United States v. Rains

Case: 09-50724 Document: 00511211874 Page: 1 Date Filed: 08/23/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 23, 2010

No. 09-50724 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellee
v.

MICHAEL GLYN RAINS; DAVID ALAN ALDRIDGE

Defendants - Appellants

Appeals from the United States District Court
for the Western District of Texas

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Following a jury trial, Michael Rains and David Aldridge were found guilty
of various crimes related to the manufacture and sale of methamphetamine.
Rains challenges the sufficiency of the evidence supporting the jury’s finding
that he was in an agreement to manufacture methamphetamine, the weight
involved, and his intent to distribute. Aldridge argues that the district court
erred in denying his motion to suppress and in enhancing his sentence under 21
U.S.C. § 841(b)(1)(A) based on a prior conviction under 18 U.S.C. § 924(c).
I
Rains and Aldridge were members of a drug ring that manufactured, used,
and sold methamphetamine in and around Odessa, Texas. They used a
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rudimentary chemical process commonly known as the “red P method” to
manufacture methamphetamine. The red P method requires certain precursor
chemicals, specifically, phosphorus, iodine, and pseudoephedrine, which can be
produced using a variety of household items and legally available products, such
as matchbooks, iodine, and over-the-counter decongestants.
In an effort to curb methamphetamine production, the federal government
has implemented restrictions on the amount of decongestants containing
pseudoephedrine, such as Sudafed, that can be purchased on a daily and
monthly basis. See 21 U.S.C. § 844(a). Pharmacies keep records of the sale of
these decongestants and often require a purchaser to furnish identification and
sign a dated receipt. In order to avoid the limits, Aldridge and Rains purchased
decongestants at a variety of different pharmacies.1 Pharmacy records indicated
that during the relevant period, Aldridge purchased 121.5 grams of
pseudoephedrine and Rains purchased 193 grams. Other conspirators also
purchased pseudoephedrine pills and exchanged them with the cookers for drugs
or money. Because of the difficulty in acquiring pseudoephedrine, Aldridge and
Rains cooked relatively small batches of methamphetamine two to three times
a week, usually at Rains’s house.
The conspirators also went to some length to acquire iodine. Because
many stores that previously sold crystalized iodine had stopped doing so in
response to its use in methamphetamine production, the conspirators turned to
purchasing concentrated liquid iodine from a veterinary clinic in Andrews,
Texas. Although they had to process the liquid iodine in order to use it, the
conspirators purchased numerous bottles from the clinic.2

1
Apparently, pharmacies often cannot or do not share these records, and individuals
are able to exceed the statutory limits by purchasing decongestants from different pharmacies.
2
The frequent purchases raised the veterinarian’s suspicions, causing him to report
the purchases to the police. These tips lead to a traffic stop and arrest, during which evidence

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The conspirators worked together to ready the precursors and cook the
methamphetamine. A grand jury indicted several members of the conspiracy in
late 2008, and the police executed a series of coordinated arrests. Over the next
few months, several of the indicted conspirators pled guilty and agreed to testify
against Rains and Aldridge. The grand jury subsequently issued a superceding
indictment, charging Rains, Aldridge, two other named persons, and persons
known and unknown with conspiring to manufacture in excess of fifty grams of
methamphetamine. It further charged both Rains and Aldridge with possession
of methamphetamine with the intent to distribute 3 and a variety of counts of
purchasing more than nine grams of pseudoephedrine within a thirty-day period.
Aldridge was also charged with possession of methamphetamine and
possession of methamphetamine-manufacturing equipment))charges stemming
from the traffic stop. Aldridge moved to suppress the evidence from the stop and
his subsequent arrest, arguing that the police lacked reasonable suspicion to
stop the car. After holding a hearing, the district court denied the motion.
Rains and Aldridge were tried together before a jury. The jury returned
a guilty verdict against both men on all counts of the superceding indictment.
As discussed below, the district court applied a sentencing enhancement that
resulted in a mandatory life sentence for Aldridge.4 This appeal followed.
II
A
Rains challenges the sufficiency of evidence supporting his convictions on
three grounds. Specifically, he contends there was insufficient evidence that (1)

of methamphetamine production was seized.
3
The intent-to-distribute counts were not based on the same methamphetamine being
possessed by both men. Rather, each count was based on distinct drugs.
4
Rains does not challenge his sentence on appeal.

