United States v. McFadden

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2265
UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL McFADDEN,
a/k/a MICHAEL HUGHES,

Defendant, Appellant.

No. 92-2340
UNITED STATES OF AMERICA,

Appellant,

v.

MICHAEL McFADDEN,
a/k/a MICHAEL HUGHES,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Breyer, Chief Judge,

Aldrich, Senior Circuit Judge,

and McAuliffe,* District Judge.

*Of the District of New Hampshire, sitting by designation.

Alan D. Rose with whom Marilee Denelle and Nutter, McClennen &

Fish were on brief for appellant.

Lon F. Povich, Assistant United States Attorney, with whom A.

John Pappalardo, United States Attorney, was on brief for appellee.

January 18, 1994

ALDRICH, Senior Circuit Judge. Defendant was

indicted in two counts: Count One, "On or about February 26,

1991, at Boston . . . defendant herein did knowingly and

intentionally possess with intent to distribute . . . cocaine

. . . in violation of Title 21, United States Code, Section

841(a)(1)." Count Two, "On or about February 26, 1991, at

Boston . . . defendant herein did knowingly and intentionally

use a firearm . . . during and in relation to the drug

trafficking crime alleged in Count One of this Indictment

. . . in violation of Title 18, United States Code, Section

924(c)." A jury found him guilty on both counts. The court

sentenced him to 21 months on Count One, including points for

possession of a firearm under Sentencing Guidelines.1 It

ordered an acquittal on Count Two. From this the government

appeals. Defendant appeals in other respects. The only

error we find is the acquittal. We start there.

Section 924(c) provides, "Whoever during and in

relation to any crime of violence or drug trafficking crime

. . . uses or carries a firearm" shall receive a mandatory

sentence of five years, to be served on and after the

sentence for the principal offense. The seriousness with

which Congress viewed this conduct is emphasized by the fact

1. U.S.S.G. 2D1.1(b)(1) calls for a two level enhancement,
"[i]f a dangerous weapon (including a firearm) was
possessed." This is an alternative to a conviction under
924(c). U.S.S.G. 2K2.4 (commentary).

-3-

that it denied parole at a time when parole was ordinarily

available as a matter of course. If this may suggest

apprehension of violence (see also 924(c)(2) and (3)), the

Court has not so restricted the statute. Smith v. United

States, 113 S.Ct. 2050 (1993) (gun bartered for drugs

constitutes "use" in relation to drug trafficking).

Before discussing the statute further, we review

the facts in the light, of course, most favorable to the

government. United States v. McNatt, 813 F.2d 499, 502 (1st

Cir. 1987). Defendant, an 18 year old student, dealt in

"twenties," $20 single packs of crack cocaine.2 On February

26, 1991, two undercover officers, armed with a warrant, rang

the downstairs doorbell to his apartment, and asked for two

twenties. Defendant brought down two from his room and the

transaction, concededly, all took place in the foyer. As an

officer sought thereafter to seize him, declaring his

identity, defendant fled upstairs, locking his door. The

officers broke down the door and conducted a search. This

revealed their marked money under his mattress, together with

an unloaded shotgun. Under the bed, in a container, were

more money and packs. Was this use of the gun "in relation

to the crime"?

2. At sentencing it appeared that the government had weighed
seven of eighteen packs and that they totalled .83 gram.

-4-

That the gun was unloaded, and no ammunition found,

could be evidence in defendant'sfavor, but unloaded guns can

be used aggressively. McLaughlin v. United States, 476 U.S.

16, 17-18 (1986) (unloaded gun is "dangerous weapon" for

purposes of 18 U.S.C. 2113(d)). Nor would use be rebutted

by lack of ownership. See United States v. Wight, 968 F.2d

1393 (1st Cir. 1992). The jury, further, could reject

defendant's claim that the gun belonged to his sister's

former boyfriend, and that he was merely hiding it from his

nephews. While mere possession is not a crime, the

government properly asked the jury, why did he keep it?

