UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4693
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAD CARSON ELSWICK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:04-cr-00091-jpj)
Argued: October 31, 2008 Decided: December 31, 2008
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded for
resentencing by unpublished per curiam opinion. Judge Shedd
wrote a separate opinion concurring in part and dissenting in
part.
ARGUED: Marc Seguinót, SEGUINÓT & ASSOCIATES, P.C., McLean,
Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: Julia C. Dudley, Acting United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kad Elswick (“Elswick”), was convicted of four counts:
Count One, possession with intent to distribute methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count Two,
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1) and 924(e); Count Three, use of a firearm in
relation to a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A); and Count Four, failure to appear in violation of
18 U.S.C. § 3146(a)(1). Elswick appeals all of his convictions
except that for failure to appear.
As discussed below, Elswick’s challenges to Counts One and
Two lack merit, and we affirm as to those. On these facts,
however, following the Supreme Court’s decision in Watson v.
United States, 128 S. Ct. 579 (2007), his conviction under 18
U.S.C. § 924(c)(1)(A) can no longer be supported. We therefore
reverse as to that count and remand for resentencing.
I.
Federal agents approached Elswick in September 2004 in
connection with an investigation into Larry Blackburn, a
Virginia drug dealer. J.A. at 47-48. The agents initially told
Elswick that he was not being investigated but that they were
merely seeking information regarding a firearm that he had
allegedly possessed. J.A. at 64. In the course of the
2
conversation, the agents learned that Elswick was a convicted
felon. Subsequently, Elswick was indicted on four counts
related to drug possession and distribution, the possession of a
firearm, and failure to appear. J.A. at 16-17.
At trial, Eric Woods testified for the government that he
had stolen his father’s gun in order to trade it for drugs. He
claimed that he gave the gun to his friend, Terry Looney, who
took the gun into a home and returned without it. J.A. at 22-
24. Eric Woods did not know who lived in the home or who
received the gun from Looney; and Looney did not testify at
trial. Later that same day, the two drove to a convenience
store parking lot. There, Looney approached a parked car.
Elswick was seated in the driver’s seat. Eric Woods testified
that Elswick gave Looney “a bag” that contained methamphetamine.
J.A. at 24-26.
Lloyd Woods, Eric’s father, then testified that he received
a call from Elswick sometime later. Elswick stated that he had
Lloyd Woods’s gun and would return the gun to Lloyd Woods in
exchange for a payment of $50. Lloyd Woods agreed and drove to
Elswick’s home where he gave Elswick $50. The gun, however, was
not located at Elswick’s home, and the two men had to wait until
a female arrived with the gun, at which point it was returned to
Lloyd Woods. J.A. at 39-40, 82-83.
3
When questioned by federal agents, Elswick admitted to
having bought a gun from two boys that matched the description
of that owned by Lloyd Woods. Elswick disputed any implication
that drugs were involved in the transaction. J.A. at 49-50. He
then claimed that Blackburn, to whom he had sold or pawned the
gun, told him to return it to Lloyd Woods since it had a defect.
He signed a copy of a statement setting forth those facts. J.A.
at 50, 134. At trial, Elswick claimed that the statement he
gave to investigators was not true and offered a different
account of how he came to sell the gun back to Lloyd Woods. His
trial testimony centered on the fact that his long-time live-in
girlfriend had bought the gun and that he lied when
investigators questioned him because at the time she was dying
of cancer and he wanted to protect her. J.A. at 84-85.
Elswick also failed to appear before the court, one of the
conditions of his supervised release. Following his jury trial,
Elswick was convicted on all counts. He timely filed this
appeal.
II.
Elswick alleges that there is insufficient evidence in the
record to support his convictions on possession of
methamphetamine with intent to distribute, being a convicted
felon in possession of a firearm, and using a firearm in
4
relation to or possessing a firearm in furtherance of a drug
crime. Challenges to the sufficiency of evidence are reviewed
de novo. United States v. Kelly, 510 F.3d 433, 440 (4th Cir.
