United States Court of Appeals
For the First Circuit
No. 03-1477
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE COTTO, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Lynch, and Lipez,
Circuit Judges.
Robert A. O'Meara for appellant.
John A. Capin, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
August 2, 2006
LYNCH, Circuit Judge. The primary issue in this appeal
is whether one who barters drugs for firearms has "used" the
firearms within the meaning of 18 U.S.C. § 924(c)(1)(A), which
provides for a mandatory five-year sentence for using a firearm
"during and in relation to any . . . drug trafficking crime." The
circuit courts have split rather closely on this question. We hold
that bartering drugs for firearms constitutes "use" of the firearms
under § 924(c)(1)(A). We affirm the defendant's conviction and
sentence.
I.
We recount the facts in the light most favorable to the
verdict. United States v. Sanchez-Berrios, 424 F.3d 65, 71 (1st
Cir. 2005).
The defendant, Jose Cotto, Jr., was a heroin dealer. One
of his customers was Amanda Tew, a teenager who in early 1999 was
living with her grandparents. Tew paid Cotto by giving him guns
she stole from her grandparents' basement, where her grandfather
stored them. From the summer of 1999 until the spring of 2000,
Cotto engaged in more than twenty heroin-for-guns exchanges with
Tew. Tew testified that in return for her grandfather's guns,
Cotto never gave her cash or anything other than heroin.
Cotto generally paid Tew a "brick" of heroin for each
gun. Each brick consisted of fifty postage-stamp-sized bags
containing a pinch-of-salt's worth of heroin. Cotto's typical
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practice was to give Tew two to four "bundles" of heroin (each
bundle containing ten bags) after inspecting and taking delivery of
a gun. Tew would come back later for the remaining bundles. Cotto
always paid the first installment the same day he received the gun,
but only after examining the gun.
In the spring of 2000, Tew was arrested for possession of
heroin; she eventually agreed to cooperate with what was then the
Bureau of Alcohol, Tobacco, and Firearms (ATF). She telephoned
Cotto and spoke with him on July 10, 2000, in a recorded
conversation. Cotto asked her whether she had gotten any more
guns, and he specifically expressed an interest in handguns. Tew
told Cotto she could get him "whatever [he] want[ed]" from a "guy."
The two agreed to speak again the next day.
In a recorded conversation on the morning of July 11, Tew
told Cotto she had one MAC-11 and two .380-caliber handguns, and
that she wanted "a couple" of bricks for the guns. The guns were
actually supplied by the ATF. Cotto and Tew made plans to meet
that day at noon behind a particular store.
When Cotto arrived at the agreed-upon parking lot, Tew
was already there, with one MAC-11 handgun and two .380-caliber
handguns in the trunk of her car. The ATF had them under
surveillance. Cotto got into Tew's car and asked her where the
guns were. The two got out of her car, and Tew opened the trunk,
allowing Cotto to see the guns. After inspecting the guns, Cotto
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put them in the trunk of his own car. He was arrested moments
later, without having yet given anything to Tew. He had two
bundles of heroin and $38 in cash with him.
Cotto was charged in a superseding indictment with one
count of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), and one count of using a firearm during and
in relation to a drug trafficking crime, and possessing a firearm
in furtherance of such crime, in violation of 18 U.S.C.
§ 924(c)(1). Both counts were based on the events of July 11 and
both charged Cotto's involvement with three specific guns (the MAC-
11 and the two .380-caliber handguns).
Cotto pled guilty to the felon-in-possession count and
went to trial on the § 924(c) count. His defense was that he was
not going to exchange heroin for firearms on July 11. Although
Cotto did not testify, the defense presented evidence that Cotto
abused heroin and that the heroin he had with him was only for
personal use. The jury returned a guilty verdict.
The court sentenced Cotto to 84 months of imprisonment on
the felon-in-possession count and 60 months on the § 924(c) count,
to be served consecutively, for a total of 144 months'
imprisonment. Cotto now appeals.
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II.
A. Challenge to Conviction
Cotto challenges his conviction only on the § 924(c)
count. He argues that the evidence was insufficient to support
conviction on that count. We review this preserved claim de novo,
asking whether the evidence, if viewed in the light most favorable
to the prosecution, would allow a rational jury to find all
elements of the crime beyond a reasonable doubt. United States v.
Hall, 434 F.3d 42, 49 (1st Cir. 2006).
