                                                                                     [PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                             FOR THE ELEVENTH CIRCUIT
                                                                      U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                ________________________                     11/17/99
                                                                          THOMAS K. KAHN
                                       No. 98-4381                            CLERK
                                ________________________

                             D. C. Docket No. 96-920-CR-NCR


UNITED STATES OF AMERICA,
                                                                     Plaintiff-Appellee,

                                              versus

MERLY GALLO,
                                                                     Defendant-Appellant.

                                ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             _________________________
                                  (November 17, 1999)


Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS*, Senior
District Judge.


____________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
designation.
MARCUS, Circuit Judge:

      Merly Gallo appeals her 92-month sentence for conspiring to possess with

intent to distribute cocaine in violation of 21 U.S.C. § 846. The sole issue she

raises on appeal concerns whether the district court properly enhanced her sentence

two points for possession of a firearm by her co-conspirators under § 2D1.1(b)(1)

of the United States Sentencing Guidelines. Because we hold that a § 2D1.1(b)(1)

enhancement requires a factual finding of reasonable foreseeability, we vacate

Defendant’s sentence, and remand to the district court to determine whether Gallo

could reasonably foresee that her co-conspirators would possess firearms in

furtherance of a jointly undertaken narcotics transaction.

                                          I.

      On April 29, 1997, Defendant Gallo and four co-conspirators (Blanco,

Gordon, Diaz, and Gomez) pled guilty to conspiring to possess cocaine with intent

to distribute in violation of 21 U.S.C. § 846. Among other things, the evidence

showed that Gallo participated in a narcotics transaction on November 7, 1996 at

the apartment of her co-conspirator Gomez. At eleven-thirty that morning, Gallo

and Diaz arrived at Gomez’s apartment. Two hours later, Blanco and Gordon

arrived with seven kilos of cocaine. Each man also came armed with a pistol

tucked in his waistband. An informant, Maria Nunez, then arrived at Gomez’s


                                          2
apartment and was let in by Gallo. Nunez inspected the cocaine in front of Gallo

and her co-conspirators. Gallo then left with Nunez and was subsequently arrested.



      At her sentencing, on January 30, 1998, Gallo received a two-point sentence

enhancement under U.S.S.G. § 2D1.1(b)(1) based on the fact that two of her co-

conspirators (Gordon and Blanco) possessed firearms during the course of the

narcotics conspiracy. In awarding the enhancement, the district court exclusively

relied on commentary to § 2D1.1 which states:

             The enhancement for weapon possession reflects the
             increased danger of violence when drug traffickers
             possess weapons. The adjustment should be applied if
             the weapon was present, unless it is clearly improbable
             that the weapon was connected with the offense.

U.S.S.G. § 2D1.1, comment. (n.3) (emphasis added). The district court did not

consider the relevance of U.S.S.G. § 1B1.3(a)(1)(b) which outlines the

requirements for sentence enhancements based on co-conspirator conduct. Neither

the United States nor the Defendant made any reference to the Guideline at

Defendant’s sentencing colloquy. This provision unambiguously limits

enhancements, “in the case of a jointly undertaken criminal activity . . . [to] all

reasonably forseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” Id. (emphasis added). However, the Defendant did


                                           3
argue that a “reasonable foreseeability” finding was required for § 2D1.1

enhancements for co-conspirator conduct, citing instead to United States v. Vold,

66 F.3d 915 (7th Cir. 1995) (requiring a reasonable foreseeability finding, in

conjunction with § 1B1.3(a)(1)(b), for § 2D1.1(b)(1) firearms possession

enhancements based on co-conspirator conduct).

      The United States countered that § 2D1.1(b)(1) did not require reasonable

foreseeability, and that, in any event, Gallo could reasonably have foreseen her co-

conspirators’ firearms possession. The district court ordered the § 2D1.1(b)(1)

enhancement finding only that it was not clearly improbable that the weapons

possessed by Blanco and Gordon were connected with the offense, while refusing

to make an alternative finding that the co-conspirators’ possession was or was not

reasonably foreseeable.1


      1
        The sentencing colloquy makes clear that the district judge chose not to make
a finding of reasonable foreseeability despite a request from both the defense and the
government.

             The Court:     Now, defendant objects here on the basis that
                           Ms. Gallo did not possess a firearm nor was it
                           reasonably foreseeable that her co-
                           conspirators Mr. Gordon and Mr. Blanco
                           would show up with a firearm.
                                       ...