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he was involved in a conspiracy with any of the co-conspirators named in the
indictment; (2) the conspiracy involved more than fifty grams of
methamphetamine; and (3) he possessed the 15.84 grams with intent to deliver.
When reviewing challenges to the sufficiency of evidence supporting a
conviction, we view the evidence and the inferences that may be drawn from it
in the light most favorable to the verdict, and determine whether a reasonable
jury could have found the essential elements beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Martinez, 151
F.3d 384, 388 (5th Cir. 1998). “The evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, and the jury is free to choose among reasonable constructions of the
evidence.” United States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007).
Evidence presented to the jury supports a conclusion that Rains conspired
with other named and unnamed co-conspirators.5 Misty Crow testified that she
purchased pseudoephedrine pills for Rains so that he could manufacture
methamphetamine. Crow testified that she and others would aggregate their
pills for Rains to cook methamphetamine at Rains’s house in Odessa, Texas.
Rains admitted to police that Crow bought pills for him to manufacture
methamphetamine, and that he gave her methamphetamine in return. Crow
further testified that Aldridge and Rains manufactured methamphetamine
together, usually at Rains’s house. Crow explained that Aldridge performed the
same tasks as she did, such as crushing pills and cutting up matches, in order
to cook methamphetamine at Rains’s house. Randi Mutter and Michelle Preston
also testified that they gave Rains pills in exchange for money and drugs and

5
Contrary to Rains’s argument, the government was not required to prove that Rains
was in a conspiracy with any of the co-conspirators named in the indictment. The superceding
indictment charges that Rains conspired with named co-conspirators “and with other persons
known or unknown.” The inclusion of the “other persons” language broadens the conduct
beyond the named conspirators. See United States v. Thomas, 348 F.3d 78, 83 (5th Cir. 2003).

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helped him crush pills and strip match boxes to ready the cooking ingredients.
This evidence was sufficient for a reasonable juror to conclude that Rains was
involved in a conspiracy to manufacture methamphetamine with Aldridge, who
was named in the superceding indictment, and various unnamed other persons.
See United States v. Lewis, 476 F.3d 369, 386)87 (5th Cir. 2007).6
Regarding the weight of drugs involved, the testimony of the state’s expert
chemist and the records of Rains’s pseudoephedrine purchases are sufficient to
support the jury’s finding that more than fifty grams of methamphetamine were
involved. The chemist testified that an average methamphetamine cook could
obtain a yield of “somewhere between 45 and 70 percent,” or 4.5 to 7 grams of
methamphetamine from every 10 grams of pseudoephedrine. Records from
various pharmacies established that Rains purchased approximately 193 grams
of pseudoephedrine. Even using the low end of the average methamphetamine
cook’s potential yield and only the pseudoephedrine Rains himself purchased,
the jury could reasonably have concluded the conspiracy involved more than fifty

6
At oral argument, Rains’s counsel additionally argued that it was improper for the
government to prove a two-member conspiracy when the indictment alleged a four-member
conspiracy. He contended that because the indictment mentioned certain alleged co-
conspirators by name, the government was obligated to provide evidence of their participation.
In support of the argument, he cited to United States v. Miller, 471 U.S. 130 (1983), Russell
v. United States, 369 U.S. 749 (1961), and Ex Parte Bain, 121 U.S. 1 (1887). Assuming without
deciding that this argument could be raised for the first time at oral argument, we find it
unavailing because the evidence presented was within the indictment. See United States v.
Gonzales, 436 F.3d 560, 577 (5th Cir. 2006) (“[A]n instruction which does not broaden the
possible bases of conviction beyond what is embraced in the indictment does not constitute a
constructive amendment.” (emphasis in original)); United States v. Easter, No. 05-41352, 2006
WL 1877218, slip op. at 7 (5th Cir. 2006) (per curiam). Although, as noted in United States
v. McGilberry, 480 F.3d 326, 332 n.5 (5th Cir. 2007), “a constructive amendment complaint
might be successful if [the indictment were so broad that] there were reason to believe the
defendant lacked notice as to the underlying conduct he was being charged with,” here, there
is no indication that Rains lacked such notice. See United States v. Thomas, 12 F.3d 1350,
1358 (5th Cir. 1998). Accordingly, we find no issue with any discrepancy between the conduct
charged in the indictment and the conduct proven at trial.

