                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT           FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 11-10631                       MARCH 14, 2012
                                ________________________                   JOHN LEY
                                                                            CLERK
                      D.C. Docket No. 8:10-cr-00103-VMC-AEP-2

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                             versus

JOSE SOLIS,
a.k.a. Jose Rangel, Jr.,

                                                                    Defendant-Appellant.

                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________

                                       (March 14, 2012)

Before MARCUS, COX and SILER,* Circuit Judges.

PER CURIAM:




       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
      Jose Solis appeals his 171-month total sentence, imposed after he pled guilty

to conspiracy to distribute cocaine and methamphetamine, distribution of cocaine and

methamphetamine, possession of methamphetamine, and possession of a firearm in

furtherance of a drug trafficking crime. On appeal, Solis challenges the district

court’s finding that he was ineligible for a two-level reduction to his offense level.

After thorough review, we affirm.

      We review factual determinations of a district court’s safety-valve decision for

clear error and its legal interpretation de novo. United States v. Poyato, 454 F.3d

1295, 1297 (11th Cir. 2006). The defendant has the burden of proving his eligibility

for safety-valve relief. United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir.

2004).

      In 2010, the guideline provision corresponding to Solis’s convictions, U.S.S.G.

§ 2D1.1, allowed a two-level reduction to a defendant’s offense level if the defendant

met all five of the safety-valve provisions under U.S.S.G. § 5C1.2(a). U.S.S.G.

§ 2D1.1(b)(11). To qualify for safety-valve relief under § 5C1.2(a), the defendant

must show, among other things, that he “did not . . . possess a firearm or other

dangerous weapon (or induce another participant to do so) in connection with the

offense.” U.S.S.G. § 5C1.2(a)(2). In this appeal, this is the only one of the five

safety-valve criteria that the parties dispute.

                                            2
      Unless the defendant “induces” another’s possession according to the language

of § 5C1.2(a)(2), we have held that “possession” of a firearm, with respect to the

safety-valve provision, “does not include reasonably foreseeable possession of a

firearm by co-conspirators.” United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir.

1999) (per curiam). However, the commentary following § 5C1.2 states that

“defendant,” as used in § 5C1.2(a)(2), makes a defendant accountable for “his own

conduct and conduct that he aided or abetted, counseled, commanded, induced,

procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4. Section 2 of Title 18

provides that “[w]hoever . . . aids, abets, counsels, commands, induces or procures

[the commission of an offense against the United States] is punishable as a principal.”

18 U.S.C. § 2(a).

      In this case, Solis and several co-conspirators were charged in an eleven-count

superseding indictment. Solis was named in Counts 1 through 9, which charged him

with conspiracy to distribute cocaine and methamphetamine (Counts 1 and 2),

distribution of cocaine and methamphetamine (Counts 3-7), possession of

methamphetamine (Count 8), and possession of a firearm in furtherance of a drug

trafficking crime (Count 9). Solis pled guilty to all 9 counts, including Count 9,

which charged him with violations of 18 U.S.C. §§ 924(c) and 2: possession of a




                                          3
firearm in connection with a drug trafficking offense based on an aiding and abetting

theory of liability.

       While a co-conspirator’s reasonably foreseeable possession of a firearm does

not preclude safety-valve relief under Clavijo, a defendant who aids and abets such

possession is treated as a principal under the guidelines and faces the same sentencing

exposure as the principal. See U.S.S.G. §§ 2X2.1, 1B1.3(a)(1)(A). And, as noted,

the commentary following § 5C1.2 specifically states that, with regard to safety-valve

relief, a defendant is accountable for conduct that he aided or abetted. U.S.S.G.

§ 5C1.2 cmt. n.4.

       The uncontroverted facts from the PSI show that during a December 9, 2009

drug transaction for which Solis was present, one of Solis’s codefendants, Victor

Galvan-Moreno, possessed a loaded handgun. Based on Solis’s guilty plea to Count

9 (the § 924(c) count) and these facts in the PSI regarding Galvan-Moreno’s firearm

possession, Solis admitted his liability for Galvan-Moreno’s firearm possession

during the December 9, 2009 drug transaction. Therefore, Solis cannot demonstrate

that he did not possess a firearm in connection with a drug trafficking offense, and,

as a result, he does not qualify for safety-valve relief. There was no clear error in the

district court’s determination that Solis was ineligible for such a reduction to his

offense level, and we affirm.

                                           4
AFFIRMED.




            5