We agree with defendant that the word "uses" calls

for something more than "possesses." We may further agree

that in defendant's transaction with the officers he did not

use the gun, and had no intent to. The difficulty is that

the drug trafficking crime, as defined in 21 U.S.C.

841(a)(1), with which he was charged was possession with

intent, not the sale. We have held that mere presence of

arms for the protection of drugs for sale is present use.

United States v. Wilkinson, 926 F.2d 22 (1st Cir.) (guns in

duffel bag with cocaine), cert. denied, 111 S. Ct. 2813

(1991); United States v. Hadfield, 918 F.2d 987 (1st Cir.

1990) (guns on the drug premises), cert. denied, 111 S. Ct.

2062 (1991). Wilkinson's taking guns with the drugs to

someone else's house would seem active use. And it is true

-5-

that defendant Hadfield publicly advertised that he had guns,

clearly a present use as a deterrent. However, we based our

opinion broadly, on simple presence for protection, the

maintenance of a "fortress."

It could be said that mere maintenance of a secret

fortress is not a present use, but is an intent regarding

possible future use. However, we did not, and the majority

of the circuits do not, draw that distinction. See United

States v. Wesley, 990 F.2d 360, 365 (8th Cir. 1993)

("presence and ready availability of a firearm at a house

where drugs are dealt" is sufficient); United States v.

Young-Bey, 893 F.2d 178, 181 (8th Cir. 1990) (presence and

availability crucial), cited with approval in Hadfield and

Wilkinson; United States v. Hager, 969 F.2d 883, 889 (10th

Cir.) (following Hadfield), cert. denied, 113 S.Ct. 437

(1992); United States v. Torres-Medina, 935 F.2d 1047, 1049-

50 (9th Cir. 1991) (availability sufficient); United States

v. Boyd, 885 F.2d 246, 250 (5th Cir. 1989) ("It is enough

that the firearm was present at the drug-trafficking scene,

that the weapon could have been used to protect or facilitate

the operation, and that the presence of the weapon was in

some way connected with the drug trafficking"), cited with

approval in Hadfield and Wilkinson; United States v. Acosta-

Cazares, 878 F.2d 945, 952 (6th Cir.) ("We hold that 'uses'

and 'carries' should be construed broadly to cover the gamut

-6-

of situations where drug traffickers have ready access to

weapons with which they secure or enforce their

transactions"), cited with approval in Hadfield, cert.

denied, 493 U.S. 899 (1989). But see United States v.

Robinson, 997 F.2d 884 (D.C. Cir. 1993); United States v.

Derr, 990 F.2d 1330 (D.C. Cir. 1993).

There is, of course, a difference between a large

quantity of cocaine with a "fortress" of guns, and a $20

dealer with two grams of cocaine and an unloaded shotgun, but

it is a difference in degree, not in kind. It can not be for

the court to control the U.S. Attorney's use of this truly

fortress of a statute; a defendant's only hope is the U.S.

Attorney's judgment, and the jury. Here he failed.

Alternatively, defendant seeks a new trial. We

have examined his several contentions with care, but they

require little comment. Defendant's complaints as to the

charge, and to the weight of the evidence, are in accord with

his claims on the acquittal, and must fail equally. The

court's adjustments and failure to adjust the sentence on

Count One were, routinely, within its discretion.

A word as to the dissent. We share in approving

the flexibility of the Sentencing Guidelines, but we see no

give, and no surrender, in this monolith of a statute, on the

books for many years and not disturbed when the Guidelines

were enacted. Moreover, how does one measure for this? And

-7-

in what way do our differing facts, on a case by case basis,

indicate that we are taking a new approach? Only one gun?

