Watson v. United States - Brief (Merits)

Docket number: 
No. 06-571
Supreme Court Term: 
2006 Term
Court Level: 
Supreme Court

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No. 06-571

In the Supreme Court of the United States

MICHAEL A. WATSON, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DEANNE E. MAYNARD
Assistant to the Solicitor
General
WILLIAM C. BROWN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED

Whether receiving a firearm in exchange for con trolled substances constitutes use of the firearm during and in relation to a drug trafficking crime within the meaning of 18 U.S.C. 924(c)(1).

In the Supreme Court of the United States

No. 06-571

MICHAEL A. WATSON, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-2a) is not published in the Federal Reporter, but is re printed in 191 Fed. Appx. 326.

JURISDICTION

The judgment of the court of appeals was entered on July 25, 2006. The petition for a writ of certiorari was filed on October 23, 2006, and was granted on February 26, 2007. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. 924(c)(1)(A) provides in pertinent part:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime * * *, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime

be subject to specified penalties.1

The entirety of 18 U.S.C. 924 (2000 & Supp. IV 2004) and the pertinent part of 18 U.S.C. 922 are set forth in the appendix. App., infra, 1a-14a.

STATEMENT

Following a conditional guilty plea in the United States District Court for the Middle District of Louisi ana, petitioner was convicted of distributing oxycodone hydrochloride, in violation of 21 U.S.C. 841(a)(1); using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1); and unlawfully possessing firearms as a convicted felon, in violation of 18 U.S.C. 922(g)(1). Pet. App. 5a. He was sentenced to a total of 262 months of imprisonment. Id. at 6a. The court of appeals affirmed. Id. at 1a-2a.

1. As stipulated in the plea agreement (Pet. App. 7a- 11a), in November 2004, law enforcement agents, as sisted by a confidential informant, were investigating petitioner's drug trafficking and firearm activities. Id. at 8a-9a. Petitioner previously had been convicted of two state felony offenses for distribution of cocaine. Id. at 11a. Petitioner told the informant that he wished to purchase a firearm to protect himself against robbers. Id. at 9a. When petitioner asked the informant how much the firearm would cost, the informant replied that he did not know, but that the firearm dealer would be willing to exchange a firearm for drugs. Ibid. Peti tioner advised the informant that he would be willing to trade drugs for the firearm. Ibid.

Subsequently, the informant told petitioner that he had an Israeli Military Industries Desert Eagle pis- tol available to exchange for drugs. Pet. App. 9a. On the day of the transaction, the informant and an under cover agent met petitioner outside petitioner's resi dence, and petitioner exchanged twenty-four dosage units of oxycodone hydrochloride, also known as Oxy Contin, for a Desert Eagle .50 caliber pistol. Ibid. Af ter the exchange, law enforcement agents apprehended petitioner and found the Desert Eagle pistol in his vehi cle. Ibid.

Law enforcement officers found additional firearms and controlled substances in a subsequent search of peti tioner's residence. Pet. App. 9a-10a. Among the items found were approximately 18 dosage units of oxycodone (OxyContin), 29 tablets of alprazolam (Xanax), 30 tablets of hydrocodone (Lorcet), and a scale. Id. at 9a. They also located two Ruger semi-automatic rifles, a Win chester single-shot rifle, a Winchester single-shotgun, and a Bryco semiautomatic pistol, along with approxi mately 700 rounds of ammunition of various types. Id. at 9a-10a.

Petitioner informed the law enforcement officers that he had prescriptions for the controlled substances, and that he had sold some of his prescribed drugs on a num ber of occasions to raise cash. Pet. App. 10a. Petitioner admitted to agents that he had two previous state felony cocaine distribution convictions. Id. at 10a-11a. He also told the agents that, in addition to the firearms found in the search, he had a Colt .45 caliber semiautomatic pis tol and a Glock 9 mm. semiautomatic pistol that had been stolen from his residence. Id. at 10a. He further admitted that he purchased the Desert Eagle semiauto matic pistol "to protect his other firearms and drugs from robbery and theft." Id. at 10a-11a.

2. A grand jury in the United States District Court for the Middle District of Louisiana returned a three- count indictment charging petitioner with distribut ing oxycodone hydrochloride, in violation of 21 U.S.C. 841(a)(1); using a firearm during and in relation to that drug trafficking crime, in violation of 18 U.S.C. 924(c)(1); and unlawfully possessing as a convicted felon the firearms located in his residence, in violation of 18 U.S.C. 922(g)(1). Pet. App. 5a; J.A. 7-9. Petitioner entered a conditional guilty plea based on stipulated facts, retaining his right to challenge the sufficiency of the factual basis underlying his conviction under Section 924(c)(1). Pet. App. 7a-11a; J.A. 18-20. Petitioner was sentenced to a total of 262 months of imprisonment. Pet. App. 6a. His advisory Guidelines range of 262 to 327 months was based on his career offender status and the Section 924(c)(1) conviction, and his sentence in cluded a 60-month consecutive term for the violation of Section 924(c)(1). Ibid.; Presentence Investigation Re port para. 21; id. para. 48 (citing Sentencing Guidelines §§ 2K2.4(c), 4B1.1(c)(2) and (3) (2004)).

3. The court of appeals affirmed. Pet. App. 1a-2a. The court held that petitioner's receiving of a handgun in exchange for drugs constituted use of that firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1). Pet. App. 1a-2a. In so doing, the court relied on its decisions in United States v. Zuniga, 18 F.3d 1254 (5th Cir.), cert. denied, 513 U.S. 880 (1994), and United States v. Ulloa, 94 F.3d 949 (5th Cir. 1996), cert. denied, 520 U.S. 1157 (1997). Pet. App. 2a.

