913 F.Supp. 599 (1996)
TAX ANALYSTS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant,
and
West Publishing Company, Defendant-Intervenor.
No. 94-0043 (GK).
United States District Court, District of Columbia.
January 16, 1996.
*600 William Dobrovir, Culpepper, VA, for plaintiff.
Elizabeth Pugh, Susan Lennon, U.S. Department of Justice, Washington, DC, Burt Braverman, T. Scott Thompson, Washington, DC, for defendant.

MEMORANDUM OPINION
KESSLER, District Judge.
This action is brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff is a nonprofit organization that publishes, in printed and electronic form, news and documents about federal, state, and local taxation, including summaries and full texts of tax decisions by federal courts. Plaintiff seeks to compel Defendant Department of Justice ("DOJ") to disclose its Justice Retrieval and Inquiry System ("JURIS"), an electronic legal research database. The issue in this case is whether JURIS is an "agency record" subject to disclosure under FOIA.

I. Procedural Background

On November 22, 1993, Plaintiff submitted a FOIA request to DOJ for the JURIS database. Two weeks later, on December 2, 1993, DOJ denied Plaintiff's request for the portion of the JURIS database provided by West.[1] The DOJ claimed that the West-provided part of JURIS was not an "agency record," and therefore not subject to disclosure under FOIA. Moreover, DOJ argued that even if the West-provided part of JURIS was an agency record, it was exempt from disclosure pursuant to Exemption 4 of FOIA, 5 U.S.C. Section 552(b)(4), because it is confidential commercial information.[2]
On December 8, 1993, Plaintiff appealed the denial of its FOIA request to the DOJ's Office of Information and Privacy. When *601 DOJ failed to rule on the appeal by the statutory due date of January 10, 1994,[3] Plaintiff brought this action in the U.S. District Court. West Publishing Company ("West") intervened as of right, pursuant to Fed.R.Civ.P. 24(a) & (b) because it had a substantial interest in the material being sought by Plaintiff.
On February 14, 1994, DOJ filed a Partial Motion to Dismiss for lack of subject matter jurisdiction.[4] On the same day, Defendant-Intervenor West also filed a Motion to Dismiss for lack of subject matter jurisdiction.
On May 27, 1994, Plaintiff filed a Motion for Partial Summary Judgment, requesting that the Court order DOJ to produce portions of the JURIS system which were contributed to JURIS by the Departments of Health and Human Services, Education and the Air Force. On August 11, 1994, DOJ filed a Motion to Dismiss, or in the Alternative, For Stay of Proceedings. On September 8, 1994 the Court granted DOJ's motion to Stay Proceedings until a ruling on the Motions of Defendant DOJ and West to Dismiss (both filed February 14, 1994).
Thus, this matter is before the Court upon DOJ's Partial Motion to Dismiss and West's Motion to Dismiss.

II. Statement of Facts

JURIS is an electronic legal research system created and maintained by DOJ.[5] It is an electronic depository of federal cases, regulations and digest material, through which DOJ attorneys conduct research for their cases. JURIS also provides citating services that allow subscribers to "shepardize" their cases, i.e., to research their legal history. The system was developed by DOJ in the early 1970's, became operational in 1974, and expanded in 1979 to include other executive departments. JURIS is not available to the general public; access is limited to federal and state government users who subscribe through a reimbursement agreement between the subscribing agency and the DOJ.
Until 1983, the data in JURIS was collected, organized, and "inputted" by DOJ and other federal agencies. Beginning in 1983, however, DOJ contracted with West to provide 80% of the information in JURIS. The most recent contract between DOJ and Westthe one central to this caseran from 1988 to 1993 (the "1988 contract" or "contract"). Under that contract, West collected, organized and computer-formatted cases, opinions and digests to make them ready for use on JURIS.[6]

III. The Freedom of Information Act

Under the FOIA, a federal agency must make available for public inspection and copying its opinions, statements of policy, interpretations, staff manuals and instructions that are not published in the Federal Register, 5 U.S.C. § 552(a)(2). In addition, § 552(a)(3) requires that an agency "upon any request for records which ... reasonably describes such records" to make such records "promptly available to any person."[7]
A district court has jurisdiction to enjoin an agency from withholding agency *602 records and to order the production of any agency records improperly withheld from a complainant. § 552(a)(4)(B). The court has jurisdiction only if the plaintiff establishes that an agency has (1) improperly (2) withheld (3) agency records. Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). Unless all three of these criteria are met, a district court lacks jurisdiction to compel an agency to comply with FOIA. In this case, the first two jurisdictional prongs of the Kissinger test are not at issue. Rather, Defendants argue that this Court lacks jurisdiction because the JURIS is not an "agency record" under controlling law.

IV. "Agency Records"

A. The Test
The FOIA does not define "agency record," and "[t]he legislative history is similarly unilluminating." Tax Analysts v. United States Department of Justice, 845 F.2d 1060, 1067 (D.C.Cir.1988, aff'd 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). Although the statute fails to define the term, the Supreme Court in affirming the Court of Appeals decision in Tax Analysts, articulated a two-part test to determine what constitutes an "agency record" under the FOIA: "agency records" are documents which are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. United States Department of Justice v. Tax Analysts, 492 U.S. 136, 144-145, 109 S.Ct. 2841, 2848, 106 L.Ed.2d 112 (1989); see also U.S. Department of Justice, Freedom of Information Act Guide & Privacy Act Overview, September 1994 Ed., at 13. Neither party disputes that the West-provided material was "created or obtained" by DOJ during the time in question. The issue is whether the West-provided data in JURIS was under the "control" of DOJ when Plaintiff made its FOIA request. If DOJ "controlled" the data, it is an agency record subject to FOIA.
In Tax Analysts, the Supreme Court gave only general guidance to what it meant by "control." The Court said that "[b]y control we mean that the materials have come into the agency's possession in the legitimate conduct of its official duties." Tax Analysts, 492 U.S. at 144, 109 S.Ct. at 2848. Further, the Court said that "[t]he control inquiry focuses on an agency's possession of the requested materials, not on its power to alter the content of the material it receives." Id. at 147, 109 S.Ct. at 2849.
As might be expected, the parties take this language to mean opposite things. Plaintiff argues that "control" is determined foursquare by "possession," and since DOJ undoubtedly "possessed" the data at the time of the FOIA request, DOJ controlled the data. Defendants, in contrast, argue that the Supreme Court did not mean that "possession" and "control" were synonymous, but simply that "possession" should be one of many factors the court considers in its control inquiry.
Plaintiff correctly points out that the Supreme Court in Tax Analysts directed the control inquiry to "possession." But the Court stated only that the "inquiry focuses on an agency's possession," id. at 147, 109 S.Ct. at 2849, not that possession alone determined control. To hold that control is synonymous with possession contradicts the Supreme Court's ruling in Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), upon which Tax Analysts itself was based, that: "We simply decline to hold that physical location of the [documents at issue] renders them `agency records.'" Id., 492 U.S. at 157, 109 S.Ct. at 2847.[8]
Moreover, the Supreme Court in Tax Analysts did not establish a new test for determining what was an "agency record" under FOIA. The Court itself acknowledged in Tax Analysts that it did not "write on a clean slate." Id. at 142, 109 S.Ct. at 2847. Rather, it clarified the standard already in place and applied factors that courts in this Circuit, and the Supreme Court itself, had been applying *603 in earlier cases.[9] Plaintiff's assertion, therefore, that this Court may simply "ignore" cases decided before Tax Analysts, Pl.Opp. at 14, is simply incorrect.
The courts of this Circuit have looked to a number of factors to answer the control question. See e.g. Goland v. CIA, 607 F.2d 339, 347 (D.C.Cir.1979) (rejecting plaintiff's argument that agency's possession of a document per se dictates document's status as an "agency record," and holding instead that crucial question was whether document was "subject to the free disposition of the agency"), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); Paisley v. CIA, 712 F.2d 686, 692-93 (D.C.Cir.1983) (same); Katz v. National Archives and Records Administration, 68 F.3d 1438, 1442 (D.C.Cir. 1005) (holding that National Archives' possession of President Kennedy's autopsy photographs did not make them agency records because all agencies involved in the creation of the photographs treated them as personal property of the Kennedy estate); Washington Post v. United States Dep't of Defense, 766 F.Supp. 1, 16-17 (D.D.C.1991) (citing Goland to hold that transcript transferred by Congress to agency for limited purpose did not become agency record because document was not subject to free disposition of agency); see also Hamrick v. Department of Navy, No. 90-0283, 1992 WL 739887, 1992 U.S.Dist. LEXIS 13151 (D.D.C. Aug. 28, 1992) (note-books created by agency employee were not agency records because employee, not agency, created, maintained and possessed the document).
In Dow Jones & Company, Inc. v. General Services Administration, 714 F.Supp. 35 (D.D.C.1989), decided just before Tax Analysts, the District Court discussed the "control" issue in considerable depth, holding that the following factors determined whether an agency "controlled" a document:
(1) the intent of the document's creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files.
Id. at 39.[10]
Taken together, these decisions of the Supreme Court, Court of Appeals and District Courts contain the clear teaching that "control" is not determined solely by possession. Rather, the question is whether, considering all of the circumstances of the case including, of course, physical possession, the records at issue are "subject to the free disposition of the agency." Goland, 607 F.2d at 347.