             The Court: Very well. I am going to make my findings.
                        And I think it will present a very clear
                                          4
            question to the 11th Circuit, which is that I
            find that under application note 3 under
            section 2D1.1 of the guidelines manual I
            cannot find that it is clearly improbable that
            the weapons used by Gordon and Blanco are
            connected with the offense . . . However, if
            the 11th Circuit wants to hold that we must
            follow, ignore the sentencing guideline, and
            follow the 7th circuit on reasonably
            foreseeable, so be it. . . .

Government:        Your honor, if I could ask the court to
                   consider, if this issue did go up,
                   whether it would be reasonably
                   foreseeable because the government is
                   taking the position that in this case it
                   would have been reasonably
                   foreseeable for this and any other
                   defendant involved in this conspiracy
                   to believe that weapons would be
                   possessed. . . . It was based on the fact
                   that this defendant was present at the
                   home of Maria Nunez with Defendant
                   Gallo when individuals came banging
                   on the door, attempted forced entry into
                   the home to receive payment for the
                   two kilos that were ripped off. Clearly
                   these individuals had reason to fear for
                   their lives. . . .

The Court: That is fine. That might have been reason for Ms. Diaz and
           Ms. Gallo to have a weapon. But it really doesn’t supply
           the probability that somebody else is going to bring the
            weapons in along with the cocaine to protect themselves during the
            transaction or the cocaine during the transaction. And I understand
            that the government is urging me to do to cover so I would come out
            with the same result whichever route I followed, either application

                             5
                                           II.

      We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)

for clear error, and the application of the Sentencing Guidelines to those facts de

novo. See United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995) (citing United

States v. Herrera, 931 F.2d 761, 762 (11th Cir.1991)).

      To begin, § 2D1.1(b)(1) of the Sentencing Guidelines, which sets out

specific offense characteristics pertaining to drug offenses, provides for a two-level

increase in base offense level “[i]f a dangerous weapon (including a firearm) was

possessed . . . .” Id. The commentary to that section also provides that “[t]he

adjustment should be applied if the weapon was present, unless it was clearly

improbable that the weapon was connected with the offense.” U.S.S.G. 2D1.1,

comment. (n.3). In this case, Gallo does not contest the district court’s application

of note 3 of the commentary to 2D1.1. Indeed, it is plain from the record that the

firearm was directly connected to the drug-trafficking offense. However, this does

not end our inquiry. Gallo did not actually possess the firearms in question.

Instead, the firearms were possessed by two of her co-conspirators.


                          note 3 or the reasonably foreseeable doctrine. I cannot do that. So
                          the case is squarely presented, I think, to the 11th Circuit.



                                           6
      U.S.S.G. § 1B1.3(a)(1)(b) outlines the requirements for sentence

enhancements based on co-conspirator conduct. The Guideline instructs that an act

may be imputed from one co-conspirator to another provided the conduct was (1)

“reasonably foreseeable,” and (2) “in furtherance of the jointly undertaken criminal

activity. . . .” Id. The Guidelines are promulgated by the United States Sentencing

Commission, pursuant to the Sentencing Reform Act of 1984, as amended, §18

U.S.C. 3551 et seq., §§ 28 U.S.C. 991-998, and have the binding force of a

legislative enactment. See Williams v. United States, 503 U.S. 193, 200-01

(1992). In addition, the commentary for § 1B1.3(a)(1)(b) reads:

             [I]n the case of a jointly undertaken criminal activity,
             subsection (a)(1)(B) provides that a defendant is
             accountable for the conduct (acts and omissions) of
             others that was both:

             (i) in furtherance of the jointly undertaken criminal activity; and

             (ii) reasonably foreseeable in connection with that criminal activity.

Id. at comment. (n.2). (emphasis added). Guideline commentary “must be given

‘controlling weight unless it is plainly erroneous or inconsistent with the

regulation’” it interprets or contrary to federal law. Stinson v. United States, 508

U.S. 36, 45 (1993) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,

414 (1945)). In short, both § 1B1.3(a)(1)(b) and its commentary unambiguously



                                          7
direct that sentence enhancements for co-conspirator conduct will be limited to

those acts which are reasonably foreseeable.

