1994), and our reading of the PSR and the  indictment, along with the testimony from  Harris's change-of-plea hearing, reveals nothing  but Harris's proximity to the firearms, which is  insufficient to constitute constructive  possession, see United States v. Windom, 19 F.3d  1190, 1200-01 (7th Cir. 1994).


8
But a defendant can also possess a firearm for  purposes of sec. 2D1.1(b)(1) under co-conspirator  liability principles, see Brack, 188 F.3d at 763-  64; Berkey, 161 F.3d at 1102, and the district  court's application of sec. 2D1.1(b)(1) under  such a theory is supported by the record. The  district court adopted the findings of fact in  the PSR, which references information contained  in the indictment. Count 1 charged Harris with  the same drug-distribution conspiracy as all of  his co-defendants. Counts 15-19 charged co-  conspirators Morris Carr, Terrell Carter, and  Michael Harris with various substantive weapons  offenses, and Michael Harris was convicted of  both Count 1 and the weapons charges.2  Additionally, the PSR recounts numerous instances  in which firearms were possessed by co-  conspirators James Anthony, Toymiko Bradley,  Morris Carr, Terrell Carter, Michael Harris, and  Kirk Reynolds, all of whom pleaded guilty to, or  were convicted under, Count 1 of the indictment.  Harris asserts, however, that his involvement in  the charged conspiracy was significantly less  than that of his co-conspirators, and when  queried on this point at oral argument, stated  that he was involved only in a "conspiracy to  work the table," and that he simply did not  participate in the more serious criminal activity  of his co-conspirators. It is well-settled,  however, that a participant in joint criminal  activity can be liable for the foreseeable  criminal acts of another in furtherance of the  joint criminal activity. See Pinkerton v. United  States, 328 U.S. 640, 646-48 (1946); see also  United States v. Missick, 875 F.2d 1294, 1301-02  (7th Cir. 1989) (co-conspirators may be subject  to enhanced sentences under Pinkerton liability  theory). Furthermore, Harris made no written or  verbal objections to the factual findings  contained in or incorporated by reference into  the PSR--findings that establish that Harris did  more than merely work the table--and cannot now  challenge those facts on appeal. See United  States v. Staples, 202 F.3d 992, 995 (7th Cir.  2000). The district court did not clearly err in  finding that Harris possessed firearms during the  offense for purposes of sec. 2D1.1(b)(1).


9
Harris next contends that he merited a two-  level downward adjustment under the "safety  valve" provision, U.S.S.G. sec. 5C1.2. Under this  section and sec. 2D1.1(b)(6), sentencing courts  can adjust an offense level of 26 or greater  downward two levels if the defendant can  demonstrate that (1) he is a first time offender;  (2) he did not possess or use a firearm in  connection with the offense; (3) the offense did  not result in death or serious bodily injury to  any person; (4) he was not an organizer or leader  of the criminal activity; and (5) he made a good  faith effort to cooperate with the government.  See 18 U.S.C. sec. 3553(f); U.S.S.G. sec. 5C1.2.  Whether co-conspirator liability is a basis for  determining possession of a firearm under sec.  5C1.2 is an issue that we have never addressed,  but the majority of circuits to reach the issue  have ruled that it is not.3 Harris, however,  did not raise this issue or object to the  district court's failure to apply sec. 5C1.2 and  sec. 2D1.1 (b)(6) at sentencing. He acknowledges  in his brief that he may have failed to preserve  this issue for appeal, but argues that we should  determine otherwise and reach the merits of his  argument, or that we should review the district  court's failure to apply sec. 5C1.2 for plain  error. The government believes that Harris  forfeited the issue and that we may review it for  plain error, but contends that the district court  did not commit plain error. Harris failed to  preserve this issue for appeal, but we believe  that he waived, rather than forfeited, the  argument, and therefore we cannot reach its  merits.


10
Waiver and forfeiture are related doctrines;  waiver occurs when a defendant intentionally  relinquishes or abandons a known right, whereas  forfeiture occurs when a defendant fails to  timely assert his rights. Staples, 202 F.3d at  998 (citing United States v. Olano, 507 U.S. 725,  730-34 (1993)). We review forfeited issues for  plain error, see id., but we cannot review waived  issues at all because a valid waiver leaves no  error for us to correct on appeal, United States  v. Davis, 121 F.3d 335, 337-38 (7th Cir. 1997).  Here, the parties stipulated that Harris would be  eligible for safety valve relief if the district  court determined that he did not possess a  firearm in the course of the offense. But the  district court concluded otherwise, the  Sentencing Guidelines recommendations in the PSR  made no mention of sec. 5C1.2 or sec.  2D1.1(b)(6), and, when queried by the district  court, both Harris and trial counsel  affirmatively stated that they had no objections  to the PSR apart from the sec. 2D1.1(b)(1)  firearm possession adjustment. Thus, despite  having raised the sec. 5C1.2 question during plea  negotiations, Harris extinguished the issue by  affirmatively declining to object at sentencing.  See id.; United States v. Redding, 104 F.3d 96,  99 (7th Cir. 1996).


