*

Honorable Robert L. Vining, Jr., Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation. 

 1Settle left the scene of these robberies in a getaway car

driven by an accomplice, or in a car stolen from a bank customer

or employee. Settle would then meet an accomplice in a second

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-2711, 94-2713.

UNITED STATES of America, Plaintiff-Appellee,

v.

John Anthony LUIZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Sean S. GRIFFITH, Defendant-Appellant.

Dec. 30, 1996.

Appeals from the United States District Court for the Middle

District of Florida. (No. 94-5-CR-ORL-18), Patricia C. Fawsett,

Judge.

Before TJOFLAT and COX, Circuit Judges, and VINING*

, Senior

District Judge.

PER CURIAM:

John Luiz and Sean Griffith were convicted, on their pleas of

guilty, for conspiracy to commit bank robbery in violation of 18

U.S.C. § 371 (1994). Luiz and Griffith appeal, challenging their

sentences. We affirm.

I. Background

Between November 1991 and June 1992, Gary Settle robbed five

central Florida banks at gunpoint. John Luiz assisted Settle in

these robberies in various ways, serving as a lookout, driver of

the drop-off vehicle, or driver of the "switch" vehicle.1

 Griffith
vehicle at a prearranged location near the bank, and abandon the

getaway vehicle. The second vehicle is the "switch" vehicle. 

assisted Settle in two of the robberies, once as a lookout and once

as driver of the getaway vehicle. Luiz and Griffith were arrested

in September 1992 when officers stopped them and found a nylon

stocking mask and other gear in Luiz's car. Luiz and Griffith

admitted to authorities that, at the time of their arrest, they

were planning to rob a bank using a method taught by Settle.

Following their arrest, Luiz and Griffith assisted the

government in investigating Settle. Luiz and Griffith also

testified at Settle's trial on charges involving these and other

bank robberies. Settle was convicted of nineteen counts arising

out of bank robberies, including eight counts of armed bank robbery

and nine counts of using a firearm in relation to the commission of

a crime of violence, and sentenced to more than 177 years

imprisonment. After Settle's conviction, Luiz and Griffith were

indicted for conspiring "with each other and with persons known to

the Grand Jury" to commit armed bank robbery. (R.1-38 (Luiz);

R.1-38 (Griffith).) Both Luiz and Griffith pled guilty to the

charge in the indictment.

Pursuant to U.S.S.G. § 2B3.1(b)(2)(C), the Presentence

Investigation Reports ("PSIs") for Luiz and Griffith recommended a

five level increase in the defendants' base offense levels because

Settle brandished a firearm during the robberies. See United

States Sentencing Commission, Guidelines Manual § 2B3.1(b)(2)(C)

(Nov.1993). Both defendants objected to this increase on the

ground that Settle, who possessed the firearm, was not charged or
 2

In addition to the arguments we address in this appeal,

Luiz and Griffith challenge their sentences on the ground that

they had minor roles in the offense and are entitled to two-level

reductions. This argument is meritless and does not warrant

discussion. See 11th Cir. R. 36-1(a). 

named as a co-conspirator in the indictment charging Luiz and

Griffith. The district court overruled the objection and applied

the five-level increase. Luiz and Griffith also argued that they

were entitled to a two-level decrease in their offense levels under

U.S.S.G. § 3B1.2(b) because they played minor roles in the

conspiracy. The district court denied this reduction for role in

the offense. Finally, the government moved for a five-level

downward departure for each defendant on the ground that they

provided substantial assistance to the government in the

investigation and prosecution of Settle. See U.S.S.G. § 5K1.1.

Luiz and Griffith argued that their assistance to the government

merited nine-level downward departures. After noting that Luiz and

Griffith were charged only with one conspiracy, which has a

five-year maximum sentence, rather than with separate bank

robberies and gun charges like Settle, the court denied the § 5K1.1

motion as to Luiz, and granted a three-month reduction in

Griffith's sentence. The court sentenced Luiz to 60 months

imprisonment, and Luiz to 57 months imprisonment. This appeal

followed.

II. Issues on Appeal and Standards of Review

 Luiz and Griffith challenge their sentences on two grounds

that we address.2 First, they contend that it was error to

increase the offense level under U.S.S.G. § 2B3.1(b)(2)(C) for

Settle's possession of a firearm where Settle was not charged or
named as a co-conspirator in the same indictment with Luiz and

Griffith. This issue involves an interpretation of the sentencing

guidelines that we review de novo. See United States v. Aduwo, 64

F.3d 626, 628 (11th Cir.1995) (whether firearm can be imputed to

non-possessing defendant under U.S.S.G. § 2K2.1(c) is a question of

law). Second, the defendants argue that the district court

misapplied U.S.S.G. § 5K1.1 by considering factors other than their

substantial assistance in refusing to grant a departure to Luiz,

and in granting less than the requested departure to Griffith.

Generally, we review neither the refusal to grant a § 5K1.1

departure nor the extent of such a departure. United States v.

Castellanos, 904 F.2d 1490, 1497 (11th Cir.1990). But where, as

here, a ruling on a § 5K1.1 motion is challenged on the grounds

that the court misapplied the guideline, we review the ruling de

novo. Id.

III. Discussion

A. Firearm-Related Increase in Offense Level

 Under the sentencing guidelines, the base offense level for

robbery is increased by 5 if the defendant brandishes, displays, or

possesses a firearm. U.S.S.G. § 2B3.1(b)(2)(C). A defendant may

also be held accountable at sentencing for a co-conspirator's

possession of a firearm if certain circumstances are present.

United States v. Kimmons, 965 F.2d 1001, 1011 (11th Cir.1992)

(robbery conspiracy defendant's base offense level increased under

§ 2B3.1(b)(2)(C) where co-conspirators possessed firearms), cert.

denied, 506 U.S. 1086, 113 S.Ct. 1065, 122 L.Ed.2d 370, cert.

granted, judgment vacated and case remanded on other grounds sub
nom. Small v. United States, 508 U.S. 902, 113 S.Ct. 2326, 124

L.Ed.2d 239, judgment reinstated, 1 F.3d 1144 (11th Cir.1993); see

also Aduwo, 64 F.3d at 629-30 (gun conspiracy defendant's base

offense level increased under § 2K2.1(c) where co-conspirator

possessed a firearm); United States v. Otero, 890 F.2d 366, 367

(11th Cir.1989) (drug conspiracy defendant's base offense level

increased under § 2D1.1(b) where co-conspirator possessed a

firearm). The rationale for attributing the possession of a

firearm by one co-conspirator to another is the Pinkerton rule that

"conspirators are liable for the reasonably foreseeable acts of

their co-conspirators in furtherance of the conspiracy." Aduwo, 64

F.3d at 629 (citing Pinkerton v. United States, 328 U.S. 640, 66

S.Ct. 1180, 90 L.Ed. 1489 (1946)), Otero, 890 F.2d at 367 (same);

see also U.S.S.G. § 1B1.3(a)(1)(B) (relevant conduct for conspiracy

offense includes "all reasonably foreseeable acts of others in

furtherance of the jointly undertaken criminal activity.").

Otero set out a three-part test for determining whether

attributing another person's possession of a weapon to the

defendant was proper: "first, the possessor must be charged as a

co-conspirator; second, the co-conspirator must be found to have

been possessing a firearm in furtherance of the conspiracy; and

third, the defendant who is to receive the enhanced sentence must

have been a member of the conspiracy at the time of the firearms

possession." 890 F.2d at 367. Luiz and Griffith concede that the

second and third Otero factors are met in this case, but they argue

that the first factor is not met because Settle was not charged or

named as a co-conspirator in the same indictment with them. The
 3

Of course, other factors that Luiz and Griffith have not

contested in this appeal must be shown for a co-conspirator's

possession of a firearm to be attributed to a defendant. See

U.S.S.G. § 1B1.3, commentary n.2 (conduct of others that is not

in furtherance of a jointly undertaken criminal activity or is

Government responds by arguing that the first Otero requirement is

dictum, and alternatively that Settle was unavailable for

indictment when Luiz and Griffith were indicted because he had

already been charged and convicted on charges involving these

robberies. See United States v. Louis, 967 F.2d 1550, 1553-54

(11th Cir.1992) (holding that possessing co-conspirators were

unavailable for indictment because they were never identified);

United States v. Nino, 967 F.2d 1508 (11th Cir.1992) (holding that

possessing co-conspirators were unavailable because one died and

one was granted immunity). The district court held that the first

factor of the Otero test was dictum.