B. Application of the Test
It is undisputed that DOJ physically "possessed" the West-provided data at the time of the FOIA request. The question is whether DOJ could "use and dispose of the [data] as it [saw] fit." Dow Jones, 714 F.Supp. at 39. DOJ argues that it could not freely dispose of the West-provided data because the 1988 contract significantly restricted how it could use, transfer and/or dispose of the data. The argument centers upon two provisions of the 1988 contract, which read as follows:
H-6  BASIC DATA LICENSE
A. i. WEST grants to DOJ during the term of this agreement the nonexclusive, nontransferable, irrevocable right to include the Data supplied to DOJ hereunder pursuant to Section C and all other information and materials supplied in accordance with Section C in JURIS; provided, however, that those with the access to Data and Information shall in all respects treat them as the proprietary information of West in accordance with all procedures reasonably necessary to protect WEST's proprietary rights in *604 the Data and Information. In the event this contract is terminated in part, this license continues for the remaining portion of the contract.
ii. All JURIS Users shall treat such Data and Information in all respects as such Data and Information are required to be treated in accordance herewith. DOJ shall include the terms, conditions and procedures relative to protecting proprietary and/or confidential information in Sections H-6, H-7, H-8 and H-9 of this agreement in JURIS User Agreements.
B. WEST grants to Authorized JURIS Users and their employees a limited, nonexclusive, nontransferable license during the term of this agreement to use Data copyrighted (or copyrightable) by West, and Contributors, and Information accessed through JURIS in performance of their professional work. Except for the inclusion of data and information in JURIS (and except as provided in Section H-7.B), any storage, reproduction, transmission, or transfer for consideration of any portion of the information, the data, or the data base is strictly prohibited. DOJ represents and warrants that Data and Information will be made available through JURIS pursuant to JURIS User Agreements.
H-7OWNERSHIP AND DISSEMINATION OF THE LICENSED DATA AND INFORMATION
A. WEST and Contributors shall remain the exclusive owners of all right, title and interest in the Data Base, the Data licensed hereunder, the Information and all copyrights (and renewals thereof) heretofore or hereafter secured therein. All publication, dissemination and other rights in the Data Base, the Data and the Information licensed hereunder are reserved to WEST and Contributors in all languages, formats and throughout the world for the sole and exclusive use or any other disposition by WEST and Contributors or their assignees or grantees at any time and from time to time without any obligation or liability to any User.
B. Users shall not make any printout or other tangible form of retrieved Data available to any person other than an employee of a User without first obtaining a written agreement from such person not to further disseminate such material. In the event a User is required to produce JURIS printouts containing Data and Information pursuant to a court order or under a controlling legal precedent in a Freedom of Information Act action, the User may do so provided that Section [H-]8 hereof is complied with.
Contract at 28, 69 (emphasis added).
DOJ argues that the terms of Sections H-6 and H-7 explicitly prohibit:
1. use of the West-provided data outside of the JURIS system;
2. use of the West-provided data by any-one other than authorized JURIS users;
3. transferring or assigning West-provided data;
4. storing, reproducing, transmitting or transferring for consideration any portion of the West-provided data;
5. distributing by JURIS users any print-outs or other tangible forms of West-provided data without first obtaining a written agreement from such person not to further disseminate the West-provided data; and
6. further use of the West-provided data if the contract is terminated.
The gravamen of DOJ's argument is that it did not "control" the West-provided data because it was contractually prohibited from doing so; sections H-6 and H-7 preclude it from using, transferring and/or disposing of the data as it wants to. DOJ personnel could retrieve, copy, store and disseminate the data only under the terms and conditions of the governing contract.
Plaintiff counters with two arguments. First, Plaintiff attacks the validity of the 1988 contract in its entirety, arguing that the licensing provisions are "nothing more than an attempt by West to create a private copy-right in public domain data in derogation of *605 the Copyright Act." Pl.Opp. at 6. Plaintiff argues at considerable length that West does not "own" the data at issue, and "without any ownership interest, West has nothing to `license.'" Id. Second, Plaintiff argues that even if the licensing provisions of the 1988 contract are valid, they apply only to the so-called "proprietary" data in the contract.
As to Plaintiff's first argumentthat the entire 1988 contract is invalidit is incorrect that West is claiming a "property interest" in the case law of the U.S. Courts and administrative regulations of government agencies. What West is claiming is an ownership interest in "the electronic products it has created," DOJ Motion at 9, namely, the electronically formatted case law, administrative decisions and other material that it provided to DOJ pursuant to the 1988 agreement. Making data "readable" for a software program (such as JURIS) takes considerable time and effort. The text of every opinion, administrative ruling, etc., must be formatted consistent with JURIS conventions, including text and file restrictions, paragraph indentations, centering of headings, and replacement of JURIS-unacceptable characters with an equivalent word or abbreviation. Plaintiff offers no support for its contention that West's contribution was solely "mechanical drudge- or machine-work." Pl.Opp. at 7.
And as Defendants properly point out, the public may still obtain public-domain material  i.e., non-West formatted material  from the government directly for nominal copying costs (e.g. through the clerk's office in a courthouse). The public may also obtain this material for free from libraries. In any case, Defendants correctly argue that the public does not have a right to the electronic format that West has created (at considerable expense) pursuant to its contract with DOJ.
West has not attempted to license "public domain" data, but rather its electronic compilation of public domain data, which it is legally entitled to do. See West Publishing Company v. Mead Data Central, Inc. 616 F.Supp. 1571, 1577 (D.Minn.1985) (holding that West database is copyrightable because "while the data lies in the public sphere, the arrangement and pagination of this public material reflects the skill, discretion and effort of the person crafting the arrangement."), aff'd 799 F.2d 1219 (8th Cir.1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); see also Callaghan v. Myers, 128 U.S. 617, 649, 9 S.Ct. 177, 185, 32 L.Ed. 547 (1888) ("such work of the reporter, which may be the lawful subject of copyright, comprehends ... that order of arrangement of the cases, the division of the reports into volumes, the numbering and paging of volumes ...") Thus, Plaintiff has failed to establish that the 1988 contract is invalid, and therefore that basis for arguing that DOJ "controlled" the West-provided data must fail.
Plaintiff's second argument focuses specifically on the language of the 1988 contract, which divides the data into two distinct categories, "proprietary" and "nonproprietary," see Contract at 28, 69. Plaintiff argues that West "owns" and controls only the data termed "proprietary." Thus, Plaintiff concludes, while DOJ may not control the "proprietary" data, it certainly controls the "non-proprietary" data, making that data an agency record, subject to disclosure under FOIA.
Defendants DOJ and West contest this, arguing that the terms "proprietary" and "nonproprietary" were never intended to classify the data or delineate any "ownership" interest, and that the history of the 1988 contract corroborates this.
In 1987, DOJ issued two Requests for Proposal (RFPs), one for West's copyrighted digests, the other for the text of judicial and administrative decisions. The first RFP was called "proprietary" because it solicited West's copyrighted state and federal digests and two West Reporters, Federal Rules Decisions, and Military Justice Reporter, that only West could provide. The second RFP was called "nonproprietary" because it solicited electronic copies of judicial and administrative decisions in JURIS-ready format, which a number of companies could provide.
West won both RFPs, and a single contract award was made that combined the specifications of both RFPs. Because the contract combined two "statements of work" *606 (the proprietary and non-proprietary databases), the parties continued to refer to them as "proprietary" and "nonproprietary," though that terminology did not describe ownership interests. In effect, Defendants argue that the terms "proprietary" and "non-proprietary" were merely shorthand terms for the separate databases covered in the contract. Defendants contend that "[b]oth parties to the Contract understood that the Contract contained two statements of work and that the [ownership and license] provisions applied to the entire Contract." DOJ Motion at 5.
The question is whether the licensing provisions apply to the entire contract or just to the so-called "proprietary" data. If the West license applies only to "proprietary" data, then DOJ clearly controlled the "non-proprietary" data and it is fully disclosable as an "agency record" under FOIA.
Although this is a question of fact, this Court may resolve factual disputes to determine the proper disposition of the 12(b)(1) motion. Herbert v. National Academy of Sciences, 974 F.2d 192, 193, 198 n. 6 (D.C.Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 213. This Court is aware, however, that when it resolves a question of fact, "it must bear in mind what procedural protections could be required to assure that a full airing of the facts pertinent to a decision on the jurisdiction question may be given to all parties." Herbert, 974 F.2d at 198. Given the fact that the parties have fully briefed this issue in their Motions, Opposition and Replies, however, and even submitted supplemental briefs, the Court is confident that there has been a "full airing" of the facts necessary for a decision.
The contract is without doubt divided into sections termed "nonproprietary," Contract at 28 ("STATEMENT OF WORK: I. Non-Proprietary Data Bases") and "proprietary," Contract at 68 ("STATEMENT OF WORK: II. Proprietary Data Bases"). Unfortunately, both sections are also titled "SECTION C." Finally, the licensing provision at issue in this case, section H-6 ("Basic Data License"), applies to "the Data supplied to DOJ hereunder pursuant to Section C and all other information and materials supplied in accordance with Section C." Contract at 118. That the contract is not a model of precision states the obvious. Does section H-6 apply to both "Section C's" or only to the "Proprietary Data Bases" Section C?
Plaintiff argues that the language of the contract "can only apply to the second, `proprietary' data section C." Pl.Supp.Mem. at 2. Plaintiff has little to support that reading, however, except for the somewhat conclusory assertion that because section H-6 contains the word "proprietary" in a few places, see Contract, section H-6(A), it must apply only to the "proprietary" Section C. In response, DOJ argues that both parties "understood that the Contract contained two statements of work and that the remaining sections, including Section H's ownership and licensing provisions, applied to the entire contract." DOJ Reply at 5.
The Court agrees with DOJ's reading of the contract. The specific references to "proprietary" in section H-6 do not appear to relate to either the "proprietary" Section C or the "nonproprietary" Section C. Section H-6 says only that JURIS users must treat the data as "proprietary," that necessary procedures must be used to protect West's "proprietary" rights, and that DOJ must protect "proprietary and/or confidential information." Contract, section H-6(A). That hardly demonstrates that the licensing provisions apply only to "proprietary" Section C.
Moreover, other parts of the contract demonstrate that section H-6 does apply to the entire database. Significantly, section H-7 of the contract, "Ownership and Dissemination of Licensed Data,"which directly follows H-6does not distinguish between "proprietary" and "non-proprietary" data, but instead applies to the entire database provided by West. "WEST and Contributors shall remain the exclusive owners of all right, title and interest in the Data Base, the Data liscensed hereunder." Contract, section H-7(A).
Plaintiff's only evidence for its reading of the contract is the use of the word "proprietary" in Section H-6. However poorly drafted *607 the contract may be, a fair and reasonable reading of the document compels the conclusion that the Section H-6 licensing provisions apply to the entire contract. Thus, the Court rejects Plaintiff's claim that DOJ controlled the "non-proprietary" portion of the West-provided data. The licensing and ownership provisions applied to the entire contract.
In summary, the Plaintiff has failed to demonstrate that DOJ controlled the West-provided data. The 1988 contract does not copyright public domain data, and the contract's licencing provisions, which greatly restrict DOJ's right to use the data, applied to both "proprietary" and "non-proprietary" data.
It is those licencing provisions which convinces the Court that DOJ did not "control" the database to the extent required to make it an "agency record" under governing law. Under the terms of the contract, the West-provided data could not be (1) used outside the JURIS system; (2) used by anyone other than authorized JURIS users; (3) transferred or assigned; (4) stored, reproduced, transmitted or transferred for consideration; (5) distributed by JURIS users without obtaining a written agreement from the transferee not to further disseminate it; and (6) used in any way once the contract was terminated.
Thus, although DOJ certainly possessed the West-provided data, its right to use, transfer and/or dispose it was greatly restricted, and thus DOJ did not "control" the data in any common sense reading of that word. Surely, the data was not "subject to the free disposition" of DOJ. Goland, 607 F.2d at 347.
Finally, the West-provided data is not the type of information that Congress, in enacting the FOIA, intended to make available to the public. As the Supreme Court has stated, "[t]he basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978) (citation omitted). FOIA promotes the disclosure of information that will inform the public about what the executive branch is doing; that is, to reveal "official information" about the structure and the operation of agencies. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989). Forsham v. Harris, 445 U.S. 169, 186, 100 S.Ct. 977, 987, 63 L.Ed.2d 293 (1980). In this case, Plaintiff is not seeking information about the structure, operation, or decision-making procedures of the Department.[11] Preventing access to this database does not permit DOJ to insulate itself from public scrutiny of its operations and regulatory decisions. The West-provided data does not provide information about the conduct of DOJ, and the disclosure of the data would not shed light on the conduct of any agency or official. See Reporters Committee, 489 U.S. at 772, 109 S.Ct. at 1481.