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grams of methamphetamine.7 Thus, the evidence on weight was sufficient to
support the verdict.
There was also sufficient evidence of intent to sell. When Rains was
arrested, he had 15.84 grams of methamphetamine in his possession, along with
approximately $3,000 cash in a pouch around his neck. The methamphetamine
was relatively impure, which a police expert testified was indicative of
distribution rather than personal use because a cooker would not dilute the
product he was using. See United States v. Gonzalez, 339 F. App’x 400, 403 (5th
Cir. 2009) (per curiam). Moreover, there was testimony from which the jury
could infer that 15.84 grams is much more than a normal amount for daily
personal use, thus negating Rains’s defense theory. See United States v. Torres,
212 F. App’x 361, 366)67 (5th Cir. 2007) (per curiam). Based on the evidence
presented, the jury could reasonably conclude Rains possessed the drugs with
the intent to sell. See id.
In conclusion, we find the evidence sufficient to support Rains’s
convictions.
B
Aldridge argues that an investigatory vehicle stop that led to his arrest
and the seizure of several items related to the manufacture of
methamphetamine was made without the necessary reasonable suspicion.
According to Aldridge, since the stop was illegal, the district court erred in
denying his motion to suppress the evidence as fruit of the poisoned stop.
In reviewing the district court’s ruling on a motion to suppress, we review
the district court’s factual findings for clear error and its legal conclusions de
novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v.
Rangel-Portillo, 586 F.3d 376, 379 (5th Cir. 2009). The evidence is viewed in the

7
Assuming Rains achieved only a 45% yield, the 193 grams he purchased would
produce approximately 87 grams of methamphetamine.

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light most favorable to the party that prevailed in the district court. See United
States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000). “The reasonableness of an
investigatory stop . . . is reviewed de novo.” See United States v. Campbell, 178
F.3d 345, 348 (5th Cir. 1999) (internal quotation marks and citation omitted).
We analyze the reasonableness of traffic stops and investigative detentions
of motorists who are suspected of criminal activity under the framework
established in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Stevens, 487
F.3d 232, 244 (5th Cir. 2007). “Under Terry, we determine the reasonableness
of an investigative stop by examining: (1) whether the officer’s action of stopping
the vehicle was justified at its inception, and (2) whether the officer’s actions
were reasonably related in scope to the circumstances that justified the stop.”
Id. (citing Terry, 392 U.S. at 19)20). An investigative vehicle stop is permissible
under Terry when an officer has a reasonable suspicion, supported by articulable
facts, that criminal activity may be afoot. United States v. Lopez-Moreno, 420
F.3d 420, 430 (5th Cir. 2005). A “mere hunch” will not suffice, but a reasonable
suspicion does not need to rise to the level of probable cause. Id. A tip may
provide the reasonable suspicion necessary to justify an investigative stop.
United States v. Martinez, 486 F.3d 855, 861)62 (5th Cir. 2007).
In this case, prior to the challenged stop, Andrews, Texas police officers
had received information from Benjamin Hada, a veterinarian, about an increase
in the number of iodine purchases made at his veterinary clinic. Whereas
previously he sold between three and six pint-sized bottles of 7% iodine per year,
he was selling that many in a month. The police confirmed Dr. Hada’s suspicion
that the iodine might be used to manufacture methamphetamine, and Dr.
Hada’s clinic employees thereafter notified police officials when they noticed
individuals purchasing large or unusual amounts of iodine.
On the day of the stop, a clinic employee called the Andrews Police
Department with information that a female had just purchased three bottles of

