7th Circuit: No plain error in not applying 'safety valve' in sentencing

April 15, 2015

Whether firearms belonging to co-conspirators in a drug ring attributed to a defendant for purposes of the firearm sentence enhancement can be considered for a two-level reduction in her offense level under the so-called “safety valve” for nonviolent, first-time drug offenders is a matter of first impression for the 7th Circuit Court of Appeals. But the judges declined to address the issue because the woman failed to raise it at sentencing.

Maria Ramirez pleaded guilty to conspiracy to distribute 50 or more grams of meth after officers caught her carrying about five pounds of the drug, worth more than $100,000, out of a house. A search warrant led officers to find weapons belonging to her co-conspirators. She claimed to not know they had guns, but the trial judge found their possession was reasonably foreseeable to her and increased her offense level by two levels for possession of a dangerous weapon.

In United States of America v. Maria I. Ramirez, 13-1013, Ramirez argued the enhancement was wrongly applied because she could not have reasonably foreseen that her co-conspirators had guns. She also claimed – for the first time on appeal – that she was eligible for the two-level reduction under the safety valve.

Possession of a firearm in connection with the offense generally disqualifies a person from receiving safety-valve consideration, Judge Diane Sykes wrote. Ramirez claimed that the “no firearms” condition for the safety-valve eligibility is narrower than that used for the weapons enhancement. Since she neither possessed a gun herself nor induced someone to do so, she should qualify for the two-level reduction, she argued.

The judges considered her safety-valve argument forfeited since she did not raise it at sentencing, so it had to be reviewed for plain error. Other Circuit courts that have addressed this issue have concluded that the scope of the “no firearms” condition is narrower than the firearms enhancement and does not impute responsibility for the acts of co-conspirators.

“We rarely find plain error on a matter of first impression,” Judge Diane Sykes wrote. “Matters of first impression are unlikely to be that obvious. And Ramirez’s eligibility for the safety valve was not so obvious in this case. … Given the lack of guiding circuit precedent, the district court cannot be faulted for failing to raise and apply the safety valve sua sponte.”

The 7th Circuit also affirmed that the judge applied the firearm enhancement after a particularized foreseeability analysis based on Ramirez’s knowledge of the nature and scope of the conspiracy.



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