In Zuniga, the Fifth Circuit upheld the Section 924(c)(1) conviction of a defendant who traded drugs for a firearm. The court of appeals decided Zuniga shortly after this Court held in Smith v. United States, 508 U.S. 223 (1993), in the context of a guns-for-drugs trade, that use of a firearm "as an item of barter or commerce" falls within the plain language of Section 924(c)(1), as long as the use occurs during and in relation to a drug traffick ing offense. Id. at 237. The Fifth Circuit concluded in Zuniga that Smith was not "distinguishable on the basis that * * * the defendant owned the drugs and was bar tering them for the firearms, while in Smith the defen dant owned the firearm and was bartering it for the drugs." Zuniga, 18 F.3d at 1259. The court reasoned that, in either case, "the presence of the firearms was not incidental, but rather an essential part of the negoti ations." Ibid.

The Fifth Circuit reaffirmed Zuniga after this Court's decision in Bailey v. United States, 516 U.S. 137 (1995). In Bailey, this Court construed "use" in Section 924(c)(1) as "requir[ing] evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in rela tion to the predicate offense." Id. at 143. In Ulloa, the Fifth Circuit held that, "by bartering drugs for firearms, [the defendant] 'used' the firearms because, under one of Bailey's definitions of 'use', [the defendant] 'carr[ied] out a purpose or action by means of' them." Ulloa, 94 F.3d at 956 (quoting Bailey, 516 U.S. at 145) (last brac ket in original; internal citations omitted). The Ulloa court reasoned that, by requiring that "he be furnished firearms in exchange for his drugs," a defendant "ac tively employ[s]" the firearms and thus "use[s]" them within the meaning of Section 924(c)(1). Ibid.

Here, the court of appeals rejected petitioner's at tempt to distinguish Zuniga and Ulloa. The court con cluded that the factors cited by petitioner-that govern ment agents first proposed trading drugs for the hand gun, that petitioner controlled the handgun for only mo ments before his arrest, and that he could not have used the handgun because it was unloaded-were not material to the determination of "use" under Section 924(c)(1). Pet. App. 2a.

SUMMARY OF ARGUMENT

An individual who receives a firearm in exchange for drugs uses the firearm during and in relation to a drug trafficking crime within the meaning of 18 U.S.C. 924(c)(1). That conclusion follows directly from the text, structure, and purpose of the statute.

A. The plain language of the "use" prong of Section 924(c)(1), as construed by this Court, encompasses the conduct at issue here.

In Smith v. United States, 508 U.S. 223 (1993), this Court held that "use" in Section 924(c)(1) encompasses not only use of a firearm as a weapon, but also use of a firearm as an item of barter or commerce. The Court based that conclusion on the ordinary meaning of the word "use," as well as the structure and purpose of Sec tion 924. The Court reaffirmed Smith in Bailey v. United States, 516 U.S. 137 (1995). In that case, the Court held that "use" in Section 924(c)(1) requires that the defendant actively employ the firearm, such that he make the firearm an operative factor in relation to the drug trafficking crime. The Bailey Court made clear that its active-employment understanding of use encom passes bartering.

Under the plain text of Section 924(c)(1), as construed in Bailey and Smith, an individual who trades illegal drugs for a firearm uses that firearm during and in relation to a drug trafficking crime. First, by accept ing the firearm as consideration to effectuate his drug sale, the drug dealer "uses" the firearm in precisely the same manner as the defendant in Smith: as an item of barter or commerce. Second, in so doing, the drug dealer actively employs the firearm during and in rela tion to a drug trafficking crime. In a drugs-for-guns barter, there is nothing passive about the drug dealer's receipt of the firearm. It is the sine qua non of the transaction. The dealer uses the firearm as a means to carry out a purpose or action, namely, to seal his drug deal.

B. The conclusion that "use" in Section 924(c)(1) encompasses receipt of a firearm as an item of commerce is compelled by the meaning of "use" in the inte grally related forfeiture provision in 18 U.S.C. 924(d). As this Court held in Smith, and reiterated in Bailey, "use" must have the same meaning in Section 924(c)(1) as it does in Section 924(d). Section 924(d) provides for the forfeiture of firearms "intended to be used" in vari ous offenses, including ones in which the firearm is re ceived as an item of barter or commerce. Significantly, this Court relied on these same provisions in Smith to conclude that "use" in Section 924(d), and therefore "use" in Section 924(c)(1), encompasses use of a firearm as an item of barter or commerce. Section 924(d) thus makes clear that Congress contemplated that a firearm can be "used" when it is received as an item of commerce.

C. The purpose of the statute confirms that peti tioner's conduct amounts to "use" in violation of the stat ute. Petitioner, a convicted drug dealer, initiated the request for a firearm, and then agreed to provide drugs to obtain it. By contributing to the introduction of the firearm into the transaction, petitioner caused the very harm that Congress sought to avoid in enacting Section 924(c)(1). Regardless of which side of the guns-for- drugs barter a defendant is on, the firearm's presence- and its integral role in the illegal drug deal-causes the risk to society that Congress sought to prevent.

D. The rule of lenity has no application here. That rule comes into play only when, "after seizing every thing from which aid can be derived, . . . [the Court] can make no more than a guess as to what Congress in tended." Muscarello v. United States, 524 U.S. 125, 138- 139 (1998) (internal quotation marks and citations omit ted). There is no need to make such a guess here. A drug dealer who takes a firearm in order to close a drug deal-no less than one who offers the firearm- uses the firearm during and in relation to a drug traf ficking crime under the plain text of Section 924(c)(1), as construed by this Court in Smith and Bailey.