2007). A court reviews a jury verdict to determine whether
“there is substantial evidence, taking the view most favorable
to the Government, to support [the verdict].” United States v.
Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en banc) (citation
omitted). The court therefore looks to see whether, based upon
the evidence in the record “and the reasonable inferences to be
drawn therefrom[,] . . . the evidence adduced at trial could
support any rational determination of guilty beyond a reasonable
doubt.” Id. at 863 (quoting United States v. Powell, 469 U.S.
57, 67 (1984)) (internal quotations omitted); see also Jackson
v. Virginia, 443 U.S. 307, 318 (1979) (“[T]he critical inquiry .
. . [is] whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt.”). We discuss each
of Elswick’s bases for appeal in turn.
A.
Elswick first challenges the sufficiency of the evidence on
which his conviction for the possession of methamphetamine with
intent to distribute is based.
This challenge is without merit. In order to convict
Elswick, the government was required to show that he knowingly
5
possessed the controlled substance in question and intended to
distribute it. See United States v. Randall, 171 F.3d 195, 209
(4th Cir. 1999). The government here presented eyewitness
testimony from Eric Woods that Elswick both possessed and
distributed methamphetamine. Witness testimony that could be
credited by a reasonable juror is itself “sufficient to sustain
the jury verdict.” United States v. Whittington, 455 F.3d 736,
740 (6th Cir. 2006); see also United States v. Catalan-Vazquez,
211 F. App’x 864, 866 (11th Cir. 2006) (unpublished) (holding
that a jury may base its verdict on any testimony not
“unbelievable on its face” or “so contrary to the teachings of
human experience that no rational person could believe in it”
(quoting United States v. Jones, 913 F.2d 1552, 1559 n.7 (11th
Cir. 1990))); United States v. Carpenter, 422 F.3d 738, 746 (8th
Cir. 2005) (finding that corroboration of witness testimony is
not required because credibility is for the jury to determine).
Because a reasonable jury could have found Eric Woods’s
testimony credible and because that testimony was a sufficient
basis for the conviction, Elswick’s challenge fails.
B.
Elswick also raises a challenge to the sufficiency of the
evidence supporting his conviction under 18 U.S.C. § 922(g) for
6
being a convicted felon in possession of a firearm. Proving the
offense requires a showing that:
(1) the defendant previously had been convicted of a
crime punishable by a term of imprisonment exceeding
one year; (2) the defendant knowingly possessed,
transported, shipped, or received, the firearm; and
(3) the possession was in or affecting commerce,
because the firearm had travelled in interstate or
foreign commerce at some point during its existence.
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc).
Elswick contends that the government failed to demonstrate
that he knowingly possessed a firearm. At trial, the government
introduced testimony from Lloyd Woods and Elswick’s own signed
statement to show that Elswick had knowingly possessed the
firearm. See J.A. at 40-41, 134. This constitutes evidence
sufficient to permit a reasonable jury to conclude that Elswick
possessed a gun in violation of the statute.
C.
Finally, Elswick challenges his conviction under 18 U.S.C.
§ 924(c)(1)(A). The government contends that Elswick does not
challenge the sufficiency of the evidence on this conviction,
only the application of Watson to his conduct. Appellee’s Br.
at 19 n.3. While it is true that Elswick frames this argument
slightly differently from his other two sufficiency challenges,
he does argue for a standard of review that is based upon an
7
insufficiency of the evidence challenge. Appellant’s Br. at 29.
In addition, his Fourth Circuit case law citation applying
Watson to a previously-rendered 924(c)(1) conviction is based
upon a sufficiency of the evidence challenge. Id. at 30 (citing
United States v. Purnell, 269 F. App’x 313 (4th Cir 2008)
(unpublished)). Elswick has sufficiently raised the challenge
for this court to be able to review the sufficiency of the
evidence with respect to his 924(c)(1)(A) conviction.
