USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-2265
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL McFADDEN,
a/k/a MICHAEL HUGHES,
Defendant, Appellant.
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No. 92-2340
UNITED STATES OF AMERICA,
Appellant,
v.
MICHAEL McFADDEN,
a/k/a MICHAEL HUGHES,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and McAuliffe,* District Judge.
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*Of the District of New Hampshire, sitting by designation.
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Alan D. Rose with whom Marilee Denelle and Nutter, McClennen &
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Fish were on brief for appellant.
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Lon F. Povich, Assistant United States Attorney, with whom A.
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John Pappalardo, United States Attorney, was on brief for appellee.
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January 18, 1994
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ALDRICH, Senior Circuit Judge. Defendant was
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indicted in two counts: Count One, "On or about February 26,
1991, at Boston . . . defendant herein did knowingly and
intentionally possess with intent to distribute . . . cocaine
. . . in violation of Title 21, United States Code, Section
841(a)(1)." Count Two, "On or about February 26, 1991, at
Boston . . . defendant herein did knowingly and intentionally
use a firearm . . . during and in relation to the drug
trafficking crime alleged in Count One of this Indictment
. . . in violation of Title 18, United States Code, Section
924(c)." A jury found him guilty on both counts. The court
sentenced him to 21 months on Count One, including points for
possession of a firearm under Sentencing Guidelines.1 It
ordered an acquittal on Count Two. From this the government
appeals. Defendant appeals in other respects. The only
error we find is the acquittal. We start there.
Section 924(c) provides, "Whoever during and in
relation to any crime of violence or drug trafficking crime
. . . uses or carries a firearm" shall receive a mandatory
sentence of five years, to be served on and after the
sentence for the principal offense. The seriousness with
which Congress viewed this conduct is emphasized by the fact
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1. U.S.S.G. 2D1.1(b)(1) calls for a two level enhancement,
"[i]f a dangerous weapon (including a firearm) was
possessed." This is an alternative to a conviction under
924(c). U.S.S.G. 2K2.4 (commentary).
-3-
that it denied parole at a time when parole was ordinarily
available as a matter of course. If this may suggest
apprehension of violence (see also 924(c)(2) and (3)), the
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Court has not so restricted the statute. Smith v. United
_____ ______
States, 113 S.Ct. 2050 (1993) (gun bartered for drugs
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constitutes "use" in relation to drug trafficking).
Before discussing the statute further, we review
the facts in the light, of course, most favorable to the
government. United States v. McNatt, 813 F.2d 499, 502 (1st
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Cir. 1987). Defendant, an 18 year old student, dealt in
"twenties," $20 single packs of crack cocaine.2 On February
26, 1991, two undercover officers, armed with a warrant, rang
the downstairs doorbell to his apartment, and asked for two
twenties. Defendant brought down two from his room and the
transaction, concededly, all took place in the foyer. As an
officer sought thereafter to seize him, declaring his
identity, defendant fled upstairs, locking his door. The
officers broke down the door and conducted a search. This
revealed their marked money under his mattress, together with
an unloaded shotgun. Under the bed, in a container, were
more money and packs. Was this use of the gun "in relation
to the crime"?
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2. At sentencing it appeared that the government had weighed
seven of eighteen packs and that they totalled .83 gram.
-4-
That the gun was unloaded, and no ammunition found,
could be evidence in defendant'sfavor, but unloaded guns can
be used aggressively. McLaughlin v. United States, 476 U.S.
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16, 17-18 (1986) (unloaded gun is "dangerous weapon" for
purposes of 18 U.S.C. 2113(d)). Nor would use be rebutted
by lack of ownership. See United States v. Wight, 968 F.2d
___ _____________ _____
1393 (1st Cir. 1992). The jury, further, could reject
defendant's claim that the gun belonged to his sister's
former boyfriend, and that he was merely hiding it from his
nephews. While mere possession is not a crime, the
government properly asked the jury, why did he keep it?