11
Finally, Harris asserts that his trial attorney  was constitutionally ineffective by failing to  argue for a downward adjustment under sec. 5C1.2  and sec. 2D1.1(b)(6). To prevail, he must  demonstrate that counsel's performance fell below  an objective standard of reasonableness and that  counsel's errors were prejudicial. Strickland v.  Washington, 466 U.S. 668, 687 (1984). The  availability of safety valve relief for  defendants such as Harris is an open question in  this circuit, and it was possible that Harris's  offense level could have been lowered by two had  trial counsel raised the issue at sentencing. But  we have generally discouraged ineffective  assistance of counsel claims on direct appeal  because we presume counsel's performance to fall  within a wide range of reasonable professional  assistance and our inquiry is necessarily limited  to the facts in the trial record. See United  States v. Godwin, 202 F.3d 969, 973 (7th Cir.  2000). Trial records are typically not  sufficiently developed for us to conclude whether  counsel's performance was deficient, United  States v. Johnson-Wilder, 29 F.3d 1100, 1104 (7th  Cir. 1994), and this case is no exception: on  this record we cannot say that counsel's failure  to request a downward adjustment under the safety  valve was not a strategic decision. Counsel  argued for the minimum sentence within the  guideline range rather than asserting that the  district court should have applied the safety  valve provision, which may or may not have  applied to Harris, and counsel was entitled to be  selective, especially where the pursuit of other  avenues may have risked opening the door to the  inclusion of unfavorable facts in the record. See  United States v. Davenport, 986 F.2d 1047, 1050  (7th Cir. 1993).


12
Accordingly, we Affirm Jeffrey Harris's sentence.



Notes:


1
 Section 2D1.1(b)(4) was later renumbered sec.  2D1.1(b)(6). See U.S.S.G. App. C, amendment 555  (Nov. 1997).


2
 We recently affirmed Michael Harris's convictions  in United States v. Thornton, 197 F.3d 241 (7th  Cir. 1999).


3
 See United States v. Clavijo, 165 F.3d 1341, 1343  (11th Cir. 1999); United States v. Wilson, 114  F.3d 429, 432 (4th Cir. 1997); In re Sealed Case,  105 F.3d 1460, 1462-63 (D.C. Cir. 1997); United  States v. Wilson, 105 F.3d 219, 222 (5th Cir.  1997); but see United States v. Hallum, 103 F.3d  87, 89-90 (10th Cir. 1996) (participants in joint  criminal activity can be held responsible for the  foreseeable possession of firearms in furtherance  of the conspiracy by other participants for  purposes of sec. 5C1.2).



13
RIPPLE, Circuit Judge, dissenting.


14
This case presents an issue of first impression in this court: whether a defendant who has properly  received a two-level enhancement under sec.  2D1.1(b)(1) of the Sentencing Guidelines may also  obtain a two-level departure under sec. 5C1.2,  the Guidelines' "safety valve" provision. Because  I would answer the question in the affirmative,  and because Mr. Harris meets the requirements for  the two-level departure, I respectfully dissent.


15
There is no doubt that Mr. Harris possessed a  firearm within the broad meaning of Sentencing  Guideline sec. 2D1.1 (b)(1). This section  provides for a two-level enhancement if a  dangerous weapon was possessed in connection with  a drug trafficking offense. Application Note  Three to Guideline sec. 2D1.1 states that the  adjustment should be applied "if the weapon was  present, unless it is clearly improbable that the  weapon was connected to the offense." U.S.S.G.  sec. 2D1.1 comment. (n.3) (1998); see also United  States v. Chandler, 12 F.3d 1427, 1435 (7th Cir.  1994). Section 2D1.1(b)(1) does not require  actual possession of the weapon by the defendant.  See United States v. Covarrubias, 65 F.3d 1362,  1370 (7th Cir. 1995). A defendant is said to have  possessed a firearm under sec. 2D1.1(b)(1) if he  had actual or constructive possession of the  weapon, see United States v. Wetwattana, 94 F.3d  280, 283 (7th Cir. 1996), or if co-conspirators  possessed firearms in furtherance of jointly  undertaken criminal activity, and their  possession was reasonably foreseeable to the  defendant, see U.S.S.G. sec. 1B1.3(a)(1)(B) &  comment. (n.2) (1998); United States v. Taylor,  111 F.3d 56, 59 (7th Cir. 1997); United States v.  Berchiolly, 67 F.3d 634, 640 (7th Cir. 1995).