18 U.S.C. § 924(c)(1)(A) has two prongs. 1 One criminalizes
the use or carrying of a firearm in relation to a drug
1
The full text of the statute reads:
Except to the extent that a greater minimum sentence
is otherwise provided by this subsection or by any
other provision of law, any person who, during and in
relation to any crime of violence or drug trafficking
crime (including a crime of violence or drug
trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may
be prosecuted in a court of the United States, 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—
(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A).
8
trafficking crime. The other prong criminalizes the possession
of a firearm in furtherance of a drug trafficking crime.
Neither the indictment nor the verdict in Elswick’s case
distinguished between the use and possession prongs of
924(c)(1)(A).
While this appeal was pending, the Supreme Court decided
Watson. In that case, the Court held that an individual who
receives a gun in exchange for drugs cannot be said to “use” the
gun in relation to a drug trafficking offense. 128 S. Ct. at
586. Thus, in order to show use of a firearm in relation to a
drug trafficking offense, the government must prove “active
employment of the firearm by the defendant, a use that makes the
firearm an operative factor in relation to the predicate
offense.” Id. at 581-82 (quoting Bailey v. United States, 516
U.S. 137, 143 (1998)). Following Watson, there is no evidence
in the record to substantiate a use charge. The government
presented no evidence that Elswick attempted to acquire drugs
using the gun, nor that he in any way employed the gun for any
purpose related to a drug transaction. The government concedes
that Elswick can no longer be held guilty under the use prong of
924(c)(1)(A). Appellee’s Br. at 17.
The government argues, however, that Elswick’s conviction
remains valid because it was premised upon the possession prong.
The Supreme Court in Watson did not reach the question of
9
whether the possession prong of 924(c)(1)(A) would apply to
situations where a gun was received in exchange for drugs. 128
S. Ct. at 585-86.
In order to convict Elswick for possession of a firearm
under 924(c)(1)(A), the government is required to show that
Elswick (1) possessed a firearm (2) in furtherance of a drug
trafficking crime. While the evidence in the record is
sufficient to prove the first element, on these facts we find
that the government’s proof fails to demonstrate the required
connection between the possession of the gun and the drug
trafficking crime.
1. Possession
The record reflects evidence sufficient to support the
charge that Elswick possessed the firearm. Lloyd Woods, a
government witness, testified that he received a telephone call
from Elswick. Elswick informed Mr. Woods that his gun was
available for redemption from Elswick at a price of $50. Mr.
Woods went to Elswick’s house and met with Elswick, whereupon
Elswick informed Mr. Woods that the gun was being brought over.
A female arrived, and Mr. Woods paid Elswick the required
amount. Elswick then took the gun from the female and handed it
to Mr. Woods. J.A. at 40. In his statement to Agent Yoh,
10
Elswick acknowledged having been in possession of the gun. J.A.
134.
While Elswick testified that his signed statement was
false, credibility determinations and conflicting testimony by
witnesses are questions for the jury to resolve. Burgos, 94
F.3d at 862-63 (citing United States v. Lowe, 65 F.3d 1137, 1142
(4th Cir. 1995)). In this case, the record reflects enough
evidence to have enabled a reasonable trier of fact to conclude
that Elswick did possess the gun.
2. In Furtherance Of
However, on these facts the government has not shown
sufficient evidence to permit the conclusion that Elswick’s
possession was “in furtherance of” a drug trafficking crime as
required by the statue. The Fourth Circuit reads “furtherance”
in this statutory scheme according to its plain meaning: “the
act of furthering, advancing, or helping forward.” United
States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (citations
omitted) (finding that this reading accords with the
Congressional intent in amending the statute to criminalize
possession). The government therefore bears the burden of
presenting evidence that the gun was possessed in furtherance of
a drug trafficking crime, which requires demonstrating some
connection between the gun and the drug crime. United States v.