We agree with defendant that the word "uses" calls
for something more than "possesses." We may further agree
that in defendant's transaction with the officers he did not
use the gun, and had no intent to. The difficulty is that
the drug trafficking crime, as defined in 21 U.S.C.
841(a)(1), with which he was charged was possession with
intent, not the sale. We have held that mere presence of
arms for the protection of drugs for sale is present use.
United States v. Wilkinson, 926 F.2d 22 (1st Cir.) (guns in
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duffel bag with cocaine), cert. denied, 111 S. Ct. 2813
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(1991); United States v. Hadfield, 918 F.2d 987 (1st Cir.
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1990) (guns on the drug premises), cert. denied, 111 S. Ct.
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2062 (1991). Wilkinson's taking guns with the drugs to
someone else's house would seem active use. And it is true
-5-
that defendant Hadfield publicly advertised that he had guns,
clearly a present use as a deterrent. However, we based our
opinion broadly, on simple presence for protection, the
maintenance of a "fortress."
It could be said that mere maintenance of a secret
fortress is not a present use, but is an intent regarding
possible future use. However, we did not, and the majority
of the circuits do not, draw that distinction. See United
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States v. Wesley, 990 F.2d 360, 365 (8th Cir. 1993)
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("presence and ready availability of a firearm at a house
where drugs are dealt" is sufficient); United States v.
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Young-Bey, 893 F.2d 178, 181 (8th Cir. 1990) (presence and
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availability crucial), cited with approval in Hadfield and
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Wilkinson; United States v. Hager, 969 F.2d 883, 889 (10th
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Cir.) (following Hadfield), cert. denied, 113 S.Ct. 437
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(1992); United States v. Torres-Medina, 935 F.2d 1047, 1049-
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50 (9th Cir. 1991) (availability sufficient); United States
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v. Boyd, 885 F.2d 246, 250 (5th Cir. 1989) ("It is enough
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that the firearm was present at the drug-trafficking scene,
that the weapon could have been used to protect or facilitate
the operation, and that the presence of the weapon was in
some way connected with the drug trafficking"), cited with
approval in Hadfield and Wilkinson; United States v. Acosta-
________ _________ _____________ _______
Cazares, 878 F.2d 945, 952 (6th Cir.) ("We hold that 'uses'
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and 'carries' should be construed broadly to cover the gamut
-6-
of situations where drug traffickers have ready access to
weapons with which they secure or enforce their
transactions"), cited with approval in Hadfield, cert.
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denied, 493 U.S. 899 (1989). But see United States v.
______ ___ ___ _____________
Robinson, 997 F.2d 884 (D.C. Cir. 1993); United States v.
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Derr, 990 F.2d 1330 (D.C. Cir. 1993).
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There is, of course, a difference between a large
quantity of cocaine with a "fortress" of guns, and a $20
dealer with two grams of cocaine and an unloaded shotgun, but
it is a difference in degree, not in kind. It can not be for
the court to control the U.S. Attorney's use of this truly
fortress of a statute; a defendant's only hope is the U.S.
Attorney's judgment, and the jury. Here he failed.
Alternatively, defendant seeks a new trial. We
have examined his several contentions with care, but they
require little comment. Defendant's complaints as to the
charge, and to the weight of the evidence, are in accord with
his claims on the acquittal, and must fail equally. The
court's adjustments and failure to adjust the sentence on
Count One were, routinely, within its discretion.
A word as to the dissent. We share in approving
the flexibility of the Sentencing Guidelines, but we see no
give, and no surrender, in this monolith of a statute, on the
books for many years and not disturbed when the Guidelines
were enacted. Moreover, how does one measure for this? And
-7-
in what way do our differing facts, on a case by case basis,
indicate that we are taking a new approach? Only one gun?
Possible lack of title? No ammunition?3 Lack of
exhibiting? No instant access? Under our cases none of
these failures is fatal. The reason for this is that the
difference between mere possession and use is in the mind of
the user. United States v. Payero, 888 F.2d 928, 929 (1st
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Cir. 1989) (possession lending courage is use); Wilkinson,
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926 F.2d at 25 ("emboldening," quoting United States v.