16
There is sufficient evidence that Mr. Harris'  co-conspirators possessed and used firearms in  furtherance of the conspiracy, and that such  possession was reasonably foreseeable to Mr.  Harris. In fact, Mr. Harris was frequently in the  presence of armed co-conspirators and, on at  least one occasion, Mr. Harris was present when  several members of the charged conspiracy  exchanged gunfire with other individuals. Given  these facts, the district court properly  concluded that Mr. Harris possessed a firearm  within the meaning of sec. 2D1.1(b)(1). Not only  was it reasonably foreseeable to Mr. Harris that  co-conspirators were possessing firearms in  furtherance of the conspiracy, but it was also  within his actual knowledge.


17
Mr. Harris, nevertheless, asks this court to  conclude that he is still eligible to receive the  safety valve reduction because it was his co-  conspirators, not he, who possessed a firearm.  Ordinarily, we review the district court's  determination that a defendant is ineligible to  receive a reduction under sec. 5C1.2 for clear  error. See United States v. Williams, 202 F.3d  959, 964 (7th Cir. 2000). However, the failure to  raise an issue before the district court results  in a forfeiture of that argument unless the  defendant can demonstrate plain error. See United  States v. Davis, 121 F.3d 335 (7th Cir. 1997).  Because Mr. Harris failed to assert his  eligibility for the safety valve reduction at the  sentencing hearing, he must demonstrate plain  error in order to prevail on this issue.1 This  court has stated that such an error must be  "conspicuous, at least in hindsight" and  egregious enough that it would amount to a  miscarriage of justice if allowed to stand.  United States v. Marvin, 135 F.3d 1129, 1135 (7th  Cir. 1998).


18
Section 5C1.2 provides for a two-level departure  if a defendant can show that (1) he does not have  more than one criminal history point; (2) he did  not use violence, possess a firearm, or induce  another to possess a firearm; (3) his offense did  not result in death or serious bodily injury to  any person; (4) he was not an organizer, leader,  manager, or supervisor of others in the offense;  and (5) he has complied with the Government's  demands for information. See U.S.S.G. sec. 5C1.2  (1998). The only disputed issue is whether Mr.  Harris possessed a firearm within the meaning of  sec. 5C1.2(2), so as to preclude his eligibility  for the two-level departure.


19
Until now, this court has not had the occasion  to decide whether a defendant found to have  possessed a firearm for purposes of sec.  2D1.1(b)(1) under a co-conspirator liability  theory may be eligible to receive a safety valve  adjustment. The majority of circuits that have  addressed this issue, however, have held that  defendants remain eligible for a downward  departure under sec. 5C1.2 so long as they are  not found to have actually or constructively  possessed weapons for purposes of sec.  2D1.1(b)(1). See United States v. Clavijo, 165  F.3d 1341, 1343 (11th Cir. 1999) (holding that  possession of a firearm under the safety valve  does not include reasonably foreseeable  possession of a firearm by co-conspirators);  United States v. Wilson, 114 F.3d 429, 432 (4th  Cir. 1997) (holding that possession of a firearm  by co-conspirators is not attributable to the  defendant under the safety valve); In re Sealed  Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997)  (holding that the doctrine of co-conspirator  liability cannot establish possession under the  safety valve); United States v. Wilson, 105 F.3d  219, 222 (5th Cir. 1997) (holding that only the  defendant's conduct and not the conduct of his  co-conspirators is relevant in determining  eligibility for the safety valve); but see United  States v. Hallum, 103 F.3d 87, 89 (10th Cir.  1996) (holding that the defendant can be held  liable for the foreseeable acts of his co-  conspirators under the safety valve). The  majority view comports with both the language of  the Guidelines and the application notes.


20
Section 5C1.2(2) states that a defendant is  eligible for treatment under that subsection only  if "the defendant 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. sec. 5C1.2(2) (1998). In  accord, Application Note Four to Guideline sec.  5C1.2 states that 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, procured, or willfully caused." U.S.S.G.  sec. 5C1.2, comment. (n.4) (1998). The Supreme  Court has held that guideline commentary that  interprets or explains a guideline is controlling  unless it violates the Constitution or a federal  statute, or is inconsistent with, or a plainly  erroneous reading of, the guideline. See Stinson  v. United States, 508 U.S. 36, 42-45 (1993); see  also United States v. Bonanno, 146 F.3d 502, 509  n.8 (7th Cir. 1998); United States v. Rubin, 999  F.2d 194, 197 (7th Cir. 1993). Because the  Sentencing Commission drafts the Guidelines as  well as the commentary interpreting them, courts  should presume that the interpretations in the  commentary "represent the most accurate  indications of how the Commission deems that the  guidelines should be applied to be consistent  with the Guidelines Manual as a whole as well as  the authorizing statute." Stinson, 508 U.S. at  45. Because Note Four is not inconsistent with,  or a plainly erroneous reading of, Guideline sec.  5C1.2(2), it should be given controlling weight.