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iodine from Dr. Hada’s clinic. The clinic records indicated that this same woman
had purchased eleven bottles of iodine over the prior nine months, and the clinic
employee indicated to the police her “numerous” previous purchases. The clinic
employee also informed the police that the individual in question listed an
address in Odessa, Texas as her residence, meaning that the woman drove from
Odessa to Andrews, a rural area approximately thirty-five miles northwest of
Odessa, to make these purchases. The clinic employee gave the police the license
plate number and a description of the vehicle in which the woman left.
Based on this tip, the police stopped the vehicle, which belonged to
Aldridge. Aldridge, the woman who purchased the iodine, and one other person
were in the car. During the stop, a police officer noticed a syringe and arrested
the occupants for possession of drug paraphernalia. A further search, conducted
incident to the arrest, yielded the three pint-sized bottles of iodine purchased
from the clinic, plastic tubing, two drug pipes, and receipts for muriatic acid and
hydrogen peroxide, which are also used in the manufacture of
methamphetamine.
Aldridge’s argument is directed at the first Terry prong, namely, whether
the officer’s decision to stop the vehicle was justified at its inception. According
to Aldridge, the tip regarding the purchase of iodine, a legal product, is
insufficient, at least in this case, to establish reasonable suspicion without some
additional investigatory work. Because the officers admittedly had no basis for
the stop other than the tip from the veterinary clinic, he concludes that the stop
was illegal. He cites to United States v. Hauser, 34 F. App’x. 372 (9th Cir. 2002),
United States v. Reinholz, 245 F.3d 765 (8th Cir. 2001), and United States v.
Araque, 255 F. Supp. 2d 1010 (D. Neb. 2003), in support of this proposition.
The cases cited by Aldridge do not directly address the issue before the
court. In Araque, the district court did not hold that facts similar to the instant
facts would necessarily run afoul of the Fourth Amendment. Rather, the court

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said that the tip “might not alone have been sufficiently reliable to justify an
investigatory stop of the car.” 255 F. Supp. 2d at 1012 (emphasis added).
Araque did not have to reach the question presented here because additional
facts supported the stop, namely, the purchase of pseudoephedrine shortly after
the aborted attempt to purchase iodine. Likewise, Reinholz did not address the
issue before us. In that case, the police conducted additional investigation
following a tip from a pharmacist about the suspicious purchase of iodine
crystals. 245 F.3d at 770)71. The issue, however, was whether the police
affidavit misled the judge that issued the search warrant, not the propriety of
an investigative vehicle stop. Id. at 773. Finally, in Hauser, the court
mentioned some follow-up investigation, but in no way intimated that all stops
relying on tips are necessarily invalid without such investigation. 34 F. App’x.
at 372. Thus, we do not find that these cases provide persuasive support to
Aldridge.
Aldridge’s argument might have more force if the tip had come from a
merchant reporting a single purchase of ordinary strength iodine. Here,
however, the tippee reported the purchase of three bottles of highly concentrated
iodine, following the purchase of numerous such bottles in the prior months.
Based on previous discussions between Dr. Hada and the police concerning the
typical sale of iodine in the clinic, it was reasonable for the officers to infer that
the purchase of such a large quantity in a relatively short period of time
indicated that the purchaser intended to use the iodine illegally, that is, for the
production of methamphetamine. See United States v. Arvizu, 534 U.S. 266, 273
(2002) (noting that officers are allowed “to draw on their own experience and
specialized training to make inferences from and deductions about the
cumulative information available to them”). Indeed, as the district court noted,
previous tips from the clinic had already resulted in the police shutting down a
different methamphetamine manufacturing operation. Moreover, this same

