[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-16254                ELEVENTH CIRCUIT
                                                            JUNE 16, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                D. C. Docket No. 08-00437-CR-WSD-6-1

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

JOSE BENITEZ-GARCIA,
a.k.a. Jose Benites,
                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                    _________________________

                             (June 16, 2010)

Before BARKETT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
      Jose Benitez-Garcia appeals his 72 month sentence for: (1) conspiracy to

possess with intent to distribute cocaine and cocaine base, in violation of 21

U.S.C. §§ 846, 841(b)(1)(B)(ii) and (iii) (Count One); (2) possession with intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii) (Count

Two); and (3) possession with intent to distribute cocaine base, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Count Three). He argues that the district

court erred by denying him the benefit of the safety-valve provision under

U.S.S.G. 5C1.2(a). Upon review of the record and the parties’ briefs, we affirm

Benitez-Garcia’s sentences.

                                         I.

      Benitez-Garcia argues that despite receiving a firearm sentencing

enhancement, he was entitled to safety-valve relief under U.S.S.G. § 5C1.2(a)

because he did not actually or constructively possess the firearms found in his

bedroom. Benitez-Garcia asserts that because Lorenzo Hernandez-Villegas,

another co-conspirator, confessed to owning the firearms, he was unable to

exercise control or ownership over the guns. He argues that mere presence inside

of the bedroom containing the firearms does not constitute “possession.”

      “When reviewing the denial of safety-valve relief, we review for clear error

a district court’s factual determinations.” United States v. Johnson, 

1300, 1301 (11th Cir. 2004) (per curiam) (citation omitted). “We review de novo

the court’s legal interpretation of the statutes and sentencing guidelines.” 

The burden of proving eligibility for safety-valve relief is on

the defendant. 

      Under U.S.S.G. § 2D1.1(b)(11), Benitez-Garcia is permitted a two-level

reduction if he qualifies for all five of the safety-valve provisions under §

5C1.2(a). 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); 18 U.S.C. § 3553(f)(2) (emphasis added). The

purpose of the safety-valve provision is to ensure that less culpable offenders are

not subject to statutory mandatory minimums. United States v. McFarlane, 

, 1014 (11th Cir. 1996) (per curiam).

      A defendant can possess a firearm through both actual and constructive

possession. United States v. Gunn, 

, 1235 (11th Cir. 2004) (per

curiam). A defendant has actual possession of a firearm when he has “direct

physical control” over the item. 

(citation and quotation omitted). A

defendant has constructive possession if he exercises “ownership, dominion, or

control” over the firearm. 

quotation omitted); see United States v.

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Martinez, 

, 498 (5th Cir. 1979) (citation and quotation omitted)

(constructive possession if one has dominion or control of the place of

concealment of the contraband). Constructive possession also exists when a

person “has knowledge of the thing possessed coupled with the ability to maintain

control over it or reduce it to his physical possession even though he does not have

actual personal dominion.” United States v. Wynn, 

, 788 (5th Cir.

1977) (citation and quotation omitted); 

(stating that “in

essence, constructive possession is the ability to reduce an object to actual

possession”).

      After review of the record, we hold that the district court did not clearly err

in finding that Benitez-Garcia had possession of the firearms. Benitez-Garcia had

constructive possession of the firearms because he had knowledge of the firearms

coupled with the ability to maintain control over them since they were located and

concealed inside his bedroom. Because neither of the parties objected to the facts

in the PSI, we find no error with the district court’s reliance on its facts. The facts

of the PSI contradict Benitez-Garica’s assertion that Hernandez-Villegas claimed

ownership of the firearms, or that Hernandez-Villegas later retracted these




                                           4
statements.1 Accordingly, we conclude that Benitez-Garcia failed to carry his

burden, and we find no reversible error on this issue.

                                                II.

       Next, Benitez-Garcia argues for the first time on appeal, that there was no

proof that he possessed the firearms “in connection” with the underlying drug

offenses and cites to a case concerning nexus.

       “When a defendant fails to object to an error before the district court, we

review the argument for plain error.” United States v. Raad, 

, 1323

(11th Cir. 2005) (per curiam) (citation omitted). This includes circumstances in

which a party objects to a trial court’s ruling on a specific ground and

subsequently attacks the ruling via a different argument on appeal. United States

v. Puche, 

, 1148–49 n.5 (11th Cir. 2003) (citation omitted). Plain

error exists if defendant satisfies his burden of showing that there was (1) error,



       1
           Benitez-Garcia argues that in United States v. Clavijo, this Court held that a defendant
is eligible for safety-valve relief even if the firearm is possessed by a co-conspirator. See 

, 1343 (11th Cir. 1999) (per curiam). He thus argues that because Hernandez-Villegas
allegedly stated that he owned the guns, he is still eligible for safety-valve relief. However,
Clavijo is distinguishable from the instant case because the record does not indicate that the
firearm was actually possessed by anyone. Neither did the district court impute possession onto
Benitez-Garcia as a co-conspirator. 

“possession” does not include reasonably
foreseeable possession of a firearm by co-conspirators). Rather, in the instant case, the district
court found that Benitez-Garcia had constructive possession of the firearm because he was aware
of the firearm and its location in the room where he tested cocaine prior to the police’s arrival.
Doc. 170 at 29, 32–33.

                                                 5
(2) that is plain, and (3) that affects the defendant’s substantial rights. United

States v. Turner, 

, 1276 (11th Cir. 2007) (citation and quotation

omitted). If the first three prongs are satisfied, this Court has the discretion to

remedy the error if it “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” 

quotation omitted). Regarding the

second prong, we have held “there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Castro, 

, 1253 (11th Cir. 2006) (per curiam) (citation and

quotation omitted).

      Although Benitez-Garcia asserts on appeal that there is no evidence that he

possessed the firearms “in connection with” the underlying drug offenses, the

record shows that Benitez-Garia did not raise an issue concerning nexus between

the crime and possession of the gun before the district court. The record reflects

that Benitez-Garcia’s objection was based on the contention that he did not

actually or constructively possess the firearms. Thus, Benitez-Garcia has failed to

appropriately preserve the “in connection with” argument on appeal. See Fed. R.

App. P. 28(a)(9)(A). Therefore, we will assess Benitez-Garcia’s “in connection

with” argument for plain error.




                                           6
       While Benitez-Garcia argues that there is no evidence that he possessed the

firearms “in connection” with the drug offenses, he does so in a conclusory

manner. On appeal, we require appellants to not only state their contentions to us,

but also give the “reasons for them, with the citations to the authorities and parts

of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A); Love v.

Deal, 

, 1407 n.1 (11th Cir. 1993) (citing Harris v. Plastics Mfg. Co,,

617, F.2d 438, 440 (5th Cir. 1980) (per curiam)) (where an issue raised but not

argued, deemed abandoned). Benitez-Garcia’s cursory restatement of the issue

followed by case citations fail to raise the issue sufficiently for discussion here and

is deemed abandoned.2 Accordingly, we affirm the district court’s denial of the

safety-valve relief.

       AFFIRMED.




       2
          Even if the issue had been properly briefed, there is no plain error. See 

.

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