
    UNITED STATES of America, Plaintiff-Appellee v. Juan Martinez LEANOS, Defendant-Appellant.
    No. 15-3248
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 15, 2016
    Filed: July 11, 2016
    Rehearing and Rehearing En Banc Denied Aug. 17, 2016 
    
    
      Counsel who represented the appellant was Angela L. Campbell of Des Moines, IA.
    Counsel who represented the appellee was Amy L Jennings, AUSA, of Des Moines, IA.
    Before LOKEN, BEAM, and SMITH, Circuit Judges.
    
      
       Judge Kelly did not participate in the consideration or decision of this matter.
    
   SMITH, Circuit Judge.

Juan Martinez Léanos appeals his 120-month sentence — the mandatory minimum for his crime pursuant to 21 U.S.C. § 841(b)(1)(A) — arguing that the district court should have applied the so-called safety valve provided by 18 U.S.C. § 3553(f) and sentenced him below the statutory minimum. We affirm.

I. Background

Martinez Léanos and his girlfriend, Patricia Solorzano, shared a home out of which they distributed methamphetamine. After several controlled buys, law enforcement officers secured a warrant to search Martinez Léanos and Solorzano’s home. Inside, officers discovered two drug stashes. In the first drug stash, officers found a .45 caliber pistol and corresponding ammunition. In the second, officers found a 9mm pistol without any corresponding ammunition. Martinez Léanos admitted to officers that he purchased the 9mm firearm from a drug dealer for the purpose of personal protection. He also told officers that the .45 caliber firearm belonged to Solorzano. Martinez Léanos, pursuant to a plea agreement, pleaded guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and being an illegal alien in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). In the plea agreement, Martinez Léanos stipulated to possessing both firearms and the ammunition.

At sentencing, Martinez Léanos argued that the district court should sentence him below the mandatory minimum of 120 months pursuant to the so-called safety valve. The safety valve authorizes a sentence below the mandatory minimum under several conditions, including the following: “[T]he defendant did not ... possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.” 18 U.S.C. § 3553(f)(2). Martinez Léanos argued that Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), should apply to the determination of whether he possessed a firearm in connection with the offense. If applicable, Alleyne would require that the government establish the fact of his firearm possession beyond a reasonable doubt to a jury or as part of a guilty plea. Alternatively, he argued that the facts did not support a finding that he possessed the firearms in connection with the drug offense. Finally, he argued that he should receive a reduction pursuant to U.S.S.G. §3B1.2 because his involvement in the drug operation was no more than minor.

The district court concluded that Al-leyne does not apply in the context of the safety valve, that Martinez Léanos did possess the firearms in connection with the drug offense, and that Martinez Léanos was deeply involved in the drug operation. Martinez Léanos appeals. We have jurisdiction to review this final judgment of the district court pursuant to 28 U.S.C. § 1291.

II. Discussion

Martinez Léanos raises three challenges on appeal: (A) He argues that Alleyne requires that any fact that can increase— or prevent a decrease of — a mandatory minimum sentence must be found by a jury or pleaded to by a defendant; in this instance, the safety-valve disqualifying fact of gun possession. (B) He argues that he did not possess the firearms in connection with the drug conspiracy. And (C) he argues that his participation in the drug conspiracy was at most minor.

A. Alleyne Does Not Apply to Safety-Valve Determinations

The district court concluded that the Supreme Court’s holding in Alleyne that “[fjacts that increase the mandatory minimum sentence are ... elements and must be submitted to the jury and found beyond a reasonable doubt,” 133 S.Ct. at 2158, is not applicable to facts that determine whether a defendant is eligible under the safety valve for a sentence below the statutory minimum. Martinez Léanos argues that the district court erred because safety-valve ineligibility in effect increases his mandatory minimum sentence. We disagree.