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Stewart, 779 F.2d 538, 540 (9th Cir. 1985)); United States v.
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Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1991), cert. denied
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sub nom Sarraff v. United States, 113 S. Ct. 2935 (1993)
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(possession with "intent to have it available for possible
use"); Wilkinson at 26 ("intended the guns for protection").
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Was the stash too small to make intent more than a
theoretical possibility? Even without defendant's admission,
"It's good protection for anyone in the neighborhood to have
a gun in their house also because people get robbed," we
cannot think that $360 in drugs plus $510 in cash, would not
warrant a jury's finding that defendant's thinking included
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3. While other circuits have held that lack of ammunition
does not prevent conviction in a "drug trafficking crime,"
e.g., United States v. Martinez, 912 F.2d 419, 421 (10th Cir.
____ _____________ ________
1990), cited with approval in United States v. Castro-Lara,
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post, 970 F.2d at 983, we have held this only in a "crime of
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violence" case. United States v. Kirvan, 997 F.2d 963, 966
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(1st Cir. 1993) (gun need not be "loaded or operable"). We
see no distinction.
-8-
the gun. The statute does not measure the crime. In light
of the accounts we read daily of mayhem over trifles, we
adopt what we said in Wilkinson, (and remembering what
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Wilkinson itself said was "help"), "[U]ltimately, whether or
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not the gun[ ] helped appellant commit the drug crime is a
matter for a jury, applying common-sense theories of human
nature and causation." 926 F.2d at 26. This is not to say
that it need "automatically" find it. Nor is it to say that
we like the inflexibility of this statute, or the judgment of
the United States Attorney in invoking it for such a minor
defendant.
The case is remanded to the district court to
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vacate the acquittal; reinstate the verdict of guilty on
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Count Two; to sentence on Count Two, and to readjust the
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sentence on Count One appropriately.
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(Dissent follows.)
-9-
BREYER, Chief Judge (dissenting). The narrow
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legal question before this panel is not whether possession
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of a gun ("in relation to the [drug] crime") means a longer
sentence for a convicted drug dealer. It most certainly
does. Nor is the question whether the "possession" here was
"in relation to" the drug crime, ante at 4. It was.
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Rather, the question concerns which sentencing statute
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governs the precise length of the extra term of punishment,
a blunt "mandatory minimum" gun "use" statute, 18 U.S.C.
924(c) (mandatory five-year sentence), or the somewhat more
sophisticated sentencing guideline statutes, under which
extra punishment for drug-related gun possession varies with
the seriousness of the drug crime. U.S.S.G. 2D1.1(b)(1)
(2-level sentence enhancement). The answer
to this question turns on the meaning of a single word in
the "mandatory minimum" statute, the word "use." Does that
word "use" include simple "possession" of a gun "connected
___
with" a drug crime? If so, the majority is right, for I
have no doubt that the jury here could find both a
"possession" and some kind of "relation" or "connection"
between gun and crime. But, in my view, prior cases, and
likely congressional intent, indicate that the word "use,"
in this particular statute, carries a more active meaning --
ameaning thatexcludes simple(drug-crime-related) possession.
-10-
Let me be more specific. The special "mandatory
minimum" sentencing statute says that anyone who "uses or
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carries" a gun "during and in relation to any . . . drug
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trafficking crime" must receive a mandatory five-year prison
term added on to his drug crime sentence. 18 U.S.C.
924(c). At the same time, the Sentencing Guidelines,
promulgated under the authority of a different statute, 28
U.S.C. 994, provide for a two-level (i.e., a 30% to 40%)
sentence enhancement where a "firearm . . . was possessed"
by a drug offender, U.S.S.G. 2D1.1(b)(1), unless the
possession clearly was not "connected with the [drug]
offense." Id. app. n.3. The Guideline enhancement for
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drug-crime-related gun possession may amount to less than
five additional years, as it would here. The specific
question before us is whether, for sentencing purposes,
courts should try to distinguish between a gun's drug-crime-
related "use" and its drug-crime-related "possession,"
particularly when the predicate drug crime is "possession
with intent to distribute."
Courts might have simplified the matter by
answering this question in the negative. They might have
reasoned that, at least in drug possession cases, virtually
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any possession of a gun amounts to "use" within the meaning
-11-
11
of 924(c). Arguably, any gun that is both possessed by a
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drug offender, and present at or near the site of a drug
possession crime, helps the offender carry out the drug
crime. It might do this by "emboldening" him, or perhaps by
being available, should the need arise, to frighten others
or to protect the drugs possessed. Cf. United States v.
___ ______________
Stewart, 779 F.2d 538, 540 (9th Cir. 1985). Until today,
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however, courts have not taken this approach. On the
___
contrary, they have insisted on maintaining a significant
distinction between "possession" and "use" of a gun by drug
offenders in the context of prosecutions under 924(c).
United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.
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1992), cert. denied, 113 S. Ct. 2935 (1993); United States
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v. Payero, 888 F.2d 928, 929 (1st Cir. 1989); United States
______ _____________
v. Robinson, 997 F.2d 884, 887 (D.C. Cir. 1993) (statute
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"conspicuously fails to criminalize mere possession").
Traditional tools of statutory interpretation
support the near-universal judicial effort to maintain the
distinction between (drug-related) "use" and "possession."
First, the ordinary meanings of the words "use" and
"carry" -- the language in the "mandatory minimum" statute -
- connote activity beyond simple possession. Cf. Smith v.
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United States, 113 S. Ct. 2050, 2054 (1993) (the term "use"
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-12-
12
is to be given its "ordinary or natural meaning" in
construing 924(c)). Second, Congress wrote those words in
the context of gun crime statutes that often use the broader
word "possess" to describe the prohibited gun-related
conduct. See, e.g., 18 U.S.C. 922(g), (q)(1)(A). As the
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somewhat hackneyed judicial aphorism goes, when Congress
wants to criminalize gun possession, it knows how to do so.
Third, a House Report accompanying the 1986 amendment to
924(c) (which extended the statute to drug crimes) provides
some indication of Congress's expectation about the meaning
of the word "use." In the course of discussing the
"carrying" part of the statute, the Report offers the
example of a drug trafficker who "carrie[s]" a weapon "for
protection against rival traffickers." Such a person quite
clearly "possesses" the weapon with the intent to make
active use of it if necessary; yet, the Report adds, "he did
not actually use the weapon." H.R. Rep. No. 495, 99th
___
Cong., 2d Sess. 10 (1986), reprinted in 1986 U.S.C.C.A.N.
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1327, 1336.
Most importantly, courts normally try to read
language in different, but related, statutes, so as best to
reconcile those statutes, in light of their purposes and of
common sense. In this instance, one relevant statute, the
-13-
13
statute creating the Sentencing Guidelines, reflects a major
congressional effort to create a fairly sophisticated
Sentencing Guidelines system that distinguishes among
different kinds of criminal behavior and punishes
accordingly. The other statute, the mandatory minimum
statute, represents an ad hoc deviation from that more
general policy. Given the importance (to Congress) of the
Guidelines system, see Mistretta v. United States, 488 U.S.
___ _________ _____________
361, 363-370 (1989), courts should take care not to
interpret other statutes that represent ad hoc deviations
from the basic congressionally-directed effort to
rationalize sentencing with unnecessary breadth. Yet, here,
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to interpret the word "use" to encompass "possession" is to
swallow up a guideline that distinguishes, for punishment
purposes, among different kinds of drug- and gun-related
criminal behavior. Moreover, it is to swallow up the
guideline unnecessarily, for neither the language of the
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mandatory minimum statute nor its purpose (the need to
punish drug offenders with guns) requires that it do so.
I confess that it is easier to see the need to
distinguish (drug-crime-related) "use" from "possession"
than it is to explain just how to make the distinction.
Courts might have interpreted "use" by insisting upon
-14-
14
activity with the gun, such as firing it or brandishing it,
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or, at least, displaying it (or even trading it for drugs,
see Smith, supra). But they have not done this. Rather,
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they have held that the word "use" sometimes encompasses
more passive activity, such as "possession," but sometimes
it does not. Thus, we must try to articulate the
distinguishing line they have drawn.
As I read the case law, when courts have held that
"use" encompasses "possession," they have always found (1)
possession, (2) in connection with a drug crime, and (3)
something more. See United States v. Wilson, 884 F.2d 174,
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177 (5th Cir. 1989) (except in "drug fortress" cases
involving large amounts of drugs and money, "something more
than strategic proximity of drugs and firearms is necessary
to honor Congress' concerns."). And, they have tended to
describe this "something more" as possession of the guns for
___
protection of the drugs, thereby "facilitat[ing]" the drug
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crime. See, e.g., United States v. Wilkinson, 926 F.2d 22,
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26 (1st Cir.) (conviction sustained where circumstances
allowed jury to find that defendant "intended the guns for
protection"), cert. denied, 111 S. Ct. 2813 (1991); United
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States v. Hadfield, 918 F.2d 987, 998 (1st Cir. 1990)
______ ________
(conviction sustained "so long as one purpose in situating
-15-
15
the weapon nearby was to protect the narcotics enterprise"),
cert. denied, 111 S. Ct. 2062 (1991); United States v.
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Payero, 888 F.2d 928, 929 (1st Cir. 1989) (conviction
______
possible where firearm gave defendant courage by allowing
him to protect himself); United States v. Bruce, 939 F.2d
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1053, 1055 (D.C. Cir. 1991) (guns may be "used" in relation
to a possession crime "because they are intended to protect
the stash of drugs that will subsequently be distributed");
ante at 5 ("mere presence of arms for the protection of
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drugs for sale is present use") (emphasis added).
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Of course, language such as "possession for
protection" would not help the problem very much if that
language itself were broadly interpreted or applied. If,
for example, courts simply said that possession of a gun
when drugs are around means a fortiori that the gun is
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present "for protection" of the drugs, the mandatory minimum
statute's word "use" would (once again) swallow up the
Guideline and eradicate the distinction between "use" and
"possession" that courts have tried to maintain. It is
therefore not surprising that the courts have not
___
interpreted or applied this language broadly. They have
avoided the "swallowing up" result by applying the
"possession for protection" concept only where circumstances
-16-
16
demonstrate that a drug offender, possessing a gun (in
connection with the crime), would likely put the gun to
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active use (such as firing or brandishing it, or at least
displaying it in an effort to intimidate) were the need to
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arise. In determining whether this later, active use is
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likely (i.e., in separating a theoretical possibility from a
real risk), courts have looked at such factors as the gun's
accessibility, whether it is loaded, the amount of drugs
possessed, the presence of other guns, and the extent to
which dangerous transactions likely take place nearby, as a
way of deciding whether the "circumstances of the case show"
that the gun was present for protection. United States v.
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Plummer, 964 F.2d 1251, 1254 (1st Cir.), cert. denied, 113
_______ ____________
S. Ct. 350 (1992); see, e.g., Robinson, 997 F.2d at 887
___ ____ ________
(listing factors); United States v. Derr, 990 F.2d 1330,
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1338 (D.C. Cir. 1993).
Examined in light of the case law's possession/use
distinction, the record before us indicates that this drug
offender's "possession" of the gun, even if related to the
drug crime, does not rise to the level of a "use." The
defendant here was a small-time drug dealer, selling drugs
in $20 packages. The police found a shotgun, unloaded,
wrapped in a cloth bag, hidden between his bed's mattress
-17-
17
and its box spring (but next to $40 the police had paid him,
and above a strongbox on the floor containing two grams of
cocaine and $510 cash). They found no ammunition anywhere
in the apartment. The defendant testified, without
contradiction and consistently with an earlier government
affidavit, that the gun belonged to someone else. The gun
was not visible, so its mere presence could not
automatically have frightened a buyer or intruder. The
defendant did not brandish, display, touch, or mention the
gun during the transaction with police, nor was there any
evidence that he had ever done so during the time he
possessed drugs. To make active use of the gun in
protecting his drugs or intimidating a buyer or intruder, he
would have had to lift the mattress, seize the gun, and
unwrap it. To fire the gun, the defendant would have had to
find ammunition, bring it to the apartment, and load the
gun. The small amount of cocaine possessed makes it
somewhat less likely that, in fact, he had (or would have)
done either. In context, the defendant's "admission," ante
____
at 8, does not seem particularly relevant.
Of course, one cannot exclude the possibility that
any gun that is present, the way this gun was present, might
be put to active "use." But that is so virtually whenever a
-18-
18
gun is present near the scene of a drug crime. To find a
"possession for protection" (i.e., a "use") here is, in
effect, to find that possession of a gun (when related to a
drug crime) automatically means a "use." It thereby erases
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the line that the statutes, and the courts, have tried to
draw, and again allows the "use" statute to swallow up the
"possession" Guideline.
A brief review of these cases indicates rather
strong support for the distinction I am drawing. Consider
cases in which courts have permitted a jury to infer that a
defendant "used" nearby guns to "protect" a stash of drugs.
They involve drug-related risks of actually firing or
brandishing (or "carry[ing]") the gun that are significantly
greater than the risks present here. In this circuit's
Hadfield case, for example, the inference -- that the
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defendant "used" the guns to "protect" the drugs -- was
neither uncertain nor theoretical: it was inescapable. The
defendants ran a massive drug operation from a barn that
contained hundred of marijuana plants, thousands of dollars
in cash, and several guns, at least two of which were
loaded, standing on a nearby gun rack or hanging on the barn
walls. A sign near the barn said, "This house guarded by
shotgun three nights per week. You guess which three." 918
-19-
19
F.2d at 991. A clearer case of using guns for protection is
hard to imagine.
Our Wilkinson case, although closer, presented a
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somewhat different legal question. There, the defendant
"carr[ied]" with him to a friend's house a duffel bag that
contained two loaded guns (wrapped in a towel) and a cache
of drugs (although the Wilkinson opinion is silent on the
_________
point, the record indicates that the guns were loaded). The
proximity of loaded guns to the drugs and the fact that the
defendant was carrying them together from place to place
permitted the jury to infer that the defendant "intended the
guns for protection," and thus that he carried them "in
relation to" his drug crime. Id. at 25-26. (Since
___
Wilkinson involved the statutory terms "carry" and "in
_________
relation to," strictly speaking it did not raise the
"use/possession" problem here discussed.)
Similarly, other cases allowing an inference of
presence "for protection" have involved close proximity and
loaded guns, or large drug operations, or multiple weapons,
______ _____ ________
or easy accessibility, or some factor suggesting more than a
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theoretical possibility that the guns might be used to
protect the drugs if necessary. See, e.g., Castro-Lara, 970
___ ____ ___________
F.2d at 983 (gun was "near a large sum of cash, in close
-20-
20
proximity to live ammunition" while defendant was "taking
delivery of a sizable quantity of cocaine"); Plummer, 964
_______
F.2d at 1254 (gun in defendant's car with ammunition in easy
reach of driver; evidence that defendant "had moved" the
gun); United States v. Abreu, 952 F.2d 1458, 1466 (1st Cir.)
_____________ _____
(five weapons in apartment with "significant amount" of
drugs; testimony and palmprint connected the guns to
defendants' drug operation), cert. denied, 112 S. Ct. 1695
____________
(1992); see also United States v. Wesley, 990 F.2d 360 (8th
________ _____________ ______
Cir. 1993) (fully loaded gun found on floor within reach of
sleeping defendant); United States v. Hager, 969 F.2d 883
_____________ _____
(10th Cir.) (three guns, at least one loaded, found near 2.8
kilograms of cocaine in apartment), cert. denied, 113 S. Ct.
