Argued: September 12, 2014.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cr-00025-TWP-TAB-4 -- Tanya Walton Pratt, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Michelle P. Brady, Attorney, MaryAnn T. Mindrum, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN.
For MARIA I. RAMIREZ, also known as ISABEL, also known as CHABELA, also known as CHABE, Defendant - Appellant: Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL; Elisabeth R. Pollock, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL .
MARIA I. RAMIREZ, also known as ISABEL, also known as CHABELA, also known as CHABE, Defendant - Appellant, Pro se, Waseca, MN.
Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
SYKES, Circuit Judge.
Maria Ramirez was a courier and bookkeeper in an Indianapolis-based methamphetamine distribution ring. Police arrested her minutes after she left a stash house carrying about five pounds of meth worth more than $100,000. A search of the house yielded two handguns, and two additional firearms were later found in other houses used by her coconspirators. Ramirez pleaded guilty to conspiracy to distribute 50 or more grams of meth in violation of 21 U.S.C. § § 841(a)(1) and 846, but at sentencing she claimed to have been unaware that her coconspirators possessed guns. Over her objection the district court found that the coconspirators' firearm possession was reasonably foreseeable to her and increased the offense level under the Sentencing Guidelines by two levels for possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1).
Ramirez raises two arguments on appeal. First, she contends that the § 2D1.1(b)(1) enhancement was wrongly applied because she could not have reasonably foreseen that her coconspirators possessed guns. Second, she argues--for the first time on appeal--that she was eligible for a two-level reduction in her offense level under the so-called " safety valve" for nonviolent first-time drug offenders. Id. § § 2D1.1(b)(16), 5C1.2(a).
We reject these arguments and affirm. Proper application of the firearm enhancement requires the sentencing court to make an individualized determination that the defendant should have foreseen her coconspirators' gun possession. At the same time, however, the judge is permitted to draw common-sense inferences when determining whether someone in the defendant's position reasonably should have foreseen that guns were in use in the conspiracy. Here, Ramirez had substantial and important roles in a sizable drug enterprise. Under these circumstances, it was not clear error to attribute the coconspirators' gun possession to her for purposes of the § 2D1.1(b)(1) enhancement.
Possession of a firearm in connection with the offense generally disqualifies the defendant from receiving safety-valve consideration. Id. § 5C1.2(a)(2). Ramirez insists, however, that even if her coconspirators' gun possession was properly attributed to her for purposes of the § 2D1.1(b)(1) enhancement, the " no firearms" condition for safety-valve eligibility is narrower. More specifically, she argues that she was eligible for the safety valve because she neither possessed a gun herself nor induced another to do so. See id. § 5C1.2 cmt. n.4; cf. id. § 1B1.3(a)(1)(B).
The scope of the safety valve's " no firearms" prerequisite--more specifically, whether that condition includes liability for a coconspirator's gun possession--is a question of first impression in this circuit. Because Ramirez failed to raise this argument in the district court, our review is for plain error only, and we find none.
Law-enforcement officers began investigating an Indianapolis-area meth ring in October 2010. Through the use of undercover drug purchases, wiretaps, and electronic surveillance, they identified Ramirez as both a courier of drugs and money and the conspiracy's bookkeeper. The police eventually received intelligence that on March 4, 2011, a large meth shipment would leave a certain residence on Prestonwood Court in Indianapolis. They staked out the site and saw Ramirez arrive, enter the house, and leave a few minutes later with a five-gallon bucket.
She was promptly stopped and searched and found in possession of about $5,900 in cash; the bucket contained more than 2,200 grams of meth with a street value in excess of $100,000. Officers then executed a search warrant at the residence--later identified as the ring's primary stash house--and seized large quantities of meth as well as two handguns hidden under sofa cushions. Subsequent search warrants resulted in the seizure of two additional firearms, one from each of two other houses used by the conspiracy. A search of Ramirez's apartment yielded 180 grams of meth, a digital scale, financial logs, and several cell phones, but no weapons.
Ramirez pleaded guilty to one count of conspiracy to distribute 50 or more grams of meth in violation of 21 U.S.C. § § 841(a)(1) and 846. Based on the drug quantity attributed to her, the base offense level for the crime was 38. Over Ramirez's objection, the district judge applied a two-level increase for possession of the firearms recovered from the stash houses. See U.S.S.G. § 2D1.1(b)(1). The judge then applied a three-level downward adjustment for acceptance of responsibility, id. § 3E1.1(b), and accepted the government's recommendation for an additional two-level reduction for substantial assistance, id. § 5K1.1. The resulting offense level was 35. As a ...