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woman had purchased eleven pint sized bottles of concentrated iodine over the
prior nine months. We therefore hold that the purchase of the three additional
bottles of iodine, when viewed within the “totality of the circumstances,” see
United States v. Perkins, 352 F.3d 198, 199 (5th Cir. 2003), including the ongoing
and previously reliable communication between the veterinary clinic and the
police, provided reasonable suspicion sufficient to justify the stop. Accordingly,
the district court did not err in denying Aldridge’s motion to suppress.
C
The district court gave Aldridge a lifetime mandatory minimum sentence
pursuant to 21 U.S.C. § 841(b)(1)(A) because it found that Aldridge had two
previous “felony drug offenses.”8 Aldridge acknowledges that he has one such
offense but argues that a previous conviction under 18 U.S.C. § 924(c) for
possession of a firearm in furtherance of a drug trafficking crime is not a “felony
drug offense,” and thus cannot serve as the basis for the enhancement.
We review de novo whether a conviction under § 924(c) counts as a felony
drug offense for purposes of applying the enhancement under § 841(b)(1)(B).
United States v. Santos-Riviera, 183 F.3d 367, 369 (5th Cir. 1999). This is an
issue of first impression in this circuit, and we approach it with the gravity
appropriate to a consideration on which a mandatory life sentence depends.
As in any case involving statutory interpretation, we begin by examining
the text of the relevant statutes. Watt v. Alaska, 451 U.S. 259, 265 (1981).
Section 841(b)(1) does not define “felony drug offense,” but the term is defined
in 21 U.S.C. § 802(44). “Because the term ‘felony drug offense’ is specifically
defined in § 802(44), and § 841(b)(1) . . . makes use of that precise term, the

8
21 U.S.C. § 841(b)(1)(A)(viii) provides: “If any person commits a violation of [the
subsection criminalizing the manufacture of 50 grams or more of methamphetamine, among
other offenses] after two or more prior convictions for a felony drug offense have become final,
such person shall be sentenced to a mandatory term of life imprisonment without release.”

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logical, commonsense way to interpret ‘felony drug offense’ in § 841(b)(1) . . . is
by reference to the definition in § 802(44).” United States v. Roberson, 459 F.3d
39, 52 (1st Cir. 2006). Section 802(44) provides that a “felony drug offense” is:
an offense that is punishable by imprisonment for more than one
year under any law of the United States or of a State or foreign
country that prohibits or restricts conduct relating to narcotic drugs,
marihuana, anabolic steroids, or depressant or stimulant
substances.

The law under which Aldridge was punished, § 924(c), provides:
any 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 additional penalties for
violation of this section].

The issue is whether § 924(c) qualifies as a “law . . . that prohibits or restricts
conduct relating to [drugs].”
In the only circuit case addressing this issue, United States v. Nelson, 484
F.3d 257 (2007), a panel of the Fourth Circuit split. The majority held that
§ 924(c) could be the basis for the enhancement, at least when the record made
clear the conviction involved a drug trafficking crime rather than a crime of
violence. Id. at 261. The court reasoned that because Nelson’s conduct was not
criminal under § 924(c) without his possession of crack with the intent to
distribute, the § 924(c) conviction was an offense that prohibited or restricted
conduct relating to narcotic drugs under § 802(44). Id. The dissent focused on
§ 802(44)’s use of the word “law,” and concluded that an examination of the
documents of conviction was inappropriate: a law either does or does not prohibit
drug related conduct, and § 924(c), at least in some circumstances, does not. Id.
at 264)66. Therefore, it could not be the basis of the enhancement. Id.

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The government analogizes the instant case to United States v. Mankins,
135 F.3d 946 (5th Cir. 1998), which was cited by both the majority and dissent
in Nelson. See 484 F.3d at 261, 264 n.1. In Mankins, we held that a conviction
under 21 U.S.C. § 843(b) for using a communications facility to facilitate the
commission of a drug offense counted as a “felony drug offense” under § 802(44).
135 F.3d at 949)50. We reasoned that because some drug conduct, either an
independent drug crime or the facilitation of such a crime, is an element of a
§ 843(b) conviction, the statute prohibits drug-related acts, and thus falls within
the definition of a“felony drug offense” in that it “prohibits or restricts conduct
relating to [unlawful controlled substances].” Id. at 849 (quoting § 802(44)).
Although this reasoning supports the government’s argument, Mankins does not
control this case. Unlike § 924(c), which penalizes some non-drug-related
activity, § 843(b) always involves drugs. Because it is impossible to violate
§ 843(b) without drug-related activities, Mankins does not present a situation in
which some violations may constitute felony drug offenses, whereas others may
not. Therefore, it is not entirely applicable to the issue before the court.
We have, however, issued another decision closely analogous to this case.
See United States v. Curry, 404 F.3d 316 (5th Cir. 2005) (per curiam). Just as
in this case, Curry had received a life sentence under § 841(b)(1)(A) and
challenged whether one of his prior convictions should have counted as a “felony
drug offense” under § 802(44). Id. at 317. The disputed conviction was under a
Louisiana state law criminalizing the possession of contraband in a state
correctional institution. Id. at 318. Because the underlying state offense
reached contraband of any kind, whether it be a weapon or crack cocaine, it was
possible to be convicted under the statute without drugs being involved. Id. at
320. Acknowledging that a conviction for “the general crime of possession of
contraband in a penal institution” might not sustain the enhancement, the court
nonetheless held that the conviction supported the enhancement because the

