United States v. Gurka

605 F.3d 40, 2010 U.S. App. LEXIS 9671, 2010 WL 1882126
CourtCourt of Appeals for the First Circuit
DecidedMay 12, 2010
Docket08-2584
StatusPublished
Cited by18 cases

This text of 605 F.3d 40 (United States v. Gurka) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gurka, 605 F.3d 40, 2010 U.S. App. LEXIS 9671, 2010 WL 1882126 (1st Cir. 2010).

Opinions

LYNCH, Chief Judge.

William Gurka appeals from the denial of his motion to withdraw that portion of his guilty plea pleading to gun charges related to a cocaine trafficking crime. See United States v. Gurka, No. 07-118-S (D.R.I. July 7, 2008). His arguments turn on a single legal question: whether a defendant who exchanges drugs for guns “possesses” the guns “in furtherance” of a drug trafficking crime within the meaning of 18 U.S.C. § 924(c)(1)(A). A plain reading of the statute’s text shows that he does, and we join the consensus among circuit courts in so holding and in rejecting the defendant’s claims that Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007), alters the law on this issue.

I.

We begin with the undisputed facts, to which Gurka agreed when he pleaded guilty. On June 26, 2007, Gurka met with an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) in the agent’s parked car, beside a highway in Smithfield, Rhode Island. Gurka had previously expressed interest in purchasing “a cold throw-away .380 caliber pistol.” At the June 26 meeting, the agent showed Gurka three guns: (1) a Bryco model 38, .380 caliber semi-automatic pistol, (2) a Lorcin .380 caliber pistol with an obliterated serial number, and (3) a High Standard .22 caliber semi-automatic pistol with a silencer attached. Gurka examined the guns and the silencer and informed the agent that he wanted to buy all of them. In exchange for these items, Gurka agreed to pay the agent three bags of cocaine and $400 cash.

Gurka first paid the agent the $400 cash. The agent then brought all three guns to Gurka’s nearby pickup truck. Gurka placed the guns in the truck and paid the agent two bags of cocaine,1 weighing a combined 4.97 grams. Gurka was then arrested.

Gurka waived his Miranda rights and wrote a statement, admitting to the purchase of the guns and silencer for cocaine and cash. He also admitted that he had additional cocaine and guns in his home. [42]*42A search of Gurka’s home later that day revealed an additional 39.57 grams of cocaine, a small quantity of marijuana, and seven guns, including two loaded pistols.

On October 12, 2007, Gurka pled guilty to a six-count information, pursuant to a written plea agreement. This appeal concerns Count Six,2 which charged Gurka with knowing possession of a firearm — the Bryco semi-automatic pistol3 — in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Count Six carried a five-year mandatory prison sentence. Id. § 924(c)(l)(A)(i). When asked by the district court if he agreed with the facts described above, Gurka confirmed that he did. The district court set January 4, 2008, as the date for sentencing.

A few weeks before Gurka’s scheduled sentencing, the Supreme Court decided Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007). The decision concerned a defendant who had pled guilty to bartering drugs for guns under a different prong of § 924(c)(1)(A), which provides a mandatory-minimum sentence for offenders who “use[ ]” a firearm “during and in relation to any ... drug trafficking crime.” Id. at 76, 128 S.Ct. 579 (quoting 18 U.S.C. § 924(c)(1)(A)). The Supreme Court held that receiving a firearm in a trade for guns did not constitute “use” of the weapon within the ordinary meaning of the word, and so did not fall within that language of the statute. Id. at 83, 128 S.Ct. 579. The Court explicitly declined to address whether such a transaction would constitute “possession in furtherance of a drug crime” under the prong of the statute at issue here. Id.

Gurka moved to vacate his guilty plea as to Count Six on January 28, 2008, urging that Watson “ha[d] a direct impact on the viability of the charge.” Gurka’s written motion conceded that the defendant in Watson was charged under a separate provision of § 924(c)(1)(A) and that the Supreme Court’s decision in that case addressed entirely different statutory text. Nonetheless, Gurka argued that “with the advent of the Watson opinion,” the plain meaning of “possession” and “in furtherance” precluded his liability under the statute. On this basis, Gurka urged that he should be allowed to withdraw his guilty plea and that the district court should dismiss Count Six as an inappropriate application of § 924(c)(l)(A)’s “possession in furtherance” provision.

The district court heard argument from both sides on Gurka’s motion at a hearing on March 27, 2008. On July 7, 2008, the district court issued a written order, rejecting Gurka’s argument and denying the motion to vacate his guilty plea. See Gurka, slip op. at 5.

On December 3, 2008, the district court sentenced Gurka to a below-guidelines sentence of six months imprisonment on Counts One through Five, and a consecutive five-year mandatory-minimum sentence on Count Six.

This appeal followed.

II.

During the interval between the acceptance of a guilty plea and sentencing, [43]*43“the district court should liberally allow withdrawal of guilty pleas for any ‘fair and just reason.’ ” United States v. Mescual-Cruz, 387 F.3d 1, 6 (1st Cir.2004) (quoting Fed.R.Crim.P. 11(d)(2)(B)). We review the district court’s denial of a defendant’s motion to withdraw for abuse of discretion on preserved claims. Id. Unpreserved issues are reviewed for plain error. Id. Where, as here, the district court’s ruling involves an issue of statutory interpretation, we review the district court’s legal conclusions de novo. United States v. Padilla-Galarza, 351 F.3d 594, 597 n. 3 (1st Cir.2003).

A. The Record on Appeal

On appeal, Gurka revisits his argument before the district court, with a new twist: he now claims that his case should be remanded so that the district court may consider further evidence,4 which Gurka claims would have altered the judge’s ruling “in light of Watson’s concerns.” This material was not presented to the district court, is in violation of Fed. R.App. P. 10, and is not properly before us. E.g., United States v. Rosario-Peralta, 175 F.3d 48, 56 (1st Cir.1999) (“It is elementary that evidence cannot be submitted for the first time on appeal.”). In any event, given our holding, the facts contained in Gurka’s proffer are immaterial. There is no basis for remand.

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Bluebook (online)
605 F.3d 40, 2010 U.S. App. LEXIS 9671, 2010 WL 1882126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gurka-ca1-2010.