In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-1013

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIA I. RAMIREZ,

Defendant-Appellant.

____________________

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.

____________________

ARGUED SEPTEMBER 12, 2014 — DECIDED APRIL 15, 2015

____________________

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 
2 No. 13-1013

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 safetyvalve consideration. Id. § 5C1.2(a)(2). Ramirez insists, however, that even if her coconspirators’ gun possession was 
No. 13-1013 3

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.

I. Background

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 
4 No. 13-1013

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 first-time offender, Ramirez was in

criminal history category I, yielding a recommended guidelines range of 168 to 210 months. The court imposed a 

below-guidelines sentence of 160 months. 

Ramirez never argued that she qualified for the “safety 

valve” for nonviolent first-time drug offenders under 

§ 5C1.2(a). If the safety valve had been applied, the range 

would have been 135 to 168 months. And if the firearm 

enhancement were removed as well, the range would have 

been even lower—108 to 135 months. 
No. 13-1013 5

II. Discussion

A. The Firearm Enhancement

As directed by § 2D1.1(b)(1), the judge increased 

Ramirez’s base offense level by two levels after finding her 

responsible for the four firearms recovered from the stash 

houses. We review the district court’s factual findings for 

clear error and will reverse only if we are left with a definite 

and firm conviction that a mistake has been made. United 

States v. Berchiolly, 67 F.3d 634, 639–40 (7th Cir. 1995). 

Under § 2D1.1(b)(1), a two-level enhancement applies

“[i]f a dangerous weapon (including a firearm) was possessed.” Although no evidence suggested that Ramirez 

herself possessed any firearms, “in the case of a jointly 

undertaken criminal activity[,] ... all reasonably foreseeable 

acts and omissions of others in furtherance of the jointly 

undertaken criminal activity” are considered offense conduct attributable to the defendant. § 1B1.3(a)(1)(B). 

To apply the firearm enhancement to a defendant who 

did not personally possess a gun (or have actual knowledge 

of a coconspirator’s gun possession), the judge must make 

two findings by a preponderance of the evidence: (1) that 

someone in the conspiracy actually possessed a firearm in 

furtherance of the conspiracy, and (2) that the firearm possession was reasonably foreseeable to the defendant. United 

States v. Luster, 480 F.3d 551, 558 (7th Cir. 2007). Ramirez 

does not dispute that her coconspirators possessed the four 

guns in furtherance of the meth enterprise. The only issue is 

whether their gun possession was reasonably foreseeable to 

her.
6 No. 13-1013

We have said that “the drug industry is by nature dangerous and violent, and a reasonable fact-finder is permitted 

to use his or her common sense in concluding that in a drug 

deal involving sizable amounts of money, the presence of 

firearms is foreseeable.” Berchiolly, 67 F.3d at 640; see also 

Luster, 480 F.3d at 558 (The defendant’s “frequent presence ... where the drugs and guns were stored, and his 

knowledge of [the] large-scale cocaine distribution operation, raise the inference that he could have reasonably 

foreseen his coconspirator’s possession of firearms for 

intimidation or protection.”); United States v. Banks, 987 F.2d 

463, 467–68 (7th Cir. 1993) (“Since guns are tools of the drug 

trade, it was reasonably foreseeable that [a coconspirator] 

would possess one during the offense.”). 

But the mere fact that Ramirez was a member of a drugdistribution ring does not make her strictly liable for all 

concealed weapons possessed by other conspirators. Rather, 

the judge was required to undertake an individualized 

inquiry about the foreseeability of the coconspirators’ gun 

possession from the perspective of the defendant. United 

States v. Vold, 66 F.3d 915, 921 (7th Cir. 1995); see also Luster, 

480 F.3d at 558 (“[T]he district court must determine that the 

coconspirator’s firearm possession was reasonably foreseeable to the defendant.”) (emphasis added). And common-sense 

inferences about foreseeability must have adequate support 

in the record. See United States v. Block, 705 F.3d 755, 764 (7th 

Cir. 2013) (rejecting the firearm enhancement because the 

district court “erroneously relied on several irrelevant 

facts”).

The requirement of an individualized inquiry suggests

that the scale, scope, and nature of the conspiracy, and the 
No. 13-1013 7

defendant’s role in it, should usually be considered when 

determining whether gun possession was reasonably foreseeable to the defendant.1 Compare Vold, 66 F.3d at 921 (fourmonth, two-man conspiracy to cook methcathinone in a 

trailer and garage not sufficient to make the coconspirator’s

gun possession reasonably foreseeable), with Luster, 480 F.3d 

at 558 (coconspirator’s gun possession reasonably foreseeable when the defendant knew he was part of a large-scale 

cocaine-distribution enterprise and spent significant time in 

the music studio where guns were stored).