Possible lack of title? No ammunition?3 Lack of

exhibiting? No instant access? Under our cases none of

these failures is fatal. The reason for this is that the

difference between mere possession and use is in the mind of

the user. United States v. Payero, 888 F.2d 928, 929 (1st

Cir. 1989) (possession lending courage is use); Wilkinson,

926 F.2d at 25 ("emboldening," quoting United States v.

Stewart, 779 F.2d 538, 540 (9th Cir. 1985)); United States v.

Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1991), cert. denied

sub nom Sarraff v. United States, 113 S. Ct. 2935 (1993)

(possession with "intent to have it available for possible

use"); Wilkinson at 26 ("intended the guns for protection").

Was the stash too small to make intent more than a

theoretical possibility? Even without defendant's admission,

"It's good protection for anyone in the neighborhood to have

a gun in their house also because people get robbed," we

cannot think that $360 in drugs plus $510 in cash, would not

warrant a jury's finding that defendant's thinking included

3. While other circuits have held that lack of ammunition
does not prevent conviction in a "drug trafficking crime,"
e.g., United States v. Martinez, 912 F.2d 419, 421 (10th Cir.

1990), cited with approval in United States v. Castro-Lara,

post, 970 F.2d at 983, we have held this only in a "crime of

violence" case. United States v. Kirvan, 997 F.2d 963, 966

(1st Cir. 1993) (gun need not be "loaded or operable"). We
see no distinction.

-8-

the gun. The statute does not measure the crime. In light

of the accounts we read daily of mayhem over trifles, we

adopt what we said in Wilkinson, (and remembering what

Wilkinson itself said was "help"), "[U]ltimately, whether or

not the gun[ ] helped appellant commit the drug crime is a

matter for a jury, applying common-sense theories of human

nature and causation." 926 F.2d at 26. This is not to say

that it need "automatically" find it. Nor is it to say that

we like the inflexibility of this statute, or the judgment of

the United States Attorney in invoking it for such a minor

defendant.

The case is remanded to the district court to

vacate the acquittal; reinstate the verdict of guilty on

Count Two; to sentence on Count Two, and to readjust the

sentence on Count One appropriately.

(Dissent follows.)

-9-

BREYER, Chief Judge (dissenting). The narrow

legal question before this panel is not whether possession

of a gun ("in relation to the [drug] crime") means a longer

sentence for a convicted drug dealer. It most certainly

does. Nor is the question whether the "possession" here was

"in relation to" the drug crime, ante at 4. It was.

Rather, the question concerns which sentencing statute

governs the precise length of the extra term of punishment,

a blunt "mandatory minimum" gun "use" statute, 18 U.S.C.

924(c) (mandatory five-year sentence), or the somewhat more

sophisticated sentencing guideline statutes, under which

extra punishment for drug-related gun possession varies with

the seriousness of the drug crime. U.S.S.G. 2D1.1(b)(1)

(2-level sentence enhancement). The answer

to this question turns on the meaning of a single word in

the "mandatory minimum" statute, the word "use." Does that

word "use" include simple "possession" of a gun "connected

with" a drug crime? If so, the majority is right, for I

have no doubt that the jury here could find both a

"possession" and some kind of "relation" or "connection"

between gun and crime. But, in my view, prior cases, and

likely congressional intent, indicate that the word "use,"

in this particular statute, carries a more active meaning --

ameaning thatexcludes simple(drug-crime-related) possession.

-10-

Let me be more specific. The special "mandatory

minimum" sentencing statute says that anyone who "uses or

carries" a gun "during and in relation to any . . . drug

trafficking crime" must receive a mandatory five-year prison

term added on to his drug crime sentence. 18 U.S.C.

924(c). At the same time, the Sentencing Guidelines,

promulgated under the authority of a different statute, 28

U.S.C. 994, provide for a two-level (i.e., a 30% to 40%)

sentence enhancement where a "firearm . . . was possessed"

by a drug offender, U.S.S.G. 2D1.1(b)(1), unless the

possession clearly was not "connected with the [drug]

offense." Id. app. n.3. The Guideline enhancement for

drug-crime-related gun possession may amount to less than

five additional years, as it would here. The specific

question before us is whether, for sentencing purposes,

courts should try to distinguish between a gun's drug-crime-

related "use" and its drug-crime-related "possession,"

particularly when the predicate drug crime is "possession

with intent to distribute."