____________
437 (1992); United States v. Torres-Medina, 935 F.2d 1047
_____________ _____________
(9th Cir. 1991) (loaded gun found next to cocaine); United
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States v. Boyd, 885 F.2d 246 (5th Cir. 1989) (loaded shotgun
______ ____
in arm's reach of defendant near methamphetamine
manufacturing operation; agent testified that defendant had
taken shotgun from car with drug paraphernalia and took it
with him during a subsequent journey); United States v.
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Acosta-Cazares, 878 F.2d 945 (6th Cir.) ("numerous loaded
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weapons," thousands of dollars in cash, and two kilograms of
cocaine found in two apartments used by coconspirators;
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21
coconspirator testified that defendant carried weapons while
engaging in drug transactions), cert. denied, 493 U.S. 899
____________
(1989); United States v. Anderson, 881 F.2d 1128 (D.C. Cir.
_____________ ________
1989) (crack house contained several loaded weapons, large
quantities of crack cocaine, cocaine powder, and cash;
expert testimony indicated that weapons frequently protect
"crack houses"); United States v. Matra, 841 F.2d 837 (8th
_____________ _____
Cir. 1988) (fortress contained numerous loaded weapons,
ammunition, thousands of dollars of cash, and hundreds of
thousands of dollars worth of cocaine).
Consider, by way of contrast, cases in which
courts have refused to permit the jury to infer that the
defendant "used" nearby guns to protect a stash of drugs.
Many seem to involve risks of firing or brandishing (or
displaying) a gun at least as great as those present here;
in some, the risk seems greater. In United States v.
_____________
Robinson, the D.C. Circuit refused to permit a "used for
________
protection" inference where a defendant kept an unloaded
pistol and drugs in a locked footlocker in a closet (the
footlocker, in contrast with Wilkinson, apparently was not
_________
"carried" from place to place). 997 F.2d 884, 887-88 (D.C.
Cir. 1993). In United States v. Sullivan, 919 F.2d 1403
_____________ ________
(10th Cir. 1990), even though defendant kept an unregistered
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gun in her home where she also maintained a drug laboratory
(and was convicted for possession of an unregistered
firearm), the court refused to permit the "protection"
inference because no additional evidence supported an intent
to use the weapon in that way with respect to the drug
operation. Id. at 1432 & n.45. In United States v. Derr,
___ ______________ ____
990 F.2d 1330 (D.C. Cir. 1993), the court would not permit
the inference where the defendant kept an unloaded pistol
and his drug supply in a locked closet. See also, e.g.,
________ ____
United States v. Matthews, 942 F.2d 779, 783-84 (10th Cir.
_____________ ________
1991) (reversing 924(c) conviction where, despite presence
of weapons in plain view in an apartment containing drugs,
evidence did not suggest that defendant "intended to avail
himself of the firearms"); United States v. Bruce, 939 F.2d
_____________ _____
1053, 1055-56 (D.C. Cir. 1991) (reversing 924(c)
conviction because presence of loaded gun in one pocket and
drugs in other pockets of defendant's raincoat indicated
intent to use the gun in connection with future
distribution, not protection of present possession). The
theoretical possibility of active use was always present in
these cases, but the courts considered it too remote to
allow a jury to find, beyond a reasonable doubt, that the
gun was present "for protection."
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Of course, one might simply argue that these cases
are not all consistent with each other. However, whether or
not that is so seems to me beside the point. The division
in the case law indicates a perceived need to draw a legal
line between simple possession of a gun and its use. In
order to draw that line, one must say that at some point,
the risk that a defendant will actually fire or brandish or
display a nearby gun "to protect" a drug stash becomes too
small to permit the jury to infer an intent to protect. Our
previous cases lie on one side of that line. If we are to
maintain the legal distinction that courts have tried to
draw (and if we are to avoid collapsing the "possession"
Guideline into the mandatory five-year term of the "use"
statute), this case, as the district court held, must lie on
the other.
For these reasons, I would affirm the decision of
the district court.
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