United States v. Hunt , 56 F. App'x 210 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4585
SHIRLEY SCOTT HUNT, a/k/a Shirley
Marie Scott,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-01-431)
Submitted: January 28, 2003
Decided: March 3, 2003
Before MICHAEL and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Bruce T. Cunningham, Jr., CUNNINGHAM, DEDMOND, PETER-
SEN & SMITH, L.L.P., Southern Pines, North Carolina, for Appel-
lant. Anna Mills Wagoner, United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
2 UNITED STATES v. HUNT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shirley Scott Hunt pled guilty to attempting to possess with intent
to distribute three kilograms of cocaine, 21 U.S.C. § 841(a), (b)(1)(B)
(2000). She was sentenced to a term of fifty-seven months imprison-
ment. Hunt appeals her sentence, contending that the district court’s
application of a two-level weapon enhancement, U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2001), together with the safety
valve provisions, USSG §§ 2D1.1(b)(6), 5C1.2, violated the rule of
lenity. We affirm.
Hunt and two co-defendants were arrested as they attempted to buy
three kilograms of cocaine for $40,000 from an undercover officer.
One of Hunt’s co-defendants was carrying two concealed firearms. In
connection with her sentencing, Hunt stated that she had not known
that the firearms were present. Nevertheless, she received a weapon
enhancement on the ground that it was reasonably foreseeable that her
co-defendant might have a weapon. See United States v. Kimberlin,
18 F.3d 1156, 1160-61 (4th Cir. 1994) (applying USSG
§ 1B1.3(a)(2)). Hunt also received a two-level reduction in her
offense level under the safety valve provision, USSG § 2D1.1(b)(6),
which is available to a defendant who meets the five criteria set out
in USSG § 5C1.2. The second § 5C1.2 criterion is that the defendant
not have possessed a firearm or other dangerous weapon in connec-
tion with the offense, or induced any participant to do so.
Hunt contends that § 2D1.1 is ambiguous in permitting the weapon
enhancement for a defendant who qualifies for the safety valve reduc-
tion. The rule of lenity requires courts to construe ambiguous criminal
statutes against the government and in favor of the defendant. United
States v. Photogrammetric Servs., Inc., 259 F.3d 229, 249 (4th Cir.
2001), cert. denied, 122 S. Ct. 1295 (2002). Because the issue raised
is one of legal interpretation of the guidelines, the standard of review
UNITED STATES v. HUNT 3
is de novo. United States v. Kinter, 235 F.3d 192, 195 (4th Cir. 2000),
cert. denied, 532 U.S. 937 (2001).
The § 2D1.1(b)(1) weapon enhancement is determined by relevant
conduct as defined by § 1B1.3, which includes "all reasonably fore-
seeable acts . . . of others in furtherance of [a] jointly undertaken
criminal activity." U.S.S.G. § 1B1.3(a)(1)(B). The enhancement may
be applied when the defendant did not know about or participate in
a co-defendant’s weapon possession, as long as the possession was
foreseeable. By contrast, we have held that a defendant may qualify
for the safety valve reduction even if a co-defendant possessed a fire-
arm, unless the defendant was personally involved in the co-
defendant’s action. United States v. Wilson, 114 F.3d 429, 432 (4th
Cir. 1997) (holding that "for purposes of § 5C1.2(2), the term ‘defen-
dant’ ‘limits the accountability of the defendant to his own conduct
and conduct that he aided or abetted, counseled, commanded,
induced, procured, or willfully caused’"); accord United States v.
Pena-Sarabia, 297 F.3d 983, 987-89 (10th Cir. 2002); United
States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir. 1999); United States
v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997); In re Sealed Case, 105
F.3d 1460, 1461-65 (D.C. Cir. 1997). Thus, the safety valve reduction
is allowed when a co-defendant’s firearm possession was foreseeable
by the defendant, but the foreseeability factor may nevertheless bring
about the enhancement. Section 2D1.1 is not ambiguous. We con-
clude that the district court did not err in determining that the rule of
lenity did not apply, and interpreted § 2D1.1 and § 5C1.2 correctly.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED