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Third Circuit Announces Mere Physical Proximity of Guns and Drugs Insufficient for Automatic Application of U.S.S.G. § 2K2.1(b)(6)(B) Enhancement Under Commentary Note 14(B), Creates Rebuttable Presumption

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that mere physical proximity of guns and drugs to each other is insufficient for automatic application of the U.S. Sentencing Guidelines (“U.S.S.G.”) § 2 K2.1(b)(6)(B) enhancement under the U.S. Sentencing Commission’s Commentary Note 14(B) for a drug-trafficking offense. Instead, the Court ruled that physical proximity creates a rebuttable presumption that the enhancement applies.  

Lesandro Perez pleaded guilty to drug trafficking and firearms offenses after selling two guns he kept under a mattress in a room where an undercover officer also saw drugs, drug packaging materials, and other drug paraphernalia. Perez’s Sentencing Guidelines range was enhanced four levels based on §2K2.1(b)(6)(B), which applies when a defendant “used or possessed any firearm ... in connection with another felony offense.” The U.S. District Court for the Eastern District of Pennsylvania sentenced him to 121 months in prison. Perez appealed the enhancement, arguing the enhancement does not apply because he possessed the firearms to sell them, and thus they should not be deemed as used or possessed in connection with a drug-trafficking offense based solely on their close proximity to drugs.

The Court observed that Note 14(A) of the Commentary states § 2K2.1(b)6)(B) applies “if the firearm ... facilitated or had the potential of facilitating, another felony offense.” But when the other felony is drug trafficking, Note 14(B) creates a special rule: the enhancement applies as long as the firearm “is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” This special rule is purportedly justified “because the presence of the firearm has the potential of facilitating another felony offense.” Id.

The Court rejected the argument that Note 14(B) applies any time guns and drugs are in close proximity to each other, even when there is no relationship between them. In Smith v. United States, 508 U.S.223 (1993), the Supreme Court considered 18 U.S.C. § 924(c)(1), which requires certain penalties if the defendant, “during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm.” The Supreme Court focused on whether the defendant’s use of the firearm was “in relation to” the other offense: “the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence ... [T]he ‘in relation to’ language allays explicitly the concern that a person could be punished under § 924(c)(1) for committing a drug trafficking offense ‘while in possession of a firearm’ even though the firearm’s presence is coincidental or entirely unrelated to the crime. Instead, the gun at least must ‘facilitate, or have the potential of facilitating, the drug trafficking offense.” Smith.

Then in United States v. Loney, 219 F.3d 281 (3d Cir. 2000), decided before Note 14 was added to the Guidelines’ Commentary, the Third Circuit applied Smith’s reasoning to § 2k2.1(b)6)(B)’s phrase “in connection with another felony offense.” The “in connection with” requirement excludes the firearm’s “presence or involvement” in situations where the gun’s presence was merely accidental, coincidental, had no purpose or effect with respect to the defendant’s drug offense, or did not facilitate, or have the potential of facilitating the drug offense, the Loney Court concluded.

In United States v. West, 643 F.3d 102 (3d Cir. 2011), decided after Note 14 was added to the Commentary, the Third Circuit concluded “in a simple [drug] possession case, the sentencing court must make a specific finding that the firearm facilitated or had the potential of facilitating the possession of the drugs” before § 2 K2.1(b)(6)(B) applies. “While a weapon’s physical proximity to narcotics may be sufficient to show a connection between the weapon and the drug charges in some cases ... where the predicate drug offense is possession, mere proximity is insufficient to establish the required nexus.” West.

After examining the foregoing case law, the Court explained that Note 14(B) incorporates various “boundaries” set forth by the Supreme Court. See Smith. They “require a relationship between drug-trafficking activities and firearms,” the Court further explained. See Loney. The Court concluded that the enhancement under Note 14(B) isn’t applicable where the presence of the firearm is coincidental or accidental and unrelated to the drug trafficking offense. Thus, the Court ruled that simply because Perez possessed guns, drugs, and drug paraphernalia all in the same room doesn’t automatically trigger the enhancement under Note 14(B).

However, because the sentencing Commission had deliberately altered the wording, Note 14(B) can’t have the same meaning as Note 14(A), i.e., require the government to prove the firearm facilitated, or had the potential of facilitating, the drug-trafficking offense. After closely examining each of the Notes and associated case law, the Court held that “Note 14(B) creates a rebuttable presumption that the enhancement should apply for a drug-trafficking offense when a firearm is found in close proximity to drugs or related items.” The Court declared that the presumption can be rebutted by presenting “evidence that the firearm had no relationship to drug-related activities … and thus did not have the potential to facilitate a drug-trafficking offense.” See Loney. The Court instructed that a sentencing court “may look to any factors it deems relevant.”

Turning to the present case, the Court ruled that Perez didn’t have the opportunity to rebut the presumption of applicability of Note 14(B).

Accordingly, the Court vacated the district court’s judgment and sentence and remanded for the court to consider “whether there was a relationship between Perez’s firearms and his drug-trafficking activities.” See: United States v. Perez, 5 F.4th 390 (3d Cir. 2021). 

Editor’s note: The Court noted that other circuits have used similar “presumption” language in discussing Note 14(B). See United States v. Slone, 990 F.3d 568 (7th Cir. 2021) (stating that Note 14(B) creates a presumption that the sentencing enhancement applies whenever guns and drugs are found in close proximity); United States v. Bolden, 964 F.3d 283 (4th Cir. 2020) (stating that “firearm found in close physical proximity to drugs presumptively has the potential of facilitating the trafficking offense.”); United States v. Eaden, 914 F.3d 1004 (5th Cir. 2019) (observing that Note 14(B) “provide[s] for a presumption of facilitation when a firearm is possessed in close proximity to a drug trafficking offense”).