Courts might have simplified the matter by

answering this question in the negative. They might have

reasoned that, at least in drug possession cases, virtually

any possession of a gun amounts to "use" within the meaning

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11

of 924(c). Arguably, any gun that is both possessed by a

drug offender, and present at or near the site of a drug

possession crime, helps the offender carry out the drug

crime. It might do this by "emboldening" him, or perhaps by

being available, should the need arise, to frighten others

or to protect the drugs possessed. Cf. United States v.

Stewart, 779 F.2d 538, 540 (9th Cir. 1985). Until today,

however, courts have not taken this approach. On the

contrary, they have insisted on maintaining a significant

distinction between "possession" and "use" of a gun by drug

offenders in the context of prosecutions under 924(c).

United States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir.

1992), cert. denied, 113 S. Ct. 2935 (1993); United States

v. Payero, 888 F.2d 928, 929 (1st Cir. 1989); United States

v. Robinson, 997 F.2d 884, 887 (D.C. Cir. 1993) (statute

"conspicuously fails to criminalize mere possession").

Traditional tools of statutory interpretation

support the near-universal judicial effort to maintain the

distinction between (drug-related) "use" and "possession."

First, the ordinary meanings of the words "use" and

"carry" -- the language in the "mandatory minimum" statute -

- connote activity beyond simple possession. Cf. Smith v.

United States, 113 S. Ct. 2050, 2054 (1993) (the term "use"

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12

is to be given its "ordinary or natural meaning" in

construing 924(c)). Second, Congress wrote those words in

the context of gun crime statutes that often use the broader

word "possess" to describe the prohibited gun-related

conduct. See, e.g., 18 U.S.C. 922(g), (q)(1)(A). As the

somewhat hackneyed judicial aphorism goes, when Congress

wants to criminalize gun possession, it knows how to do so.

Third, a House Report accompanying the 1986 amendment to

924(c) (which extended the statute to drug crimes) provides

some indication of Congress's expectation about the meaning

of the word "use." In the course of discussing the

"carrying" part of the statute, the Report offers the

example of a drug trafficker who "carrie[s]" a weapon "for

protection against rival traffickers." Such a person quite

clearly "possesses" the weapon with the intent to make

active use of it if necessary; yet, the Report adds, "he did

not actually use the weapon." H.R. Rep. No. 495, 99th

Cong., 2d Sess. 10 (1986), reprinted in 1986 U.S.C.C.A.N.

1327, 1336.

Most importantly, courts normally try to read

language in different, but related, statutes, so as best to

reconcile those statutes, in light of their purposes and of

common sense. In this instance, one relevant statute, the

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13

statute creating the Sentencing Guidelines, reflects a major

congressional effort to create a fairly sophisticated

Sentencing Guidelines system that distinguishes among

different kinds of criminal behavior and punishes

accordingly. The other statute, the mandatory minimum

statute, represents an ad hoc deviation from that more

general policy. Given the importance (to Congress) of the

Guidelines system, see Mistretta v. United States, 488 U.S.

361, 363-370 (1989), courts should take care not to

interpret other statutes that represent ad hoc deviations

from the basic congressionally-directed effort to

rationalize sentencing with unnecessary breadth. Yet, here,

to interpret the word "use" to encompass "possession" is to

swallow up a guideline that distinguishes, for punishment

purposes, among different kinds of drug- and gun-related

criminal behavior. Moreover, it is to swallow up the

guideline unnecessarily, for neither the language of the

mandatory minimum statute nor its purpose (the need to

punish drug offenders with guns) requires that it do so.