The judge engaged in that analysis here, and the record 

supports the application of the enhancement. First, as noted 

in the Presentence Investigation Report (“PSR”), “Ramirez 

was an integral member of the distribution cell and engaged 

in daily activities on behalf of the organization that involved 

large sums of money and drugs.” Indeed, she was the

bookkeeper for the meth ring as well as a courier, suggesting

that she was intimately familiar with the scope and daily 

operations of the organization beyond her own involvement. 

She regularly made deliveries between at least four properties, three of which contained guns, and her own home was 

used to store drug-dealing paraphernalia for her coconspirators. She was arrested holding five pounds of meth with a 

street value of more than $100,000. As the district judge 

 

1 In some rare cases, it might be possible to infer that a high-level 

participant in a large drug conspiracy has, by virtue of his position, 

special reason to think that guns are not involved (say, for example, if a 

ringleader specifically orders his associates not to carry guns). However, 

there is no evidence that Ramirez took any measures to assure herself 

that guns were not used by the meth ring. She simply claims never to 

have seen or heard about the firearms. 
8 No. 13-1013

asked rhetorically, “[D]idn’t she think people would have 

guns when they had that great a value of drugs?” Addressing Ramirez’s defense counsel, the judge continued: “[T]hat’s 

the nature of the business, isn’t it, ... that when they have 

large amounts of cash and large amounts of drugs, that, you 

know, it’s commonly known that people have guns to protect 

their product?” On this record we’re convinced that the 

judge conducted a sufficiently individualized assessment of 

the foreseeability of gun possession to Ramirez in light of 

her specific and significant role in the conspiracy. 

In addition to the individualized findings about Ramirez, 

the judge also made a few comments about drug crimes in 

general. For example, the judge said that in her experience, 

“99.9 percent of ... drug deals” involved guns. She also 

noted that some drug crimes involve home invasions and 

murders. These statements may have been exaggerated, but 

considered in context it’s clear that they were meant only to

emphasize that drug trafficking is, in the judge’s words, a 

“dangerous business,” and thus Ramirez should have been 

alert to the likelihood that guns would be involved. These 

remarks do not undermine our confidence that the judge

applied the firearm enhancement after a particularized 

foreseeability analysis based on Ramirez’s knowledge of the 

nature and scope of the conspiracy. 

B. Safety-Valve Eligibility

1. Background

Congress passed the so-called safety valve, 18 U.S.C. 

§ 3553(f), in 1994, and the Sentencing Commission thereafter 

added it to the guidelines as § 5C1.2(a). The safety valve 
No. 13-1013 9

“was meant to aid those less culpable defendants for whom 

a mandatory minimum sentence might seem harsh.” United 

States v. Ramirez, 94 F.3d 1095, 1101 (7th Cir. 1996). To be 

eligible, a defendant must satisfy five conditions:

(1) the defendant does not have more than 

1 criminal history point ... ;

(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 ... .

§ 5C1.2(a).

If the defendant satisfies all five conditions, “the court 

shall impose a sentence ... without regard to any statutory 

minimum sentence.” Id. The defendant is also entitled to a 

two-level reduction under § 2D1.1(b)(16) regardless of 
10 No. 13-1013

whether the waiver of the statutory minimum affects the

advisory sentence under the guidelines.2

The defendant bears the burden of demonstrating, by a 

preponderance of the evidence, her eligibility for the safety 

valve.3 See Ramirez, 94 F.3d at 1100 (“The court’s conclusion 

in favor of the defendant necessarily depends upon the 

defendant’s persuasive ability to demonstrate to the court 

that he is eligible for the reduced sentence.”). Here, the PSR 

made no mention of the safety value, and Ramirez did not 

raise—much less prove—her eligibility for it in the district 

court.

 

2 If the two-level reduction under the safety valve had been applied, 

Ramirez’s offense level would have been 33 and the advisory guidelines 

range would have been 135 to 168 months—still above the statutory 

minimum of 120 months. See 21 U.S.C. § 841(b)(1)(A)(viii).

3 The requirement that defendants raise and prove safety-valve eligibility 

avoids the oddity of requiring the government to disprove the safetyvalve factors preemptively as a matter of course. See United States v. 