On the other hand, the Court acknowledged that other circuits have interpreted Note 14(B) in dicta to mean that the enhancement “necessarily” or “automatically” applies when firearms and drugs are found in close proximity. See United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009); United States v. Jenkins, 566 F.3d 160 (4th Cir. 2009); United States v. Blankenship, 552 F.3d 703 (8th Cir. 2009).

Finally, the Court stated that two other circuits have held that “close proximity is all that is required” for Note 14(B) to apply. United States v. Paneto, 661 F.3d 709 (1st Cir. 2011); United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013).

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U.S. v. Carillo-Ayala

United States Court of Appeals
For the Eleventh Circuit

UNITED STATES of America,
Plaintiff–Appellee,

v.

Arturo CARILLO–AYALA,
Defendant–Appellant.

No. 11–14473.

March 22, 2013.

Stephanie Gabay–Smith, Suzette A. Smikle, Christopher Conrad Bly, Dahil Dueno Goss, Lawrence R. Sommerfeld, Sally Yates, U.S. Atty.'s Office, Atlanta, GA, for Plaintiff–Appellee.

Michael H. Saul (Court–Appointed), Marietta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Georgia.


Before TJOFLAT and COX, Circuit Judges, and MOLLOY,FN* District Judge.


MOLLOY, District Judge:

*1 This case presents an issue of first impression in this Court concerning the “safety valve,” but one the trial judge noted is an all too frequent conundrum for a sentencing judge. When a defendant stands convicted of a drug offense carrying mandatory minimum terms of imprisonment and supervised release, the sentencing judge may impose a sentence below the otherwise mandatory minimum terms if the defendant meets five criteria. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Only one of the five criteria is relevant here. It requires the defendant to show that he “did not ... possess a firearm ... in connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2).

Defendant Arturo Carillo–Ayala admits he was a drug dealer and admits he sold firearms, but his ostensible business plan was “Guns and Drugs Sold Separately.” The question before us is whether a drug-dealer who also sells firearms to a drug customer possesses those firearms “in connection with” the charged drug offense. The answer is “not necessarily.”

I. Background

Carillo–Ayala, with three co-defendants, was named in two counts of a ten-count indictment alleging various drug and weapons offenses. Carillo–Ayala (“Carillo”) was charged with one count of conspiring to possess with intent to distribute a substance containing at least five grams of methamphetamine, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); and one count of being an illegal alien in possession of a firearm, a violation of 18 U.S.C. § 922(g)(5) (Count 10). He pled guilty to both counts without a plea agreement. On Count 1, he faced a mandatory minimum sentence of five years. 21 U.S.C. § 841(b)(1)(B)(viii).

A. Facts

The United States Probation Office prepared a presentence report. The cast of characters involved the defendant and two others. Without objection from either party, the probation officer described the pertinent conduct as follows. Through a confidential informant, co-conspirator Domingo Adame–Najera (“Adame”) met an undercover agent (“Jones,” a pseudonym) on July 21, 2009. Jones expressed interest in purchasing firearms. Adame and Jones engaged in a series of sales, involving rifles, shotguns, handguns, ammunition, and the repeated promise of assault rifles. Jones frequently followed Adame to other locations to obtain the weapons.

On July 30, 2009, in the midst of another of their bargaining sessions about guns, Adame asked Jones whether he would like to purchase three ounces of heroin. Jones asked whether methamphetamine was available. Adame replied that it was, but it was not good quality. He added that he could get “good stuff” from Mexico. Jones reverted to the heroin and offered to follow Adame to the location where it was available. Adame balked at that proposal, just as he did at taking Jones to the location of an AK–47 the two had discussed. But they completed another firearms sale at a neutral site. Although Jones reiterated his interest in the heroin, Adame told him it had “sat” for a long time and “did not look right.”

Over the next two months, Jones continued to buy firearms, heroin, and high-grade methamphetamine from Adame and another co-conspirator, Marcos Armendariz. At one point, Adame asked Jones why he “wanted all these guns.” In his answer, Jones said that “he had friends ‘over there,’ who used them, and stated he would be traveling for a couple of weeks to California and near ‘the line’ (Mexico).” Adame at some point told Jones that his supplier wanted to meet him “to assure himself” that Jones “could be trusted.” “Trust” was a frequent topic of conversation between Adame and Jones. They also talked about sales of dynamite, blasting caps, hand grenades, and assault rifles, but none of these ideas reached fruition.

*2 On September 27, 2009, Adame, who was working in Alabama and planning to move to Las Vegas, introduced Carillo to Jones. Jones asked Carillo whether he was the heroin supplier. Carillo said he was. The three men visited about drug prices and firearms but completed no sales that day.

On September 30, Carillo called Jones to talk about methamphetamine and gun purchases, and they agreed to meet the next day. On October 1, Carillo asked Jones if he would be interested in a machine gun. Jones confirmed his interest. When they met, however, Carillo didn't bring either the machine gun or the methamphetamine to the foray. Instead, he sold Jones a revolver. The two men talked over blasting caps and dynamite, and then arranged another meeting to complete a methamphetamine deal.

On October 6, 2009, Carillo called Jones and offered to sell him five assault rifles at $650 each. They haggled and then Jones counter-offered $550 for the guns. Carillo said he would talk to the owners and call Jones back. On October 11, 2009, Jones and Carillo once again tossed around firearm prices and quantities of methamphetamine and agreed to meet on October 14, 2009. On that day, Carillo sold Jones a rifle, a shotgun, and 58.6 grams of methamphetamine, divided among three baggies.

On October 27, 2009, Carillo again touched base with Jones, saying he still had three assault rifles for sale. Jones expressed interest and asked about heroin, as well. Carillo responded that he had a small quantity but could not quote a price. He also said each rifle was still priced at $650. They did not come to terms, so no agreement was reached. The relationship ended at this point.