       Therefore, the central question squarely presented is whether a §

2D1.1(b)(1) firearms enhancement based on a co-conspirator’s firearms possession

requires that the conduct be reasonably foreseeable by a defendant.

      Our first foray into this issue occurred in United States Otero, 890 F.2d 366

(11th Cir. 1989), a short per curiam opinion. There, we simply outlined a three-

part test for § 2D1.1(b)(1) sentence enhancements based on co-conspirator

conduct:

             Sentence enhancement for a co-conspirator’s firearms
             possession is proper if three conditions are met: first, the
             possessor must be charged as a co-conspirator; second,
             the co-conspirator must be found to have been possessing
             a firearm in furtherance of the conspiracy; and third, the
             defendant who is to receive the enhanced sentence must
             have been a member of the conspiracy at the time of the
             firearms possession.

Otero, 890 F.2d at 367.2 The Otero test does not explicitly reference any

requirement that the co-conspirator’s possession be foreseeable to the defendant.

However, in articulating this test, the Otero court cited to United States v. Missick,


      2
       The government bears the burden of proving the appropriateness of a sentence
enhancement under the Otero regime. See United States v. Gates, 967 F.2d 497, 500-
01 (11th Cir. 1992) (citing U.S. v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989)).


                                          8
875 F.2d 1294, 1301-02 (7th Cir. 1989) and Pinkerton v. United States, 328 U.S.

640 (1946). Missick laid out a similar three-part test for § 2D1.1(b)(1), explaining

that “Missick may still have been properly subject to an enhanced sentence based

on the possession of firearms by Whisner and Fluhr without individually

possessing a firearm under the theory of co-conspirator liability established in

Pinkerton. . . .” Missick, 875 F.2d at 1301. And in Pinkerton, the Supreme Court

elucidated the classic theory of co-conspirator liability. Notably, the Pinkerton

rationale discussed the same three elements established in Otero and Missick, see

Pinkerton, 328 U.S. at 642-47, but then plainly instructed that co-conspirator

liability cannot be found “if the substantive offense committed . . . was merely a

part of the ramifications of the plan which could not be reasonably foreseen as a

necessary or natural consequence of the unlawful agreement.” Pinkerton, 328 U.S.

at 647-48 (emphasis added).

      At oral argument, the United States suggested that the Otero test does not

require a reasonable foreseeability finding, even if the Defendant could establish

that the co-conspirators’ conduct was not reasonably foreseeable to her.3 Rather,

the government argued, Otero requires only that the government prove by a


      3
       This argument cannot easily be squared with the United States’ brief which
contends that a reasonable foreseeability requirement is “built-in” to the Otero
analysis.
                                          9
preponderance of the evidence that the firearm possessor was a co-conspirator, that

the possession was in furtherance of the conspiracy, and finally, that the Defendant

was a member of the conspiracy at the time of possession. We disagree. We read

Otero to be consonant with the traditional theory of co-conspirator liability

requiring reasonable foreseeability,

first outlined in Pinkerton and later promulgated in U.S.S.G. § 1B1.3(a)(1)(b). Our

conclusion is supported by the overwhelming authority of our caselaw which

consistently has read Otero to require reasonable foreseeability.

      We first revisited Otero in United States v. Martinez, 924 F.2d 209 (11th

Cir. 1992). There, we clarified that Otero “is fully in accord with the Guidelines

and the commentary to § 1B1.3(a)(1). Otero follows the Pinkerton rationale,

which, like the Guidelines, requires that the firearm possession ‘be reasonably

foreseen as a necessary or natural consequence of the unlawful agreement.’”

Martinez, 924 F.2d at 210 n.1 (citing Pinkerton, 328 U.S. at 648)). Then in Freyre-

Lazaro, in Pessefall, and again in Green, we applied the Otero test and specifically

determined that the co-conspirator conduct was “reasonably foreseeable” despite

defendants’ claims that they lacked actual knowledge of the possession. United

States v. Freyre-Lazaro, 3 F.3d 1496, 1506 (11th Cir. 1993); United States v.

Pessefall, 27 F.3d 511, 514-15 (11th Cir. 1994); United States v. Green, 40 F.3d


                                         10
1167, 1175 (11th Cir. 1994). Later, in Aduwo, we noted that a defendant may be

awarded a firearms possession enhancement for co-conspirator conduct under

Otero because of the “basic [Pinkerton] rule that conspirators are liable for the

reasonably foreseeable acts of their co-conspirators in furtherance of the

conspiracy.” United States v. Aduwo, 64 F.3d 626, 629 (11th Cir. 1995). We

reiterated this proposition in United States v. Luiz, 102 F.3d 466, 468 (11th Cir.