I confess that it is easier to see the need to

distinguish (drug-crime-related) "use" from "possession"

than it is to explain just how to make the distinction.

Courts might have interpreted "use" by insisting upon

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14

activity with the gun, such as firing it or brandishing it,

or, at least, displaying it (or even trading it for drugs,

see Smith, supra). But they have not done this. Rather,

they have held that the word "use" sometimes encompasses

more passive activity, such as "possession," but sometimes

it does not. Thus, we must try to articulate the

distinguishing line they have drawn.

As I read the case law, when courts have held that

"use" encompasses "possession," they have always found (1)

possession, (2) in connection with a drug crime, and (3)

something more. See United States v. Wilson, 884 F.2d 174,

177 (5th Cir. 1989) (except in "drug fortress" cases

involving large amounts of drugs and money, "something more

than strategic proximity of drugs and firearms is necessary

to honor Congress' concerns."). And, they have tended to

describe this "something more" as possession of the guns for

protection of the drugs, thereby "facilitat[ing]" the drug

crime. See, e.g., United States v. Wilkinson, 926 F.2d 22,

26 (1st Cir.) (conviction sustained where circumstances

allowed jury to find that defendant "intended the guns for

protection"), cert. denied, 111 S. Ct. 2813 (1991); United

States v. Hadfield, 918 F.2d 987, 998 (1st Cir. 1990)

(conviction sustained "so long as one purpose in situating

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15

the weapon nearby was to protect the narcotics enterprise"),

cert. denied, 111 S. Ct. 2062 (1991); United States v.

Payero, 888 F.2d 928, 929 (1st Cir. 1989) (conviction

possible where firearm gave defendant courage by allowing

him to protect himself); United States v. Bruce, 939 F.2d

1053, 1055 (D.C. Cir. 1991) (guns may be "used" in relation

to a possession crime "because they are intended to protect

the stash of drugs that will subsequently be distributed");

ante at 5 ("mere presence of arms for the protection of

drugs for sale is present use") (emphasis added).

Of course, language such as "possession for

protection" would not help the problem very much if that

language itself were broadly interpreted or applied. If,

for example, courts simply said that possession of a gun

when drugs are around means a fortiori that the gun is

present "for protection" of the drugs, the mandatory minimum

statute's word "use" would (once again) swallow up the

Guideline and eradicate the distinction between "use" and

"possession" that courts have tried to maintain. It is

therefore not surprising that the courts have not

interpreted or applied this language broadly. They have

avoided the "swallowing up" result by applying the

"possession for protection" concept only where circumstances

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16

demonstrate that a drug offender, possessing a gun (in

connection with the crime), would likely put the gun to

active use (such as firing or brandishing it, or at least

displaying it in an effort to intimidate) were the need to

arise. In determining whether this later, active use is

likely (i.e., in separating a theoretical possibility from a

real risk), courts have looked at such factors as the gun's

accessibility, whether it is loaded, the amount of drugs

possessed, the presence of other guns, and the extent to

which dangerous transactions likely take place nearby, as a

way of deciding whether the "circumstances of the case show"

that the gun was present for protection. United States v.

Plummer, 964 F.2d 1251, 1254 (1st Cir.), cert. denied, 113

S. Ct. 350 (1992); see, e.g., Robinson, 997 F.2d at 887

(listing factors); United States v. Derr, 990 F.2d 1330,

1338 (D.C. Cir. 1993).