B. Offense Level

For purposes of calculating the base offense level,FN1 the quantities of methamphetamine and heroin Carillo sold to Jones were converted into their respective marijuana-equivalents. U.S.S.G. § 2D1.1 cmt. n.10(B), (D). Carillo was held responsible for a total of 117.2 kilograms of marijuana, corresponding to a base offense level of 26. U.S.S.G. § 2D1.1(c)(7). The district court properly concluded that a two-point upward adjustment in the guideline calculation was warranted because “a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Consequently, Carillo's adjusted offense level was 28. He secured a three-point reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, leading to a total offense level of 25. With a criminal history category of I, his advisory Guideline range was 57–71 months. But, under 21 U.S.C. § 841(b)(1)(B)(viii), he faced a statutory mandatory minimum of five years because of the amount of methamphetamine he sold to Jones.FN2

Carillo did not object to the two-point enhancement under U.S.S.G. § 2D1.1(b).FN3 Even so, he did argue that he qualified for the safety valve. He insisted that, although he possessed a firearm, there was no “connection,” § 5C1.2(a)(2), between his sales of methamphetamine and heroin, on the one hand, and his discreet sales of firearms, on the other. He claims he could have accomplished either sale without the other; in fact, he did exactly that on October 1, 2009, when he sold Jones two firearms but no drugs.FN4

*3 The United States argued, in both the district court and on appeal, that the safety valve did not apply because Carillo's possession of firearms was “relevant conduct.” It also argues that, because there was an instance when firearms were “there present with the drug transaction,” the safety valve could not apply.

The district court recognized there was something to Carillo's premise that simply possessing firearms, or even selling firearms, did not establish a connection with his drug conviction. But the judge also expressed frustration with the multiplicity of standards applying to a drug defendant's possession of a firearm:

[T]his firearm enhancement is one that causes me more problems than probably any other one in the guidelines. It's just, it's all over the board. It's everything from “present” to “in furtherance of” to “in connection with,” and I'm not sure they make a whole lot of clear distinctions about that. I would certainly recommend to the Sentencing Commission that this could be cleaned up a whole lot if they wanted to make it easier for judges who actually have to make decisions on these things.

But, having expressed his exasperation, the district court looked to the events of October 14, 2009—when Carillo sold Jones a rifle, a shotgun, and three baggies of methamphetamine—as “the key,” “an instance where what is contemplated ... does come into play and preclude him from getting the safety valve.” The judge then considered the factors in 18 U.S.C. § 3553(a), and sentenced Carillo to a mandatory minimum of 60 months in prison on Count 1, concurrently with 60 months on Count 10 of the Indictment, to be followed by five years' supervised release.

We are now asked to decide whether the thoughtful reasoning of the district judge was error when the court found a “connection” between Carillo's possession of firearms and the drug offense of which he was convicted.

II. Analysis

We review a district court's factual findings under the Sentencing Guidelines for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.1997); 18 U.S.C. § 3742(e). The district court's legal interpretation of statutes and Sentencing Guidelines is reviewed de novo. United States v. Williams, 340 F.3d 1231, 1238–39 (11th Cir.2003). Here, we articulate a “legal standard or principle” for district courts to apply in determining whether a defendant possessed a firearm in connection with a drug offense under § 5C1.2(a)(2), but we generally review a district court's application of the standard to “a detailed fact pattern” for clear error. Id. at 1239.

A. The Safety Valve

*4 Mandatory minimum terms of imprisonment and supervised release are triggered by certain quantities of drugs and can be increased where the defendant has a history of committing similar offenses or where serious injury or death result. See, e.g., 21 U.S.C. § 841(b)(1)(A). While a mandatory minimum sentence is usually preclusive, sentencing under the Guidelines is also based in large part on individual factors such as whether the defendant played a limited or extensive role in the offense, § 3B1.2, whether he distributed a controlled substance to a physically or mentally vulnerable person, § 2D1.1(b)(14)(B), or whether the defendant has aided attempts by law enforcement to address his and other drug offenses, § 5K1.1. A mandatory minimum sentence trumps an advisory Guideline calculation and the various factors considered by district courts under 18 U.S.C. § 3553(a). U.S.S.G. § 5G1.1(b); United States v. Castaing–Sosa, 530 F.3d 1358, 1361–62 (11th Cir.2008) (per curiam). Consequently, a first-time offender with a relatively small role in a crime involving a threshold quantity of drugs might find himself sentenced to a five-or ten-year prison term even though his advisory Guideline range suggests a significantly lower sentence as a starting point for the sentencing judge.

In 1994, Congress addressed this “irony.” Acknowledging that “mitigating factors that are recognized in the guidelines and generally are considered in drug cases do not apply to the least culpable offenders except in rare instances,” Congress provided a “safety valve.” H.R. Rep. 103–460, reprinted at 1994 WL 107571 (Mar. 24, 1994); see also Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, tit. VIII, § 80001(a) (Sept. 13, 1994). When a defendant shows he meets the five criteria, Cruz, 106 F.3d at 1557, the safety valve requires a district court to impose a sentence without regard to the mandatory minimum specified by the statute, 18 U.S.C. § 3553(f); § 5C1.2; United States v. Quirante, 486 F.3d 1273, 1275–76 (11th Cir.2007). Thus, the safety valve recognizes and “permit[s] a narrow class of defendants, those who are the least culpable participants in such offenses, to receive strictly regulated reductions in prison sentences for mitigating factors currently recognized under the federal sentencing guidelines.” H.R. Rep. 103–460, reprinted at 1994 WL 107571.

In considering the safety valve, two of the criteria ensure the absence of the kind of conduct, other than quantity, that trigger an elevated mandatory minimum term under the drug statutes. The defendant must have no more than one criminal history point, and the offense cannot have resulted in death or serious bodily injury to any person. 18 U.S.C. § 3553(f)(1), (3); § 5C1.2(a)(1), (3). The defendant needs to be a limited actor who did not lead or supervise others or profit substantially from his activity. He is also required to have provided all the information and assistance he can to law enforcement. 18 U.S.C. § 3553(f)(4), (5); § 5C1.2(a)(4), (5). One criterion—the only one at issue here—requires the defendant to show that he “did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.” 18 U.S.C. § 3553(f)(2); § 5C1.2(a)(2). If all five factors are met, no mandatory minimum sentence. If all five factors are not met, mandatory minimums apply.

