Firearm Offenses - Use of Firearm . . . § 924(c)

Abbott v. United States, 131 S. Ct. 18 (2010)

In a unanimous opinion, the Court rejects the Second Circuit decision in Whitley and holds that the § 924(c) consecutive sentence provision applies even if there is another mandatory minimum provision in a related offense, such as the underlying drug offense.

Watson v. United States, 128 S. Ct. 579 (2007)

A person who sells drugs in exchange for a gun does not “use” the firearm during and in relation to a drug offense.

Smith v. United States, 508 U.S. 223 (1993)

If a defendant "uses" a gun as barter for the purchase of cocaine, this qualifies as "use" "in relation to" a drug trafficking crime.

United States v. Rodriguez-Moreno, 119 S.Ct. 1239 (1999)

A §924(c) offense can be tried in any district where the underlying crime of violence occurred, even if the gun is not possessed, or used in that district. In this case, the defendant kidnapped the victim and carried him through various states. In one state, Maryland, the defendant possessed a gun in connection with the kidnapping. The defendant was tried in New Jersey, however, one of the states in which the kidnapping occurred, but not in which the defendant ever possessed the gun. The Court holds that venue was proper in New Jersey.

Dean v. United States, 129 S.Ct. 1849 (2009)

If a defendant uses a gun during and in relation to a crime of violence, he will receive a 5 year mandatory minimum sentence. If the gun is brandished, the sentence increases to 7 years. And if the firearm is discharged, the sentence is 10 years. What if the gun discharges by accident? In this case, the Supreme Court holds that the 10-year sentence applies, even if the gun is accidentally discharged. There is no requirement that the defendant intend to discharge the firearm.

United States v. O’Brien, 130 S. Ct. 2169 (2010)

Different mandatory minimum sentences appy in §924(c) offenses, depending on what kind of firearm is used. Thus, for example, if the § 924(c) offense is committed with a machine gun, then a thirty-year mandatory minimum sentence applies. In this case, the Supreme Court held that the type of firearm used is an essential element of the offense, not simply a sentencing factor. Therefore, the type of weapon used must be proved to the jury beyond a reasonable doubt in order for the higher mandatory minimum sentence to apply.

United States v. Rodriguez-Martinez, 778 F.3d 367 (1st Cir. 2015)

The defendant was a passenger in a car. When the car was pulled over, the defendant got out, walked to the corner and made a phone call. Drugs were found in the possession of the driver. The defendant was visibly nervous. A gun was found in the possession of the defendant. The First Circuit held that this evidence was insufficient to convict the defendant of aiding and abetting the possession with intent to distribute the drugs. His nervousness did not prove that he knew the driver was in possession of drugs and may just as well have reflected his concern about his own possession of the firearm. In addition, the court reversed the driver’s conviction of possessing a firearm in furtherance of a drug offense (the gun was possessed by the passenger). Because there was insufficient evidence that the driver, who possessed the drugs, knew that the passenger possessed a gun, he could not be convicted of the § 924(c) offense.

United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015)

In order to be prosecuted for more than one § 924(c) offense, there must be proof that the defendant “used” a gun on separate occasions, not just that he committed two crimes while using a gun.

United States v. Campbell, 775 F.3d 664 (5th Cir. 2014)

In order to be found guilty of more than one § 924(c) count, the defendant must have possessed a different gun, even if more than one predicate offense was proven.

United States v. Carr, 761 F.3d 1068 (9th Cir. 2014)

The defendant participated in a meeting with other conspirators during which they discussed robbing a credit union. There was no discussion of using guns and no guns were displayed or visible at the meeting. This defendant did not go into the credit union and was not the getaway driver, though he was parked nearby. The district court found that there was sufficient evidence that the defendant was a member of the conspiracy to rob the credit union, but the evidence was insufficient to prove that he knew that guns would be used, even under the Pinkerton doctrine. The Ninth Circuit affirmed.

United States v. Thomas, 627 F.3d 534 (4th Cir. 2010)

The decision in Watson v. United States regarding selling drugs in exchange for guns (i.e., that this does not constitute the “use” of a firearm in a drug offense) amounts to a new substantive rule that applies retroactively, including on § 2255 review.

United States v. Diaz, 592 F.3d 467 (3rd Cir. 2010)

There can only be one § 924(c) conviction for each count of conviction of a drug offense. Thus, if there is only one drug offense set forth in the indictment, there can only be one § 924(c) conviction, even if more than one gun is possessed, and even if a gun is possessed on more than one occasion during the course of a drug conspiracy.