Harakaly, 734 F.3d 88, 98 (1st Cir. 2013) (“This allocation of the burden 

makes perfect sense; were it otherwise, the government would be 

required to disprove the safety-valve factors before the defendant ever 

expressed an intent to seek a sentencing reduction via the safety valve.”).

It is also consistent with the general principle that while the government 

must prove sentencing enhancements by a preponderance of the evidence, “[w]hen a defendant requests a decrease in his offense level, he 

has the burden of demonstrating that he is eligible for the reduction by a 

preponderance of the evidence.” United States v. Soto, 48 F.3d 1415, 1423 

(7th Cir. 1995); see, e.g., United States v. Seidling, 737 F.3d 1155, 1162 (7th 

Cir. 2013) (defendants bear the burden of proving their entitlement to an 

“acceptance of responsibility” adjustment under § 3E1.1); United States v. 

Sandoval-Velazco, 736 F.3d 1104, 1107 (7th Cir. 2013) (defendants bear the 

burden of proving their entitlement to a “mitigating role” adjustment 

under § 3B1.2).
No. 13-1013 11

2. Forfeiture

Despite Ramirez’s burden, she and the government believe that she forfeited, rather than waived, her safety-valve 

argument. “Waiver is different from forfeiture. Whereas 

forfeiture is the failure to make the timely assertion of a 

right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 

733 (1993) (internal quotation marks omitted).

The distinction is vital because a waived argument is unreviewable on appeal. United States v. Walton, 255 F.3d 437, 

441 (7th Cir. 2001). As a general matter, we have held that 

“[i]f a specific objection was not raised at sentencing, we will 

view it as having been waived if the defendant had a strategic reason to forego the argument, that is, only if the defendant’s counsel would not be deficient for failing to raise the 

objection.” United States v. Allen, 529 F.3d 390, 395 (7th Cir. 

2008).

It’s hard to see how Ramirez’s silence could be called a 

waiver; we cannot imagine any strategic reason to forego 

asking for the safety valve. That said, we think it would be 

an extremely rare case in which a district court would ever 

commit plain error—the standard of review for forfeited 

objections—by not applying the safety valve sua sponte. This 

is so because the fifth safety-valve condition requires the 

defendant to show that she “has truthfully provided to the 

Government all information and evidence ... concerning the 

offense ... .” U.S.S.G. § 5C1.2(a)(5). If the defendant does not 

affirmatively assert that she has given the government all the 
12 No. 13-1013

information she has, it is highly unlikely that the record will 

unambiguously show that she did.4

We note as well that the safety valve cannot be applied 

until “the Government has been afforded the opportunity to 

make a recommendation.” 18 U.S.C. § 3553(f). Since the 

government has not yet had a chance to make a recommendation, the most we could possibly do even if we found a 

plain error is remand for the district court to evaluate 

Ramirez’s safety-valve eligibility, taking into account a

recommendation by the government.

In any case, even if we assume that Ramirez merely forfeited her safety-valve request,5 and that her failure to argue 

that she satisfied the fifth condition for eligibility is not fatal, 

she is not entitled to relief.

 

4 The offense-level reduction for substantial assistance, U.S.S.G. § 5K1.1, 

requires only “substantial” assistance to the government, so the defendant’s eligibility for a § 5K1.1 adjustment is not conclusive on whether she 

has provided “all the information and evidence [she] has,” as required 

for the safety valve, id. § 5C1.2(a)(5).

5 Other circuits have applied plain-error review where the defendant has 

failed to request safety-valve consideration, though not in published 

decisions. See, e.g., United States v. Molina-Borrayo, 569 F. App’x 232, 234 

(5th Cir. 2014) (“Molina-Borrayo argues that the district court erred in 

failing to apply the ‘safety-valve’ provision to his sentence. Because 

Molina-Borrayo did not raise this issue before the district court, it is 

reviewed for plain error.”); United States v. Thomas, 532 F. App’x 384, 387 

(4th Cir. 2013) (“Because Thomas did not request application of the 

safety valve reduction in the district court, his claim of error in this 

appeal is reviewed for plain error.”), cert. denied, 134 S. Ct. 946 (2014); 

United States v. White, 136 F. App’x 227, 230 (11th Cir. 2005) (“White 

argues that the district court erred in failing to apply ... [the] safety 

valve ... . We review sentencing claims raised for the first time on appeal 

for plain error.”).
No. 13-1013 13

3. Plain-Error Analysis

A forfeited argument is reviewed for plain error. An error 

is plain if it is so obvious that “the trial judge and prosecutor 

were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it. ... It cannot be subtle, 

arcane, debatable, or factually complicated.” United States v. 