In this case, no one claims Carillo used violence or credible threats of violence. Likewise, all agree Carillo possessed a firearm. He actually possessed quite a small arsenal and offered to sell even more than he possessed. The legal proposition cabined by Carillo is that he did not possess any firearms “in connection with the [drug] offense.”

B. Does Enhancement Under § 2D1.1(b)(1) Preclude Application of the Safety Valve?

*5 Neither the statute nor the guideline in question nor the commentary to it defines the phrase “in connection with.” The United States' brief turns to the Sentencing Commission's definition of the term “offense” as “the offense of conviction and all relevant conduct.” § 5C1.2 cmt. n.3. That definition is beside the point and not helpful. Conduct can become relevant under § 5C1.2 if it takes place “during the commission of the offense of conviction” § 1B1.3(a)(1). In this sense, Carillo's possession of firearms was “relevant conduct” under § 5C1.2(a)(2). But subsection (a)(2) requires not just possession of a firearm but possession “in connection with the offense.” Subsection (a)(3) does not require that death or serious bodily injury result “in connection with” the offense. Arguing that Carillo's possession of firearms was “relevant conduct” simply begs the question of whether he possessed them “in connection with the offense.” In other words, are the drugs and guns discreet, or are they connected?

The “relevant conduct” argument may be an attempt to show the safety valve cannot apply when the two-level enhancement under § 2D1.1(b)(1) for possession of firearms is imposed. While that enhancement depends on Carillo's possession of firearms being “relevant conduct” under Chapter Two, the definition of relevant conduct is different for Chapter Two enhancements, see § 1B1.3(a), than it is for the safety valve, which is in Chapter Five, see § 1B1.3(b). To whatever extent the government contends that Carillo is not eligible for the safety valve because his possession of a firearm was “relevant conduct” under § 2D1.1(b)(1), the contention is rejected.

The government may nonetheless be correct that a defendant who receives the enhancement for possession of a firearm under § 2D1.1(b)(1) necessarily possessed a firearm in connection with the offense under § 5C1.2(a)(2). FN5 Certainly,

United States v. Paneto

United States v. Jeffries

United States v. Jenkins

U.S. v. Blankenship

U.S. v. Loney

United States Court of Appeals,
Third Circuit.

UNITED STATES of America,

v.

Alexander D. LONEY,
Appellant.

No. 99-5774.

July 18, 2000.

Defendant was convicted in the United States District Court for the District of New Jersey, John W. Bissell, J., of felony drug trafficking offense, which was based on his possession of 29 packets of heroin, and was sentenced after court made four-level adjustment under Sentencing Guidelines based on semi- automatic pistol in his possession at time heroin was discovered. Defendant appealed. The Court of Appeals, Cowen, Circuit Judge, held that defendant, who had admitted that he possessed heroin for purposes of sale, possessed or used pistol "in connection with" felony drug offense, as would warrant four-level adjustment under Guidelines.

Affirmed.


On Appeal from the United States District Court for the District of New Jersey, (D.C. Criminal No. 99-cr-00275); District Judge: Honorable John W. Bissell.

Andrea D. Bergman, Esq., Office of the Federal Public Defender, Newark, NJ, Counsel for Appellant.

George S. Leone, Esq., David A. Bocian, Esq., Office of the United States Attorney, Newark, NJ, Counsel for Appellee.

Before SCIRICA, NYGAARD and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

When the Newark police arrived at 5:30 in the morning to investigate the scene of a reported burglary, they discovered Alexander Loney standing nearby on his aunt's porch. Frisking him, the officers found hidden in his clothes 29 packets of heroin and a .380 caliber Lorcin semiautomatic pistol loaded with one round of ammunition. The question on appeal is whether the District Court erred when it applied U.S.S.G. § 2K2.1(b)(5) and increased Loney's offense level by four points for possessing a firearm "in connection with" his drug offense. Loney emphasizes that the government has no further evidence tying the gun to his drug trafficking, and he claims the reason he carried the gun was that, after witnessing a friend's murder, he did not trust anyone and felt he needed protection. We will affirm.

I

[1] The United States Sentencing Guidelines require the four-level adjustment when "the defendant used or possessed any firearm or ammunition in connection with another felony offense...." § 2K2 .1(b)(5). Loney does not contest that he possessed a firearm, nor does he question that his possession of the drugs constitutes "another felony offense" under the guideline provision. The dispute is over the meaning of the phrase "in connection with." Did Loney possess his gun "in connection with" his drug offense?

The phrase "in connection with," according to Fowler's usage manual, is notable for its "vagueness and pliability." Fowler's Modern English Usage 172 (R.W. Burchfield ed., 3d ed. 1996). Bryan Garner describes the phrase as "always a vague, loose connective, often used in reporting wrongdoing." A Dictionary of Modern American Usage 365 (1998).

Although these usage guides suggest using a narrower term when a more precise meaning is intended, sometimes an expansive phrase like "in connection with" is necessary.

Garner cites the example, "The FBI was searching for Mr. Bailey in connection with the stabbing of his friend." Id. Did Mr. Bailey commit the crime or did he just have useful information? The FBI probably did not know, and the words conveyed the uncertainty.

Examples from the Oxford English Dictionary underscore that the phrase "in connection with" is used to capture a very wide variety of different relationships: De Quincey writes, "The war itself, taken in connexion with the bloody feuds that succeeded it, gave a shock to the civilisation of Greece." 1 Oxford English Dictionary 520 (compact edition 1971). Froude's History of England explains, "Except in rare instances, the agricultural labourer held land in connexion with his house." Id. T. Fowler's text on logic instructs, "The student is requested to read this Preface in connexion with Chapter III." Id.

