                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 26 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               )      No. 09-50513
                                        )
      Plaintiff – Appellee,             )      D.C. No. 2:08-cr-01460-GHK-1
                                        )
      v.                                )      MEMORANDUM *
                                        )
DERRICK TYRONE NORWOOD,                 )
AKA Ty-Bud,                             )
                                        )
      Defendant – Appellant.            )
                                        )
                                        )

                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                               Submitted July 12, 2011 **
                                 Pasadena, California

Before:      FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.

      Derrick Tyrone Norwood appeals his sentence for sale of crack cocaine




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
(Count 1 of the indictment)1 and for maintaining a residence for the wrongful

manufacture, distribution or use of a controlled substance (Count 5 of the

indictment).2 We affirm in part and remand.

      (1)      Norwood first asserts that the district court erred when it denied him

safety valve relief 3 on the basis that he possessed a firearm in connection with his

sale of crack cocaine offense,4 without making the necessary findings. We agree.

For safety valve purposes, the offense includes both “‘the offense of conviction

and all relevant conduct.’” United States v. Fernandez, 526 F.3d 1247, 1252 (9th

Cir. 2008); (quoting United States v. Miller, 151 F.3d 957, 960 (9th Cir. 1998)).

Here the district court expressly found that Norwood possessed a firearm in

connection with Count 5, the drug residence offense, but that offense is not one

that carries a mandatory minimum sentence, so safety valve analysis does not

apply to it. See United States v. Gamboa-Cardenas, 508 F.3d 491, 496, 498 (9th

Cir. 2007). The district court did not expressly hold that the firearm was possessed

in connection with Count 1, the sale offense, which does carry a mandatory



      1
          21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii).
      2
          21 U.S.C. § 856(a)(1).
      3
       18 U.S.C. § 3553(f); see also USSG §5C1.2. All references to the
Guidelines are to the November 1, 2008, version thereof.
      4
          18 U.S.C. § 3553(f)(2).

                                             2
minimum sentence and to which safety valve analysis does apply. Although the

district court did properly group 5 the two offenses, it made no express finding that

possession of the firearm constituted relevant conduct as to Count 1. On this

record, firearm possession may or may not have been relevant conduct as to Count

1,6 but that is a determination that should be made by the district court in the first

instance. Thus, we will remand so that the district court can further explore the

safety valve issues7 and make the appropriate findings. It shall not revisit its

decision that relevant conduct can be considered, or its decision to group the

offenses. We affirm both of those decisions. If the district court determines that

Norwood is entitled to safety valve relief, it shall vacate its sentence and resentence

him on that basis.

      (2)     Norwood next asserts error because the government did not argue that

he should be sentenced at the “low end of the applicable Sentencing Guidelines




      5
          See USSG §3D1.2(b).
      6
       We note that the mere fact that the drug residence offense occurred some
months after the sale offense does not demonstrate that firearm possession was not
relevant conduct as a matter of law. See United States v. Pitts, 6 F.3d 1366, 1373
(9th Cir. 1993).
      7
        The government asserts that Norwood did not comply with the proffer
requirement. 18 U.S.C. § 3553(f)(5). The district court did not make a finding on
that issue.

                                            3
imprisonment range,” that is at forty-six months.8 It is true that the government

and Norwood agreed that the government would make that recommendation, but

they also agreed that the government could argue against safety valve relief. We

must construe those agreements using normal contract law standards,9 and when

we do so, it is apparent that the agreement was not that the government must make

the absurd argument that even if the mandatory minimum was sixty months, the

district court should sentence Norwood to forty-six months. If the district court

should decide that the sixty-month minimum does not apply, that will be another

matter entirely. The district court did not err, much less plainly err.

      (3)      Finally, Norwood argues that the applicable Fair Sentencing Act

provision 10 applies retroactively to preclude the sixty-month mandatory minimum

sentence for the sale of crack cocaine, which was imposed by the district court. On

this appeal, that argument is precluded by United States v. Baptist, No. 09-50315,

slip. op. 7299, 7307 (9th Cir. June 2, 2011) (per curiam).

      AFFIRMED in part, and REMANDED for further proceedings.



      8
       He did not make this argument at the district court. We review for plain
error. See United States v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011).
      9
          See United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001).
      10
       Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a)(2), 124 Stat.
2372 (2010).

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