Turner, 651 F.3d 743, 748 (7th Cir. 2011) (internal quotation 

marks omitted). If we find a plain error, we will reverse the 

decision below only if the error affected the defendant’s 

substantial rights and seriously impugned the fairness, 

integrity, or public reputation of the judicial proceeding. 

United States v. Goodwin, 717 F.3d 511, 518 (7th Cir. 2013), cert. 

denied, 134 S. Ct. 334 (2013).

One of the conditions for safety-valve eligibility is that 

the defendant “did not ... possess a firearm or other dangerous weapon (or induce another participant to do so) in 

connection with the offense[.]” § 5C1.2(a)(2). Ramirez argues 

that even if the firearms recovered from the stash houses 

were properly attributed to her for purposes of the firearm 

enhancement, the scope of the safety-valve’s “no firearms”

condition is narrower. Her argument is based on Commentary Note 4 to § 5C1.2, which states that “[c]onsistent with 

§ 1B1.3 (Relevant Conduct), the term ‘defendant,’ as used in 

subsection (a)(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.” Accountability for coconspirators’ conduct is 

noticeably absent from that list, although the reference to the 

Relevant Conduct guideline—§ 1B1.3, which authorizes 

coconspirator liability—introduces some ambiguity.
14 No. 13-1013

Even so, other circuits that have addressed this issue 

have concluded that the scope of the safety-valve’s “no 

firearms” condition is narrower than the firearms enhancement and does not impute responsibility for the acts of 

coconspirators. See United States v. Delgado-Paz, 506 F.3d 652, 

656 (8th Cir. 2007); United States v. Figueroa-Encarnación, 

343 F.3d 23, 34 (1st Cir. 2003); United States v. Pena-Sarabia, 

297 F.3d 983, 989 (10th Cir. 2002); United States v. Clavijo, 

165 F.3d 1341, 1343–44 (11th Cir. 1999) (per curiam); United 

States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997); In re Sealed 

Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997); United States v. 

Wilson, 105 F.3d 219, 222 (5th Cir. 1997) (per curiam); see also

United States v. Harris, 230 F.3d 1054, 1061 (7th Cir. 2000) 

(Ripple, J., dissenting) (summarizing the arguments in favor 

of distinguishing the scope of responsibility associated with

the firearm enhancement and safety valve). 

As we’ve noted, this is a question of first impression in 

our circuit. See Harris, 230 F.3d at 1058 (noting but not deciding the question whether coconspirator liability is a basis for 

determining possession of a firearm under § 5C1.2). If 

Ramirez had raised the issue at sentencing, then this would 

be an occasion for us to decide whether application of the 

firearms enhancement categorically forecloses eligibility for 

the safety valve. But her failure to make that argument 

before the district court limits us to review for plain error.

We rarely find plain error on a matter of first impression. 

In order to prevail, the defendant must show that “the error 

was so obvious and so prejudicial that a district judge

should have intervened without being prompted by an 

objection from defense counsel.” United States v. Boswell, 

772 F.3d 469, 476–77 (7th Cir. 2014) (internal quotation marks
No. 13-1013 15

omitted). Matters of first impression are unlikely to be that

obvious. See United States v. Turrietta, 696 F.3d 972, 981 (10th 

Cir. 2012) (“Since a district court cannot be faulted for failing 

to act on its own motion where the law is unsettled, a matter 

of first impression will generally preclude a finding of plain 

error.”). And Ramirez’s eligibility for the safety valve was 

not so obvious in this case.

It’s true that the scope of the “no firearms” condition in 

§ 5C1.2(a)(2) was flagged as an open question in our decision 

in Harris. 230 F.3d at 1058 (“Whether co-conspirator liability 

is a basis for determining possession of a firearm under 

§ 5C1.2 is an issue that we have never addressed ... . [W]e 

cannot reach its merits [here].”); see also id. at 1061 (Ripple, J., 

dissenting). But the issue remains unsettled in this circuit. 

Given the lack of guiding circuit precedent, the district court 

cannot be faulted for failing to raise and apply the safety 

valve sua sponte. Accordingly, we find no plain error.

AFFIRMED.