VI. Conclusion

For the reasons discussed above, the West-provided data in JURIS is not an "agency record" under FOIA and this Court lacks jurisdiction to compel Defendant DOJ to disclose the information sought by Plaintiff.
Accordingly, Defendant DOJ's Partial Motion to Dismiss and Defendant-Intervenor West's Motion to Dismiss are granted.
NOTES
[1]  As discussed in detail below, 80% of the JURIS database is information provided to DOJ by West; the remaining 20% is information provided by government agencies other than DOJ. Defendant DOJ does not contest the FOIA request for non-West-provided data, and has been processing that request since it was made.
[2]  Section 552(b)(4) states that:

(b) This section does not apply to matters that are
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
[3]  DOJ failed to rule by the statutory date because of the FOIA request backlog.
[4]  The Motion to Dismiss was "partial" because DOJ seeks to block Plaintiff's access only to West-provided data, not data supplied by government agencies.
[5]  DOJ stopped using JURIS in 1993, when it entered into a contract with West to use Westlaw as its legal database.
[6]  The West-provided data on JURIS includes: decisions of the United States Supreme Court, Courts of Appeal, District Courts, Court of Federal Claims, Tax Court, Bankruptcy Courts, the District of Columbia Court of Appeals, the U.S. Merit Systems Protection Board, the Board of Contract Appeals, U.S. Tax Court memorandum decisions, the IRS Cumulative Bulletin, Tax International Acts, IRS Written Determinations, IRS News Releases, IRS General Counsel Memoranda, IRS Actions on Decisions, IRS Technical Memoranda, and West-copyrighted digests Federal Rules Decisions and Military Justice Reporter.
[7]  5 U.S.C. § 552(a)(3) specifically provides:

Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
[8]  While it is true that the documents in Kissinger were personal notes of telephone conversations, the reasoning of the Supreme Court is consistent with the principle that physical possession alone does not determine control.
[9]  The Supreme Court acknowledged as much in Tax Analysts when it cited approvingly two of its earlier opinions: "Two requirements emerge from Kissinger [445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)] and Forsham [445 U.S. 169, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980)], each of which must be satisfied for requested materials to qualify as `agency records.'" Tax Analysts, 492 U.S. at 144, 109 S.Ct. at 2848.
[10]  The District Court formulated this test based on our Court of Appeals decision in Tax Analysts. See Tax Analysts, 845 F.2d at 1069.
[11]  Plaintiff's complaint states that the reason it seeks disclosure of the database is to provide the public with access to the legal material in electronic form. Pl.Complaint, ¶ 20. As already discussed, the public has access to the legal materials themselves, and West has an ownership interest in the electronic form of those legal materials.


          Case: 17-10028   Date Filed: 02/01/2018   Page: 1 of 6

                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    __________________________

                           No. 17-10028
                       Non-Argument Calendar
                    __________________________

              D.C. Docket No. 8:16-cv-01673-SCB-TGW,
                     8:92-cr-00271-SCB-TGW-1

KENNETH FLOYD PRUTTING,

                                                        Petitioner - Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent - Appellee.

                    __________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                   __________________________

                           (February 1, 2018)
                Case: 17-10028       Date Filed: 02/01/2018      Page: 2 of 6

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

       Kenneth Prutting, a federal prisoner serving a 264-month sentence, appeals

the District Court’s dismissal of his motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. On appeal, Prutting argues that he does not

qualify as an armed career criminal because his robbery convictions under

Connecticut law fell under the residual clause of the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), which the Supreme Court invalidated in Johnson v.

United States, — U.S. ——, 135 S. Ct. 2551 (2015). We hold that he has failed to

prove that the sentencing court used the residual clause to enhance his sentence,

and therefore that he cannot prevail on his Johnson claim. Beeman v. United

States, 871 F.3d 1215, 1221–22 (11th Cir. 2017).

                                          I.
       Prutting has three prior convictions of robbery in Connecticut. 1 He has one

conviction of third-degree assault from 1982. In 1993, a jury convicted Prutting of

being a convicted felon in possession of a firearm. 18 U.S.C. §§ 922(g), 924(e).

       1
         In 1982, Prutting was convicted of second degree robbery under Conn. Gen. Stat. § 53a-
135(a)(1) and first degree robbery pursuant to Conn. Gen. Stat. § 53a-134(a)(4). In 1984,
Prutting was once again convicted of first degree robbery under Conn. Gen. Stat. § 53a-
134(a)(4).
                                              2
              Case: 17-10028     Date Filed: 02/01/2018   Page: 3 of 6

The District Court determined that Prutting was an armed career criminal and

sentenced him to 264 months of prison.

      In the aftermath of Johnson, Prutting moved the District Court to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255(a). He argued that his

sentence enhancement relied on the residual clause and that his robbery

convictions cannot fall under the elements clause. The District Court denied his

§ 2255 petition. It held that robbery, as defined in Connecticut law, constitutes a

violent felony under the elements clause because it requires the use, attempted use,

or threatened use of physical force against another person.

      Prutting then moved for a certificate of appealability (“COA”), but the

District Court denied the motion. Prutting, however, appealed and obtained a COA

from a member of this Court.

                                         II.