United States v. Maye, 582 F.3d 622 (6th Cir. 2009)

The defendant was charged with possession of a firearm in furtherance of a drug offense. The plea colloquy (the factual basis), established only that he possessed a firearm and that he also committed a drug offense. There was no suggestion that the gun was possessed to advance or promote the commission of the underlying drug offense. The factual basis was inadequate and the defendant’s questioning of the plea at the time of his sentencing demonstrated that he did not voluntarily enter the plea (and that neither the defense attorney, nor the judge knew the elements of the offense).

United States v. Rush-Richardson, 574 F.3d 906 (8th Cir. 2009)

The defendant was charged with possessing a firearm in furtherance of a drug trafficking offense, but the jury instruction defined the crime in the language that applies to possession of a firearm during and in relation to a drug trafficking offense. The “in furtherance” offense requires a greater relationship between the possession of the weapon and the drug crime than the “during and in relation” offense. See also United States v. Brown, 560 F.3d 754 (8th Cir. 2009).

United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009)

The defendant was charged with possessing a firearm in furtherance of a crime of violence. The crime of violence that was alleged was the possession of another weapon, an unregistered assault rifle. The Tenth Circuit held that the possession of the unregistered assault rifle is not a crime of violence and therefore the possession of the other weapon could not constitute a § 924(c) offense.

United States v. Hunter, 558 F.3d 495 (6th Cir. 2009)

The indictment charged the defendant with possession of a weapon during and in relation and in furtherance of a drug offense. The phrase “during a drug offense” is a meaningless allegation in the context of §924(c) and the indictment was therefore defective, as were the jury instructions defining the offense.

United States v. Bailey, 553 F.3d 940 (6th Cir. 2009)

There was insufficient evidence to prove that the defendant had constructive possession of a firearm found beneath his seat in the car he was driving. Even when the prosecution relies on a theory of constructive possession, there must be proof that the defendant knew of the presence of the gun. Though he attempted to elude the police when they tried to apprehend him, this could be explained by the fact that he had drugs in his pocket and did not prove that he knew the gun was in the car.

United States v. Castano, 543 F.3d 826 (6th Cir. 2008)

There are two separate § 924(c) offenses. One offense makes it a crime to use or carry a firearm during and in relation to a crime of violence or a drug trafficking crime. The other offense makes it a crime to possess a firearm in furtherance of a crime of violence or a drug trafficking crime. In this case, the defendant was charged with carrying a firearm during an in relation to a drug trafficking crime, but the jury instructions repeatedly referred to “possessing” a firearm. The error in defining the elements of the offense was plain error. See also United States v. Combs, 369 F.3d 925 (6th Cir. 2004); and United States v. Savoires, 430 F.3d 376 (6th Cir. 2005).

United States v. O’Brien, 542 F.3d 921 (1st Cir. 2008)

The type of weapon that is “used” in a § 924(c) offense is an element of the offense, not just a sentencing factor. The type of weapon that is used directly affects the range of sentences that must be imposed. Thus, for example, if the weapon is a machine gun, or an assault weapon,the sentence is considerably longer than if the weapon is a simple revolver. This decision is inconsistent with the decisions from most other Circuits.

United States v. Huntley, 523 F.3d 874 (8th Cir. 2008)

Because the jury was improperly instructed regarding the possibility of convicting the defendant for using a firearm, by virtue of having received a firearm in exchange of drugs, the conviction was reversed.

United States v. Kirk, 528 F.3d 1102 (8th Cir. 2008)

Based on Watson, the defendant’s § 924(c) conviction was vacated. Trading drugs to acquire a gun does not amount to using a gun.

United States v. Pruett, 523 F.3d 863 (8th Cir. 2008)

In light of the Supreme Court decision in Watson, the defendant’s § 924(c) conviction, based on his having received a gun in exchange for methamphetamine could not be sustained.

United States v. Cunningham, 517 F.3d 175 (3rd Cir. 2008)

The evidence proved the defendant’s constructive possession of drugs being carried in a bag by his co-conspirator, but did not establish his constructive possession of a weapon that was also in the bag. No evidence was introduced that the defendant knew what was in the bag (other than the drugs).

