United States v. Luis Abel Nevarez, 683 F. App'x 842

Nevarez pleaded guilty to two counts: conspiracy to distribute/possess with intent to distribute >5 kg cocaine and conspiracy to import >5 kg cocaine; district court sentenced him to 192 months (mid-guideline).
The district court denied safety-valve relief under U.S.S.G. § 5C1.2 and the two-level reduction in § 2D1.1(b)(17), finding Nevarez failed two criteria: (1) he (aided and abetted others who) possessed firearms in connection with the offense; and (2) the offense resulted in death to a person (court relied primarily on the firearm finding).
Relevant facts: Nevarez was the right-hand man to leader Juan Chávez; Chávez trafficked guns to Mexico, sold a gun to the Gadson organization, and possessed guns during joint activity in Mexico.
Nevarez participated in gun-trafficking-related activity by acting as a contact for his brother Sarjio when Sarjio returned with proceeds from trafficking guns to Mexico.
Nevarez conceded participation in the drug conspiracy but argued the government failed to prove he had advance knowledge of co-conspirators’ firearm possession and challenged the relevance/timing of the gun evidence.
The Eleventh Circuit affirmed, holding the district court’s factual finding that Nevarez aided and abetted co-conspirators’ firearm possession was not clearly erroneous and was sufficient to deny safety-valve relief; the court did not decide the death-related finding.

Issue	Nevarez's Argument	Government's Argument	Held
Whether Nevarez was eligible for safety-valve reduction under U.S.S.G. § 5C1.2 given co-conspirator firearm possession	Government failed to prove Nevarez had advance knowledge or aided/abetted firearms possession; he lacked requisite advance knowledge	Nevarez actively participated in the conspiracy and knew of Chávez’s gun trafficking and possession, so he aided and abetted firearms possession	District court did not clearly err; aiding-and-abetting finding stands; safety-valve denied
Whether relevant-conduct rules or guideline revisions alter accountability for co-conspirators’ acts	Revised relevant-conduct limits accountability, so mere foreseeability is insufficient without aiding/abetting or advance knowledge	Even under the revised standard, Nevarez’s conduct supported a finding he aided/abetted or had advance knowledge	Court applied aiding-and-abetting standard (Rosemond) and affirmed

Rosemond v. United States, 134 S. Ct. 1240 (2014) (to aid-and-abet gun-possession liability, defendant must actively participate and have advance knowledge a confederate would carry a gun)
United States v. Clavijo, 165 F.3d 1341 (11th Cir. 1999) (defendant’s accountability limited to own conduct and that which he aided or abetted)
United States v. Thompson, 610 F.3d 1335 (11th Cir. 2010) (prior joint conduct showing a co-conspirator’s pattern of arming can support knowledge that confederate would be armed)
United States v. Poyato, 454 F.3d 1295 (11th Cir. 2006) (safety-valve legal questions reviewed de novo; factual findings for clear error)
United States v. Siegelman, 786 F.3d 1322 (11th Cir. 2015) (factfinder’s plausible view of the evidence is not clearly erroneous)
United States v. Johnson, 375 F.3d 1300 (11th Cir. 2004) (defendant bears burden to prove eligibility for safety-valve relief)
United States v. Simmons, 368 F.3d 1335 (11th Cir. 2004) (appellate court may affirm on any ground supported by the record)