      When we review a § 2255 claim, we review legal conclusions de novo and

factual findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th

Cir. 2014). It is a question of law whether a conviction is a violent felony under

the ACCA. United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016). We

are free to affirm on any ground supported by the record. Castillo v. United States,

816 F.3d 1300, 1303 (11th Cir. 2016).

                                          3
               Case: 17-10028     Date Filed: 02/01/2018    Page: 4 of 6

      The ACCA provides that a defendant faces a mandatory minimum of fifteen

years in prison when he or she is convicted of being a felon in possession of a

firearm and has three or more prior convictions for a serious drug offense or a

violent felony. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” to

mean any crime punishable by more than one year in prison and that:

             (i) has as an element the use, attempted use, or threatened
             use of physical force against the person of another; or

             (ii) is burglary, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another.

Id. § 924(e)(2)(B)(i)–(ii). We refer to the first prong of this definition as the

“elements clause,” while the second prong contains both an “enumerated crimes”

clause and a “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th

Cir. 2012). In Johnson, the Supreme Court struck down the residual clause as

unconstitutionally vague. 135 S. Ct at 2556. The holding in Johnson represents a

new substantive rule that has retroactive application to cases on review. Welch v.

United States, — U.S. ——, 136 S. Ct. 1257, 1268 (2016).

      To make out a successful claim under Johnson, a petitioner must establish

that his sentence enhancement turned on the validity of the residual clause.

Beeman, 871 F.3d at 1221. He must show that the residual clause “actually

adversely affected the sentence he received.” Id. Accordingly, the petitioner must

prove that the residual clause “more likely than not” formed the basis for his
                                           4
                Case: 17-10028      Date Filed: 02/01/2018      Page: 5 of 6

sentence enhancement. Id. at 1221–22. “If it is just as likely that the sentencing

court relied on the elements or enumerated offenses clause, solely or as an

alternative basis for the enhancement, then the movant has failed to show that his

enhancement was due to the use of the residual clause.” Id. at 1222. A petitioner

cannot prevail if he or she fails “to prove that but for the residual clause he would

have received a different sentence.” Id. at 1225.

       In the present case, Prutting argues that he is not an armed career criminal

because his ACCA enhancement rested on the residual clause. However, he offers

no evidence that the District Court actually relied on the residual clause in

enhancing his sentence. Prutting concedes that robbery convictions could, and

have been held to, fall under the elements clause. True. See United States v.

Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002) (holding that robbery under

Florida law is a violent felony under the ACCA). As a result, the District Court

might have relied on either the elements clause or the residual clause in enhancing

his sentence. The record does not reveal which one.2 Id. at 1221. It is just as

likely that the District Court relied on the elements clause as the residual clause,

especially since the Connecticut robbery statute plainly requires “the use of

physical force upon another person.” Conn. Gen. Stat. § 53a-133; cf. United States

       2
          The Presentence Investigation Report (“PSI”) does not state which clause of the ACCA
supported an enhancement. In a sentencing hearing on September 7, 1993, the District Court
stated that “the Defendant is an armed career criminal.” It said no more on the matter.
                                              5
              Case: 17-10028     Date Filed: 02/01/2018   Page: 6 of 6

v. Vail-Bailon, 868 F.3d 1293, 1302 (11th Cir. 2017) (holding that the ACCA

requires only “violent force that is capable of causing physical pain or injury to

another (emphasis added)). Therefore, Prutting has “failed to prove—that it was

more likely than not—he in fact was sentenced as an armed career criminal under

the residual clause.” Beeman, 871 F.3d at 1225. Because Prutting does not have a

claim under Johnson, his challenge to the elements clause is time-barred. See 28

U.S.C. § 2255(f)(1). Accordingly, the decision of the District Court is

      AFFIRMED.

                                          6


357 P.2d 660 (1960)
Alan CARTER, a bachelor, Claimant-Appellant,
v.
CARTER LOGGING COMPANY, a Copartnership, Consisting of P. J. Carter, Sr., Lyndall Carter and Ivan Carter, Employers, and Argonaut Insurance Company; Argonaut Underwriters Insurance Company, Sureties, Defendants-Respondents.
No. 8926.
Supreme Court of Idaho.
December 8, 1960.
*661 J. Ward Arney, Pat W. Arney, Coeur d'Alene, for appellant.
Moffatt & Thomas, Lloyd C. McClintick, Boise, for respondents.
McQUADE, Justice.
Claimant Alan Carter was a single man, 19 years of age, at the time of the accident. Defendant copartnership, Carter Logging Company, consists of claimant's father, P. J. Carter, Sr., and claimant's brothers, Lyndall Carter and Ivan Carter; the company's compensation surety is Argonaut Insurance Company.
At the time of the accident involved herein, claimant was employed by Carter Logging Company and was living with his parents, paying board and room of $30 a month. His brother Ivan lived in the parents' home without payment. Another brother and partner in the firm, Lyndall, was married and had a separate residence. An employee of the partnership, Dave Holstein, lived in the Carter home and paid the same monthly rate as the claimant.
Claimant suffered a personal injury at work August 7, 1959, which arose out of and in the course of his employment. Claimant was working with a log jammer when a cable lashed and struck him, causing a compound fracture of the left leg, and totally disabling claimant for an indeterminate period. The hearing before the Board was restricted to the question whether claimant was an employee covered by workmen's compensation.
Defendants denied liability on the statutory ground claimant was a member of the employer's family, living in the employer's household, and that coverage of his employment had not been elected under I.C. § 72-105B.
The Board, after hearing evidence on this aspect of the case, denied compensation. The claimant appeals.
Claimant urges the Board erred in ruling the claimant is without remedy under the Workmen's Compensation Law, and thereby denying him compensation on the theory that he was an employee of a partnership of which his father was a member.
The statute to be construed in this case is I.C. § 72-105A, part 6:
"None of the provisions of this act shall apply to the following employments, unless coverage thereof is elected as provided in section 72-105b:
* * * * * *
"6. Employment of members of employer's family dwelling in his household. * * *"
*662 I.C. § 72-105B, referred to above, permits an employer to elect coverage of employment which would otherwise be exempt, by a declaration in writing of the employer and his surety, filed with the Board. There is no record of such declaration in this case.
This appears to be a case of first impression in Idaho. In Brewster v. McComb, 78 Idaho 228, 300 P.2d 507, this Court held, under a slightly different fact situation, that the claimant at the time of his injury was working for his father individually, and not for the partnership of which his father was a member, and therefore the claimant is not entitled to compensation. The Court specifically declined to rule on the question whether the claimant would have been covered had he been working for the partnership. In Holt v. Spencer Lumber Co., 68 Idaho 478, 199 P.2d 268, the Court ruled without elaboration that an employee was not barred by the statute from recovering workmen's compensation for injuries suffered while he was working for a partnership in which his father and a brother were partners. Inspection of the transcript in that case shows the Board found the claimant was not in fact residing in his parents' home at the time of the accident.
The Connecticut case of McNamara v. McNamara, 91 Conn. 380, 100 A. 31, 32, is almost identical to the case at hand. Ruling on a statutory provision that closely parallels our I.C. § 72-105A(6), supra, the Supreme Court of Errors held:
"* * * It is conceded that when John McNamara, Jr., was injured he was in the employ of the copartnership. The fact that he was a member of and residing in the house of one of the copartners is immaterial.
* * * * * *
"* * * the doctrine of legal entity of a copartnership has no application to the case now before us. Here we have the relation of master and servant between the deceased and the copartnership. The servant, while in the performance of his duty and in the transaction of the business of the copartnership, received injuries which resulted in his death. The statute of 1915 in plain terms fixes the status of the parties under such conditions by providing that an `employer' shall include `a partnership using the services of another for pay.'"
The Idaho statute defining an "employer" within the Workmen's Compensation Law, while not specifically designating a partnership, includes within its definition
"* * * any body of persons, corporate or unincorporated * * *." I.C. § 72-1010.
This definition is broad enough to include a partnership, and to render applicable here the rule in the McNamara case. Cf. Kalson v. Industrial Commission, infra, wherein the word "firm" was construed as including a partnership.
See also Schwartzman v. Miller, 262 App. Div. 635, 30 N.Y.S.2d 882, 884, affirmed 288 N.Y. 568, 42 N.E.2d 22, and Felice v. Felice, 34 N.J.Super. 388, 112 A.2d 581. In each of those cases, the Court held that a partner's spouse employed by the partnership was protected by workmen's compensation.
The New York court aptly stated in the Schwartzman case:
"We are convinced that the only employer to whom the exemption can apply is an individual employer for only such a person can have a spouse or minor child. A partnership can have neither spouse nor child."
Compare also Klemmens v. N. D. Workmen's Compensation Bureau, 54 N.D. 496, 209 N.W. 972; Keegan v. Keegan, 194 Minn. 261, 260 N.W. 318; Larson's Workmen's Compensation Law, sec. 54.31, pp. 791-792.
The cases which respondents cite on this point are distinguishable on the facts. In Thomas v. Industrial Commission, 243 Wis. 231, 10 N.W.2d 206, 147 A.L.R. 103, the *663 Supreme Court of Wisconsin held the parents of an unemancipated minor child, partners in a business in which the child was employed, could not recover from their own insurance carrier for the minor's death, and then held that the child was nevertheless an employee, and compensation benefits for his death must be paid into the State treasury. Wisconsin has since adopted the rule that a partnership, rather than an individual partner, is an employer under the Workmen's Compensation Law. Kalson v. Industrial Commission, 248 Wis. 393, 21 N.W.2d 644. The case of Reed v. Industrial Accident Commission, 10 Cal.2d 191, 73 P.2d 1212, 114 A.L.R. 720, cited by respondents, involves a question of continuity of insurance obtained by an individual employer who later became a member of a partnership.
In light of these authorities, we hold the claimant was employed by the partnership, not by his father as an individual, and hence he did not come within the exemption of I.C. § 72-105A, subd. 6.
It is unnecessary to examine appellant's other specifications of error.
The order is reversed, and the cause is remanded to the Industrial Accident Board for further proceedings consistent herewith.
Costs to appellant.
TAYLOR, C. J., and SMITH, KNUDSON, and McFADDEN, JJ., concur.