Examined in light of the case law's possession/use

distinction, the record before us indicates that this drug

offender's "possession" of the gun, even if related to the

drug crime, does not rise to the level of a "use." The

defendant here was a small-time drug dealer, selling drugs

in $20 packages. The police found a shotgun, unloaded,

wrapped in a cloth bag, hidden between his bed's mattress

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17

and its box spring (but next to $40 the police had paid him,

and above a strongbox on the floor containing two grams of

cocaine and $510 cash). They found no ammunition anywhere

in the apartment. The defendant testified, without

contradiction and consistently with an earlier government

affidavit, that the gun belonged to someone else. The gun

was not visible, so its mere presence could not

automatically have frightened a buyer or intruder. The

defendant did not brandish, display, touch, or mention the

gun during the transaction with police, nor was there any

evidence that he had ever done so during the time he

possessed drugs. To make active use of the gun in

protecting his drugs or intimidating a buyer or intruder, he

would have had to lift the mattress, seize the gun, and

unwrap it. To fire the gun, the defendant would have had to

find ammunition, bring it to the apartment, and load the

gun. The small amount of cocaine possessed makes it

somewhat less likely that, in fact, he had (or would have)

done either. In context, the defendant's "admission," ante

at 8, does not seem particularly relevant.

Of course, one cannot exclude the possibility that

any gun that is present, the way this gun was present, might

be put to active "use." But that is so virtually whenever a

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18

gun is present near the scene of a drug crime. To find a

"possession for protection" (i.e., a "use") here is, in

effect, to find that possession of a gun (when related to a

drug crime) automatically means a "use." It thereby erases

the line that the statutes, and the courts, have tried to

draw, and again allows the "use" statute to swallow up the

"possession" Guideline.

A brief review of these cases indicates rather

strong support for the distinction I am drawing. Consider

cases in which courts have permitted a jury to infer that a

defendant "used" nearby guns to "protect" a stash of drugs.

They involve drug-related risks of actually firing or

brandishing (or "carry[ing]") the gun that are significantly

greater than the risks present here. In this circuit's

Hadfield case, for example, the inference -- that the

defendant "used" the guns to "protect" the drugs -- was

neither uncertain nor theoretical: it was inescapable. The

defendants ran a massive drug operation from a barn that

contained hundred of marijuana plants, thousands of dollars

in cash, and several guns, at least two of which were

loaded, standing on a nearby gun rack or hanging on the barn

walls. A sign near the barn said, "This house guarded by

shotgun three nights per week. You guess which three." 918

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19

F.2d at 991. A clearer case of using guns for protection is

hard to imagine.

Our Wilkinson case, although closer, presented a

somewhat different legal question. There, the defendant

"carr[ied]" with him to a friend's house a duffel bag that

contained two loaded guns (wrapped in a towel) and a cache

of drugs (although the Wilkinson opinion is silent on the

point, the record indicates that the guns were loaded). The

proximity of loaded guns to the drugs and the fact that the

defendant was carrying them together from place to place

permitted the jury to infer that the defendant "intended the

guns for protection," and thus that he carried them "in

relation to" his drug crime. Id. at 25-26. (Since

Wilkinson involved the statutory terms "carry" and "in

relation to," strictly speaking it did not raise the

"use/possession" problem here discussed.)

Similarly, other cases allowing an inference of

presence "for protection" have involved close proximity and

loaded guns, or large drug operations, or multiple weapons,

or easy accessibility, or some factor suggesting more than a

theoretical possibility that the guns might be used to

protect the drugs if necessary. See, e.g., Castro-Lara, 970

F.2d at 983 (gun was "near a large sum of cash, in close

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20

proximity to live ammunition" while defendant was "taking

delivery of a sizable quantity of cocaine"); Plummer, 964

F.2d at 1254 (gun in defendant's car with ammunition in easy

reach of driver; evidence that defendant "had moved" the

gun); United States v. Abreu, 952 F.2d 1458, 1466 (1st Cir.)

(five weapons in apartment with "significant amount" of

drugs; testimony and palmprint connected the guns to

defendants' drug operation), cert. denied, 112 S. Ct. 1695

(1992); see also United States v. Wesley, 990 F.2d 360 (8th

Cir. 1993) (fully loaded gun found on floor within reach of

sleeping defendant); United States v. Hager, 969 F.2d 883

(10th Cir.) (three guns, at least one loaded, found near 2.8

kilograms of cocaine in apartment), cert. denied, 113 S. Ct.