[2][3] Because we should interpret undefined terms in the guidelines, as in statutes, using the terms' meaning in ordinary usage, see, e.g., Bailey v. United States, 516 U.S. 137, 144-45, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995) (interpreting statutory language); Williams v. United States, 503 U.S. 193, 200, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992) (interpreting statute and guidelines), the examples above suggest that we should construe § 2K2.1(b)(5) as covering a wide range of relationships between the firearm possession and the other felony offense. "[T]he phrase 'in connection with' should be interpreted broadly...." United States v. Thompson, 32 F.3d 1, 7 (1st Cir.1994). "[T]he meaning of the phrase 'in connection with' should be construed expansively." United States v. Wyatt, 102 F.3d 241, 247 (7th Cir.1996).

In keeping with this breadth, we have previously held that when a defendant accidently fired a gun and killed someone, he used the gun in connection with another felony offense. United States v. Brannan, 74 F.3d 448 (3d Cir.1996). We added in dictum that the term "connection" can encompass any "causal or logical relation or sequence." Id. at 453 (quoting Webster's Ninth New Collegiate Dictionary 278 (1990)). Although the phrase "in connection with" can carry a different meaning than the term "connection," in part because the former typically functions as a compound preposition and the latter a noun, the definition of the single term does help us understand the larger phrase.

Like the definition cited in Brannan, other dictionary definitions of the term "connection" are similarly broad: One defines the term simply as "an association or a relationship." American Heritage Dictionary of the English Language 400 (3d ed. 1992). Another explains that the term expresses a "relationship or association in thought (as of cause and effect, logical sequence, mutual dependence or involvement)." Webster's Third New International Dictionary 481 (1961). Another defines it as "association; relationship" and gives as illustrations "the connection between crime and poverty; no connection with any other firm of the same name." Random House Dictionary of the English Language 432 (2d ed. 1987). The OED lists as one sense the "condition of being related to something else by a bond of interdependence, causality, logical sequence, coherence, or the like; relation between things one of which is bound up with, or involved in, another." 1 Oxford English Dictionary 520 (compact edition 1971).
[4] Together these definitions suggest that the phrase "in connection with" expresses some relationship or association, one that can be satisfied in a number of ways such as a causal or logical relation or other type of relationship. We do not attempt to provide an exhaustive list of relationships that will resolve every case. As other courts have observed, "no simple judicial formula can adequately capture the precise contours of the 'in connection with' requirement, particularly in light of the myriad factual contexts in which the phrase might come into play...." Wyatt, 102 F.3d at 247. See also Thompson, 32 F.3d at 6 ("[I]t is difficult to sketch the outer boundary" of the relationship expressed by the phrase.).

Despite the wide variety of relationships covered by the usage of the phrase "in connection with," Loney urges that we narrow its meaning and adopt a test requiring the government to prove "some causal nexus" between the gun and the felony, a standard he says was not satisfied in his case. We decline to adopt Loney's proposed test. As an initial matter, we think it is unclear what exactly is supposed to be the source of the causality--the gun, the defendant, the other felony, or something else? And whatever the agent, what qualifies as having the right sort of causal effect? Suppose a defendant carries a concealed gun to a drug deal intending to shoot anyone who steps out of line. If the buyers are docile and the defendant never has reason to reveal his gun, his gun possession might not exert any "causal" effect on anything; but it would grossly distort our usage of "in connection with" to say that the defendant in this example did not possess his gun in connection with his drug offense. Consider that if someone vaccinated herself to avoid disease at her job in a hospital, it would be perfectly natural to say that she received the medical care "in connection with" her job, even though after receiving the inoculation she never encountered the disease at work.

[5][6][7] There is a limit, of course, to how much can be proved by invoking dictionary definitions and usage. As the Supreme Court has said: "We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. '[T]he meaning of statutory language, plain or not, depends on context.' " Bailey, 516 at 145, 116 S.Ct. at 506 (quoting Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 555, 130 L.Ed.2d 462 (1994)). See also King v. St. Vincent's Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991).

[8] When we turn to the broader context of § 2K2.1(b)(5), several features conflict with Loney's suggested test. First, our interpretation of § 2K2.1(b)(5) must take into account that the sentence adjustment is not limited to "use" of a firearm but also applies to "possession," so we should not give "in connection with" a meaning so strict that it reads the possession standard out of § 2K2.1(b)(5). "In connection with" is not a synonym for "use." And the Supreme Court has emphasized that we should not interpret one word in a statute in a way that renders other parts of the statute functionless. See, e.g., Bailey, 516 U.S. at 145, 116 S .Ct. at 506.

A second reason for believing that the possession need not have any actual effect on the other felony offense is that the guideline applies to a defendant who merely possesses ammunition. If the guideline's drafters wanted to introduce some requirement of a causal effect through the phrase "in connection with," it is strange that they expressly provided that the guideline applies to someone who had ammunition but not a firearm.

Despite these broader contextual arguments against requiring proof of some causal effect as a necessary condition, as well as what dictionary definitions and ordinary usage show about the meaning of "in connection with," Loney argues on policy grounds that a four-level adjustment is a lot if "in connection with" is not read narrowly. We are unpersuaded. If the case were decided on bare policy grounds, it is far from clear that a narrow interpretation makes sense. Gun violence is a very serious problem in this country. Ordinary experience as well as empirical research show that when a criminal is armed, the risk of violence and serious harm is greater.
One study cited in a 1996 report by the Department of Justice's Bureau of Justice Statistics states that "of the almost 328,000 State prison inmates serving time for a violent crime in 1991, 30% were armed with a firearm when they committed the crime. Of those armed, 56% said that they fired the gun and most of those who fired said their victims were shot and either wounded or killed." Firearm Injury from Crime 5 http://www.ojp.usdoj.gov/bjs/guns. Another report by the Bureau of Justice Statistics released in 1994 explained:
Violent offenders are increasingly likely to be armed.... While the overall violent crime rate decreased during the last decade, the rate of offenses committed with pistols and revolvers rose from 9.2 percent in 1979 to 12.7 percent in 1992. From 1987 through 1992 there was an annual average of 858,000 rapes, robberies and assaults with firearms of all types, according to the BJS's National Crime Victimization Survey.... In a nationally representative sample of state prison inmates, 16 percent said they were carrying a firearm during the commission of the offense for which they were serving time, and one- half of those said they fired the weapon during the crime.
http://www.ojp.usdoj.gov/bjs/pub/press.