ARGUMENT

RECEIVING A FIREARM IN EXCHANGE FOR CON TROLLED SUBSTANCES CONSTITUTES USE OF THE FIRE ARM DURING AND IN RELATION TO A DRUG TRAFFICKING CRIME WITHIN THE MEANING OF 18 U.S.C. 924(c)(1)

A. The Text Of Section 924(c)(1) Encompasses Receiving A Firearm To Close A Drug Deal

An individual who accepts a firearm as the consider ation for the sale of his drugs uses the firearm as an item of barter or commerce. Moreover, that person ac tively employs the firearm during and in relation to a drug trafficking crime by taking the firearm as a neces sary part of closing his drug deal. Accordingly, receiv ing a gun in exchange for controlled substances falls squarely within the text of Section 924(c)(1) as con strued by this Court in Smith v. United States, 508 U.S. 223 (1993), and Bailey v. United States, 516 U.S. 137 (1995).

1. In Smith, the Court held that a defendant who trades his firearm for drugs uses it during and in rela tion to a drug trafficking offense within the plain lan guage of Section 924(c)(1). The Court rejected the view that the scope of the provision was limited to using a firearm "as a weapon," recognizing that Section 924(c)(1)'s language "sweeps broadly." 508 U.S. at 229. The Court observed that the ordinary meaning of the verb "use" includes "[t]o convert to one's service," "to employ," "to avail oneself of," and "to carry out a pur pose or action by means of." Ibid. (quoting Webster's New International Dictionary 2806 (2d ed. 1939); Black's Law Dictionary 1541 (6th ed. 1990)); accord Bailey, 516 U.S. at 145. Based on that common under standing of "use," as well as the structure of Section 924(c)(1), the Court concluded that "Congress employed the term 'use' expansively, covering both use as a weapon * * * and use as an item of trade or barter." Smith, 508 U.S. at 236.

In so doing, the Court looked to the meaning of "use" in Section 924(d). Smith, 508 U.S. at 235. The Court noted (id. at 234) that under Section 924(d)(1), any fire arm or ammunition "intended to be used" in various of fenses referenced in Section 924(d)(3) is subject to sei zure and forfeiture. See 18 U.S.C. 924(d)(1) and (3). Because those offenses include offenses in which the firearm is used "as an item of barter or commerce," not just offenses where it is used as an offensive weapon, the Court held that the meaning of "use" in Section 924(c)(1) must also encompass use of a firearm as an item of bar ter or commerce. Smith, 508 U.S. at 234.

The Court further concluded that "[t]he phrase 'in relation to' is expansive." Smith, 508 U.S. at 237. Al though the Court did not determine "the precise con tours" of that requirement, it held that the gun bartered in Smith met "any reasonable construction of it." Id. at 238. The Court reasoned that the bartered gun did far more than merely facilitate the drug trafficking crime; rather, "the gun . . . was an integral part of the trans action." Ibid. (quoting United States v. Phelps, 895 F.2d 1281, 1283 (9th Cir. 1990) (Kozinski, J., dissenting from denial of rehearing en banc)). As the Court explained, "[w]ithout it, the deal would not have been possible." Ibid.

The Court further explained that its construction of Section 924(c)(1)'s "use" prohibition was consistent with Congress's purpose, noting that Congress "was no doubt aware that drugs and guns are a dangerous combina tion." Smith, 508 U.S. at 240. The Court "[saw] no rea son why Congress would have intended courts and juries applying § 924(c)(1) to draw a fine metaphysical distinc tion between a gun's role in a drug offense as a weapon and its role as an item of barter; it creates a grave possi bility of violence and death in either capacity." Ibid. Accordingly, the Court concluded that use of a firearm "as an item of barter fall[s] within the plain language of § 924(c)(1), so long as the use occurs during and in rela tion to a drug trafficking offense." Ibid.

The Court reaffirmed Smith in Bailey, supra. Bailey held that "use" of a firearm in Section 924(c)(1) means "an active employment of the firearm by the de fendant, a use that makes the firearm an operative fac tor in relation to the predicate offense." 516 U.S. at 143. Referring to the dictionary definitions consulted in Smith, the Court observed that these various definitions "imply action and implementation." Id. at 145. The Court thus rejected a "proximity and accessibility stan dard" for evaluating whether a firearm had been "use[d]" within the meaning of Section 924(c)(1), be cause, in the Court's view, "nearly every possession of a firearm by a person engaged in drug trafficking would satisfy the standard." Id. at 144. Applying its "active employment" standard, the Court concluded that the evidence in the consolidated cases in Bailey-one involv ing "a firearm inside a bag in [a] locked car trunk," and the other involving an "unloaded, holstered firearm * * * locked in a footlocker in a bedroom closet"-was insufficient. Id. at 151.

In so holding, the Bailey Court made clear that its decision was "not inconsistent with Smith." Bailey, 516 U.S. at 148. The Court observed that "use" encom passes "use as an item of barter," and that the "active- employment understanding of 'use' certainly includes," inter alia, "bartering." Ibid. When a firearm is used as an item of barter it does not sit on the sidelines, but plays an active role in the trafficking. Likewise, the use of a firearm in bartering is obviously distinct from simple possession.

2. Under the plain text of Section 924(c)(1), as construed in Smith and Bailey, petitioner used a firearm during and in relation to a drug trafficking crime. First, a drug dealer who accepts a firearm as consideration for his drugs uses the firearm in the very manner recog nized as a "use" by Smith: "as an item of barter or com merce." Smith, 508 U.S. at 237. The fact that Smith involved a defendant trading a gun for drugs, and not vice versa, is "a distinction without a difference." United States v. Cannon, 88 F.3d 1495, 1509 (8th Cir. 1996). The holding in Smith was not that using a fire arm to obtain drugs is "use" within the meaning of Sec tion 924(c)(1). The holding was a broader one: that us ing a firearm as an item of trade or commerce in a drug transaction falls within the plain meaning of the text of the statute. Smith, 508 U.S. at 237; accord Bailey, 516 U.S. at 148 (observing that the question in Smith was whether a "particular use (bartering) came within the meaning of § 924(c)(1)"). Just like the defendant in Smith, a drug dealer who takes a firearm in exchange for drugs uses the firearm as an item of commerce in the illegal marketplace. After Smith, there can be no doubt that such a "use" is captured by the statute.

