UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, PETERSEN & SMITH, L.L.P., Southern Pines, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Michael F. Joseph,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee. 
Unpublished opinions are not binding precedent in this circuit.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 imprisonment. 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 connection 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 reduction. 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

2 UNITED STATES v. HUNT
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 foreseeable 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 firearm, unless the defendant was personally involved in the codefendant’s action. United States v. Wilson, 114 F.3d 429, 432 (4th

Cir. 1997) (holding that "for purposes of § 5C1.2(2), the term ‘defendant’ ‘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 conclude 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 argument would not aid the decisional process. 

AFFIRMED

UNITED STATES v. HUNT 3