1996) (stating that the “rationale [under Otero] for attributing the possession of a

firearm by one co-conspirator to another is the Pinkerton rule that ‘conspirators are

liable for the reasonably foreseeable acts of their co-conspirators in furtherance of

the conspiracy’”) (citing Aduwo, 64 F.3d at 629). Finally, in Alred, we explained

that while “[a]ctual knowledge of the coconspirator’s firearm possession by the

convicted defendant is not required [under Otero] . . ., possession must be

reasonably foreseeable.” United States v. Alred, 144 F.3d 1405, 1420 (11th Cir.

1998).

      However, our research also reveals that several cases have applied the Otero

test without any discussion of reasonable foreseeability. See United States v.

Matthews, 168 F.3d 1234, 1248 (11th Cir. 1999); United States v. Delgado, 56

F.3d 1357, 1372 (11th Cir. 1995); United States v. Reid, 69 F.3d 1109, 1115 (11th

Cir. 1995); United States v. Stanley, 24 F.3d 1314, 1322-23 (11th Cir. 1994);


                                          11
United States v. Gates, 967 F.2d 497, 500 (1992). As best we can tell, only one of

these cases, Gates, involved a defendant who made a state of mind defense to his §

2D1.1(b)(1) firearms enhancement. See id., 967 F.2d 497, 500 (1992). In Gates,

the defendant argued he lacked actual knowledge of his co-conspirators’ gun

possession, and we concluded that the Otero test nevertheless was met. See id. at

500. The gun at issue was lodged under a driver’s car seat in close proximity to

Gates who was sitting in a rear passenger seat. The issue of foreseeability was not

argued by Gates directly, and the facts suggest that the possession was reasonably

foreseeable. See id. at 499. In the remaining four cases, the issue of reasonable

foreseeability was not germane to the Otero analysis because the defendants did

not contest their knowledge of the co-conspirator conduct. None of these cases

hold or suggest in dicta that a reasonable forseeability finding is irrelevant under

Otero.

         But even if there is doubt that Otero requires a reasonable forseeability

finding, it would not affect our conclusion today. Notably, when Otero was

decided, the reasonable foreseeability requirement appeared in note one of the

commentary to U.S.S.G. § 1B1.3 but not in the direct text of the Guideline itself.

See U.S.S.G. § 1B1.3, comment. (n.1) (1989) (amended 1994). At the time Otero

was decided, the Guidelines’ commentary was considered precatory, not


                                            12
mandatory, in our circuit and in the other federal circuits. See United States v.

Stinson, 957 F.2d 813, 813 (11th Cir. 1992) (per curiam) (interpreting the

Guidelines’ commentary as non-binding); United States v. Gaines, 964 F.2d 124,

126 (2d. Cir. 1992) (finding the Guidelines’ policy statements to have less

authority than the Guidelines themselves); United States v. Blackston, 940 F.2d

877, 893 (3d. Cir. 1991) (stating that the Guidelines’ policy statements are merely

“advisory”); United States v. Anderson, 942 F.2d 606, 609-14 (9th Cir. 1991) (en

banc) (treating the Guidelines’ commentary as something more than legislative

history but something less than the Guidelines’ text).

      In 1993, however, the Supreme Court overruled Stinson and determined that

the Guidelines’ commentary was binding unless it was contrary to federal law or

“plainly erroneous” in light of the Guidelines themselves. Stinson, 508 U.S. at 37,

44-45. Stinson therefore effectively required sentencing courts to apply the

“reasonable foreseeability” commentary to § 1B1.3(a)(1)(b) when awarding an

enhancement based on co-conspirator conduct. Moreover, in 1994, the Sentencing

Commission expressly amended the Guidelines to include the reasonable

foreseeability requirement directly in § 1B1.3(a)(1)(b). Compare U.S.S.G. § 1B1.3




                                         13
(1989) with U.S.S.G. § 1B1.3(a)(1)(b) (1994).4 This amendment, effective in

November 1994, gave the reasonable foreseeability requirement of §




      4
       Note one of the commentary to § 1B1.3 of the 1989 Guidelines states:

              In the case of criminal activity undertaken in concert with
              others, whether or not charged as a conspiracy, the conduct
              for which the defendant “would be otherwise accountable”
              also includes conduct of others in furtherance of the
              execution of the jointly-undertaken criminal activity that
              was reasonably foreseeable by the defendant.