11
McDaniel, No. 06-5051, 2008 WL 3977880, at *1 (4th Cir. Aug. 25,
2008) (unpublished); Lomax, 293 F.3d at 705; see also United
States v. Porter, No. 07-14627, 2008 WL 4140283, at *6 (11th
Cir. Sept. 9, 2008) (requiring proof of “some nexus between the
firearm and the drug selling operation”) (quoting United States
v. Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002)); United States
v. Hilliard, 490 F.3d 635, 640 (8th Cir. 2007) (applying a nexus
requirement); United States v. Harris, 477 F.3d 241, 244 (5th
Cir. 2007) (the burden is the government’s); United States v.
Bobb, 471 F.3d 491, 496 (3rd Cir. 2006) (holding that evidence
is sufficient to support a conviction where it establishes “a
nexus between the possession of the gun and the drug
trafficking”); United States v. Mosely, 465 F.3d 412, 417 (9th
Cir. 2006) (examining whether the required nexus can be shown
based on the totality of the circumstances).
In this case, the “factual question” of whether the
evidence supports a finding that the gun was possessed in
furtherance of a drug trafficking crime, Lomax, 293 F.3d at 705,
turns on the content of the record from the trial below. Courts
have given wide scope to the theories by which the government
may show the required connection between possession of a firearm
and a drug trafficking crime:
When making this factual determination, the fact
finder is free to consider the numerous ways in which
a firearm might further or advance drug trafficking.
12
For example, a gun could provide a defense against
someone trying to steal drugs or drug profits, or it
might lessen the chance that a robbery would even be
attempted. Additionally, a gun might enable a drug
trafficker to ensure that he collects during a drug
deal. And a gun could serve as protection in the event
that a deal turns sour. Or it might prevent a
transaction from turning sour in the first place.
Furthermore, a firearm could help a drug trafficker
defend his turf by deterring others from operating in
the same area.
Id. (adopting the listed examples from those enumerated in
United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir.
2000)); see also Porter, 2008 WL 4140283, *6 (same); Bobb, 471
F.3d at 496-97 (same).
Other circuits have also upheld convictions on the
possession prong of 924(c)(1)(A) where the gun was in physical
proximity to the drugs being trafficked and there was testimony
that drug dealers kept guns for protection in drug deals, so
that it could reasonably be inferred that the gun was being kept
for use in the drug trafficking enterprise. Hilliard, 409 F.3d.
at 640-41; Bobb, 471 F.3d at 496-97; Mosley, 465 F.3d at 705-06;
see also United States v. James, 464 F.3d 699, 405 (7th Cir.
2006) (holding that where defendant’s associates had testified
to his ownership of several guns, the government had met its
burden by showing that one of those gun and drugs attributed to
the defendant were found in the same shoebox). All of these
constructions suggest that the gun must play some role in the
transaction or have a discernible effect on its outcome.
13
At oral argument, the government contended that because
Elswick received the gun in exchange for drugs, he possessed it
in furtherance of a drug trafficking crime. This is, of course,
the issue the Supreme Court declined to reach in Watson. 128 S.
Ct. 585-86. We conclude, similarly, that we need not resolve it
here. 2
Although we have not had occasion to opine on the
relationship between the “in relation to” and “in furtherance
of” prongs of § 924(c), we find the evidence to be deficient
even under the government’s theory of the case. The government
has proven that Eric Woods took the gun and gave it to Looney
intending that it be exchanged for drugs; that Elswick
trafficked in methamphetamine; and that at some point following
2
Some of our sister circuits have concluded that the phrase
“in furtherance of” in the statutory provision on possession
represents a different, and heightened, standard from that
associated with use and carrying. See United States v. Castano,
No. 06-1720, 2008 WL 4470849, at *7 (6th Cir. Oct. 7, 2008)
(noting that the statutory text requires the government meet a
“higher standard” in possession cases); United States v. Gamboa,
439 F.3d 796, 810 (8th Cir. 2006) (“[T]he language ‘in
furtherance of’ requires a slightly higher standard of
participation than the language ‘during and in relation to.’”)