The Bureau of Justice Statistics also cited a report estimating the costs of injuries caused by assaults with firearms:
The estimate for medical costs, mental health care, emergency transport, police services, and insurance administration were--$21,700 per fatal gunshot wound[,] $28,000 per gunshot wound requiring hospitalization[, and] $6,500 per gunshot wound treated in the emergency department and released without hospitalization. [The authors] estimated that the total cost per survivor of gunshot wounds caused by assault was $260,000. This figure included direct costs such as medical costs as well as those costs because of lost productivity and pain, suffering, and reduced quality of life. Overall, they estimated that firearm assault injury and death cost $63.4 billion in 1992.
Firearm Injury from Crime 4 http://www.ojp.usdoj.gov/ bjs/guns.

[9][10] The government does not have to wait until a defendant pulls the trigger, uses the gun, or has the gun exert some causal effect before it can increase a defendant's sentence. And as is demonstrated by our earlier discussion of the meaning and context of the phrase "in connection with," we do not think § 2K2.1(b)(5) was drafted to require any of those greater showings by the government. Still, we recognize that the phrase "in connection with" requires that there be some relationship between the gun and the felony. The guideline says more than just that the person committed a felony offense and at some point in time and in some place possessed a gun.

Other courts have recognized this point in comparing the "in connection with" language with the "in relation to" language used in 18 U.S.C. § 924(c)(1). See, e.g., United States v. Spurgeon, 117 F.3d 641, 643-44 (2d Cir.1997) (per curiam) ("The First, Fourth, Seventh, Ninth, and Tenth Circuits have held that the 'in connection with' language of § 2K2.1(b)(5) should be construed as equivalent to the 'in relation to' language of 18 U.S.C. § 924(c)(1).") (citations omitted). In explaining the limitation imposed by the phrase "in relation to" in § 924(c)(1), the Supreme Court has stated that the language ensures that the "presence or involvement [of the firearm] cannot be the result of accident or coincidence." Smith v. United States, 508 U.S. 240, 238, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138, ---- (1993). More recently the Supreme Court said that the phrase "during and in relation to" in § 924(c)(1) was added
in part to prevent prosecutions where guns "played" no part in the crime ... cf. United States v. Stewart, 779 F.2d 538, 539 (C.A.9 1985) (Kennedy, J.) (observing that " 'in relation to' " was "added to allay explicitly the concern that a person could be prosecuted ... for committing an entirely unrelated crime while in possession of a firearm"), overruled in part on other grounds, United States v. Hernandez, 80 F.3d 1253, 1257 (C.A.9 1996).
Muscarello v. United States, 524 U.S. 125, 137, 118 S.Ct. 1911, 1918-19, 141 L.Ed.2d 111 (1998).

As a matter of ordinary language, one would be hard pressed to find a meaningful difference between "in relation to" and "in connection with." Nevertheless, while the phrase "in relation to" is essentially a synonym for "in connection with," it may not follow that every case applying § 924(c)(1) is necessarily applicable to § 2K2.1(b)(5), for the Supreme Court recently emphasized that § 924(c)(1) requires that a defendant's use or carrying of a gun must be both "during" and "in relation to" a drug trafficking offense. "[T]he statute [is] applicable only where a defendant 'carries' a gun both 'during and in relation to' a drug crime." Muscarello, 524 U.S. at 137, 118 S.Ct. at 1918. This caveat about § 924(c)(1) aside, we agree that where the Supreme Court construes just "in relation to," the reasoning can be applied to § 2K2.1(b)(5).

Even once we focus attention on "in relation to," one remaining problem with relying heavily on the Supreme Court's interpretation of the phrase is that the Court has not had occasion to elaborate in any detail on the standard. "We need not determine the precise contours of the 'in relation to' requirement here, however, as petitioner's use of hi

Smith v. U.S.

SUPREME COURT OF THE UNITED STATES
508 U.S. 223; 113 S. Ct. 2050; 124 L. Ed. 2d 138

JOHN ANGUS SMITH, PETITIONER v. UNITED STATES

No. 91-8674

March 23, 1993, Argued

June 1, 1993, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

DISPOSITION: 957 F. 2d 835, affirmed.

SYLLABUS:

After petitioner Smith offered to trade an automatic weapon to an undercover officer for cocaine, he was charged with numerous firearm and drug trafficking offenses. Title 18 U.S.C. § 924(c)(1) requires the imposition of specified penalties if the defendant, "during and in relation to . . . [a] drug trafficking crime[,] uses . . . a firearm." In affirming Smith's conviction and sentence, the Court of Appeals held that § 924(c)(1)'s plain language imposes no requirement that a firearm be "use[d]" as a weapon, but applies to any use of a gun that facilitates in any manner the commission of a drug offense.

Held: A criminal who trades his firearm for drugs "uses" it "during and in relation to . . . [a] drug trafficking crime" within the meaning of § 924(c)(1). Pp. 227-241.