United States v. Korey, 472 F.3d 89 (3rd Cir. 2007)

The defendant was charged with using a firearm during and in relation to a conspiracy to distribute cocaine. A correct instruction on the law of conspiracy to distribute cocaine was required. The evidence established that the defendant was asked by a cocaine dealer to kill someone, in exchange for which the dealer would pay the defendant with cocaine. The district court judge instructed the jury that if they found that the defendant agreed to accept cocaine in payment for killing the victim, that is a conspiracy to distribute cocaine. This was erroneous. This instruction failed to explain correctly that a conspiracy to distribute cocaine requires proof of a “unity of purpose” between the conspirators to distribute cocaine and this instruction did not include that concept. Merely accepting payment in the form of cocaine is not the same as sharing a purpose with the dealer to distribute cocaine. Reversible error.

United States v. James, 468 F.3d 245 (5th Cir. 2006)

When the government files a motion pursuant to USSG 5K1.1 and 18 USC § 3553(e), the mandatory minimum sentence of 18 USC § 924(c) is eliminated.

United States v. Ruiz, 462 F.3d 1082 (9th Cir. 2006)

The evidence was insufficient to link the defendant to any of the firearms found throughout the house where methamphetamine was being manufactured. A § 924(c) conviction could not be sustained. While Pinkerton liability is permissible for a § 924(c) prosecution, there was no evidence linking any conspirator to the guns found at the premises.

United States v. Palmer, 456 F.3d 484 (5th Cir. 2006)

An appeal waiver that provides that there will be no appeal of the sentence does not preclude an appeal that targets the legitimacy of the guilty plea. In this case, the factual basis for the offense of possession of a firearm in furtherance of a drug trafficking crime was insufficient. At the plea colloquy, the defendant acknowledged possessing the weapon and stated that he possessed it to “protect myself” but denied that he dealt drugs out of his apartment, which was where the gun was found.

United States v. Thompson, 454 F.3d 459 (5th Cir. 2006)

The evidence was sufficient to prove that the defendant aided and abetted a bank robbery and that he was the getaway driver. The evidence did not sufficiently prove, however, that he was aware that his colleague would use a gun during the course of the robbery and, consequently, his conviction under § 924(c) was reversed.

United States v. Brown, 449 F.3d 154 (D.C. Cir. 2006)

The law provides for three statutory sentencing ranges in a § 924(c) case, depending on whether the gun is “used,” brandished, or discharged. The D.C. Circuit holds that if the gun is accidentally fired, this does not trigger the “discharge” higher range. See also United States v. Dare, 425 F.3d 634 (9th Cir. 2006). In short, the statute contains an implicit intent requirement. This case was OVERRULED by Dean v. United States, 556 U.S. 568 (2009).

United States v. Rios, 449 F.3d 1009 (9th Cir. 2006)

Evidence that the defendant possessed a sawed-off shotgun at his house in close proximity to various drug related documents, including a price list and other documents was not sufficient to support a § 924(c) conviction in the absence of evidence that he possessed drugs at the residence, or sold drugs at the residence.

United States v. Wallace, 447 F.3d 184 (2d Cir. 2006)

The defendant used a firearm to commit a drive-by shooting that was prompted by a dispute involving his drug empire. The government charged the defendant with two § 924(c) violations: using the gun in connection with the drive-by shooting and using the gun in connection with the drug conspiracy. The Second Circuit held that only one § 924(c) conviction could be sustained based on one use of the gun.

United States v. Savoires, 430 F.3d 376 (6th Cir. 2005)

18 U.S.C. § 924(c) sets forth two different crimes: (1) using or carrying a firearm during an in relation to a drug trafficking crime; and (2) possessing a firearm in furtherance of a drug trafficking crime. These two separate offenses may not be set forth in one count of the indictment.

United States v. Zhou, 428 F.3d 361 (2d Cir. 2005)

In a §924(c) firearm prosecution, the evidence of the underlying felony must establish its commission beyond a reasonable doubt, because the commission of the underlying felon is an essential element of the firearm offense. Nevertheless, it is not necessary that the defendant actually be convicted of the predicate offense.

United States v. Groce, 398 F.3d 679 (4th Cir. 2005)

If a gun is brandished, a mandatory seven year sentence is required by 18 U.S.C. § 924(c)(1)(A)(ii). In this case, the defendant told the bank teller that he had a gun and later a gun was found in the defendant’s purse. This evidence was insufficient to invoke the “brandishing” mandatory minimum. A remand for further fact-finding was necessary in order to determine whether this sentencing enhancement applied.