21
The language of Note Four mirrors the wording  of sec. 1B1.3(a)(1)(A), one of the two principal  provisions defining the scope of relevant conduct  for which defendants are held liable under the  Guidelines. See U.S.S.G. sec. 1B1.3 (a)(1)(A)  (1998). Under sec. 1B1.3(a)(1)(A), the defendant  is held liable only for those acts and omissions  that he personally "committed, aided, abetted,  counseled, commanded, induced, procured, or  willfully caused." Significantly, Note Four does  not mention sec. 1B1.3(a)(1)(B), the other  principal provision defining the scope of  relevant conduct, which holds a defendant liable  for "all reasonably foreseeable acts and  omissions of others in furtherance of the jointly  undertaken criminal activity." U.S.S.G. sec.  1B1.3(a) (1)(B) (1998). Given the plain language  of sec. 1B1.3(a) and the specificity of Note Four  to Guideline sec. 5C1.2, this omission could  hardly have been inadvertent. Section 1B1.3(a)  provides that relevant conduct shall be  determined by sec. 1B1.3(a)(1)(A) and sec.  1B1.3(a)(1)(B) "unless otherwise specified."  Applying the principle that the specific  supersedes the general, I read Note Four to  Guideline sec. 5C1.2, which addresses only the  element of weapon possession, to restrict the  meaning of relevant conduct for which defendants  are otherwise held liable under the Sentencing  Guidelines.


22
In fact, Note Four, by its own terms, expressly  "limits the accountability of the defendant to  his own conduct and conduct that he aided or  abetted, counseled, commanded, induced, procured,  or willfully caused." U.S.S.G. sec. 5C1.2  comment. (n.4). If co-conspirator liability were  incorporated into the weapon possession element,  then this limitation would be rendered  meaningless. Furthermore, Note Four is entirely  consistent with the plain language of Guideline  sec. 5C1.2(2). A defendant is eligible for  treatment under this subsection as long as he did  not "possess a firearm or other dangerous weapon  (or induce another participant to do so) in  connection with the offense." See U.S.S.G. sec.  5C1.2(2). If possession under this subsection  encompassed foreseeable possession by a co-  defendant, then the inclusion of "induce another  participant to [possess]" would be superfluous.


23
Given the measure of authority that the Supreme  Court has accorded the Guidelines and their  commentary, I am unwilling to conclude that this  phrase was included in sec. 5C1.2(2) arbitrarily.  I am no more willing to conclude that the  omission of co-conspirator liability language  from Note Four was inadvertent. Instead, I am  convinced that sec. 5C1.2(2) and its commentary  are consistent with the safety valve's basic  purpose: "to spare certain minor participants in  drug trafficking enterprises from mandatory  minimum sentences when imposition of the  mandatory sentences would be disproportionate to  the defendants' culpability." In re Sealed Case,  105 F.3d at 1462-63; see also H.R.Rep. No. 103-  460, at 5 (concluding that "the integrity and  effectiveness of controlled substance mandatory  minimums could in fact be strengthened if a  limited 'safety valve' from the operation of  these penalties was created and made applicable  to the least culpable offenders").


24
Because Mr. Harris did not actually or  constructively possess a weapon in connection  with the conspiracy, he should not be precluded  from receiving the benefits of the safety valve.  All parties agree that Mr. Harris never actually  possessed a firearm during the course of the  conspiracy or directed anyone else to carry a  firearm. However, the Government argues that Mr.  Harris should be precluded from receiving the  benefit of the safety valve because he had  constructive possession of the firearms. To prove  that Mr. Harris constructively possessed a  dangerous weapon, the Government had to show that  he demonstrated ownership, dominion, authority,  or control over the weapons that were discovered  in the drug houses. See United States v.  Richardson, 208 F.3d 626, 632 (7th Cir. 2000);  United States v. Hernandez, 13 F.3d 248, 252 (7th  Cir. 1994); United States v. Garrett, 903 F.2d  1105, 1110 (7th Cir. 1990) (stating that  constructive possession applies when "a person  does not have actual possession but instead  knowingly has the power and the intention at a  given time to exercise dominion and control over  an object, either directly or through others").  The record before the court simply cannot sustain  a finding that Mr. Harris constructively  possessed a firearm.


