In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1058

United States of America,

Plaintiff-Appellee,

v.

Jeffrey Harris,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 CR 63--Larry J. McKinney, Judge.



Argued June 13, 2000--Decided October 25, 2000



  Before Coffey, Ripple and Kanne, Circuit Judges.

  Kanne, Circuit Judge. 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.

  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.

  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:

[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

  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.
  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.

  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).

  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).

  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.

  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).

  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).

  Accordingly, we Affirm Jeffrey Harris’s sentence.


/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).




  RIPPLE, Circuit Judge, dissenting. 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.

  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).

  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.

  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).

  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.

  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.

  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.

  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.

  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.

  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").

  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.

  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).

  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.

  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).

  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.

/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.
