[DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT           FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 11-10631                       MARCH 14, 2012
                                ________________________                   JOHN LEY
                                                                            CLERK
                      D.C. Docket No. 8:10-cr-00103-VMC-AEP-2

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                             versus

JOSE SOLIS,
a.k.a. Jose Rangel, Jr.,

                                                                    Defendant-Appellant.

                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________

                                       (March 14, 2012)

Before MARCUS, COX and SILER,* Circuit Judges.

PER CURIAM:




       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
      Jose Solis appeals his 171-month total sentence, imposed after he pled guilty

to conspiracy to distribute cocaine and methamphetamine, distribution of cocaine and

methamphetamine, possession of methamphetamine, and possession of a firearm in

furtherance of a drug trafficking crime. On appeal, Solis challenges the district

court’s finding that he was ineligible for a two-level reduction to his offense level.

After thorough review, we affirm.

      We review factual determinations of a district court’s safety-valve decision for

clear error and its legal interpretation de novo. United States v. Poyato, 

, 1297 (11th Cir. 2006). The defendant has the burden of proving his eligibility

for safety-valve relief. United States v. Johnson, 

, 1302 (11th Cir.

2004).

      In 2010, the guideline provision corresponding to Solis’s convictions, U.S.S.G.

§ 2D1.1, allowed a two-level reduction to a defendant’s offense level if the defendant

met all five of the safety-valve provisions under U.S.S.G. § 5C1.2(a). U.S.S.G.

§ 2D1.1(b)(11). To qualify for safety-valve relief under § 5C1.2(a), the defendant

must show, among other things, that he “did not . . . possess a firearm or other

dangerous weapon (or induce another participant to do so) in connection with the

offense.” U.S.S.G. § 5C1.2(a)(2). In this appeal, this is the only one of the five

safety-valve criteria that the parties dispute.

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      Unless the defendant “induces” another’s possession according to the language

of § 5C1.2(a)(2), we have held that “possession” of a firearm, with respect to the

safety-valve provision, “does not include reasonably foreseeable possession of a

firearm by co-conspirators.” United States v. Clavijo, 

, 1343 (11th Cir.

1999) (per curiam). However, the commentary following § 5C1.2 states that

“defendant,” as used in § 5C1.2(a)(2), makes a defendant accountable for “his own

conduct and conduct that he aided or abetted, counseled, commanded, induced,

procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4. Section 2 of Title 18

provides that “[w]hoever . . . aids, abets, counsels, commands, induces or procures

[the commission of an offense against the United States] is punishable as a principal.”

18 U.S.C. § 2(a).

      In this case, Solis and several co-conspirators were charged in an eleven-count

superseding indictment. Solis was named in Counts 1 through 9, which charged him

with conspiracy to distribute cocaine and methamphetamine (Counts 1 and 2),

distribution of cocaine and methamphetamine (Counts 3-7), possession of

methamphetamine (Count 8), and possession of a firearm in furtherance of a drug

trafficking crime (Count 9). Solis pled guilty to all 9 counts, including Count 9,

which charged him with violations of 18 U.S.C. §§ 924(c) and 2: possession of a




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firearm in connection with a drug trafficking offense based on an aiding and abetting

theory of liability.

       While a co-conspirator’s reasonably foreseeable possession of a firearm does

not preclude safety-valve relief under Clavijo, a defendant who aids and abets such

possession is treated as a principal under the guidelines and faces the same sentencing

exposure as the principal. See U.S.S.G. §§ 2X2.1, 1B1.3(a)(1)(A). And, as noted,

the commentary following § 5C1.2 specifically states that, with regard to safety-valve

relief, a defendant is accountable for conduct that he aided or abetted. U.S.S.G.

§ 5C1.2 cmt. n.4.

       The uncontroverted facts from the PSI show that during a December 9, 2009

drug transaction for which Solis was present, one of Solis’s codefendants, Victor

Galvan-Moreno, possessed a loaded handgun. Based on Solis’s guilty plea to Count

9 (the § 924(c) count) and these facts in the PSI regarding Galvan-Moreno’s firearm

possession, Solis admitted his liability for Galvan-Moreno’s firearm possession

during the December 9, 2009 drug transaction. Therefore, Solis cannot demonstrate

that he did not possess a firearm in connection with a drug trafficking offense, and,

as a result, he does not qualify for safety-valve relief. There was no clear error in the

district court’s determination that Solis was ineligible for such a reduction to his

offense level, and we affirm.

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AFFIRMED.




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