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The HONORABLE RODNEY W. SIPPEL, United States District Judge for

the Eastern District of Missouri.

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2267

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Alix Denis, *

*

Defendant - Appellant. *

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Submitted: January 14, 2009

Filed: March 27, 2009

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Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

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LOKEN, Chief Judge.

Alix Denis pleaded guilty to conspiracy to distribute and possession with intent

to distribute in excess of fifty grams of cocaine base. The district court1

 imposed the

minimum ten-year prison sentence mandated by 21 U.S.C. § 841(b)(1)(A)(iii). Denis

appeals, arguing the court erred in finding him ineligible for safety valve relief under

18 U.S.C. § 3553(f)(2) and U.S.S.G. § 5C1.2(a)(2) because he induced another

participant to possess a firearm in connection with the offense. We affirm.
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In March 2007, while selling marijuana to undercover officers, Denis expressed

interest in trading drugs for firearms. Agents of the federal Bureau of Alcohol,

Tobacco and Firearms contacted Denis and arranged to exchange a machine gun for

three ounces of crack cocaine on May 3 and additional firearms for four ounces of

crack cocaine on May 4. Denis sent his brother Jean and Gerald Alfred to complete

the May 3 exchange. Alfred entered the agents’ hotel room. An agent handed Alfred

an unloaded machine gun. Alfred handed the agent two ounces of crack. After the

agent explained the weapon’s features, Alfred wrapped the machine gun in a towel

and placed it in his backpack. Additional agents entered the room, confiscated the

weapon, and arrested Alfred and Jean Denis, who was waiting for Alfred in a car.

Denis was stopped in Tennessee on May 4, returning to Missouri. He was arrested

when officers found one kilogram of cocaine in the trunk of his car. 

Denis initially pleaded guilty to the drug charge and to a second charge --

knowing use of a firearm “during and in relation to any . . . drug trafficking crime.”

This charge was dismissed before sentencing after the Supreme Court held that

exchanging drugs for a firearm is not “use” of a firearm within the meaning of 18

U.S.C. § 924(c)(1)(A). Watson v. United States, 128 S. Ct. 579 (2007). Denis then

pleaded guilty to the drug charge at issue. At sentencing, he argued, as he does on

appeal, that he is eligible for safety valve relief because Alfred “never had actual or

constructive possession of the firearm during the pretended trade.” The district court

found that Denis “was in possession of that weapon because his agent [Alfred] took

possession of that weapon, actually or constructively, whether or not the agents ever

intended to let him get away with it.” 

The safety valve statute and guideline allow a sentence less than the statutory

mandatory minimum prison sentence if the defendant proves, among other

requirements, that he “did not . . . possess a firearm or other dangerous weapon (or

induce another participant to do so) in connection with the offense.” 18 U.S.C.

§ 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). This provision “limits the accountability of the
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defendant to his own conduct and conduct that he aided or abetted, counseled,

commanded, induced, procured, or willfully caused.” § 5C1.2, comment. (n.4); see

United States v. Delgado-Paz, 506 F.3d 652, 655-56 (8th Cir. 2007) (“possession of

a weapon by a defendant’s co-conspirator does not render the defendant ineligible for

safety-valve relief unless . . . the defendant induced the co-conspirator’s possession”).

In this case, Denis concedes that he “induced” Alfred to handle a firearm in the

hotel room “in connection with the offense” of distributing crack cocaine. But he

argues that Alfred’s momentary handling did not constitute actual or constructive

possession because the officers rented the hotel room and demonstrated their

continuing ownership and control of the machine gun when they seized the weapon

and arrested Alfred immediately after he put it in his backpack. Because the officers

only pretended to trade a firearm for drugs, Denis argues, he should not be sentenced

more harshly than a defendant who distributes drugs without possessing firearms.

Denis argues we should review the district court’s construction of the word “possess”

de novo. However, actual or constructive possession is a finding of fact we review for

clear error. United States v. Washington, 528 F.3d 573, 574 (8th Cir.), cert. denied,

129 S. Ct. 589 (2008); United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997),

cert. denied, 523 U.S. 1065 (1998). 

In Washington, we upheld a sentence enhancement for possession of a firearm

in connection with a felony offense when the defendant offered to exchange drugs for

the firearm and was arrested before he touched it: 

The district court’s finding of possession is not clearly erroneous, as

Washington constructively possessed the firearm by knowing of it and

having the intent and ability to exercise control over it. 528 F.3d at 574.

After submission of this case, we joined other circuits in holding that “constructive

possession [of a firearm] is sufficient to preclude a defendant from receiving safety
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valve relief under § 5C1.2.” United States v. Jackson, 552 F.3d 908, 910 (8th Cir.

2009); accord United States v. Matias, 465 F.3d 169, 173-74 (5th Cir. 2006), and

cases cited. Here, Washington confirms that Alfred was in constructive possession

of the machine gun in the hotel room. Indeed, he was in actual possession when

agents handed him the machine gun in exchange for crack cocaine and Alfred put it

in his backpack. It is irrelevant that the agents did not allow Alfred to leave with the

weapon so long as he had “direct physical control” over it for even a brief period of

time. United States v. Cantrell, 530 F.3d 684, 693 (8th Cir. 2008). Thus, the district

court did not clearly err in finding that Denis had constructive possession, and

arguably joint actual possession, when he induced Alfred to possess a firearm in

connection with Denis’s drug offense. Safety valve relief was properly denied.

The judgment of the district court is affirmed.

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