                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-3352
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                             JUAN ISREAL GONZALES,
                               a/k/a John Israel Gonzales

                             JUAN ISRAEL GONZALES,
                                                Appellant
                                  _____________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. No. 1-10-CR-798)
                        District Judge: Hon. Noel L. Hillman
                                   _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 17, 2012

  BEFORE: McKEE, Chief Judge, and SLOVITER and VANASKIE, Circuit Judges

                           (Opinion Filed: February 7, 2013)

                                    _____________

                                      OPINION
                                    _____________

McKEE, Chief Judge.

      Juan Israel Gonzales appeals the District Court’s refusal to apply the safety-valve

provisions under 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2) as well as the

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substantive reasonableness of the sentence imposed following his conviction for

conspiracy to distribute methamphetamine. For the reasons that follow, we will affirm.

                       I. FACTS AND PROCEDURAL HISTORY

       As we write only for the parties who are familiar with the facts and procedural

history of this case, we will set forth only those facts relevant to our conclusion.

       Gonzales’ sentencing hearing was adjourned to allow the Probation Department to

further investigate the particulars of his arrest, as those details could impact eligibility for

safety-valve relief. A46-56. Subsequently, the Probation Department revised the PSR

and recommended denial of safety-valve relief. PSR at p. 29. When the sentencing

hearing reconvened, the District Court found that Gonzales possessed two firearms in

connection with conduct relevant to the conspiracy offense. That finding made him

ineligible for the safety-valve. A57; 69-76; 82-86. However, the District Court granted a

downward variance and imposed a sentence of 120 months — the statutory mandatory

minimum sentence. A86; 98-104. The District Court further noted that it “would impose

this sentence within [its] discretion, whether or not [it] found that the safety valve

applied.” A104. This appeal followed.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review a district

court’s conclusions of law de novo and its factual findings for clear error. E.g.,

McCutcheon v. Am.’s Servicing Co., 560 F.3d 143, 147 (3d Cir. 2009). Whether the facts



                                               2
found support denial of safety-valve relief is a question of law subject to plenary review.

United States v. Wilson, 106 F.3d 1140, 1142-43 (3d Cir. 1997).

                                     III. DISCUSSION

       Gonzales challenges his sentence on a number of grounds, including that the

District Court erred in finding him ineligible for safety-valve relief and that the sentence

should have varied further from the Guidelines range. However, the District Court has no

authority to sentence Gonzales below the statutory mandatory minimum absent safety-

valve eligibility. United States v. Reevey, 631 F.3d 110, 113 (3d Cir. 2010). Thus, the

dispositive issue on appeal is whether the District Court erred by finding that Gonzales

did not qualify for the safety-valve.

       Gonzales’s conviction carries a mandatory minimum sentence of 120 months. 21

U.S.C. § 841(b)(1)(A); § 846. However, if Gonzales can show by a preponderance of the

evidence that the safety-valve provisions in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2

apply to his case, the court may impose a sentence “pursuant to the sentencing guidelines

without regard to any statutory minimum sentence.” United States v. Sabir, 117 F.3d

750, 751 (3d Cir. 1997). To be eligible for safety-valve relief, a defendant must show,

inter alia, that he “did not . . . possess a firearm or other dangerous weapon . . . in

connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2).

       The Sentencing Guidelines define “offense” broadly to include the “offense of the

conviction and all relevant conduct.” U.S.S.G. § 5C1.2 cmt. n.3 (emphasis added).

“[R]elevant conduct” includes “all acts and omissions . . . that were part of the same

course of conduct or common scheme or plan as the offense of the conviction.” Id. §

                                               3
1B1.3(a)(1)(A), (a)(2). The commentary to the Guidelines further define “same course of

conduct” as events or activities that are “significantly connected or related to each other

so as to warrant the conclusion that they are part of a single episode, spree, or ongoing

series of offenses.” Id. § 1B1.3 cmt. n. 9(B). This conduct need not be the subject of a

formal charge or an element of the offense of conviction, nor must it occur

contemporaneously with the offense conduct. United States v. Rudolph, 137 F.3d 173,

177 (3d Cir. 1998); United States v. Kulick, 629 F.3d 165, 171 (3d Cir. 2010). In

determining whether two offenses constitute the same course of conduct, our case law

requires consideration of three factors: “(1) the temporal proximity between the two

offenses; (2) the similarity of the offenses; and (3) the regularity of the offenses.”

U.S.S.G. § 1B1.3 cmt. n.9; Kulick, 629 F.3d at 171 (3d Cir. 2010).

       The District Court did not err in concluding that this three-part test was satisfied

here. The illicit drugs found in Gonzales’ residence involved the same type of illegal

activity as the offense charged and was consistent with his activities during the six-year

conspiracy. Thus, the post-conspiracy conduct bears a high degree of similarity to, and

was part of the same regular and continuous pattern of conduct as, the charged offense.

Thirteen months had elapsed between the charge in the information and the arrest during

which the firearms were found, but that gap alone does not enable safety-valve eligibility.

See United States v. Wilson, 106 F.3d 1140, 1144 (3d Cir. 1997) (citing United States v.

Richards, 27 F.3d 465, 468-69 (10th Cir. 1994) (time gap of 17 months insufficient to

trigger safety-valve relief)). Here, there is nothing to suggest a cessation of illegal

conduct during this period. Moreover, when arrested, Gonzales was in possession of

                                               4
illegal drugs for distribution. A69-71. Thus, it is irrelevant that the drugs and firearms

were discovered only after the charged conspiracy ended. See Rudolph, 137 F.3d at 177;

Kulick, 629 F.3d at 171.1

       Moreover, the District Court stated that it would have imposed the same sentence

even if Gonzales were eligible for safety-valve relief. Indeed, the court granted a

significant downward variance after considering the circumstances of Gonzales’s case.

Thus, Gonzales has failed to establish either that the District Court erred as a matter of

law by declining to apply the safety-valve provisions or that the resulting sentence was

substantively unreasonable. See United States v. Tomko, 562 F.3d 558, 571-572 (3d Cir.

2009) (finding no abuse of discretion where district court granted downward variance

after thorough consideration of § 3553 factors).

                                   IV. CONCLUSION

       For the reasons we have explained, the judgment of the District Court will be

affirmed.




1
  Gonzales further argues the District Court erred in finding that he had constructive
possession of the firearms found in his residence. There is, however, ample evidence in
the record to support this finding. In particular, the fact that the loaded hand gun was
found under the mattress Gonzales slept on suggests that he knew of the weapon and was
close enough to pick it up at any time. See United States v. Lopez, 271 F.3d 472, 487 (3d
Cir. 2001). The proximity of those weapons to the drugs likewise demonstrates that the
weapons were “in connection with the offense” such that preclusion of the safety-valve
provisions was warranted.
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