We agree with the district court. In Nino, we noted that

Otero, like any other judicial opinion, must be read in the context

of the facts of that case. 967 F.2d at 1514. The Otero court was

not faced with the question whether a defendant could be sentenced

based on the possession of a firearm by an uncharged or unnamed

coconspirator because the co-conspirators in that case were named

and charged as co-conspirators. 890 F.2d at 367. As Nino

explains, the rationale of the first Otero factor is to "avoid[ ]

artificial sentence enhancement for firearm possession when the

weapon is actually or constructively possessed by a person outside

the conspiracy." This rationale is satisfied if the possessor of

the firearm is a co-conspirator of the defendant whose sentence is

enhanced.3 The district court found that Luiz, Griffith and Settle
not reasonably foreseeable is not relevant conduct). 

 4Luiz and Griffith also challenge the district court's

conclusion that, if they had been charged with separate robbery

and gun counts, they would have received a much greater sentence

under the guidelines. Luiz and Griffith did not make this

argument at the sentencing hearing, and we decline to address it

for the first time on appeal. 

were co-conspirators. Thus, it was not error to attribute Settle's

possession of a firearm to Luiz and Griffith despite the fact that

Settle was not indicted in this case.

B. Substantial Assistance Departure

 When, on the Government's motion, a district court grants a

downward departure under U.S.S.G. § 5K1.1 or reduces a sentence

under Rule 35(b), the sentence reduction may be based only on

factors related to the defendant's substantial assistance. United

States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994); United

States v. Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir.1994).

For example, the district court in Chavarria-Herrara considered

factors such as the defendant's first-time offender status and good

prison behavior in reducing his sentence under Rule 35(b), and we

reversed. Id.

 Luiz and Griffith contend that the district court misapplied

§ 5K1.1 when the court considered the Government's decision to

charge them leniently.4

 They argue that consideration of the

Government's charging decision is improper under Chavarria-Herrara

because this factor is unrelated to their substantial assistance.

We recently rejected a similar argument with respect to Rule 35(b).

United States v. Manella, 86 F.3d 201, 204-05 (11th Cir.1996).

Manella holds that Chavarria-Herrara does not apply where the
district court's refusal to grant a Rule 35(b) motion is based on

factors other than substantial assistance. In Manella, which

involved a resentencing, the district court considered factors such

as the seriousness of the offense of conviction and the leniency of

the original sentence imposed, and we affirmed. We reasoned that,

while the district court may reward a defendant under Rule 35(b)

only for substantial assistance, the court's decision to grant a

Rule 35(b) reduction remains discretionary. See Manella, 86 F.3d

at 204 & n. 6. A reading of Rule 35(b) that "requires the district

court to consider substantial assistance in isolation from any

other factor leaves too little discretion for the court to

exercise." Id. at 205.

Our decision in Manella was based on Rule 35(b), but Manella

's reasoning applies to U.S.S.G. § 5K1.1 and to this case. The

district court's decision on a § 5K1.1 motion, like the court's

decision on a Rule 35(b) motion, is discretionary. United States

v. Castellanos, 904 F.2d 1490, 1497 (11th Cir.1990). In

considering the Government's charging decision, the district court

compared Luiz's and Griffith's offense conduct, as described in the

PSI, to their offenses of conviction. We hold that the court's

consideration of this factor was not a misapplication of § 5K1.1.

IV. Conclusion

Luiz's and Griffith's argument that their offense levels were

improperly enhanced fails. It is immaterial that Settle was not

charged or named as a co-conspirator because the district court

found that Luiz, Griffith and Settle were co-conspirators. The

defendants' argument that the court misapplied § 5K1.1 also fails
because, in the exercise of its discretion, the district court may

consider other factors in addition to substantial assistance that

militate against granting a departure.

AFFIRMED.