437 (1992); United States v. Torres-Medina, 935 F.2d 1047

(9th Cir. 1991) (loaded gun found next to cocaine); United

States v. Boyd, 885 F.2d 246 (5th Cir. 1989) (loaded shotgun

in arm's reach of defendant near methamphetamine

manufacturing operation; agent testified that defendant had

taken shotgun from car with drug paraphernalia and took it

with him during a subsequent journey); United States v.

Acosta-Cazares, 878 F.2d 945 (6th Cir.) ("numerous loaded

weapons," thousands of dollars in cash, and two kilograms of

cocaine found in two apartments used by coconspirators;

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21

coconspirator testified that defendant carried weapons while

engaging in drug transactions), cert. denied, 493 U.S. 899

(1989); United States v. Anderson, 881 F.2d 1128 (D.C. Cir.

1989) (crack house contained several loaded weapons, large

quantities of crack cocaine, cocaine powder, and cash;

expert testimony indicated that weapons frequently protect

"crack houses"); United States v. Matra, 841 F.2d 837 (8th

Cir. 1988) (fortress contained numerous loaded weapons,

ammunition, thousands of dollars of cash, and hundreds of

thousands of dollars worth of cocaine).

Consider, by way of contrast, cases in which

courts have refused to permit the jury to infer that the

defendant "used" nearby guns to protect a stash of drugs.

Many seem to involve risks of firing or brandishing (or

displaying) a gun at least as great as those present here;

in some, the risk seems greater. In United States v.

Robinson, the D.C. Circuit refused to permit a "used for

protection" inference where a defendant kept an unloaded

pistol and drugs in a locked footlocker in a closet (the

footlocker, in contrast with Wilkinson, apparently was not

"carried" from place to place). 997 F.2d 884, 887-88 (D.C.

Cir. 1993). In United States v. Sullivan, 919 F.2d 1403

(10th Cir. 1990), even though defendant kept an unregistered

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22

gun in her home where she also maintained a drug laboratory

(and was convicted for possession of an unregistered

firearm), the court refused to permit the "protection"

inference because no additional evidence supported an intent

to use the weapon in that way with respect to the drug

operation. Id. at 1432 & n.45. In United States v. Derr,

990 F.2d 1330 (D.C. Cir. 1993), the court would not permit

the inference where the defendant kept an unloaded pistol

and his drug supply in a locked closet. See also, e.g.,

United States v. Matthews, 942 F.2d 779, 783-84 (10th Cir.

1991) (reversing 924(c) conviction where, despite presence

of weapons in plain view in an apartment containing drugs,

evidence did not suggest that defendant "intended to avail

himself of the firearms"); United States v. Bruce, 939 F.2d

1053, 1055-56 (D.C. Cir. 1991) (reversing 924(c)

conviction because presence of loaded gun in one pocket and

drugs in other pockets of defendant's raincoat indicated

intent to use the gun in connection with future

distribution, not protection of present possession). The

theoretical possibility of active use was always present in

these cases, but the courts considered it too remote to

allow a jury to find, beyond a reasonable doubt, that the

gun was present "for protection."

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23

Of course, one might simply argue that these cases

are not all consistent with each other. However, whether or

not that is so seems to me beside the point. The division

in the case law indicates a perceived need to draw a legal

line between simple possession of a gun and its use. In

order to draw that line, one must say that at some point,

the risk that a defendant will actually fire or brandish or

display a nearby gun "to protect" a drug stash becomes too

small to permit the jury to infer an intent to protect. Our

previous cases lie on one side of that line. If we are to

maintain the legal distinction that courts have tried to

draw (and if we are to avoid collapsing the "possession"

Guideline into the mandatory five-year term of the "use"

statute), this case, as the district court held, must lie on

the other.

For these reasons, I would affirm the decision of

the district court.

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