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“state court Bill of Information . . . identified marijuana as the contraband.” Id.
The court cited to Shepard v. United States, 544 U.S. 13 (2005), to support its
conclusion that “not just the generic crime of possession of contraband [should
be] considered . . . , but the underlying facts, proved by the undisputed formal
conviction records.” Id.
Applying Curry to the facts of this case, we must conclude that Aldridge’s
§ 924(c) conviction should be considered a felony drug offense under § 802(44).
Aldridge does not dispute that the indictment and plea indicate his § 924(c)
conviction involved a drug trafficking crime and not a crime of violence.
Aldridge was charged with possession of methamphetamine with intent to
distribute and possession of a firearm in furtherance of that crime. He pled
guilty to the § 924(c) charge, and the predicate drug charge was dismissed.
However, since Aldridge could only plead guilty to the § 924(c) charge if he
engaged in the predicate drug conduct, he necessarily admitted that his conduct
involved possession with intent to distribute methamphetamine. See Mankins,
135 F.3d at 949. That is, Aldridge was punished under a law that, at least in
this situation, prohibited conduct relating to drugs.
Aldridge argues that even if § 924(c) reaches drug conduct, it should not
count as a felony drug offense because it is more appropriately considered a
firearms offense than a drug offense. He points to the fact that § 924(c) is in
Title 18, whereas the majority of drug laws are found in Title 21. This argument
has a certain intuitive force. However, Curry establishes that it is permissible
to apply the enhancement even when the statute of conviction covers non-drug-
related conduct so long as the record makes clear the actual violation involved
drugs. 404 F.3d at 320. If the law need not reach drug conduct in its every
application, Aldridge’s argument loses much of its force. Section 924(c) may
more appropriately be considered a firearms statute, but, if so, it is a firearms
statute that, at least in some situations, prohibits conducted related to drugs.

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See United States v. Brown, 598 F.3d 1013, 1015)16 (8th Cir. 2010) (discussing
broad ordinary meaning of the phrase “related to narcotic drugs”).
Aldridge also asks us to apply the rule of lenity, which requires courts to
construe ambiguous criminal statutes in favor of defendants. United States v.
Granderson, 511 U.S. 39, 54 (1994). As Aldridge notes, the text of § 802(44) does
not specify whether a law that qualifies as a “felony drug offense” must so
qualify in its every application. The statute speaks of “any law . . . that prohibits
or restricts conduct relating to narcotic drugs.” There is no qualification
indicating that the law in question must “only restrict,” “always restrict,” or
merely “restrict in part” conduct relating to drugs. Thus, the language of
§ 802(44) does not necessarily dictate a result when the enhancement depends
on a law that may or may not constitute a felony drug offense. Curry, however,
forecloses application of the rule of lenity based on ambiguity in § 802(44). See
404 F.3d at 320 (“The statutory language and structure of § 802(44) are clear.
There is no need to resort to lenity.”).
In conclusion, we join the Fourth Circuit in holding that § 924(c) can be the
basis for an enhancement under § 841(b)(1) when the record makes clear that
the conviction involved a drug trafficking crime rather than a crime of violence.
See Nelson, 484 F.3d at 261.9
III
For the reasons stated, the judgment and sentence of the district court are
AFFIRMED.

9
We are concerned that this decision could be read to support a double enhancement
when the same underlying conduct gives rise to both a substantive drug offense and a § 924(c)
conviction for possession of a firearm in furtherance of a drug trafficking crime. At oral
argument, the government indicated it would not pursue a double enhancement under these
circumstances. Although we take the government at its word, we also want to be clear that
it is not our intention to authorize such a double enhancement.

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