40 F.3d 389
U.S.v.Lopera*
NO. 93-6725
United States Court of Appeals,Eleventh Circuit.
Nov 07, 1994
Appeal From:  S.D.Ala., No. 92-00048-CR-RV

1
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


6 F.Supp. 196 (1934)
LOUISVILLE CREDIT MEN'S ADJUSTMENT BUREAU
v.
UNITED STATES.
District Court, W. D. Kentucky.
February 13, 1934.
Woodward, Hamilton & Hobson, of Louisville, Ky., for plaintiff.
T. J. Sparks, U. S. Atty., of Louisville, Ky., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and L. H. Baylies, Atty., Bureau of Internal Revenue, both of Washington, D. C., for the United States.
DAWSON, District Judge.
This is a suit for the refund of federal income taxes enacted of the plaintiff for each of the taxpayer's fiscal years ended April 30, 1926, to April 30, 1929, both inclusive. A somewhat detailed statement of the pertinent facts is deemed essential to a proper understanding and correct decision of the case.
The plaintiff, which will be called the bureau, was incorporated in 1907 with an authorized capital stock of 400 shares of the par value of $10 per share. Prior to 1922 only 180 shares had been issued, and in that year and prior to April 30th, 20 additional shares were issued. Since that date no additional shares have been issued.
The articles of incorporation provide that no stockholder may own more than 30 shares, and that all stockholders must be members of or persons connected with the Louisville Credit Men's Association, which is a nonprofit Kentucky corporation without capital stock, organized in 1902, and whose membership is composed of wholesalers, jobbers, manufacturers, and factories located in Louisville, Ky., and its vicinity. The articles of incorporation of this association declare: "The corporation will not carry on any business, but the objects or purposes to be transacted shall be all lawful and honorable measures for protecting manufacturers and wholesale dealers who sell on credit against needless losses, either by the dishonesty of their debtors or by unjust laws or practices."
Since its organization, in strict compliance with its articles of incorporation, it has not conducted any business, but has operated as a clearing house for credit information for its members and for the members of the National Association of Credit Men, with which it is affiliated, and for the members of other local credit men's associations affiliated with the National Association, and for the purpose of improving credit conditions generally. The only revenues the association receives, other than contributions from the bureau, are from the annual dues of members, and no dividends or other payments have ever been paid by the association to its members, and by the terms of its articles of incorporation no such dividends can be paid. On the other hand, the articles of incorporation of the bureau are frankly those of an ordinary business corporation. The articles, in part, declare:
"The nature and objects of the business will be the investigating or causing to be investigated, the financial condition of mercantile or other establishments, whether conducted by individuals, co-partnerships or corporations; to prevent loss on accounts against failing, insolvent or fraudulent debtors, as far as may be possible; to arrange for taking over stocks of merchandise and other property of debtors, whether real, personal or mixed by bill of sale, deed or otherwise, or acquiring a lien thereon, and the holding and disposing of the same for the benefit of creditors when the same may be deemed advisable; to secure concerted action in the nomination and election of efficient and trustworthy assignees, receivers, trustees in bankruptcy and other fiduciaries; to effect collections and transact such other business as may be germane to its objects and purposes; and to exercise such corporate powers as are usual and incident to business corporations."
From the date of its organization the bureau has engaged in all of the activities authorized by its charter, including the collection of delinquent accounts, administering insolvent estates, filing and attending to bankruptcy *197 claims, and such other business as is generally conducted by its individual and corporate competitors. These services are rendered to its stockholders, to members of the Louisville Credit Men's Association, to members of the National Association of Credit Men, and of its affiliates, and to nonmembers of these organizations. With some exceptions, not necessary here to mention, the bureau makes such charges for these services as to yield a profit, and it has always operated at a profit, and prior to 1925 contributed part of this profit to the support of the Louisville Credit Men's Association, which, prior to that date, was not self-sustaining.
The gross income of the bureau for the fiscal year ended April 30, 1918, was $11,172, and its net income $2,092, and at the end of that fiscal year it had a surplus of $3,244. For its fiscal year ended April 30, 1926, its gross income was $28,351, its net income $7,383, and its surplus $12,529. For the fiscal year ended April 30, 1927, its gross income was $40,767, its net income $16,373, and its surplus $25,951. For its fiscal year ended April 30, 1928, its gross income was $43,202, its net income $12,256, and its surplus $38,207. For its fiscal year ended April 30, 1929, its gross income was $52,872, its net income $15,071, and its accumulated surplus $48,164; while for its fiscal year ended April 30, 1930, its gross income was $59,916, its net income $18,502, and its accumulated surplus $66,796. The accumulated surplus represented, in large part, the net earnings of the bureau from its business activities authorized by its charter, after deducting a 10 per cent. dividend for each of the fiscal years ended April 30, 1918, to April 30, 1922, both inclusive, 175 per cent. dividend on February 1, 1923, donations to the Louisville Credit Men's Association of over $17,000 between 1918 and 1925, and taxes, including those sought to be recovered in this action.
The relations between the bureau and the Louisville Credit Men's Association from the beginning have been very intimate. They operate in the same suite of offices, many of the employees of the two companies being the same, each contributing on an agreed basis to the payment of their salaries. They have the same general manager, and the president of the association is always a member of the board of directors of the bureau. The business transacted by the plaintiff has, in large part, come to it from its stockholders, from the members of the Louisville Credit Men's Association, from members of the National Association of Credit Men and of its affiliated credit associations, and largely, if not solely, by reason of its connection with these credit associations.
Shortly prior to January 10, 1923, the officials of the National Association of Credit Men notified the bureau that if it wished to continue its close affiliation with the National Association and its affiliates, it must discontinue its policy of paying dividends to its stockholders. To meet this demand of the association, the board of directors of the bureau on January 10, 1923, amended the by-laws of the corporation. One of these amendments provided: "The corporation shall not operate for the profit of stockholders and no dividend shall be paid to stockholders under any circumstances; and any profits or earnings of the Bureau, not necessary for its successful operation, shall go to the Louisville Credit Men's Association."
Other amendments to the by-laws vest in the board of directors of the bureau power to determine the amount of surplus to be retained by the corporation for the operation of its business, and make provision for an annual audit and for furnishing a copy of such audit to the National Association of Credit Men. The board went on record at this meeting as desiring to meet all the requirements of the National Association, and approved the form of an agreement to be executed by the stockholders of the bureau, by which such stockholders agreed to place their stock in the hands of three trustees "* * * for the sole benefit of the Louisville Credit Men's Association, to be voted and possessed by said trustees for and during the period of ten years from and after January 1, 1923, and at the expiration of said voting trust all assets of the Bureau to be turned over to the Louisville Credit Men's Association."
The proposed trust agreement recited that it was executed to meet the policy of the National Association of Credit Men and of the Louisville Credit Men's Association not to co-operate with any adjustment bureau which paid dividends. Provision is made in the agreement for the president of the Louisville Credit Men's Association to fill any vacancies occurring in the trustee membership, and that the agreement may be terminated at any time by the unanimous consent of the signers. Two other very pertinent provisions of the trust agreement are as follows:
"(3) Each of the parties hereby agrees that if during said period of ten years either desires to sell or dispose of his shares of stock he will give notice in writing of such desire to each of the trustees, whereupon said trustees shall jointly have the option and right *198 to purchase the same within ten days after receipt of such notice for a price equal to the book value thereof at the time said notice is given, to-wit; that the proportionate value of the net assets of said corporation which the number of shares proposed to be sold bears to the entire issue of capital stock of said corporation but in determining the value nothing shall be included for good will and the property of the corporation shall be valued at its true value in money.
"(4) Any and all stock purchased under the provision of this agreement by the trustees shall be offered by them to the subscribers hereto at the purchase price thereof, it being the intent of this agreement to permit the signers hereto to acquire and hold by the trustees aforesaid the stock of any certificate holder who might insist on selling his stock."
This agreement was duly signed by the owners of all the outstanding stock of the bureau, except by the holder of one share, and since its execution no dividends have been paid to the stockholders.
Under these facts the plaintiff contends that it was and is a business league within the meaning of the applicable provisions of the Revenue Acts of 1926 and 1928, and exempt from income taxation under these statutes. The pertinent provisions of the two acts follow:
Revenue Act of 1926:
"Sec. 231. The following organizations shall be exempt from taxation under this chapter (Title III, Income Tax)  * * *
"(7) Business leagues, chambers of commerce, or boards of trade, not organized for profit and no part of the net earnings of which inures to the benefit of any private stockholder or individual." 26 USCA § 982 (7).
Revenue Act of 1928:
"Sec. 103. The following organizations shall be exempt from taxation under this title (Title I, Income Tax)  * * *
"(7) Business leagues, chambers of commerce, real estate boards, or boards of trade, not organized for profit and no part of the net earnings of which inures to the benefit of any private stockholder or individual." 26 USCA § 2103 (7).
Admittedly, plaintiff is neither a chamber of commerce, a real estate board, nor a board of trade, as these organizations are commonly understood and as these terms are used in the acts; but it is earnestly insisted that it is a "business league not organized for profit, and no part of the net earnings of which inures to the benefit of any private stockholder or individual," within the meaning of the two Acts.
I cannot agree with this contention. It is quite clear that Congress, in addition to exempting from taxation the familiar chambers of commerce, boards of trade, and real estate boards, felt that there were other semi-public trade organizations performing a similar service which should be exempted, and, in searching for an all-embracing term by which such organizations might be designated, selected the words "business leagues" as a description of this class of organization, and in order to determine if a particular organization or corporation is embraced within this description it would seem to be a safe guide to see if such concern performs substantially the same functions as are customarily performed by boards of trade, chambers of commerce, or real estate boards. Chambers of commerce, boards of trade, and real estate boards in their respective fields all perform a function well known to the modern business world. They are not business concerns, in the sense that they operate for profit or render that individual paid service to the public, or even to their own members, that is customarily performed by individuals or organizations for the purpose of making money. Their function is a semi-civic one, having to do in large part with the general welfare of the business or businesses represented by their membership. In no sense are they individual business organizations operating for profit. Any surplus revenue realized over and above the actual cost of operation is the incidental, not the intended and planned, result of their operations. The revenues of such organizations are ordinarily obtained from membership dues  not from fixed charges for services rendered.
The plaintiff in this case meets none of these tests. Its charter is that of the ordinary private commercial corporation. It has capital stock. This stock has a par value. Under its charter the stock is entitled to dividends, if earned, and prior to 1923 dividends were earned and paid, and have been regularly earned since that date, but not distributed. It does not depend upon dues for its revenue. No dues are charged. The business in which it is engaged is that quite extensively engaged in by others for profit, and its earnings are acquired in exactly the same way as are the earnings of its competitors. To hold that Congress intended to exempt such an organization from taxation while taxing its individual and corporate competitors would convict *199 the legislative department of deliberate and unjust discrimination.
If we disregard the test of analogous activities, and measure the rights of the plaintiff by the plain language of the acts, it seems to me we must reject plaintiff's claim. To entitle a business league to exemption two conjunctive requirements must be met: First, it must not be organized for profit; and, second, no part of its net earnings must inure to the benefit of any private shareholder or individual. If it fails to meet both of these tests, it is not exempt. It was undoubtedly organized for profit, and it has continuously operated for profit, and has actually realized a profit every year of its operation. Its charges for services have always been fixed with the idea of realizing a profit. This alone would seem, under the language of the two statutes, to require the rejection of plaintiff's claim. Admittedly, prior to 1923 the net profits inured to the benefit of its stockholders, both in the form of dividends distributed and in the increase of their equity in the mounting surplus. Indeed, the corporate charter puts this fact beyond question.
It may well be doubted if, under the two revenue acts in question, a corporation possessing the corporate powers of the plaintiff, and conducting its business as has plaintiff, may, by a mere by-law eschewing profits and a contract of its stockholders among themselves, designed to carry such a by-law into effect, without a corresponding change in the corporate charter, transform a taxable corporation into an exempt one; but in any event it seems clear to me that no such result was attained by the plaintiff through the amended by-laws of January 10, 1923, and the trust agreement of the stockholders heretofore referred to.
As heretofore noted, one of the necessary requirements for exemption is that the corporation or business league be one not organized for profit. The statutes do not exempt a corporation merely because it is not organized or operated for the profit of its stockholders. If it is organized for profit, it is not exempt even though the profits are not for the stockholders, but solely for the corporation as such, or for some other person or organization. The by-laws of 1923 merely declare that the corporation shall not be operated for the profit of the stockholders, and that no dividends shall be paid to the stockholders. There is no change in the legal character of the corporation, nor in its authority to conduct its business for profit. As a matter of fact, it continued to operate for profit and continued to make even greater profits than formerly and to pile up a fast growing surplus. Furthermore, the trust agreement is careful not to waive the rights of the stockholders to their equity in the surplus and other assets of the bureau, during the life of the agreement. On the eve of the execution of the trust agreement they distributed to themselves, through a dividend of 175 per cent., practically all the corporate assets then on hand, and by the terms of the agreement any stockholder was given the right to sell his stock, with the option to his associates to buy it for its book value, and the trust agreement at any time could be annulled by the unanimous consent of its signers. With these rights reserved to the stockholders, there can be no doubt that the net earnings of the bureau which found their way into surplus inured to the benefit of the stockholders during the life of the trust agreement, which, so far as the record discloses, was in full force during each of the years here involved. This fact, it seems to me, prevents the plaintiff from meeting the second requirement of the statute that no part of the net earnings shall inure to the benefit of private shareholders.
The trust agreement provides that at its termination all assets of the bureau shall be turned over to the Louisville Credit Men's Association, but this was certainly not binding on the nonsigning member. If binding on the others, it did not prevent them from selling their stock before the expiration of the trust agreement and thus getting the benefit of the net earnings which had at that time been carried to surplus. Furthermore, assuming that any of the net earnings not necessary for the business of the bureau were, as the amended by-laws of 1923 authorized, turned over to the Louisville Credit Men's Association (and between 1923 and 1925 some of the net earnings were so turned over), to this extent the net earnings of the bureau would seem to inure to the benefit of a private individual. I think it fair and reasonable to construe the words "private individual," as used in the two statutes, as broad enough to embrace private corporations, as well as natural persons. By the same token, to the extent that any net earnings were on hand as surplus at the expiration of the trust agreement and turned over to the association, as the agreement undertakes to provide, such net earnings would inure to the benefit of a private individual.
In view of all these considerations, I feel constrained to hold that plaintiff was not exempt under the statutes relied upon. I am fortified in the conclusion here reached by the *200 uniform definition given by the commissioner to the words "business league" and by the cases of Uniform Printing & Supply Co. v. Commissioner, 33 F.(2d) 445 (C. C. A. 7th Cir.), affirming the Board of Tax Appeals; Northwestern Jobbers Credit Bureau v. Commissioner, 37 F.(2d) 880 (C. C. A. 8th Cir.), affirming the Board of Tax Appeals (14 B. T. A. 362); and by the decision of the Board of Tax Appeals in the appeal of Adjustment Bureau of St. Louis Association of Credit Men v. Commissioner, 21 B. T. A. 232.
A finding of facts and judgment conforming to the views herein expressed may be prepared by counsel for the United States, and, after submitting same to counsel for the plaintiff, tendered for entry.