Id.

§ 1B1.3 now reads:

              (a)   Chapter Two (Offense Conduct) and Three
                    (Adjustments). Unless otherwise specified, (i) the
                    base offense level where the guideline specifies more
                    than one base level offense, (ii) specific offense
                    characteristics and (iii) cross references in Chapter
                    Two, and (iv) adjustments in Chapter Three, shall be
                    determined on the basis of the following:

              (1)

                    (B)    In the case of a jointly undertaken criminal activity (a
                           criminal plan, scheme, endeavor, or enterprise undertaken
                           by the defendant in concert with others, whether or not
                           charged as a conspiracy), all reasonably foreseeable acts
                           and omissions of others in furtherance of the jointly
                           undertaken criminal activity.

Id. (1997).
                                          14
1B1.3(a)(1)(b) the binding force of a legislative enactment. See Williams, 503

U.S. at 200-01.

      We conclude that each of these legal developments constitutes sufficient

change in the legal and statutory landscape to undermine any suggestion in Otero

that reasonable foreseeability is not required by U.S.S.G. § 2D1.1(b)(1). As a rule,

our prior precedent is no longer binding once it has been substantially undermined

or overruled by either a change in statutory law or Supreme Court jurisprudence or

if it is in conflict with existing Supreme Court precedent. See United States v.

Romeo, 122 F.3d 941, 942 n.1 (11th Cir. 1997) (determining that prior precedent

does not have to be followed by a panel where a “change in statutory law”

undermines the precedent) (citing United States v. Woodard, 938 F.2d 1255, 1258

n.4 (11th Cir. 1991))5; Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th Cir. 1992)


      5
       We said in Woodard, a sentencing guideline case:

              Although several of our cases state the principle that
             "only" the en banc court or the Supreme Court can overrule
             a panel decision, in a situation such as this where our
             authority derives from Congress, we have no doubt that a
             clear change in the law by Congress could also justify a
             panel of this Court in not following an earlier panel's
             decision, where the prior panel's decision was based on
             legislation that had been changed or repealed.

Woodard, 938 F.2d at 1258 n.4 (emphasis added); see also Davis v. Estelle, 529 F.2d
437, 441 (5th Cir.1976) (stating that “one panel of this Court cannot disregard the
                                         15
(declining to follow prior panel holding “in order to give full effect to an

intervening decision of the Supreme Court”) (citing United States v. Machado, 804

F.2d 1537, 1543 (11th Cir.1986)); Tucker v. Phyfer, 819 F.2d 1030, 1035 n. 7

(11th Cir. 1987) (declining to follow prior panel opinion that failed to consider

controlling Supreme Court precedent). Thus, even if we were to read Otero, as the

government suggests, as eviscerating a reasonable foreseeability requirement for

U.S.S.G. § 2D1.1(b)(1), that holding would be in square conflict with both the

Supreme Court’s decision in Stinson and the plain language of U.S.S.G. §

1B1.3(a)(1)(b) subsequently adopted by the Sentencing Commission.

       For these reasons, we hold that for a § 2D1.1(b)(1) firearms enhancement

for co-conspirator possession to be applied to a convicted defendant, the

government must prove by a preponderance of the evidence: (1) the possessor of

the firearm was a co-conspirator, (2) the possession was in furtherance of the

conspiracy, (3) the defendant was a member of the conspiracy at the time of




precedent set by a prior panel, even though it conceives error in the precedent. Absent
an overriding Supreme Court decision or a change in the statutory law, only the Court
en banc can do this.").



                                          16
possession, and (4) the co-conspirator possession was reasonably foreseeable by

the defendant.6 We therefore vacate

Defendant’s sentence and remand the proceedings to the district court to make a

finding regarding the foreseeability of the co-defendants’ possession of the

firearms, and impose sentence accordingly.

      VACATED AND REMANDED.




      6
       We offer no opinion whether, under these case facts, the firearms possession
by Gallo’s co-conspirators was reasonably foreseeable by Gallo.
                                         17
