United States v. Barraza, Docket No. 05-1454-cr (2d Cir. May 2, 2006) (Walker, Leval, Sotomayor): It’s hard to believe that this isn’t a settled issue in the Circuit, but apparently it’s not. In this opinion, the Court rules that for purposes of determining whether a defendant qualifies for safety-valve relief under § 5C1.2, as well as for the 2-level reduction under § 2D1.1(b)(9), a finding that the defendant constructively possessed a firearm, “based on his personal dominion and control over that weapon,” Op. 7 (emphasis in original), renders the defendant ineligible for such relief under § 5C1.2(a)(2) (listing as one requirment for safety-valve relief that “the defendant did not . . . possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.”). The Court reasoned that since constructive possession is as good as actual possession in every other context, see Op. 7-8 (citing example of § 924(c)(1), § 922(g), and U.S.S.G. § 2D1.1(b)(1)), the same should be true for safety-valve eligibility. And in this case, the evidence was sufficient to uphold the district court’s finding that Barraza personally exercised dominion and control over a stash house where two guns were stored, Op. 9-10, and thus that the court properly denied safety-valve relief.
A caveat: The Court reminds us that whether a defendant is disqualified from the safety valve based on the possession of a gun (and thus also ineligible for the 2-level reduction under § 2D1.1(b)(9)) is a different question from whether a defendant should receive a 2-level enhancement under § 2D1.1(b)(1) for possessing a gun or dangerous weapon. Because the latter has a wider reach — since it can be triggered by relevant conduct such as a co-defendant’s reasonably foreseeable possession of a firearm — than the former (§ 5C1.2(a)(2) concerns solely the “defendant[‘s]” possession of a firearm, see § 5C1.2 comment no. 4), a defendant who receives the 2-level enhancement under 2D1.1(b)(1) may nonetheless be entitled to safety-valve relief under some circumstances. Op. 6 (citing cases from other Circuits). Though this opinion does not definitely resolve this question for the Second Circuit (since Barraza personally possessed a firearm, albeit constructively), the law seems clear on this distinction.