United States v. Harris, 397 F.3d 404 (6th Cir. 2005)

Apprendi requires that in order to invoke higher mandatory minimum sentences based on the type of gun possessed by the defendant, the government must allege the type of gun in the indictment. The Court distinguished Harris v. United States, 536 U.S. 545 (2002), which held that whether the defendant “brandished” or “discharged” a weapon is a sentencing factor that is not subject to Apprendi. Harris was later overruled by Alleyne v. United States, 133 S. Ct. 2151 (2013).

United States v. Mann, 389 F.3d 869 (9th Cir. 2004)

The defendants were arrested at a campsite where they were manufacturing methamphetamine. Inside a locked safe in the truck were guns. The government failed to prove that the guns were possessed in furtherance of a drug trafficking offense. The fact that the gun was illegal (a pen gun) and that the defendant was felon who could not possess a gun did not prove that the gun was used in furtherance of a drug offense.

United States v. Montano, 398 F.3d 1276 (11th Cir. 2004)

Limiting Smith, the Eleventh Circuit holds that if the defendant provides the drugs in exchange for a gun, this does not constitute using the gun in connection with a drug offense. Smith involved a defendant who provided the gun in exchange for drugs. This case involves providing the drugs in exchange for the gun. The former defendant “used” the gun in a drug offense, the latter defendant did not. In this case, the gun was actually to be provided by an undercover agent and the gun was never, in fact, produced by the agent or possessed by the defendant.

United States v. Bradley, 381 F.3d 641 (7th Cir. 2004)

The defendant entered a guilty plea to carrying a firearm in connection with a drug offense. The factual basis offered by the government recited that the defendant carried the gun in a car that was transporting marijuana. The indictment, however, alleged that he carried the gun in connection with a cocaine offense. The defendant then moved to withdraw the plea on the basis of this variance. The trial court erred in denying the defendant the right to withdraw the plea.

United States v. Combs, 369 F.3d 925 (6th Cir. 2004)

In the 1998 amendment to § 924(c), Congress intended to create two separate violations: (1) using or carrying a firearm during and in relation to a drug trafficking crime; and (2) possessing a firearm in furtherance of a drug trafficking crime. “Use” requires active employment of the firearm by the person committing the drug offense. “In furtherance” requires proof that the firearm was possessed to advance or promote the commission of the underlyingdrug trafficking crime. An example of “use” without “in furtherance” would be if a buyer of drugs stole a gun from his dealer’s house during a drug deal. Thus, the two crimes are, in fact, conceptually different. The indictment in this case mismatched the elements of these two offenses. The indictment charged the defendant with “possessing a weapon during and in relation to a drug offense.” The indictment was fatally defective because it failed to allege the elements of an offense. In addition, with regard to a separate count, though the indictment properly alleged the elements of the possession offense, the jury instructions improperly “amended” the indictment by setting forth elements from the “use” prong of the statute (during and in relation to a drug offense) rather than the “possession” prong (in furtherance). The conviction on this count, therefore, had to be reversed.

United States v. Reynolds, 367 F.3d 294 (5th Cir. 2004)

The defendant was charged with robbing three banks. The victims never witnessed his possession of a firearm, however. When he was arrested he made the statement that he “always had that gun with him” and that he “never intended on using the gun either on a victim teller or on the police but on himself in the event that he got caught.” These uncorroborated confessions by the defendant were not sufficient to sustain a §924(c) conviction.

United States v. Cartwright, 359 F.3d 281 (3rd Cir. 2004)

The evidence was insufficient to prove that the defendant was a knowing “lookout” for a drug transaction (as opposed to some other offense) and therefore his convictions for being a member of a drug conspiracy and for aiding and abetting the drug offense were reversed on sufficiency grounds. The government failed to prove that the defendant knew specifically that the illegal activity in which he was participating involved drugs rather than some other form of contraband. The court notes several other Third Circuit cases that have overturned drug conspiracy and aiding and abetting convictions because of the absence of evidence that the defendant agreed to participate in the specific crime alleged in the indictment. Because the defendant’s § 924(c) conviction required proof that he knew that he was engaged in a drug offense, that conviction was reversed, as well. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Walters, 351 F.3d 159 (5th Cir. 2003)

The defendant delivered a home-made bomb to a military base. Two counts of the indictment charged that he (1) used the bomb to assault a federal officer and (2) used a bomb to damage a federal building. At sentencing, the court relied on the second conviction to impose a mandatory life sentence. This was error. There was only one bomb, which detonated only once. Relying on Phipps, the Fifth Circuit held that only conviction could be sustained for this offense.