586 F.2d 845
U. S.v.Polito
No. 78-5198
United States Court of Appeals, Sixth Circuit
9/21/78
N.D.Ohio
REMANDED


940 F.2d 658
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.AVEMCO INSURANCE COMPANY, Plaintiff-Appellant,v.Kelly A. LAWSON, Benjamin S. Lawson, Allianz InsuranceCompany, the American Insurance Company, American MotoristsInsurance Company, Centennial Insurance Company, ContinentalInsurance Company, Federal Insurance Company, Fireman's FundInsurance Company, Fireman's Insurance Company of Newark,New Jersey, the Glen Falls Insurance Company, the HanoverInsurance Company, U.S. Branch of the Sea Insurance Company,Defendants-Appellees,Adolph Coors Company, Intervenor-Appellee.
No. 90-6511.
United States Court of Appeals, Sixth Circuit.
Aug. 2, 1991.

Before KEITH and ALAN E. NORRIS, Circuit Judges, and WEBER, District Judge.*
PER CURIAM:

1
Avemco Insurance Company appeals from the district court's November 19, 1990, order rendering its March 16, 1990, judgment final and appealable.  The March 16, 1990, judgment found that Avemco's policy of insurance afforded coverage of the aircraft collision at issue in this case.

2
Having carefully considered the record and the arguments presented in the briefs and orally, we find no errors warranting reversal.  We, therefore, AFFIRM the order of the Honorable Charles M. Allen, Senior United States District Judge for the Western District of Kentucky, for the reasons set forth in his March 16, 1990, Memorandum Opinion.

*
 The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation


119 F.3d 10
Lopezv.U.S.*
NO. 96-2026
United States Court of Appeals,Eleventh Circuit.
June 30, 1997
Appeal From:  M.D.Fla. ,No.9500422CIVT17A

1
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3


451 F.3d 97
UNITED STATES of America, Appellee,v.Nelson JIMENEZ, Defendant-Appellant.
Docket No. 05-2221-CR.
United States Court of Appeals, Second Circuit.
Argued: June 5, 2006.
Decided: June 13, 2006.

Henry J. Steinglass, New York, NY, for Defendant-Appellant.
Harry Sandick, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, and Karl Metzner, Assistant United States Attorney, on the brief), New York, NY, for Appellee.
Before WALKER, Chief Judge, NEWMAN and SOTOMAYOR, Circuit Judges.
PER CURIAM.