Second, a drug dealer who takes a firearm in order to close a drug deal actively employs that firearm as required by Bailey. Petitioner contends that his con duct was "[s]imple receipt" of a gun, which he describes as a "quintessentially passive event" in which he "[did] nothing more than take possession of an object." Br. 9; id. at 10-11 (describing his conduct as "mere receipt" of a firearm). But that characterization-which likens peti tioner's role to that of a donation box receiving a con tribution-ignores the fundamental nature of bartering. As the First Circuit has explained, just because peti tioner "received guns does not mean he was passive with respect to them." United States v. Cotto, 456 F.3d 25, 29 (1st Cir. 2006), petition for cert. pending, No. 06-8168 (filed Dec. 5, 2006). The drug dealer's taking of a fire arm in exchange for illegal drugs is not a passive event that happens after the transaction is completed; it is the transaction. Taking the gun is part and parcel of an agreed-to exchange-an active act of using the firearm as an item of commerce.

That use fits squarely within the ordinary definitions of "use" relied on by Bailey and Smith. See Bailey, 516 U.S. at 145 (quoting Smith, 508 U.S. at 229). The drug dealer uses the firearm as a means to "carry out a pur pose or action," namely, to close his drug deal. See United States v. Ulloa, 94 F.3d 949, 956 (5th Cir. 1996) ("[B]y bartering drugs for firearms, [the defendant] 'used' the firearms because, under one of Bailey's defini tions of 'use', [the defendant] 'carr[ied] out a purpose or action by means of' them.") (last set of brackets in origi nal), cert. denied, 520 U.S. 1157 (1997). If the owner of the gun does not proffer the firearm, or if the drug dealer does not take it in exchange for a particular amount of drugs, the illegal drug transaction would not occur. Just as in Smith, "[w]ithout it, the deal would not [be] possible." 508 U.S. at 238.2

Under Bailey, a defendant who "makes the firearm an operative factor in relation to the predicate offense" satisfies the "active employment" understanding of use. 516 U.S. at 143. Petitioner disputes (Br. 35-39) that his conduct with respect to the firearm (as opposed to that of those offering the gun) made it an operative factor. But in such a drugs-for-guns trade, both sides actively employ the firearm. When a drug dealer "accept[s] the gun[] as a way of 'clos[ing] the drug transaction," he "mak[es] the gun an operative factor in the drug traf ficking crime." Cotto, 456 F.3d at 29 (last two pairs of brackets in original) (quoting United States v. Cox, 324 F.3d 77, 84 (2d Cir.), cert. denied, 540 U.S. 854, and 540 U.S. 859 (2003)). That conduct is at least as active, with respect to the underlying drug transaction, as displaying a firearm during such a transaction (which petitioner concedes falls within the text of the statute, see Br. 35-36).

Indeed, in Bailey, the Court indicated that an offender's mere reference to a firearm in his possession could amount to "active employment," if the reference were "calculated to bring about a change in the circum stances of the predicate offense." Bailey, 516 U.S. at 148. Here, the firearm did not merely bring about a change in the circumstances of petitioner's drug distri bution; it was an integral part of the drug offense. That is a far cry from the "mere possession" of locked-away weapons that the Court found insufficiently active in Bailey. See id. at 143. Nor does applying Section 924(c)(1) in the circumstances here improperly stretch the statute to "cover a firearm that played no detectable role in the crime's commission." See id. at 147.3

Contrary to petitioner's contention (Br. 30-35), Bailey did not suggest, in reaffirming Smith, that the defendant must be the one offering up or bartering "with" the firearm to satisfy Bailey's "active employ ment" requirement. To the contrary, Bailey expressly stated that "[t]he active-employment understanding of 'use' certainly includes brandishing, displaying, barter ing, striking with, and, most obviously, firing or at tempting to fire a firearm." 516 U.S. at 148 (emphasis added). Notably, in contrast to "striking with," Bailey did not limit "bartering * * * a firearm" to "bartering with." But even assuming that the Bailey Court had in mind only bartering with a firearm, it is not clear that that phrase is limited to the offeror and, in any event, a defendant who takes a firearm in exchange for illegal drugs actively employs the firearm in the relevant sense.

That conclusion is made even more clear by consider ing the remainder of the "use" prohibition in Section 924(c)(1). As this Court has repeatedly explained, it is a "fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used." Deal v. United States, 508 U.S. 129, 131-132 (1993); Smith, 508 U.S. at 229. Here, the question is not whether taking a firearm in exchange for drugs is use of the firearm in the ab stract, but whether it involves the use of a firearm "dur ing and in relation to any * * * drug trafficking crime." 18 U.S.C. 924(c)(1). And where, as here, some one accepts a firearm to close a drug deal, that person clearly has used the firearm during and in relation to a drug trafficking crime in the ordinary sense of those words.