(a) Section 924's language and structure establish that exchanging a firearm for drugs may constitute "use" within § 924(c)(1)'s meaning. Smith's handling of his gun falls squarely within the everyday meaning and dictionary definitions of "use." Had Congress intended § 924(c)(1) to require proof that the defendant not only used his firearm but used it in a specific manner -- as a weapon -- it could have so indicated in the statute. However, Congress did not. The fact that the most familiar example of "us[ing] . . . a firearm" is "use" as a weapon does not mean that the phrase excludes all other ways in which a firearm might be used. The United States Sentencing Guidelines, even if the Court were to assume their relevance in the present context, do not support the dissent's narrow interpretation that "to use" a firearm can mean only to use it for its intended purposes, such as firing and brandishing, since Guidelines Manual § 2B3.1(b)(2) explicitly contemplates "other use[s]" that are not limited to the intended purposes identified by the dissent. The dissent's approach, moreover, would exclude the use of a gun to pistol-whip a victim as the intended purpose of a gun is that it be fired or brandished, not that it be used as a bludgeon. In addition, Congress affirmatively demonstrated that it meant to include transactions like Smith's as "us[ing] a firearm" within the meaning of § 924(c)(1) by employing similar language in § 924(d)(1), which subjects to forfeiture any "firearm . . . intended to be used" in various listed offenses. Many of the listed offenses involve "using" the firearm not as a weapon but as an item of barter or commerce. Thus, even if § 924(c)(1), as originally enacted, applied only to use of a firearm during crimes of violence, it is clear from the face of the statute that "use" is not presently limited to use as a weapon, but is broad enough to cover use for trade. Pp. 227-237.

(b) Smith's use of his firearm was "during and in relation to" a drug trafficking crime. Smith does not, and cannot, deny that the alleged use occurred "during" such a crime. And there can be little doubt that his use was "in relation to" the offense. That phrase has a dictionary meaning of "with reference to" or "as regards" and, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug crime. Thus, its presence or involvement cannot be the result of accident or coincidence, and it at least must facilitate or have the purpose of facilitating the drug offense. Here, the firearm was an integral part of the drug transaction, which would not have been possible without it. There is no reason why Congress would not have wanted its language to cover this situation, since the introduction of guns into drug transactions dramatically heightens the danger to society, whether the guns are used as a medium of exchange or as protection for the transactions or dealers. Pp. 237-239.

(c) Smith's invocation of the rule of lenity is rejected. Imposing a postnarrower construction of § 924(c)(1) than the one herein adopted would do violence not only to the statute's plain language and structure, but also to its purpose of addressing the heightened risk of violence and death that accompanies the introduction of firearms to drug trafficking offenses. Pp. 239-241.

COUNSEL: Gary Kollin, by appointment of the Court, 506 U.S. 938, argued the cause and filed a brief for petitioner.

Thomas G. Hungar argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and John F. DePue.

JUDGES: O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, KENNEDY, and THOMAS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 241. SCALIA, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined, post, p. 241.

OPINION: [*225] [***146] [**2052] JUSTICE O'CONNOR delivered the opinion of the Court.

We decide today whether the exchange of a gun for narcotics constitutes "use" of a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. § 924(c)(1). We hold that it does.

I

Petitioner John Angus Smith and his companion went from Tennessee to Florida to buy cocaine; they hoped to resell it at a profit. While in Florida, they met petitioner's acquaintance, Deborah Hoag. Hoag agreed to, and in fact did, purchase cocaine for petitioner. She then accompanied petitioner and his friend to her motel room, where they were joined by a drug dealer. While Hoag listened, petitioner and the dealer discussed petitioner's MAC-10 firearm, which had been modified to operate as an automatic. The MAC-10 apparently is a favorite among criminals. It is small and compact, lightweight, and can be equipped with a silencer. Most important of all, it can be devastating: A fully automatic MAC-10 can fire more than 1,000 rounds per minute. The dealer expressed his interest in becoming the owner of a MAC-10, and petitioner promised that he would discuss selling the gun if his arrangement with another potential buyer fell through.

Unfortunately for petitioner, Hoag had contacts not only with narcotics traffickers but also with law enforcement officials. In fact, she was a confidential informant. Consistent with her post, she informed the Broward County Sheriff's Office of petitioner's activities. The Sheriff's Office responded quickly, sending an undercover officer to Hoag's motel room. Several others were assigned to keep the motel under surveillance. Upon arriving at Hoag's motel room, the undercover officer presented himself to petitioner as a pawnshop dealer. Petitioner, in turn, presented the officer with a proposition: He had an automatic MAC-10 and silencer with which he might be willing to part. Petitioner [*226] then pulled the MAC-10 out of a black canvas bag and showed it to the officer. The officer examined the gun and asked petitioner what he wanted for it. Rather than asking for money, however, petitioner asked for drugs. He was willing to trade his MAC-10, he said, for two ounces of cocaine. The officer told petitioner that he was just a pawnshop dealer and did not distribute narcotics. Nonetheless, he indicated that he wanted the MAC-10 and would try to get the cocaine. The officer then left, promising to return within an hour.

Rather than seeking out cocaine as he had promised, the officer returned to the Sheriff's Office to arrange for petitioner's arrest. But petitioner was not content to wait. The officers who were conducting surveillance saw him leave the motel room carrying a gun bag; he then climbed into his van and drove away. The officers reported petitioner's departure [**2053] and began following him. When law enforcement authorities tried to stop petitioner, he led them on a high-speed chase. Petitioner eventually was apprehended.

Petitioner, it turns out, was well armed. A search of his van revealed [***147] the MAC-10 weapon, a silencer, ammunition, and a "fast-feed" mechanism. In addition, the police found a MAC-11 machine gun, a loaded .45 caliber pistol, and a .22 caliber pistol with a scope and homemade silencer. Petitioner also had a loaded 9 millimeter handgun in his waistband.

A grand jury sitting in the District Court for the Southern District of Florida returned an indictment charging petitioner with, among other offenses, two drug trafficking crimes -- conspiracy to possess cocaine with intent to distribute and attempt to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. App. 3-9. Most important here, the indictment alleged that petitioner knowingly used the MAC-10 and its silencer during and in relation to a drug trafficking crime. Id., at 4-5. Under 18 U.S.C. § 924(c)(1), a defendant who so uses a firearm [*227] must be sentenced to five years' incarceration. And where, as here, the firearm is a "machinegun" or is fitted with a silencer, the sentence is 30 years. See § 924(c)(1) ("If the firearm is a machinegun, or is equipped with a firearm silencer," the sentence is "thirty years"); § 921(a)(23), 26 U.S.C. § 5845(b) (term "machinegun" includes automatic weapons). The jury convicted petitioner on all counts.