The statute in question provides that "any person who,
during and in relation to any . . . drug trafficking crime . . . ,
uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm," is subject to at least five years'
imprisonment, "in addition to the punishment provided for [the]
. . . drug trafficking crime." 18 U.S.C. § 924(c)(1)(A)(i). Only
the "use" provision is at issue here.1
Cotto's primary argument is that bartering drugs for
firearms cannot constitute "use" of the firearms under § 924(c).
He acknowledges that the Supreme Court has held that bartering in
the other direction -- that is, exchanging guns in order to obtain
drugs -- does constitute "use" of the firearms. The Court so held
1
Cotto was not charged under the "carry" provision. Although
the § 924(c) count in the indictment did charge "possession in
furtherance," the government concedes that this provision dropped
out of the case when it was not included in the jury instructions
or verdict slip.
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in Smith v. United States, 508 U.S. 223 (1993). There, the Court
reasoned that "[b]y attempting to trade his [gun] for the drugs,
[the defendant] 'used' or 'employed' it as an item of barter to
obtain cocaine; he 'derived service' from it because it was going
to bring him the very drugs he sought." Id. at 229. Cotto notes,
though, that the Supreme Court soon returned to the issue of what
constitutes "use," holding that "§ 924(c)(1) requires evidence
sufficient to show an active employment of the firearm by the
defendant, a use that makes the firearm an operative factor in
relation to the predicate offense." Bailey v. United States, 516
U.S. 137, 143 (1995).
Four circuit courts have treated a drugs-for-firearms
barter as "use." See United States v. Sumler, 294 F.3d 579, 580
(3d Cir. 2002); United States v. Ramirez-Rangel, 103 F.3d 1501,
1506, 1509 (9th Cir. 1997); United States v. Ulloa, 94 F.3d 949,
955-56 (5th Cir. 1996); United States v. Cannon, 88 F.3d 1495,
1508-09 (8th Cir. 1996). Two circuits can be viewed as leaning
that way. See United States v. Cox, 324 F.3d 77, 82-84 (2d Cir.
2003) (holding that accepting a gun as collateral for the purchase
price of drugs is "use"); United States v. Harris, 39 F.3d 1262,
1269 (4th Cir. 1994) (holding, post-Smith but pre-Bailey, that
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supplying someone with crack in exchange for aid in obtaining a gun
is "use").2
The government exaggerates in claiming the support of
"the overwhelming weight of authority." In fact, four circuits
have adopted Cotto's interpretation. See United States v. Montano,
398 F.3d 1276, 1282-84 (11th Cir. 2005) (per curiam); United States
v. Stewart, 246 F.3d 728, 731-33 (D.C. Cir. 2001); United States v.
Warwick, 167 F.3d 965, 975-76 (6th Cir. 1999); United States v.
Westmoreland, 122 F.3d 431, 434-36 (7th Cir. 1997).
We hold that bartering drugs in order to obtain firearms
is "use" of the firearms. In doing so, we recognize that Cotto's
position is not without merit. His interpretation of the word
"use" has some force given the common understanding of that term:
while it is easy to see how he "used" the heroin to get the guns,
it is somewhat less natural to say that he "used" the guns as
well.3 See Stewart, 246 F.3d at 731; Westmoreland, 122 F.3d at
435-36. Were we writing on a blank slate, we might well be
2
The Fourth Circuit has, in several unpublished post-Bailey
decisions, reaffirmed Harris and held that trading drugs for guns
constitutes "use." See, e.g., United States v. Belcher, No. 98-
4845, 1999 U.S. App. LEXIS 30693, at *3 (4th Cir. Nov. 29, 1999)
(per curiam) (unpublished).
3
The government attempts to distinguish several of the cases
on which Cotto relies on the ground that they involved merely
passive acceptance of guns, as opposed to the defendant's
deliberate activity here. Our holding does not turn on this
distinction.
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inclined to say, based on the most natural reading of the statute,
that Cotto did not "use" the guns by bartering for them.
But we do not write on a blank slate. First, Smith
controls here. In Smith, the Court stated that "[b]oth a firearm's
use as a weapon and its use as an item of barter fall within the
plain language of § 924(c)(1), so long as the use occurs during and
in relation to a drug trafficking offense." 508 U.S. at 240. The
Court employed a very broad understanding of what it means for a
firearm to be "used . . . as an item of barter or commerce." Id.
at 234. The Court's examples included not only variations on
delivery, but also multiple instances of receipt. See id. at 234
& n.* (listing several offenses involving receipt as examples of
"offense[s] involv[ing] use as an item in commerce"); see also id.
at 235 (referring generally to offenses in which firearms "function
as items of commerce"). We are not free to disregard Smith, which
we view as controlling.