For the same reason, the hypothetical examples on which petitioner relies miss the mark. See Br. 11-12 (citing United States v. Westmoreland, 122 F.3d 431, 435-436 (7th Cir. 1997); United States v. Stewart, 246 F.3d 728, 730-731 (D.C. Cir. 2001)). While it may not be natural for a customer who pays a cashier a dollar for a cup of coffee in the courthouse cafeteria to say that he has thereby "used the coffee," that hypothetical strips the question of "use" out of the context contained in the statute. Section 924(c)(1) asks whether the use occurs "during and in relation to * * * [a] drug trafficking crime." One does not usually discuss whether one has used a cup of coffee as an item of commerce during and in relation to a beverage transaction. But, if one did, it would be clear that one uses the coffee in, and as inte gral to, the beverage transaction. Here, the moment the recipient takes possession of the firearm in exchange for the drugs, he uses it to complete the drug trafficking crime. In addition, both of petitioner's hypotheticals are exchanges involving money-the universal medium of exchange-rather than a true barter. They therefore do not capture the give-and-take character of any bartering transaction, in which each bartered item is central to the transaction, with each party to the exchange using both bartered items as a way to close the transaction.

7. B. The Meaning Of "Use" In Section 924(d) Confirms That Receiving A Firearm In Exchange For Illegal Drugs Is Proscribed By The "Use" Prong In Section 924(c)(1)

Based on the well-established principle that neither a single word nor a single provision of a statute can be read in isolation, Smith, 508 U.S. at 233, this Court con cluded in both Bailey and Smith that "'using a firearm' should not have a 'different meaning in § 924(c)(1) than it does in § 924(d).'" Bailey, 516 U.S. at 146 (quoting Smith, 508 U.S. at 235). Because "use" of a firearm in Section 924(d) encompasses "receipt" of a firearm as an item of commerce, "use" in Section 924(c) must be so construed as well.

1. In Smith, the Court concluded that, because provisions in Section 924(d)(1) and (d)(3) require the forfei ture of firearms "intended to be used" in various of fenses, and those offenses include ones where the fire arm is used as an item of barter or commerce, "use" in Section 924(c) must also encompass use of a firearm as an item of barter or commerce. 508 U.S. at 234. Signifi cantly, the Smith Court's examples from Section 924(d) include offenses where the use of the firearm as an item of commerce is receipt of a firearm.4 These provisions make clear that, "under § 924(d), a gun can be 'used' in an offense consisting of receipt of the gun," because any firearm that is "intended to be used" to violate these receipt offenses is subject to forfeiture. Cotto, 456 F.3d at 29. Thus, for example, Section 924(d) contemplates that "one 'uses' a firearm under § 924(d)(1) when one 'receives' a firearm in violation of § 922(a)(3)," which prohibits the unlicensed receipt of a weapon from out-of- state. Cannon, 88 F.3d at 1509.

The word "use" must be given the same meaning in Section 924(c)(1). See Bailey, 516 U.S. at 146; Smith, 508 U.S. at 235. In each of the examples from Section 924(d)(3) above, the intended "use" that subjects the firearm to forfeiture is no different in character from the "use" at issue here. By receiving the firearm in a barter for drugs, petitioner used the firearm every bit as much as a defendant who receives an unlicensed firearm from out-of-state.

2. Despite the text of Section 924(d)(1) and (d)(3), petitioner contends (Br. 24-25) that "use" in Section 924(c) does not sweep as broadly. He notes (id. at 25) that Section 924(d)(1) calls for forfeiture of firearms and ammunition "intended to be used" in the offenses refer enced in Section 924(d)(3), rather than "used" in such offenses as required by Section 924(c)(1). Although the Court recognized that distinction in Bailey, the distinc tion has no force in this context. In Bailey, the Court distinguished between current uses and prospective uses, noting that the language of Section 924(d) "pro vided for forfeiture of a weapon even before it had been 'used.'" In that respect, the Bailey Court concluded that Section 924(d) swept more broadly than Section 924(c), which proscribed only "actual use." Bailey, 516 U.S. at 146.

But there is no dispute here that petitioner actually received the firearm; the question is whether the mean ing of "use" of a firearm in Section 924(c)(1) is broad enough to encompass "receipt" of a firearm during a bartering transaction. Section 924(d)(1) and (d)(3) con firm that it is. By calling for forfeiture of a firearm that is "intended to be used" in specific offenses-including certain receipt offenses-Congress plainly understood that the firearm could at some point be "used" in such an offense simply by being received as an item of com merce. The fact that for purposes of Section 924(d) the "use" need not have yet occurred does not detract from the conclusion that Section 924(d) makes clear that re ceipt is a qualifying use. And the fact that such "re ceipt" of a firearm falls within the meaning of "use" in Section 924(d) compels the conclusion that "receipt" as an item of barter or commerce also falls within the meaning of "use" in Section 924(c)(1). That was the logic of the Court's conclusion in Smith, see 508 U.S. at 234- 235, and that logic is equally forceful here.

In addition, petitioner relies (Br. 23-24) on the fact that Section 924(d)(1) also provides for forfeiture of fire arms "involved in or used in" a broad range of offenses and violations. 18 U.S.C. 924(d)(1). But petitioner is wrong to suggest that because that particular phrase captures more than use of a firearm, "use" in Section 924(d) does not encompass receipt of a firearm as an item of commerce. The important point here is that, with respect to the receipt offenses in Section 924(d)(3), Congress called for forfeiture of the firearms in nar rower circumstances, namely, where they were "in tended to be used" in those offenses. See 18 U.S.C. 924(d)(1) (subjecting to seizure or forfeiture "any fire arm or ammunition intended to be used in any offense referred to in paragraph (3) of this subsection"). In so doing, Congress demonstrated its view that one uses a firearm by receiving it as an item of barter or commerce and that it did not need to employ the broader "involved in" language in order to capture such conduct.5

