United States v. Allison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4152
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS JOE ALLISON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:05-cr-00055-HFF-1)
Submitted: October 14, 2008 Decided: November 24, 2008
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. W. Walter Wilkins,
United States Attorney, Regan A. Pendleton, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas Allison appeals the 144-month sentence
imposed by the district court after he pled guilty to conspiracy
to possess with intent to distribute and to distribute fifty
grams or more of methamphetamine and 500 grams or more of a
mixture or substance containing methamphetamine (Count 1), in
violation of 21 U.S.C. § 846 (2000), and possession with intent
to distribute fifty grams or more of methamphetamine and 500
grams or more of a mixture or substance containing
methamphetamine (Count 2), in violation of 21 U.S.C. § 841(a)(1)
(2000). 1 On appeal, Allison challenges the district court’s
conclusion that he did not qualify for a two-level reduction
under the safety-valve provision in U.S. Sentencing Guidelines
Manual § 5C1.2 (2004). Because we conclude that the district
court procedurally erred, we vacate Allison’s sentence and
remand for resentencing.
1
Allison also pled guilty to using and carrying a firearm
during and in relation to, and possession of a firearm in
furtherance of, a drug trafficking crime (Count 3), in violation
of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2008). At the
sentencing hearing, however, the district court permitted him to
withdraw the plea on Count 3. The court found that testimony at
the trial of a co-conspirator, Vanessa Givens (“Givens”),
established that Givens possessed the gun and put it under the
passenger seat of the car without Allison’s knowledge and that
Givens had been riding in the passenger seat but switched places
with Allison just before the state trooper effectuated the stop
that led to the discovery of the gun and 910 grams of
methamphetamine.
2
This court reviews the sentence imposed by the
district court for abuse of discretion. Gall v. United States,
128 S. Ct. 586, 597 (2007). Appellate courts review sentences
for procedural and substantive reasonableness:
It must first ensure that the district court committed
no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence--including
an explanation for any deviation from the Guidelines
range.
Id. “A sentence based on an improperly calculated guidelines
range will be found unreasonable and vacated.” United States v.
Abu Ali, 528 F.3d 210, 260 (4th Cir. 2008) (citing Gall, 128 S.
Ct. at 597).
Allison contends that the district court erred in
finding that he did not qualify for the safety-valve reduction
in USSG § 5C1.2 because he received a two-level enhancement
under USSG § 2D1.1(b)(1) for possession of a weapon based upon
his concession that it was reasonably foreseeable a gun would be
involved in the drug conspiracy. 2 Allison asserts that, despite
his concession of reasonable foreseeability, he should have
received the safety-valve reduction because the undisputed facts
2
Allison does not challenge the district court’s application
of the weapon enhancement on appeal.
3
established that he never possessed the firearm or knew that
Givens had hidden it in the car. The district court’s
determination of whether a defendant satisfied the safety-valve
requirements is a question of fact reviewed for clear error.
United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).
A defendant who meets the five criteria set out in
USSG § 5C1.2 is entitled to a two-level reduction under USSG
§ 2D1.1(b)(7). 3 The only requirement contested on appeal is
whether Allison “use[d] violence or credible threats of violence
or possess[ed] a firearm . . . (or induce[d] another participant
to do so) in connection with the offense . . . .” USSG
§ 5C1.2(a)(2). “[T]he term ‘defendant,’ as used in subsection
(a)(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.” USSG
§ 5C1.2 cmt. n.4. Allison “bears the burden of proving the
existence of the five prerequisites set forth in § 5C1.2.”
Wilson, 114 F.3d at 432.
This court has found that, “for [the] limited purposes
of applying [the safety-valve] provision [in USSG
§ 5C1.2(a)(2)], possession of a firearm by a coconspirator is
not attributed to the defendant.” Id. Moreover, every circuit
3
This subsection has been redesignated USSG § 2D1.1(b)(11).
4
to address whether a defendant who received an enhancement for
possession of a weapon under USSG § 2D1.1(b)(1) based upon co-
conspirator liability also may receive a two-level reduction
under the safety-valve provision has held that the provisions
are not mutually exclusive:
While § 2D1.1(b)(1) may be applied based on a co-
conspirator’s reasonably foreseeable possession of a
firearm in furtherance of jointly undertaken criminal
activity, the circuits are unanimous in holding that
possession of a weapon by a defendant’s co-conspirator
does not render the defendant ineligible for safety-
valve relief unless the government shows that the
defendant induced the co-conspirator’s possession.
United States v. Delgado-Paz, 506 F.3d 652, 655-56 (8th Cir.
2007) (collecting cases).
Here, the facts are undisputed that Givens obtained
the firearm and put it under the passenger seat of the car
without Allison’s knowledge. Givens also occupied the passenger
seat until she switched places with Allison just before the
officer stopped the car. On these facts, we conclude that
Givens’ possession of the firearm cannot be attributed to
Allison because he did not obtain the gun, put it in the car, or
induce Givens to do so. See id. Thus, we find that the
district court committed a significant procedural error by
5
failing to award Allison a two-level reduction under the safety-
valve provision. 4
For the reasons stated, we vacate Allison’s sentence
and remand for resentencing. With the safety-valve reduction,
the advisory guideline range becomes 135 to 168 months. The
district court should consider the extent of the downward
departure for substantial assistance from that point. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
4
The Government contends, however, that because the district
court properly applied the firearm enhancement, the court also
properly denied relief under the safety-valve provision. The
three unpublished Fourth Circuit cases the Government cites in
support of its position are distinguishable because none of
those cases involved co-conspirator liability as the basis for
the firearm enhancement. The Government also suggests that the
denial of the safety-valve reduction may be affirmed on the
ground that Allison was a leader in the conspiracy and therefore
also failed to satisfy USSG § 5C1.2(a)(4). The Government’s
argument fails because Allison did not receive a role-in-the-
offense adjustment. See USSG § 5C1.2(a)(4) cmt. n.5.
6