On appeal, petitioner argued that § 924(c)(1)'s penalty for using a firearm during and in relation to a drug trafficking offense covers only situations in which the firearm is used as a weapon. According to petitioner, the provision does not extend to defendants who use a firearm solely as a medium of exchange or for barter. The Court of Appeals for the Eleventh Circuit disagreed. 957 F.2d 835 (1992). The plain language of the statute, the court explained, imposes no requirement that the firearm be used as a weapon. Instead, any use of "the weapon to facilitate in any manner the commission of the offense" suffices. Id., at 837 (internal quotation marks omitted).

Shortly before the Eleventh Circuit decided this case, the Court of Appeals for the District of Columbia Circuit arrived at the same conclusion. United States v. Harris, 294 U.S. App. D.C. 300, 315-316, 959 F.2d 246, 261-262 (per curiam), cert. denied, 506 U.S. 932 (1992). In United States v. Phelps, 877 F.2d 28 (1989), however, the Court of Appeals for the Ninth Circuit held that trading a gun in a drug-related transaction could not constitute use of a firearm during and in relation to a drug trafficking offense within the meaning of § 924(c)(1). We granted certiorari to resolve the conflict among the Circuits. 506 U.S. 814 (1992). We now affirm.

II

Section 924(c)(1) requires the imposition of specified penalties if the defendant, "during and in relation to any crime of violence or drug trafficking crime[,] uses or carries a firearm." By its terms, the statute requires the prosecution to [*228] make two showings. First, the prosecution must demonstrate that the defendant "use[d] or carrie[d] a firearm." Second, it must prove that the use or carrying was "during and in relation to" a "crime of violence or drug trafficking crime."

[***148] A

Petitioner argues that exchanging a firearm for drugs does not constitute "use" of the firearm within the meaning of the statute. He points out that nothing in the record indicates that he fired the MAC-10, threatened anyone with it, or employed it for self-protection. In essence, petitioner argues that he cannot be said to have "use[d]" a firearm unless he used it as a weapon, since that is how firearms most often are used. [**2054] See 957 F.2d at 837 (firearm often facilitates drug offenses by protecting drugs or protecting or emboldening the defendant). Of course, § 924(c)(1) is not limited to those cases in which a gun is used; it applies with equal force whenever a gun is "carrie[d]." In this case, however, the indictment alleged only that petitioner "use[d]" the MAC-10. App. 4. Accordingly, we do not consider whether the evidence might support the conclusion that petitioner carried the MAC-10 within the meaning of § 924(c)(1). Instead we confine our discussion to what the parties view as the dispositive issue in this case: whether trading a firearm for drugs can constitute "use" of the firearm within the meaning of § 924(c)(1).


When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning. See Perrin v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979) (words not defined in statute should be given ordinary or common meaning). Accord, post, at 242 ("In the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning"). Surely petitioner's treatment of his MAC-10 can be described as "use" within the everyday meaning of that term. Petitioner "used" his MAC-10 in an attempt to obtain drugs by offering to trade it for cocaine. Webster's [*229] defines "to use" as "to convert to one's service" or "to employ." Webster's New International Dictionary 2806 (2d ed. 1950). Black's Law Dictionary contains a similar definition: "to make use of; to convert to one's service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of." Black's Law Dictionary 1541 (6th ed. 1990). Indeed, over 100 years ago we gave the word "use" the same gloss, indicating that it means "'to employ'" or "'to derive service from.'" Astor v. Merritt, 111 U.S. 202, 213, 28 L. Ed. 401, 4 S. Ct. 413 (1884). Petitioner's handling of the MAC-10 in this case falls squarely within those definitions. By attempting to trade his MAC-10 for the drugs, he "used" or "employed" it as an item of barter to obtain cocaine; he "derived service" from it because it was going to bring him the very drugs he sought.

In petitioner's view, § 924(c)(1) should require proof not only that the defendant used the firearm, but also that he used it as a weapon. But the words "as a weapon" appear nowhere in the statute. Rather, § 924(c)(1)'s language sweeps broadly, punishing any "use" of a firearm, so long as the use is "during and in relation to" a drug trafficking offense. See United States v. Long, 284 U.S. App. D.C. 405, 409-410, 905 F.2d 1572, 1576-1577 (Thomas, J.) (although not without limits, the word "use" is "expansive" and extends even to situations where the gun is not actively employed), cert. denied, 498 U.S. 948, 112 L. Ed. 2d 328, [***149] 111 S. Ct. 365 (1990). Had Congress intended the narrow construction petitioner urges, it could have so indicated. It did not, and we decline to introduce that additional requirement on our own.

Language, of course, cannot be interpreted apart from context. The meaning of a word that appears ambiguous if viewed in isolation may become clear when the word is analyzed in light of the terms that surround it. Recognizing this, petitioner and the dissent argue that the word "uses" has a somewhat reduced scope in § 924(c)(1) because it appears alongside the word "firearm." Specifically, they contend that the average person on the street would not think [*230] immediately of a guns-for-drugs trade as an example of "us[ing] a firearm." Rather, that phrase normally evokes an image of the most familiar use to which a firearm is put -- use as a weapon. Petitioner and the dissent therefore argue that the statute excludes uses where the weapon is not fired or otherwise employed for its destructive capacity. See post, at 242-244. Indeed, relying on that argument -- and without citation to authority -- the dissent announces its own, restrictive definition of "use." "To use an instrumentality," the dissent argues, "ordinarily means to [**2055] use it for its intended purpose." Post, at 242.

There is a significant flaw to this argument. It is one thing to say that the ordinary meaning of "uses a firearm" includes using a firearm as a weapon, since that is the intended purpose of a firearm and the example of "use" that most immediately comes to mind. But it is quite another to conclude that, as a result, the phrase also excludes any other use. Certainly that conclusion does not follow

 

 

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