3. Nor does the fact that some provisions in the United States Code employ the term "receive" (see Pet. Br. 19-22) to criminalize certain firearm-related conduct undermine the conclusion that "use" in Section 924(c)(1) encompasses receipt of a firearm in a drugs-for-guns trade. The most relevant provision for interpreting the meaning of "use" in Section 924(c) is Section 924(d). "A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning," Powerex Corp. v. Reliant Energy Servs., Inc., 127 S. Ct. 2411, 2417 (2007), and "[t]hat rule must surely apply, a forti ori, to use of identical words in the same section of the same enactment." Dewsnup v. Timm, 502 U.S. 410, 422 (1992) (Scalia, J., dissenting). Although these principles are not "irrebuttable," Environmental Def. v. Duke En ergy Corp., 127 S. Ct. 1423, 1432 (2007), there is no need to resort to general principles here, because this Court already has held that "use" in Section 924(c) has the same meaning as "use" in Section 924(d). See Bailey, 516 U.S. at 507; Smith, 508 U.S. at 235. Given that "use" as employed by Congress in Section 924 encompasses "receipt" of a firearm as an item of commerce, it was not necessary for Congress to employ the term "receive" in Section 924(c)(1) in order to reach petitioner's bartering conduct. Indeed, more than half of the firearm-receipt provisions to which petitioner points are ones referenced in Section 924(d)(3), which (as discussed above) are en compassed by Congress's understanding of "use" in Sec tion 924(d). Compare Pet. Br. 20 (citing 18 U.S.C. 922(a)(1), 922(a)(3), 922(l), 922(n), and 924(b)), with 18 U.S.C. 924(d)(3)(C) and (E) (referencing, inter alia, those provisions). That fact makes clear that the term use in Section 924 includes, rather than excludes or dis tinguishes, receipt.

Moreover, the fact that Congress has employed both "use" and "receive" in the disjunctive in various other statutory provisions does not mean that the word "use" in Section 924(c)(1) excludes taking a firearm in exchange for illegal drugs. See Pet. Br. 20-21 (citing stat utes criminalizing, inter alia, receipt or use of the virus that causes smallpox). Even assuming that "use" in those other statutes is mutually exclusive of "receipt," this Court has recognized that where the subject matter to which the words refer is not the same in the several places where they are used, or the conditions are differ ent, "the meaning [of the same words] well may vary to meet the purposes of the law." United States v. Cleve land Indians Baseball Co., 532 U.S. 200, 213 (2001). In all events, Section 924(d)'s treatment of "receipt" as a type of use makes clear how those two terms interrelate in the relevant context.

8. C. Construing The Statute To Proscribe Receiving A Firearm In Exchange For Drugs Is Consistent With The Fundamental Purpose Of The Statute

Consideration of Congress's purpose in enacting Sec tion 924(c)(1) confirms that the statute punishes the act of taking a firearm in exchange for illegal drugs.

1. This Court has described "the statute's basic pur pose broadly, as an effort to combat the 'dangerous combination' of 'drugs and guns.'" Muscarello v. United States, 524 U.S. 125, 132 (1998) (quoting Smith, 508 U.S. at 240). Proscribing the barter of drugs for guns fits well within the core purpose of the statute. As the Smith Court observed, "[t]he fact that a gun is treated momentarily as an item of commerce does not render it inert or deprive it of destructive capacity. Rather, as experience demonstrates, it can be converted instanta neously from currency to cannon." Smith, 508 U.S. at 240. "That is so whether the defendant transfers or re ceives the gun." Cotto, 456 F.3d at 29.

By introducing the firearm into the transaction, petitioner caused the very harm that Congress sought to avoid in enacting Section 924(c)(1). It was petitioner, a convicted drug dealer, who initiated the request for a firearm. Pet. App. 9a. He then agreed to provide the required drugs for the purchase of that firearm. Ibid. As this Court observed in Smith, "[w]hether guns are used as the medium of exchange for drugs sold ille gally or as a means to protect the transaction or dealers, their introduction into the scene of drug transactions dramatically heightens the danger to society." 508 U.S. at 239 (quoting United States v. Harris, 959 F.3d 246, 262 (D.C. Cir. 1992)).

Petitioner suggests that the danger to society perceived by Smith was only that the particular individual "who brought the weapon with him[] for use as 'cur rency'" might convert it to use as a weapon, Pet. Br. 4, and that any such danger is "almost entirely absent" when an individual comes to a drug transaction to trade for a gun, id. at 15. That suggestion is unfounded. The Smith Court saw no reason why Congress would have intended courts and juries applying Section 924(c) "to draw a fine metaphysical distinction between a gun's role in a drug offense as a weapon and its role as an item of barter; it creates a grave possibility of violence and death in either capacity." Smith, 508 U.S. at 240. There is likewise no reason to suppose Congress would have "intended to draw [an even finer] distinction between bartering with a firearm and bartering for a firearm." Cotto, 456 F.3d at 30. The danger to society is created not only by the person who brings the firearm to the drug transaction, but also by the drug dealer who takes the weapon in exchange for his drugs during the trans action. "An armed drug dealer is far more dangerous than one who is unarmed," Phelps, 895 F.2d at 1286 (Kozinski, J., dissenting from denial of rehearing en banc), and "[t]here are any number of not implausible scenarios where the [gun] could have been used to injure or kill somebody," id. at 1288.

Petitioner similarly errs in contending (Br. 24-25) that the statute's purpose is not implicated by his conduct because the statute was intended to "persuade the man who is tempted to commit a Federal felony to leave his gun at home." 114 Cong. Rec. 22,231 (1968) (state ment of Rep. Poff). "From the perspective of any such purpose (persuading a criminal 'to leave his gun at home')," it would make no sense for Congress to penalize one who brings a gun to trade for drugs but ignores the drug dealer who takes a gun from that person as an inte gral part of his drug deal. See Muscarello, 524 U.S. at 132-133. That is particularly true where the drug dealer, as here, affirmatively sought the firearm.

