                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 25 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30143

              Plaintiff - Appellant,             D.C. No. 9:11-cr-00061-DLC-1

  v.
                                                 MEMORANDUM*
JASON WASHINGTON,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                        Argued and Submitted June 3, 2014
                               Seattle, Washington

Before: GOODWIN, McKEOWN, and WATFORD, Circuit Judges.

       1. The district court found that Jason Washington did not possess a firearm

“in connection with the offense” under 18 U.S.C. § 3553(f)(2). The court did not

clearly err in so finding. See United States v. Ferryman, 444 F.3d 1183, 1185 (9th

Cir. 2006). The court carefully considered the circumstances surrounding those



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                          Page 2 of 4
instances in which Washington possessed a firearm and concluded that

Washington had proved by a preponderance of the evidence that he lawfully

possessed the firearms for purposes unconnected to the drug offenses at issue. We

cannot say that the court’s finding leaves us “with a definite and firm conviction

that a mistake has been made.” Id. at 1186.

      2. The district court also found that Washington was not “an organizer,

leader, manager, or supervisor of others in the offense, as determined under the

sentencing guidelines.” 18 U.S.C. § 3553(f)(4). The enhancement for role in the

offense applies under U.S.S.G. § 3B1.1 when “the defendant exercised some

control over others involved in the commission of the offense or was responsible

for organizing others for the purpose of carrying out the crime.” United States v.

Yi, 704 F.3d 800, 807 (9th Cir. 2013) (citation and internal quotation marks

omitted). We conclude that the district court committed two legal errors in

conducting this analysis.

      First, the court did not address Washington’s control over others or his

organizational role at all. Instead, it concluded that the enhancement should not

apply because Washington did not present a recidivism risk or danger to the public,

two of the factors the Sentencing Commission has indicated underlie the role

enhancement. See § 3B1.1 cmt. background. Although sentencing courts may
                                                                          Page 3 of 4
draw upon background commentary to inform their analysis, they must begin with

the plain language of the guidelines. See United States v. Cruz-Gramajo, 570 F.3d

1162, 1167, 1168 n.4 (9th Cir. 2009). As with the enhancement for obstruction of

justice, if the court determines that the factual predicate for the enhancement under

§ 3B1.1 has been established, application of the enhancement is mandatory. See,

e.g., United States v. Ancheta, 38 F.3d 1114, 1118 (9th Cir. 1994) (holding that

once a guideline provision’s criteria have been met, the enhancement is

“mandatory, not discretionary”). When imposing a sentence, the court may, of

course, consider departing from the applicable guidelines range if it believes the

enhancement overstates the defendant’s culpability. See Koon v. United States,

518 U.S. 81, 92 (1996). But when determining eligibility for the safety valve, the

court must apply the enhancement according to its plain terms, without regard to

departures. See United States v. Valencia-Andrade, 72 F.3d 770, 773–74 (9th Cir.

1995) (holding that a court calculating defendant’s criminal history points for

purposes of safety valve eligibility must do so without considering departures).

      Second, the court erred by importing the “heartland” analysis of Koon into

the safety valve context. That analysis is appropriate only when, after correctly

calculating the applicable guidelines range, a court is considering whether to grant

a variance or departure from that range. It has no relevance when a court is
                                                                          Page 4 of 4
determining whether a particular guideline enhancement applies in the first place.

The guidelines make this clear by stating that a court must apply the enhancement

for role in the offense before considering any departures or variances. See

U.S.S.G. § 1B1.1.

      3. In light of the above, we reverse and remand with respect to the role

enhancement under § 3B1.1 so that the district court may reconsider its analysis,

taking into account Washington’s “control over others involved in the commission

of the offense” and his responsibility “for organizing others for the purpose of

carrying out the crime.” Yi, 704 F.3d at 807. If the court determines that the

factual predicate for the role enhancement has been established in light of the

evidence in the record, that finding would preclude safety valve relief. 18 U.S.C.

§ 3553(f)(4); U.S.S.G. § 5C1.2 cmt. n.5. On the other hand, if the record does not

support application of the enhancement after the court analyzes it within the

framework laid out above, safety valve relief would be available.

      VACATED AND REMANDED.
                                                                            FILED
United States v. Washington, No. 13-30143                                    JUN 25 2014

                                                                         MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, concurring:                                       U.S. COURT OF APPEALS



      Whether all components of the safety valve statute remain constitutional

after Alleyne v. United States, 133 S. Ct. 2151 (2013), is an open question. While

at least one circuit has concluded post-Alleyne that the statute doesn’t offend the

Sixth Amendment, see United States v. Harakaly, 734 F.3d 88, 97–99 (1st Cir.

2013), our circuit has yet to decide the issue. See United States v. Tequida-Esquer,

No. 13-10514 (9th Cir. appeal docketed Oct. 7, 2013). Having prevailed below on

the issue of safety valve eligibility, Washington had no occasion to brief the issue

in this appeal, and we therefore do not address it.
