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Click here for the full text of this decision FACTS:Matias pleaded guilty to conspiracy to possess with intent to distribute and distribution of cocaine. Matias’ conviction stems from his participation in the Gomez organization, a conspiracy that distributed cocaine and crack. The organization kept various apartments as stash houses where members kept drugs and money. Matias worked in a stash house taking telephone orders for drugs. On Aug. 25, 2004, federal authorities executed a search warrant at the organization’s primary stash house in Dallas. They seized a Norinco MAK-90 assault rifle, two magazines and six rounds of ammunition for the rifle, all of which were in plain view. Matias knew that the assault rifle was in the apartment. At sentencing, the district court found that Matias’ offense level was 35, with a criminal history of I, which resulted in a guidelines range of 168 to 210 months incarceration. The district court concluded that Matias had constructive possession of the firearm, and accordingly increased his U.S. Sentencing Guidelines (USSG) offense level by two pursuant to �2D1.1(b)(1), which provides for such an increase where “a dangerous weapon (including a firearm) was possessed” in connection with certain drug offenses. Matias requested the district court to rule that he qualified for the “safety valve” relief. The district court held that the safety valve relief was not available because the firearm was available to all of these workers at the stash house. The district court then imposed a sentence of 168 months incarceration and five years of supervised release. Matias appeals from his sentence on grounds that constructive possession of a weapon should not bar him from receiving safety valve relief. HOLDING:Affirmed. The court declined to make a distinction between actual and constructive possession of a weapon in granting safety valve relief. “We see no reason to exclude constructive possession from the safety valve provision. The purpose of the safety valve is to prevent mandatory minimum sentences from causing the”least culpable offenders [to] receive the same sentences as their relatively more culpable counterparts.’ The culpability is virtually the same for a defendant who possesses a firearm on his person and a defendant who has a firearm within his personal dominion and control while committing that same offense. “Here, there was substantial and uncontested evidence supporting the district court’s conclusion that Matias constructively possessed the firearm. We hold that the district court correctly found Matias ineligible for the two-level reduction under �2D1.1(b)(9).” OPINION:Reavley, J; Jones, C.J., Reavley and Prado, J.J.

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