United States v. Herrera, No. 05-1454-CR., 2006 WL 1174141 (2d Cir. May 2, 2006)
The district court that sentenced Barraza (a co-defendant of Herrera) found that Barraza had been jointly responsible for drug stash houses where firearms were kept and exercised personal dominion and control over those weapons. Thus, the district court found that Barraza's Guidelines offense level should be enhanced by two levels for gun possession pursuant to U.S.S.G. 2D1.1(b)(1). The district court also found that Barazza did not quality for saftey-valve relief from a mandatory minimum sentence under 18 U.S.C. 3553(f) and U.S.S.G. 5C1.2.
On appeal, Barraza did not dispute the 2D1.1(b)(1) weapon enhancement that he received. Rather, Barazza argued that the district court erred because it concluded that his receipt of the 2D1.1(b)(1) enhancement disqualified him from safety-valve eligibility. The Second Circuit rejected Barazza's appeal but did not reject Barazza's argument. Indeed, the Second Circuit acknowledged that "other circuits" -- specifically the Ninth and Tenth Circuits -- "have held that a defendant who receives a two-level increase under 2D1.1(b)(1) for possession of a dangerous weapon may nonetheless be eligible for safety-valve relief." Those circumstances appear to be present when the possession of a dangerous weapon is attributed to a defendant because of the possession of that dangerous weapon by a co-conspirator -- circumstances that would result in a two-level increase pursuant to 2D1.1(b)(1) but that might not necessarily disqualify the defendant from safety-valve relief. In Barazza's case, the district court did not err because it had, in fact, assumed that "in some circumstances -- such as where the increase under 2D1.1(b)(1) was based on possession of a weapon by a co-conspirator -- a defendant would not be disqualified from safety valve."