(citations omitted); United States v. Combs, 369 F.3d 925, 931
(6th Cir. 2004) (analyzing the presence of the disjunctive “or”
to find that the standards are different); Ceballos-Torres, 218
F.3d at 413-15 (finding that the “mere presence” of a firearm,
without more, is not sufficient to meet the higher standard);
accord United States v. Lipford, 203 F.3d 259, 266 (4th Cir.
2000) (holding that even in the case of the “in relation to”
requirement, the presence of the firearm must be more than
coincidental).
14
the drug transaction Elswick was in possession of the gun. The
government has not, however, proven the facts upon which its
theory of Elswick’s 924(c)(1)(A) conviction is predicated: that
he received the gun in exchange for drugs. Based upon the
record, no rational trier of fact could conclude beyond a
reasonable doubt that Elswick possessed a firearm in furtherance
of a drug trafficking crime.
The record shows that Elswick committed a drug trafficking
crime. Eric Woods testified that he saw Elswick hand something
to Looney and that this was a bag of methamphetamine. However,
there is no evidence in the record that Elswick possessed the
gun at the time of this transaction. None of the government’s
witnesses could place Elswick, the gun, and the drugs in the
same chain of events. Though he testified that Elswick later
delivered the drugs they received, Eric Woods did not see who
took possession of the gun from Looney. The later transaction
with Lloyd Woods in which Elswick sold the gun for $50 was not
related to drug trafficking, nor was any claim of such
connection made. Elswick’s statement, which was admitted into
the record, made no mention of a drug transaction; and Eric
Woods did not know who actually received the gun. There is no
evidence that the gun was used for protection or intimidation
during the transaction. Elswick’s possession of the gun is not
temporally connected with the methamphetamine transaction either
15
through the testimony or exhibits presented at trial. The
government could not even establish that Elswick had received
the gun prior to the transaction or was promised it as
compensation for the drugs. In fact, the evidence in the record
does not even establish that the events in question all took
place in the same year. See J.A. at 22, 35, 79, 90, 134.
On the record before us, therefore, it is clear that the
evidence is insufficient to support Elswick’s conviction under §
924(c)(1)(A) for possessing a firearm in furtherance of a drug
trafficking crime.
III.
For the foregoing reasons, we affirm Elswick’s conviction
and sentence as to Counts One and Two, and we reverse and remand
with respect to Count Three for resentencing in accordance with
this opinion.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR RESENTENCING
16
SHEDD, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority’s decision to affirm Elswick’s
convictions for possession with intent to distribute, and
distribution of, methamphetamine (Count 1) and possession of a
firearm by a convicted felon (Count 2), and its conclusion that
Elswick’s conviction under 18 U.S.C. § 924(c) (Count 3) cannot
stand insofar as it is premised on the “use” prong of the
statute in light of Watson v. United States, 128 S. Ct. 579
(2007). However, Elswick was also indicted and convicted in
Count 3 under the separate § 924(c) prong that criminalizes the
possession of a firearm in furtherance of a drug trafficking
crime. The majority holds that the evidence is insufficient to
sustain that conviction because no rational trier of fact could
conclude beyond a reasonable doubt that Elswick possessed a
firearm in furtherance of a drug trafficking crime. I disagree
with this holding. 1
1
Watson is the only basis which Elswick argued in his brief
for reversal on Count 3. See Brief of Appellant, at 29 (Count
3 section title: “Whether Trading Drugs For A Gun Constitutes
The Use Of A Firearm ‘During And In Relation To . . . [A] Drug
Trafficking Crime’ Within The Meaning of 18 U.S.C. §
924(c)(1).”). I therefore question whether we should review the
evidentiary sufficiency on Count 3 as it pertains to the
possession prong. See United States v. Al-Hamdi, 356 F.3d 564,
571 n.8 (4th Cir. 2004) (noting the “well settled rule that
contentions not raised in the argument section of the opening
brief are abandoned”). Moreover, it does not appear that
Elswick challenged the sufficiency of the evidence below under
Federal Rules of Criminal Procedure 29. Accordingly, to the
(Continued)
17
Viewed in the light most favorable to the government, see
Evans v. United States, 504 U.S. 255, 257 (1992), the evidence
is clearly sufficient to support a reasonable determination that
Elswick possessed the firearm in furtherance of a drug
trafficking crime. Specifically, the government presented
evidence that Eric Woods stole his father’s firearm and enlisted
the help of his friend Terry Looney to use it to get drugs.