United States v. Phipps, 319 F.3d 177 (5th Cir. 2003)

The defendants used a gun to commit a carjacking and kidnapping. Only one § 924(c) conviction is supported by this evidence. In this case, the gun was only used once, during the commission of the multiple crimes.

United States v. Garcia-Torres, 280 F.3d 1 (1st Cir. 2002)

Though the evidence was sufficient to prove that the defendant participated in a kidnapping and murder, there was insufficient proof that he was aware that the crimes were designed to further (or were in any way related to) his colleagues’ drug enterprise. He could not be convicted of conspiracy of possession with intent to distribute cocaine. For the same reason, he could not be convicted of a § 924(c) count where there is insufficient proof of his participation in the underlying drug offense.

United States v. Canady, 126 F.3d 352 (2d Cir. 1997)

At the time the defendant was arrested, he was sitting on a chair that had two pistols hidden under the cushions. This evidence did not suffice to establish either that the defendant "used" or "carried" the weapons in connection with the drug offense. However, there was additional evidence that the defendant had carried the weapon earlier, so the conviction could be supported on that basis.

United States v. Tolliver, 116 F.3d 120 (5th Cir. 1997)

Bailey held that § 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense. The mere possession of firearms for the protection of, or to embolden, an offender is not enough to constitute "use" under §924(c)(1).

United States v. Mount, 161 F.3d 675 (11th Cir. 1998)

The government failed to prove that the defendant “used” the firearm as defined in Bailey. Moreover, though the gun was found in the defendant’s house, this did not establish that he “carried” the firearm in connection with a drug offense. There was no showing that the gun was transported at any time during and in relation to the underlying drug offense.

United States v. Kubosh, 120 F.3d 47 (5th Cir. 1997)

The trial court's pre-Bailey instruction was plain error.

United States v. Polk, 118 F.3d 286 (5th Cir. 1997)

The defendant carried a shotgun with him while he negotiated with undercover agents for the purchase of explosives that he planned to use to blow up federal buildings. The underlying crimes were "attempt" crimes that did not mature into an "attempt" until after the discussion occurred during which the defendant possessed the weapon. Thus, the possession of the weapon was not "in relation to" a crime of violence.

United States v. Westmoreland, 122 F.3d 431 (7th Cir. 1997)

An undercover agent gave a gun to the defendant in exchange for cocaine that was provided by the defendant. This does not amount to "use" of the gun by the defendant. Under Smith v. United States, 508 U.S. 223 (1993), if the defendant trades a gun for drugs, he has "used" the gun, but when he receives a gun from an undercover agent, he has not "used" the gun, according to the Seventh Circuit. (The court notes that if the defendant received the gun in exchange for drugs from a co-defendant, not an undercover agent, he could be found to have aided and abetted the co-defendant's use of the gun. But the court chose not to decide this question).

United States v. Perez, 129 F.3d 1340 (9th Cir. 1997)

When the police went to one defendant's apartment to arrest him, he was sitting on the couch. When he stood up, a gun was discovered where he had been sitting. This does not satisfy Bailey's standard for use of a gun. With regard to another defendant, the indictment charged him with using three guns. The sentence would be dramatically different if the defendant used an assault weapon, versus a pistol. In this situation, the trial court must submit a special verdict form to the jury to determine which gun(s) they unanimously agreed the defendant used.

United States v. Sheppard, 149 F.3d 458 (6th Cir. 1998)

Defendant’s § 924(c) “carrying a firearm” conviction was predicated on proof that cocaine and a gun was found in a bedroom when the defendant was arrested, coming out of the bathroom. The government argued that he must have carried the gun into the bedroom at some point in time. The court rejected this argument and found that the evidence was insufficient as a matter of law to support a “carrying” conviction under §924(c).

United States v. Schmalzried, 152 F.3d 354 (5th Cir. 1998)

The government conceded that the defendant’s possession of a firearm did not qualify as “use” under Bailey. The government argued, however, that the gun was carried in connection with a drug offense. However, in order to qualify under the “carry” prong of § 924(c), the gun must have been carried in connection with the commission of the drug offense. Smith v. United States, 508 U.S. 223 (1993). It is not enough that the firearm be connected with the offense – the “carrying” of the firearm must also be related to the offense.

United States v. Sanders, 157 F.3d 302 (5th Cir. 1998)

Evidence that a firearm was found under a porch three feet from where cocaine was hidden does not establish a § 924(c) “carry” offense. (This case involves a remand of a §2255 petition for further proceedings where the defendant claimed actual innocence after having entered a guilty plea).