Moreover, contrary to petitioner's suggestion (Br. 15), the meaning of the statute does not turn on whether any particular defendant's arrest for violating Section 924(c)(1) results from a government undercover opera tion, or whether a firearm involved in a bartering trans action may be unloaded. Both Smith and Bailey make clear that a gun need not be discharged to be used, and use of a firearm as an item of barter does not require that a firearm be loaded. In any event, the recipient of an unloaded firearm could load it during the transaction in which it is received. It is the presence of the firearm at the drug transaction that constitutes a danger. The display of a firearm, whether loaded or unloaded, can instill fear in others and "creates an immediate danger that a violent response will ensue." McLaughlin v. United States, 476 U.S. 16, 17-18 (1986) (holding that an unloaded firearm is a "dangerous weapon" within the meaning of the federal bank robbery statute, 18 U.S.C. 2113(d)). Given the dangerous nature of guns generally, "the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place." Id. at 17 (emphasis added).

Nor should the meaning of Section 924(c)(1) be "modified to forbid entrapment-like behavior that falls outside the bounds of current entrapment law." United States v. Jimenez Recio, 537 U.S. 270, 276 (2003). See Br. 15, 42. If a Section 924(c)(1) prosecution results from a sting operation, a defendant may be able to raise an entrapment defense-if there was both government inducement and a lack of predisposition on his part to commit the offense. See Jacobson v. United States, 503 U.S. 540, 548-549 (1992); Sorrells v. United States, 287 U.S. 435, 442-445 (1932). But the statute should not be distorted to give all defendants-including those not caught in a sting-greater protection. And petitioner, who pleaded guilty, could not reasonably have advanced any entrapment issues here, given his affirmative re quest for the firearm and his admitted ongoing illegal sales of controlled substances. See Pet. App. 9a-11a.6

2. Petitioner suggests (Br. 22-23) that upholding his conviction would "contravene the import" of the 1998 amendment to Section 924(c)(1). In that amendment, Congress extended the reach of Section 924(c)(1) to pro hibit not only the use or carrying of a firearm during and in relation to a drug trafficking crime, but also the possession of a firearm "in furtherance of any * * * drug trafficking crime." See Act of Nov. 13, 1998, Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469. Even if that amendment were entitled to any weight in interpreting earlier-enacted portions of Section 924(c)(1) (but see, e.g., Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 186-188 (1994)), nothing about the amendment is inconsistent with con struing "use[]" of a firearm "during and in relation to any * * * drug trafficking crime" to encompass peti tioner's conduct.

The 1998 amendment responded to this Court's deci sion in Bailey, which construed the "use" provision in Section 924(c)(1) to require "active employment" of a firearm. The purpose of the amendment was to "re vers[e] the restrictive effect of the Bailey decision," by proscribing possession of a firearm that, while not suffi ciently active to fall within Bailey's definition of "use," nevertheless furthered a drug trafficking crime. H.R. Rep. No. 344, 105th Cong., 1st Sess. 6 (1997). The amendment is an alternative means by which a defen dant can violate Section 924(c)(1), under which the gov ernment does not have to establish proof of "use[]." Congress based the amendment on the understanding that "[t]he word 'possession' has a broader meaning than either 'uses' or 'carries.'" Ibid.; 144 Cong. Rec. 26,608 (1998) (statement of Sen. DeWine) (observing that Bailey "severely restricted" Section 924(c) prosecutions and that the amendment was an effort to "restore this crime fighting tool").

Although a drug dealer who takes a firearm in ex change for his drugs generally will be subject to prosecution and punishment under the 1998 amendment, that amendment does not suggest that Congress believed such conduct otherwise escaped punishment under the statute. The 1998 amendment applies to a wide variety of fact patterns other than receipt of a weapon in trade, and the legislative history of the amendment indicates Congress was principally concerned with guns possessed in circumstances akin to those presented in Bailey. See, e.g., 144 Cong. Rec. at 26,608-26,609 (statement of Sen. DeWine) (noting that the amendment is "meant to em brace" the situation "where a defendant kept a firearm available to provide security for the transaction, its fruit or proceeds, or was otherwise emboldened by its pres ence in the commission of the offense"). Moreover, noth ing in the legislative history of the 1998 amendment re flects any specific congressional attention to Section 924(c)(1) offenses involving the bartering of a firearm.

To the contrary, Congress had no need to address bartering. Congress sought to overturn the result in Bailey, not Smith. Smith had construed the "use" pro vision of Section 924(c)(1) to encompass use of a firearm as an item of barter or commerce, and Bailey had reaf firmed that holding. Bailey, 516 U.S. at 148 ("our deci sion today is not inconsistent with Smith"). And, as of the time of the 1998 amendment, the majority of lower courts to reach the question had held that it did not mat ter which side of the bartering transaction the defendant was on: taking a firearm in exchange for drugs consti tuted "use" of the firearm during and in relation to a drug trafficking crime within the meaning of Section 924(c)(1). See United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997); Ulloa, 94 F.3d at 955-956 (5th Cir.); Cannon, 88 F.3d at 1508-1509 (8th Cir.); United States v. Harris, 39 F.3d 1262, 1269 (4th Cir. 1994); Harris, 959 F.2d at 261-262 (D.C. Cir.), abrogated by Stewart, 246 F.3d at 730-732; compare United States v. Woodruff, 131 F.3d 1238, 1243 (7th Cir.) (concluding that exchanging drugs for a gun violates Section 924(c)(1)'s "use" prohibition), cert. denied, 524 U.S. 956 (1998), with Westmoreland, 122 F.3d at 435 (7th Cir.) (concluding that receipt of a gun from a government agent in payment for drugs does not constitute "use" under Section 924(c)(1)).

