UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-31152 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IVORY GARNER WILSON, also known as Boo Boo Wilson,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Louisiana _________________________________________________________________

January 28, 1997

Before JONES, DeMOSS, AND PARKER, Circuit Judges.

PER CURIAM:

Ivory Garner Wilson pleaded guilty pursuant to a written plea agreement to conspiracy

to possess with intent to distribute cocaine base, possession with intent to distribute cocaine base, and

using and carrying a firearm in relation to a drug-trafficking crime in violation of

(c)(1) and

(a)(1) and 846. He was sentenced to imprisonment for 180 months,

to be followed by five years’ supervised release. Wilson appeals complaining (1) that there was an

inadequate factual basis to support his guilty plea, (2) that the district court erred in not sentencing

him under § 5C1.2, the “safet y valve” provision of the sentencing guidelines, and (3) that the

guidelines’ heightened penalty provisions violate his right to equal protection. Because we find that

the district court erred in concluding that Wilson was ineligible for the benefits of § 5C1.2, we vacate

his sentence and remand for resentencing. DISCUSSION

A.

Wilson first argues that there was not an adequate factual basis to support his guilty

plea. He contends that the Supreme Court’s decision in Bailey v. United States, ___ U.S. ___,

(1995), renders the factual basis of his plea inadequate because his conviction was based

upon the conduct of his co-conspirators. 1

Wilson’s reliance on Bailey is misplaced. Wilson concedes that his co-conspirator

Ernest Robertson, Jr. carried the firearm in violation of § 924(c). It is well-settled that a party to a

conspiracy may be held liable for the substantive offenses of a co-conspirator as long as the acts were

reasonably foreseeable and done in furtherance of the conspiracy regardless of whether he had

knowledge of or participated in the substantive acts. See Pinkerton v. United States,

(1946); see also United States v. Jensen,

(5th Cir. 1994), cert. denied,

___ U.S. ___,

(1995). This court has recently held that, even after Bailey, a co-

conspirator may be held responsible under § 924(c) for the acts that another member of the

conspiracy took in pursuit of their unlawful scheme. See United States v. Fike,

(5th Cir.) (citing Pinkerton,

), cert. denied, ___ U.S. ___,

(1996).

Wilson further argues that there is no evidence in the record to support a finding that

he knew or could reasonably have foreseen that Robertson would carry a firearm. This court has

observed repeatedly that firearms are the tools of the trade of those engaged in illegal drug activity.

See United States v. Dean,

, 1490 n.20 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116

S.Ct . 748 (1996). Although there is no presumption that the presence of a weapon in a drug

transaction is always foreseeable, the court has recognized the connection between foreseeability and

the amount of drugs involved in a transaction. See

1 Bailey held that a conviction for “use” of a firearm under § 924(c)(1) requires a showing of active employment of the firearm.

.

2 In Dean this court found that a jury could have concluded that it was foreseeable to

the defendants that an individual involved in their drug transaction would be carrying a firearm

because they “were involved in a $5,000 transaction.” See

In this case, Wilson was involved in

a $22,000 transaction involving 950 grams of cocaine base. It was reasonably foreseeable that a

member of the conspiracy would be carrying a firearm.

Accordingly, as a co-conspirator, Wilson can be held criminally liable for the actions

that Robertson took in pursuance of their unlawful scheme. See Fike,

. Wilson’s

argument that there was no factual basis to support his guilty plea fails.

B.

Wilson next argues that he should have been sentenced under t he “safety valve”

provision of

(f) which is set forth in § 5C1.2 of the sentencing guidelines. Pursuant

to § 5C1.2, a defendant “shall” be sentenced in accordance with the applicable guidelines range,

without regard to any statutory minimum sentence, if the court finds that:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense . . . ; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

United States v. Edwards,

(5th Cir. 1995); U.S.S.G. § 5C1.2. The district court

ruled that because of the use of a firearm in the conspiracy, Wilson was ineligible to benefit from §

5C1.2. See U.S.S.G. § 5C1.2(2). Wilson contends that the district court erred in concluding that the

3 safety valve provision was unavailable to him because it was his co-conspirator, not he, who

possessed a firearm. Wilson argues that in order to be precluded from the benefit of § 5C1.2, he must

have actually possessed a firearm during the conspiracy. We agree.

A sentencing court's finding of facts pertaining to a § 5C1.2 reduction is a factual

finding, which this court reviews for clear error. See United States v. Flanagan,

(5th Cir. 1996). This court reviews the district court’s legal interpretation of § 5C1.2 de novo. See

id. In interpreting a guideline, the commentary to the guideline is controlling when it functions to

interpret or explain how the guideline is to be applied. See United States v. Radziercz,

(5th Cir. 1993) (citing Stinson v. United States, ___ U.S.___, ___,

(1993)), cert. denied, ___ U.S. ___,

(1994). The commentary to § 5C1.2(2) provides

that “[c]onsistent with [U.S.S.G.] § 1B1.3 (Relevant Conduct),” the use of the term “defendant” in

§ 5C1.2(2) “limits the accountability of the defendant to his own conduct and conduct that he aided

or abetted, counseled, commanded, induced, procured, or willfully caused.” See U.S.S.G. § 5C1.2,

comment. (n.4). This language mirrors § 1B1.3(a)(1)(A). Of import is the fact that this language

omits the text of § 1B1.3(a)(1)(B) which provides that “relevant conduct” encompasses acts and

omissions undertaken in a “jointly undertaken criminal activity,” e.g. a conspiracy.

Being bound by this commentary, we conclude that in determining a defendant’s

eligibility for the safety valve, § 5C1.2(2) allows for consideration of only the defendant’s conduct,

not the conduct of his co-conspirators. As it was Wilson’s co-conspirator, and not Wilson himself,

who possessed the gun in the conspiracy, the district court erred in concluding that Wilson was

ineligible to receive the benefit of § 5C1.2. Because application of § 5C1.2 is mandatory, see

U.S.S.G. § 5C1.2 (providing that the court “shall” impose a sentencing without regard to the

statutory minimum sentence if the defendant satisfies the provision’s criteria), we vacate Wilson’s

sentence and remand for resentencing.

C.

4 Wilson also argues that the sentencing guideline’s heightened penalty provisions for

cocaine base, as compared to cocaine powder, violate his right to equal protection. This court has

previously rejected equal protection, Eighth Amendment, and due process challenges to the disparate

sentencing provisions for cocaine base contained in the sentencing guidelines. See Fike,

. This argument is without merit.

CONCLUSION

For the foregoing reasons, the sentence is VACATED and the case is REMANDED

for resentencing.

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