United States v. Kotwicki

MEMORANDUM ** Ramon Antonio Kotwicki appeals from the 120-month sentence imposed following his guilty-plea conviction for two counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Kotwicki contends that the district court erred by concluding that it could not apply the safety valve statute, 18 U.S.C. § 3553 (f), in light of the Supreme Court’s holding in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). We conclude that because the district court determined in the alternative that Kotwicki was not eligible for safety valve relief, the district court’s error was harmless. We review the district court’s determination that the defendant has not met his burden of establishing safety valve eligibility for clear error. See United States v. Ferryman, 444 F.3d 1183, 1185 (9th Cir.2006). We conclude that the district court did not clearly err in finding that Kotwicki had possessed a weapon in con *659 nection with the offense. See id. at 1186-87 . Furthermore, we conclude that the sentence imposed was reasonable. See United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.), cert. denied, — U.S.-, 126 S.Ct. 2314 , 164 L.Ed.2d 832 (2006). Accordingly, the sentence is affirmed. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.