1
In United States v. Booker, the Supreme Court held that the mandatory application of the Sentencing Guidelines violates the Sixth Amendment where any fact found by a judge (other than a prior conviction) is necessary to support a sentence greater than that authorized by the facts found solely by a jury or admitted by the defendant. 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Court-fashioned remedy was to excise only those provisions of the Sentencing Reform Act that rendered mandatory the application of the Sentencing Guidelines. Id. at 245. Booker did not purport to rewrite the Act as a whole.

2
In the instant appeal from an April 19, 2005, judgment of the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge), the defendant contends that, after Booker, we should revisit our decisions that place the burden of proof on the defendant to establish that he or she has satisfied the fifth requirement of the so-called "safety valve" provision, which permits the imposition of a sentence below the mandatory-minimum sentence prescribed in an underlying-offense statute. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. That fifth requirement is, in substance, that the defendant fully disclose to the government all offense-related information in the defendant's possession. 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). We see no reason to revisit those precedents and find no error in the imposition of the defendant's sentence. Accordingly, we affirm the judgment of the district court.

BACKGROUND

3
Defendant-appellant Nelson Jimenez was arrested and pled guilty to distribution and possession with the intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 812 and 841(a)(1), (b)(1)(B). During his plea allocution, Jimenez admitted to all relevant facts in support of the charged offense, including the fact that he planned to distribute, and was found in possession of, approximately 400 grams of heroin. Jimenez was informed that, under the statute to which he pled guilty, he faced a mandatory minimum sentence of five years' imprisonment based on the quantity of heroin attributed to him. See 21 U.S.C. § 841(b)(1)(B).

4
In anticipation of Jimenez's sentencing, the Probation Office prepared a presentence investigation report. Based on adjustments that have not been challenged on this appeal, the Probation Office determined that Jimenez's total offense level was 25. Because Jimenez's criminal history fell within Criminal History Category I, he faced a Guidelines sentencing range of 57 to 71 months' imprisonment. The bottom end of Jimenez's sentencing range, however, was further proscribed by the underlying-offense statute, which called for a mandatory-minimum sentence of 60 months' imprisonment. 21 U.S.C. § 841(b)(1)(B). As a result, the Probation Office concluded that Jimenez's sentencing range was between 60 and 71 months' imprisonment. The Probation Office did not recommend that Jimenez receive relief from the mandatory-minimum sentence pursuant to the safety-valve provision codified at 18 U.S.C. § 3553(f), and it recommended that Jimenez receive a 60-month term of imprisonment.

5
Prior to his sentencing, Jimenez filed a memorandum with the district court, in which he argued both that he was eligible for a sentence beneath the 60-month mandatory-minimum sentence, based on the safety-valve provision, and for an additional two-level reduction to his total offense level based on former Guideline § 2D1.1(b)(6) (2002), which provided for such a reduction where a defendant satisfied each of the five criteria for safety-valve relief.1 According to Jimenez, there was no dispute—based on prior submissions between the parties—that he met each of the first four criteria for safety-valve relief. As to the fifth criterion for relief, which provides that a defendant must have "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan," 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5), Jimenez argued that he had fully disclosed to the government all the information that he had concerning his involvement in the distribution of heroin. Jimenez stated that his involvement was limited solely to the conduct that gave rise to his arrest; the government simply refused to accept the fact that he had no prior involvement in the drug trade.

6
Jimenez's sentencing arguments were premised on statements that he had made to the government during a post-arrest interview and two separate proffer sessions. During these meetings, Jimenez provided the following account to the government: (a) Jimenez met an individual known as "Primo" while employed as a livery cab driver; (b) although he had only met Primo briefly on two separate occasions and was not sure whether Primo was a drug dealer, Jimenez decided to ask Primo if he could help him sell heroin to an acquaintance (who later turned out to be a confidential informant); (c) Primo told Jimenez that he would be willing to provide Jimenez with heroin to sell to his acquaintance; (d) because Primo was highly suspicious of law-enforcement surveillance, however, Primo would not meet Jimenez's acquaintance until after another individual first met with Jimenez and Jimenez's acquaintance; (e) another individual, who posed as a "fake Primo," met with Jimenez and his acquaintance; (f) during the course of this meeting, Jimenez discussed the subject of "mules" (smugglers who sometimes ingest narcotics), but only to enhance his credibility with his acquaintance (the confidential informant); (g) the fake Primo reported to Primo that Jimenez's acquaintance could not be trusted; (h) despite the fake Primo's suspicions, Primo agreed to provide heroin to Jimenez's acquaintance; (i) in February 2002, Jimenez provided the confidential informant with 100 grams of heroin; (j) later, in May 2002, Jimenez traveled by plane from New York to Houston, Texas, in order to pick up approximately 400 grams of heroin, which he intended to sell to the confidential informant on Primo's behalf; (k) Jimenez intended to return by train, but because of the high-level of police activity at the train station, he decided to rent a car to make the return trip; (l) lacking a credit card, Jimenez called a friend in New York and offered to pay to fly his friend to Houston so that his friend could rent a car to make the return trip; (m) Jimenez's friend (who according to Jimenez had no knowledge about the nature of Jimenez's trip) agreed, flew to Houston, and rented the car on Jimenez's behalf; (n) despite all his difficulties, Jimenez was assured only $800 by Primo for making the trip, which was less than the cost of his plane tickets and other travel expenses; (o) Jimenez was arrested on May 17, 2002, when he attempted to sell to the confidential informant the heroin that he had picked up in Houston. Jimenez maintained that, with the exception of the two transactions that gave rise to his arrest, he had never engaged in drug dealing.

7
In a responsive letter filed with the district court, the government argued that Jimenez was not eligible for safety-valve relief because he had "not provided complete and truthful information about his involvement in the offense and his co-conspirators," which rendered "him ineligible for a sentence less than five years' imprisonment" and also deprived "him of a two-level reduction to his offense level" pursuant to former Guideline § 2D1.1(b)(6). In the government's view, Jimenez's "account of his offense lack[ed] credibility." In support of this proposition, the government argued: (a) although Jimenez contended that he had neither any prior experience in the drug trade nor any prior relationship with Primo, he was entrusted with the responsibility for dealing approximately $28,000 in heroin without supervision; (b) despite his apparent concern about police surveillance, Primo was willing to deal with both Jimenez and Jimenez's acquaintance, even though Primo had only met Jimenez on two prior occasions, and even though Primo was apparently warned by the "fake Primo" that Jimenez's acquaintance could not be trusted; (c) Jimenez's story about the "fake Primo" sounded "contrived," and it was "more likely that Jimenez invented the `fake Primo' story in order to try to protect Primo from prosecution"; (d) given the limited amount of money that Jimenez claimed he was entitled to receive based on his trip to Texas and the fact that Jimenez's friend agreed to fly down to Texas to rent a car without any knowledge of the nature of Jimenez's trip, Jimenez's "account of his trip to Texas sound[ed] similarly contrived and designed to protect himself and his friend"; and (e) it was difficult to believe that Jimenez lacked specific knowledge of the transportation of drug swallowers, given the specific factual assertions made by Jimenez during his meeting with the confidential informant and the "fake Primo." In the government's view, "There [were] simply too many coincidences and unlikely events in Jimenez's story for it to be believed." The government concluded, "Jimenez has not come forward and truthfully provided information about his actions and the actions of his co-conspirators." Accordingly, the government argued that Jimenez had not carried his burden of proving his entitlement to safety-valve relief.

8
On June 12, 2003, the district court conducted a Fatico hearing to "evaluate the credibility of [Jimenez]" in order to determine whether he had satisfied his burden under the fifth requirement for safety-valve relief. Jimenez was the sole witness at the hearing; his testimony mirrored the statements that he had made to the government during his proffer sessions.

9
On May 5, 2004, after receiving additional letters from both the government and the defendant, the district court issued an order denying Jimenez's application for safety-valve relief. The district court concluded that Jimenez did "not carr[y][his] burden of establishing that he has satisfied the requirement that he truthfully disclose all that he knows `concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.'" In support of this conclusion, the district court stated that it was "not convinced that the defendant had no prior experience in drug transactions and that he did not know the [co-conspirator] better than he [had, up until that point], acknowledged." Accordingly, the district court held that Jimenez was not eligible for safety-valve relief.

10
In the period after the district court issued its order rejecting safety-valve relief, but before imposing sentence, the Supreme Court decided both Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In response to these decisions, the parties submitted a series of letters to the district court, in which they argued what effect, if any, those decisions had on the imposition of the 5-year mandatory-minimum sentence. In a letter dated March 31, 2005, Jimenez argued that the authority upon which the district court placed the burden of proof on the defendant —United States v. Gambino, 106 F.3d 1105 (2d Cir.1997)—was "no longer good law." Jimenez asserted that, after Blakely and Booker, "[t]he burden should be placed on the prosecution to prove untruthfulness beyond a reasonable doubt" and that the government could not meet its burden under this standard. The government disputed these assertions in a letter dated April 11, 2005. Specifically, the government argued that Jimenez's admission of the drug quantity in his plea allocution was sufficient to overcome any Sixth Amendment challenge under Blakely or Booker. The government also argued that our decisional law placing the burden of proof on the defendant to show his entitlement to safety-valve relief remained unchanged following Blakely or Booker.