It is appropriate to presume that Congress was aware of these interpretations of Section 924(c)(1), see, e.g., Cannon v. University of Chicago, 441 U.S. 677, 696-698 (1979), and the 1998 amendment is entirely con sistent with these decisions. Moreover, the extension of Section 924(c)(1) to include possession would even more clearly provide an alternative basis for prosecuting when the defendant offers the gun in exchange for drugs as in Smith. But even petitioner does not suggest that the amendment overturned the result in Smith.

D. Because The Ordinary Tools Of Statutory Construction Make The Meaning Of Section 924(c)(1) Clear, The Rule Of Lenity Has No Application In This Case

Contrary to petitioner's argument (Br. 39-40), the rule of lenity does not apply here. The rule of lenity is "reserved for cases where, [a]fter seiz[ing] every thing from which aid can be derived, the Court is left with an ambiguous statute." Smith, 508 U.S. at 239 (quoting United States v. Bass, 404 U.S. 336, 347 (1971)) (internal quotation marks omitted). "The simple existence of some statutory ambiguity * * * is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree." Muscarello, 524 U.S. at 138. As the Court explained in Moskal v. United States, 498 U.S. 103, 108 (1990), "[b]ecause the meaning of lan guage is inherently contextual, [the Court has] declined to deem a statute 'ambiguous' for purposes of lenity merely because it was possible to articulate a construc tion more narrow than that urged by the government." Instead, the rule of lenity comes into play only when there is a "grievous ambiguity" in the statutory text such that, "after seizing everything from which aid can be derived, . . . [the Court] can make no more than a guess as to what Congress intended." Muscarello, 524 U.S. at 138-139 (internal quotation marks and citations omitted).

There is no such grievous ambiguity here. The text of Section 924(c)(1), the language of related provisions in Section 924(d), and the fundamental purpose of the statute all compel the conclusion that an individual, like petitioner, who takes a firearm in order to close an ille gal drug deal uses that firearm during and in relation to a drug trafficking crime.

CONCLUSION

The judgment of the court of appeals should be af firmed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DEANNE E. MAYNARD
Assistant to the Solicitor
General
WILLIAM C. BROWN
Attorney

JUNE 2007

1 Only the "use" provision is directly at issue here. Petitioner was not indicted under the "carry" or "possession" prongs of the statute. J.A. 7-8.

2 Cf. United States v. Frederick, 406 F.3d 754, 764 (6th Cir. 2005) (stating, in a possession-in-furtherance case, that "a defendant's willing ness to accept possession of a gun as consideration for some drugs he wishes to sell does 'promote or facilitate' that illegal sale," and that "[i]f the defendant did not accept possession of the gun, and instead insisted on being paid fully in cash for his drugs, some drug sales-and there fore some drug trafficking crimes-would not take place"); accord United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007).

3 Nor does this Court's decision in Jones v. United States, 529 U.S. 848 (2000), which held that a private residence is not a building "used in" interstate commerce, advance petitioner's cause. See Br. 18. Un like a person who trades drugs in exchange for a gun, a building cannot be an active participant in a transaction, and, in any event, Jones did not involve an effort to exchange a private home as part of the relevant transaction.

4 Those offenses include "unlicensed receipt of a weapon from outside the State," in violation of 18 U.S.C. 922(a)(3); "receipt of stolen firearms," in violation of 18 U.S.C. 922(j); and "shipment or receipt of a firearm with intent to commit a felony," in violation of 18 U.S.C. 924(b). Smith, 508 U.S. at 234 & n.*. In addition, as the First Circuit has observed, Section 924(d)(3) references several other offenses con sisting of receipt of a firearm as an item of commerce, including "those described in 18 U.S.C. § 922(a)(1)(A) (unlicensed importing, dealing in, or receiving firearms), * * * § 922(l) (importation of firearms or re ceipt of imported firearms), [and] § 922(n) (receipt of firearm by person under indictment)." Cotto, 456 F.3d at 29 n.4.

5 It is true that several of the receipt offenses listed in Section 924(d)(3) also are swept in by other provisions of Section 924(d) to which the "involved in or used in" language applies. See, e.g., 18 U.S.C. 924(d)(1) (listing Section 922(j) as one such offense). But the fact that Congress has overlapping forfeiture provisions with respect to certain (but not all) of the receipt offenses takes nothing away from the fact that, in the text referring to the Section 924(d)(3) offenses, Congress saw no need to "expand the language for offenses in which firearms were 'intended to be used,'" even though receipt of a firearm constituted the offense. See Smith, 508 U.S. at 235.

6 Indeed, the law would generally permit a defendant who receives a firearm in trade to be held liable for the introduction of a dangerous weapon into the transaction by his trading partner. Although the gov ernment did not seek to impose liability on petitioner under an aiding and abetting theory, the government generally could (at least where the individual who supplies the drugs is not a government agent) "charge the party receiving the gun with aiding and abetting the party supply ing it." Westmoreland, 122 F.3d at 436 n.1. See United States v. Price, 76 F.3d 526, 529 (3d Cir. 1996) (explaining that aiding and abetting liability under 18 U.S.C. 2 applies to a charge of using or carrying a firearm under Section 924(c)) (collecting cases); United States v. Long, 905 F.2d 1572, 1576-1577 n.8 (D.C. Cir.) (Thomas, J.) (observing that, "where the government proves that a defendant has aided or abetted another person's 'use' of a firearm, the defendant may be punished as a principal regardless of whether the defendant himself has actually or constructively possessed the firearm"), cert. denied, 498 U.S. 948 (1990); see also United States v. Hornaday, 392 F.3d 1306, 1311-1314 (11th Cir. 2004) (discussing possible liability for aiding and abetting under 18 U.S.C. 2 for causing a government agent to do an act that would have been criminal if performed by the defendant), cert. denied, 545 U.S. 1134 (2005).

Type: 
Merits Stage Brief
Updated October 21, 2014