J.A. 22-23. Looney told Woods that he knew where they could
trade the firearm for drugs, and he took Woods to a house in an
area known as “Dry Fork” and told him that Elswick was the
person there who could give them drugs for the firearm. J.A.
22-23. Looney then went inside the house with the firearm.
J.A. 24. When Looney returned, he told Woods that they needed
to go to a Dry Fork store and wait. J.A. 24. Within 15-20
minutes, Elswick arrived at the store and delivered drugs to
Looney. J.A. 24-25. Elswick later contacted Woods’ father and
returned the firearm to him. J.A. 38-40. Importantly, Elswick
subsequently admitted in a sworn statement that he had obtained
the firearm from “two boys” for $50 at a Dry Fork store. J.A.
extent that we should review this claim at all, our review
should only be for plain error. See United States v. Wallace,
515 F.3d 327, 331-32 (4th Cir. 2008).
18
134. However, Elswick testified at trial that he had lied about
obtaining the firearm in his sworn statement. J.A. 84, 90-91.
By convicting Elswick of Count 1, the jury credited Woods’
testimony (and disbelieved Elswick) that Elswick delivered the
methamphetamine at the convenience store. 2 Based on Elswick’s
admission that he obtained the firearm from “two boys” at a Dry
Fork convenience store, as well as the evidence establishing
that Elswick returned the firearm to Woods’ father, the jury
also could have reasonably found (consistent with Woods’ general
testimony) that Looney delivered the firearm to Elswick
immediately before the drug transaction. This set of
circumstances, properly viewed “as a coordinated and
interrelated whole,” United States v. Hughes, 716 F.2d 234, 240
(4th Cir. 1983), is sufficient to establish that Elswick
received the firearm in payment for the methamphetamine and
2
The jury obviously disbelieved much of Elswick’s testimony
because he not only denied delivering the methamphetamine to
Looney and Woods, but he also denied (contrary to the verdict on
Count 2) ever possessing the firearm. I note that the
difference between Elswick’s pretrial version of events (i.e.,
he bought the firearm for $50) and Woods’ testimony (i.e.,
Looney traded the firearm for drugs) is immaterial because the
jury could have believed that Elswick received the firearm from
Looney and Woods and disbelieved that the exchange was for cash
rather than drugs. See United States v. Pruneda-Gonzalez, 953
F.2d 190, 196 n.9 (5th Cir. 1992) (“Not only is a jury free to
choose among reasonable constructions of the evidence, it is
afforded the latitude to choose to believe part of what a
witness says without believing all of that witness’s testimony.”
(citations and internal punctuation omitted)).
19
thereby possessed the firearm in furtherance of the drug
trafficking crime charged in Count 1. See United States v.
Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (holding that § 924(c)
“requires the government to present evidence indicating that the
possession of a firearm furthered, advanced, or helped forward a
drug trafficking crime . . . [and] whether the firearm served
such a purpose is ultimately a factual question”); see also
United States v. Woods, 271 Fed. Appx. 338, 346 (4th Cir. 2008)
(holding in light of Watson that a defendant who traded drugs
for firearms “obviously ‘possessed’ firearms, under any meaning
of that term, when he obtained them in the course of his drugs-
for-guns business”).
Based on the foregoing, I concur in Parts II-A and II-B of
the majority opinion, but I dissent from Part II-C.
20