11
On April 19, 2005, the district court convened a hearing to sentence Jimenez. After listening to argument on safety-valve issues and the underlying sentence, the district court determined that it remained bound by our law regarding the burden of proof for safety-valve eligibility. The district court clarified, however, that its sentencing decision was affected by the allocation of the burden of proof:

12
So it is absolutely clear and just so that the record is clear, absent the mandatory minimum, I would certainly have sentenced the defendant to less than 60 months of imprisonment.

13
I also want to point out that [the government's sentencing] letter suggests that I ruled that the defendant was untruthful and testified falsely [at the Fatico hearing]. In the heat of argument you can say it that way, but that is not really what I did. There is a difference.

14
I ruled that the defendant had not proved by a preponderance that he truthfully disclosed all that he knew about the offense during the proffers. That is not a finding that he testified falsely. It is a finding that he didn't sustain his burden.

15
If the government had the burden under Blakely and Booker and the government were required to prove beyond a reasonable doubt that the defendant did not truthfully disclose all that he knew, I would not have found that the government ... had proved that beyond a reasonable doubt.... I really have not thought about whether the government proved it by a preponderance of the evidence or by clear and convincing evidence because Booker talks in terms of beyond a reasonable doubt. But that would only be in the case, of course, if the burden of proof was assigned to the government.

16
So I think that, as a matter of law, I am bound to apply the mandatory minimum of 60 months.

17
The district court sentenced Jimenez to 60 months' imprisonment, to be followed by four years' supervised release, and imposed the mandatory special assessment of $100. This appeal followed.

DISCUSSION

18
On appeal, Jimenez argues that, after Booker, facts that trigger an increase in the sentencing range, including those which relate to safety-valve eligibility, must be proved by the government either to the sentencing judge by a preponderance of the evidence or to a jury beyond a reasonable doubt. First, Jimenez argues that Booker undercut the rationale upon which we placed the burden of proof on the defendant in United States v. Gambino, 106 F.3d 1105 (2d Cir.1997). As a result, Jimenez contends that we should now allocate to the government the burden to prove, by a preponderance of the evidence, that Jimenez is ineligible for safety-valve relief. Second, Jimenez argues that, even though he admitted to all facts necessary to trigger the imposition of the mandatory minimum sentence codified at 21 U.S.C. § 841(b)(1)(B), the Sixth Amendment requires the government to prove beyond a reasonable doubt those facts which would render him ineligible for safety-valve relief. We address each argument in turn.

I. The Rationale Undergirding Gambino

19
In Gambino, we held that, in order to satisfy the fifth requirement of the safety-valve provision, the defendant must prove to the sentencing court, by a preponderance of the evidence, that he has provided the requisite truthful information to the government. 106 F.3d at 1110; accord United States v. Ortiz, 136 F.3d 882, 883 (2d Cir.1997) (per curiam). Our decision placing the burden of proof on the defendant rested upon two points of support. First, we explained that "[g]enerally, under the Sentencing Guidelines, a defendant who seeks to take advantage of a sentencing adjustment carries the burden of proof." Gambino, 106 F.3d at 1110. After equating the defendant's request for safety-valve relief to that of a downward adjustment, we stated that we saw "no reason to depart from [the] general rule," which places the burden of proof squarely on the defendant. Id. Second, we observed that, "[a]s numerous other courts have found, the plain language of the `safety valve' places the burden on the defendant to provide truthful information to the government." Id. From this observation we concluded:

20
It follows that the burden should fall on the defendant to prove to the court that he has provided the requisite information if he is to receive the benefit of the statute. See [United States v.] Arrington, 73 F.3d [144,] 148 [(7th Cir.1996)] ("[A] defendant must demonstrate to the court that he has made a good faith attempt to cooperate with the authorities."). The defendant has full knowledge of the scope of his wrongdoing, and it is the defendant who seeks an adjustment in the otherwise applicable sentencing range.

21
Id. (last alteration in the original).

22
Jimenez attempts to undermine the first rationale offered in Gambino; he does not seriously challenge the second. In essence, Jimenez argues that, after Booker, "the `safety valve' is no longer merely a sentencing adjustment." Whereas before Booker, "the `safety valve' lowered the sentence range by requiring a guidelines sentence, rather than the mandatory minimum," Jimenez argues that "[a]fter Booker, the `safety valve' permits the District Judge—after considering the Guidelines and the other factors in 18 U.S.C. § 3553(a)—to impose" a non-Guidelines sentence. Based on the increased discretion that district courts now enjoy following Booker, Jimenez argues that the burden of proof with respect to safety-valve relief should be placed on the government. We disagree.

23
The fact that mandatory minimums have taken on increased significance after Booker —in that they remain binding on the district courts and work to restrain their newly acquired discretion—does not undermine our decision to place the burden of proof on the defendant to demonstrate his eligibility for safety-valve relief. The operation of the safety-valve provision does not admit to imposing on the government the burden to disprove a defendant's eligibility for relief from a mandatory-minimum sentence. See 18 U.S.C. § 3553(f). Once the government has carried its burden to prove those facts which trigger imposition of a mandatory-minimum sentence, the safety valve operates to impose on the defendant the burden to prove that he is eligible for relief from the mandatory-minimum sentence. See H.R.Rep. No. 103-460, at 5 (1994), 1994 WL 107571 (stating that members of the House Judiciary Subcommittee on Crime and Criminal Justice determined that "the integrity and effectiveness of controlled substance mandatory minimums could in fact be strengthened if a limited `safety valve' from the operation of these penalties was created and made applicable to the least culpable offenders"). The safety valve certainly was not intended to impose on the government five additional elements that it must prove before triggering the imposition of a mandatory-minimum sentence. See id. at 6 (stating that "Defendants seeking to benefit from" § 3553(f) must satisfy each of the five criteria for relief (emphasis added)).

24
Absent a viable constitutional claim, we can find no basis for revisiting our decision in Gambino. Accordingly, we hold that the district court did not err when it imposed on Jimenez, in order to demonstrate his eligibility for safety-valve relief, the burden to prove that he had provided the requisite truthful information to the government.

II. Sixth Amendment Claim

25
In the alternative, Jimenez appears to argue that, even though he admitted to all the facts necessary to trigger the imposition of the 60-month mandatory-minimum sentence, the Sixth Amendment requires the government to prove to a jury beyond a reasonable doubt that Jimenez is ineligible for safety-valve relief, including that he withheld truthful information from the government.

26
We recently rejected a similar argument in United States v. Holguin, 436 F.3d 111 (2d Cir.2006), cert. denied, 547 U.S. ___, 126 S.Ct. 2367, ___ L.Ed.2d ___, 2006 WL 1221968 (June 5, 2006). There, the defendant argued that the district court violated his Fifth and Sixth Amendment rights when it denied his request for safety-valve relief under § 3553(f) after finding, by a preponderance of the evidence, that he had served as a supervisor in the commission of the underlying offense. Holguin, 436 F.3d at 113-14; see also 18 U.S.C. § 3553(f)(4) (precluding "an organizer, leader, manager, or supervisor of others in the offense" from obtaining safety-valve relief); accord U.S.S.G. § 5C1.2(a)(4). Because the safety-valve provisions serve as a mechanism for reducing sentences, rather than increasing them, we held that Apprendi, Blakely, and Booker do not apply to the operation of the safety valve. Holguin, 436 F.3d at 117-18. Here, as in Holguin, Jimenez attempts to "turn[ ] § 3553(f) on its head by converting the eligibility criteria for a sentence reduction into elements of the offense which increase his maximum sentence." Id. at 117 (internal quotation marks omitted). We are not persuaded. As we explained in Holguin:

27
The statute does not require a district court to make affirmative findings on the safety valve before applying the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(B). Rather, the mandatory minimum applies whenever the quantity of [heroin] involves [100] grams or more. See 21 U.S.C. § 841(b)(1)(B). There is no doubt in this case that the drug quantity triggering the five-year mandatory minimum and forty-year maximum of subsection 841(b)(1)(B) was proved beyond a reasonable doubt by the guilty plea. Therefore, the applicable statutory sentencing range based on [Jimenez's] admissions was five to forty years. The District Court's ... finding that he [did not carry his burden of establishing that he provided the requisite truthful information to the government] did not alter this range by substituting a higher maximum for the one otherwise applicable to the case.

28
Id. at 117-18 (footnote omitted).

29
To the extent that Jimenez argues that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)—a case upon which Holguin relied, 436 F.3d at 118—is no longer good law, he may petition the Supreme Court to review his conviction and overrule that decision. We lack the authority to overrule decisions of the Supreme Court.

CONCLUSION

30
For the foregoing reasons, the judgment of the district court is AFFIRMED.

Notes:

1
 The provisions formerly codified at Guideline § 2D1.1(b)(6) (2002) were subsequently moved to subsection (b)(7), see U.S.S.G. § 2D1.1(b)(7) (2005), and later moved to subsection (b)(9),see id. § 2D1.1 (b)(9) (Supp. Mar. 27, 2006).