25
Although Mr. Harris was frequently in the  presence of armed co-conspirators, and firearms  were routinely stored in the houses where he  converted and repackaged cocaine into cocaine  base, this court has held that constructive  possession requires more than a defendant's  presence in the location of contraband. See  United States v. Windom, 19 F.3d 1190, 1200-01  (7th Cir. 1994). Undoubtedly, Mr. Harris'  proximity to the firearms is relevant to his  ability to exercise dominion and control over the  weapons. Control need not be exclusive; more than  one individual can exercise dominion and control  over contraband. See Richardson, 208 F.3d at 632;  United States v. Hunte, 196 F.3d 687, 693 (7th  Cir. 1999); United States v. Tirrell, 120 F.3d  670, 675 (7th Cir. 1997). Nevertheless,  establishing dominion and control by a particular  defendant requires more than proximity. See  Windom, 19 F.3d at 1200-01; accord United States  v. Morris, 977 F.2d 617, 619-20 (D.C. Cir. 1992).  The critical issue is whether Mr. Harris, at any  time, had the intent and the authority to  exercise control over the firearms. See United  States v. Manzella, 791 F.2d 1263, 1266 (7th Cir.  1986).


26
In a related, yet slightly different context,  this court has suggested that a defendant only  has dominion or control over contraband when he  has the recognized authority within his "criminal  milieu" to possess and determine the disposition  of the contraband. See United States v. Ortega,  44 F.3d 505, 507 (7th Cir. 1995); Windom, 19 F.3d  at 1200 n.21; Manzella, 791 F.2d at 1266 (stating  that the defendant "must have the right (not the  legal right, but the recognized authority in his  criminal milieu) to possess them, as the owner of  a safe deposit box has legal possession of the  contents even though the bank has actual  custody"). Although courts have characterized the  legal fiction of constructive possession in  various ways, this characterization is most  instructive because it makes concrete what is  otherwise evasive, and more accurately depicts  the reality of the criminal setting.


27
Understanding constructive possession in this  way, there is insufficient evidence that Mr.  Harris personally possessed the firearms. Nothing  in the PSR, the indictment, or testimony from Mr.  Harris' plea hearing suggests that he had  dominion or control over the weapons at any time.  Although Mr. Harris occasionally delivered  cocaine or collected payments, it appears that  his primary role in the conspiracy was to convert  and repackage cocaine into cocaine base. As  blameworthy as these actions were, Mr. Harris  does not appear to have played an authoritative  role in the conspiracy. The facts do not  establish that Mr. Harris had the authority  within his criminal milieu to possess and  determine the disposition of the weapons that  were discovered in the drug houses. The only  finding that the record clearly supports is that  Mr. Harris possessed firearms under a theory of  co-conspirator liability. Mr. Harris' co-  defendants possessed firearms in furtherance of  jointly undertaken criminal activity, and such  possession was reasonably foreseeable to Mr.  Harris. See U.S.S.G. sec. 1B1.3(a)(1)(B) &  comment. (n.2).


28
For the foregoing reasons, I conclude that in  determining a defendant's eligibility for the  safety valve, sec. 5C1.2(2) only allows for  consideration of the defendant's conduct, not the  conduct of his co-conspirators. Accordingly, I  believe that Mr. Harris did not possess a firearm  within the meaning of sec. 5C1.2(2) and therefore  remains eligible for a two-level reduction under  the safety valve. Because application of sec.  5C1.2 is mandatory, the district court's failure  to sentence Mr. Harris under the safety valve  provision was plainly erroneous. Therefore, I  respectfully dissent.



Notes:


1
 The majority characterizes Mr. Harris' failure to  assert his eligibility for the safety valve  adjustment as a waiver of the argument rather  than a forfeiture. See United States v. Olano,  507 U.S. 725, 732-34 (1993). This  characterization--which even the Government does  not support--permits the majority to avoid  reaching the merits on the ground that matters  that have been waived, and not merely forfeited,  are not subject to plain error scrutiny. See  United States v. Penny, 60 F.3d 1257, 1261 (7th  Cir. 1995).
In my view, the Government's characterization of  the situation as involving forfeiture and not  waiver is correct. The record hardly reflects an  "intentional relinquishment or abandonment of a  known right" to the safety valve adjustment.  Olano, 507 U.S. at 733 (quoting Johnson v.  Zerbst, 304 U.S. 458, 464 (1938)); see also  Davis, 121 F.3d at 337-38.