We review de novo the district court’s legal conclusions on this issue. United States v. Ruacho, 746 F.3d 850, 853 (8th Cir. 2014) (per curiam). Five of our sister circuits have addressed this specific issue, and all five have declined to extend Alleyne in the manner that Martinez Lea-nos proposes. See United States v. King, 773 F.3d 48, 55 (5th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 1865, 191 L.Ed.2d 741 (2015); United States v. Lizarragcv-Carrizales, 757 F.3d 995, 997-99 (9th Cir. 2014), cert. denied, — U.S.-, 135 S. Ct. 1191, 191 L.Ed.2d 145 (2015); United States v. Juarez-Sanchez, 558 Fed.Appx. 840, 843 (10th Cir. 2014) (unpublished); United States v. Silva, 566 Fed.Appx. 804, 807-08 (11th Cir. 2014) (unpublished per curiam), cert. denied, — U.S. -, 135 S.Ct. 1190, 191 L.Ed.2d 145 (2015); United States v. Harakaly, 734 F.3d 88, 97-98 (1st Cir. 2013). We now join these circuits. Accordingly, the district court correctly concluded that the requirements of Alleyne do not apply to a district court’s determination of whether the safety valve provided in 18 U.S.C. § 3553(f) applies.

B. Martinez Léanos Possessed the Firearms in Connection with the Offense

Next, we review for clear error the district court’s factual finding that Martinez Léanos is not eligible for the safety valve. Ruaclio, 746 F.3d at 853. The district court found that Martinez Léanos “possessed] a firearm ... in connection with the offense” and was therefore ineligible for a below-mandatory-minimum sentence made available by the safety valve. See 18 U.S.C. § 3553(f)(2). Specifically, the district court noted that officers discovered the firearms in the house with the drugs and that Martinez Léanos admitted to buying one firearm from a drug dealer for personal protection. Martinez Léanos argues that the district court clearly erred in so finding because one of the firearms did not have any corresponding ammunition and the other belonged to Solorzano, with whom he shared the house. We disagree.

We have held that a defendant possesses a firearm in connection with a drug offense if the firearm has the potential to facilitate the offense. United States v. Jackson, 552 F.3d 908, 910 (8th Cir. 2009) (per curiam). Moreover, constructive possession of a firearm is sufficient to render a defendant ineligible for the safety valve. Id. Thus, when a firearm is located “where it could be used to protect drugs,” a district court does not clearly err in concluding that the firearm was possessed in connection with the drug offense. Id. (quotation and citation omitted). For example, where a firearm was located five feet away from a drug stash in a defendant’s home — even though the defendant asserted that he never touched the firearm and that it did not belong to him — we held that the district court did not err in finding that the defendant was ineligible for the safety valve. Id. at 909-10.

In this case, Martinez Léanos himself connected the firearms to the drugs. He stipulated in his plea agreement that he possessed the two firearms and ammunition in the home. Officers found the firearms in the house’s two drug stashes. Also, Martinez Léanos admitted that he purchased one of the firearms from a drug dealer for his own protection. Last, Martinez Léanos distributed drugs out of that house. Accordingly, the district court did not clearly err in finding that Martinez Léanos possessed the firearms and ammunition in connection with the drug offense.

C. Any Error With Respect to Martinez Léanos’s Role is Harmless

Finally, the district court denied Martinez Leanos’s request to receive a sentence reduction as a minimal or minor participant in the drug conspiracy under U.S.S.G. § 3B1.2. Martinez Léanos argues that this was error. But any error in denying Martinez Léanos a role adjustment under § 3B1.2 was harmless. The district court sentenced Martinez Léanos to the mandatory minimum sentence of 120 months’ imprisonment, a sentence already above the calculated Guidelines range of 87 to 108 months. A reduction to the Guidelines range pursuant to § 3B1.2 would not have actually resulted in a lower sentence. Accordingly, Martinez Leanos’s challenge fails.

III. Conclusion

For these reasons, we affirm Martinez Leanos’s conviction and sentence. 
      
      . The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa.
     
      
      . The government argues that Martinez Lea-nos has waived his Alleyne argument because the plea agreement that he signed stated, “Defendant understands that the Court may not impose a sentence less than the mandatory minimum sentence unless ... the Court finds that Defendant qualifies for safety valve under 18 U.S.C. § 3553(f).” (Emphasis added.) Waiver is the “intentional relinquishment or abandonment of a known right.” United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009) (quotation and citation omitted). The statement to which the government points in the plea agreement does not have the kind of intentional or knowing character required to waive Martinez Leanos’s Alleyne argument.
     