Nor does Bailey compel us to distinguish Smith. To the
contrary, Bailey was careful to reaffirm Smith, stating that "[t]he
active-employment understanding of 'use' certainly includes . . .
bartering . . . a firearm." 516 U.S. at 148; see also id. at
147-48 (explaining that Smith's recognition that "use" includes
"use as an item of barter" is consistent with the Bailey holding).
Cotto "used" firearms within the active-employment meaning of
Bailey. That he received guns does not mean he was passive with
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respect to them. He "required that he be furnished firearms in
exchange for his drugs," Ulloa, 94 F.3d at 956, and he accepted the
guns as a way of "clos[ing] the drug transaction," Cox, 324 F.3d at
84, thereby making the guns an operative factor in the drug
trafficking offense. Cf. United States v. Frederick, 406 F.3d 754,
764 (6th Cir. 2005) (stating in a possession-in-furtherance case
that "a defendant's willingness 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 therefore some
drug trafficking crimes -- would not take place") (internal
quotation marks and citation omitted).
Even if Supreme Court precedent did not require the
interpretation that we adopt here, there are other reasons for
rejecting Cotto's position based on a reading of the statutory
language. First, our reading is consistent with Congress'
employment of the word "use" in other parts of § 924. In Smith,
the Court looked at the ways in which one can "use" a firearm under
§ 924(d)(1) and (d)(3), and it reasoned that "using a firearm"
should have the same meaning under § 924(c)(1). See 508 U.S. at
233-36. Likewise, in Bailey, the Court referred to its approach in
Smith and again looked to § 924(d) for assistance in interpreting
§ 924(c). See 516 U.S. at 146. Applying that method here, we note
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that under § 924(d), a gun can be "used" in an offense consisting
of receipt of the gun.4 This supports treating the receipt of guns
in a drugs-for-guns barter as "use" of the guns under § 924(c).
See Cannon, 88 F.3d at 1509.
Finally, the rationale of § 924(c) supports our
interpretation. As the Court observed in Smith, "[w]hen Congress
enacted the current version of § 924(c)(1), it was no doubt aware
that drugs and guns are a dangerous combination." 508 U.S. at 240.
"The 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
instantaneously from currency to cannon." Id. That is so whether
the defendant transfers or receives the gun. Just as the Supreme
Court did not think Congress "intended courts and juries applying
§ 924(c)(1) 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," id., we do not think it intended to draw a distinction
between bartering with a firearm and bartering for a firearm.
4
Under § 924(d)(1), any firearm "intended to be used" in any
offense referred to in § 924(d)(3) is subject to seizure and
forfeiture. Section 924(d)(3), in turn, lists offenses consisting
of the receipt of a firearm, including those described in 18 U.S.C.
§ 922(a)(1)(A) (unlicensed importing, dealing in, or receiving
firearms), § 922(a)(3) (unlicensed receipt of firearms obtained out
of state), § 922(j) (receipt and bartering of stolen firearms),
§ 922(l) (importation of firearms or receipt of imported firearms),
§ 922(n) (receipt of firearm by person under indictment), and
§ 924(b) (receipt of firearm with intent to commit a felony).
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Cotto's fallback argument is that, even if a drugs-for-
firearms barter could constitute "use," there was no such barter
here, because he had not given Tew any heroin before he was
arrested. The fact that Cotto was arrested by ATF agents before he
could distribute heroin to Tew is immaterial to whether, under
§ 924(c), there was "use" during and in relation to a drug
trafficking crime. There was ample evidence that Cotto possessed
heroin with the intent to distribute it, which is a drug
trafficking crime.5 See 21 U.S.C. § 841(a)(1). And there was
ample evidence that he actively employed firearms by making them an
operative factor in that crime, and that he did so during and in
relation to that crime. Cotto required Tew to give him guns in
exchange for heroin, and he possessed heroin with the intent to
distribute it to Tew in exchange for the guns. By the time he was
arrested, he had actually taken delivery of the guns, which he had
made integral to the deal and to his own possession with intent to
distribute. Nothing turns on whether he had paid for them yet.6
5
Cotto argues that the heroin he had with him was for
personal use. But there was ample evidence from which the jury
could find that Cotto intended to buy three firearms from Tew at a
price of two bricks of heroin and that the two bundles of heroin
were meant to serve as Cotto's usual first installment.
6
Indeed, Smith upheld "use" liability and based its holding
on "the exchange of a gun for narcotics," 508 U.S. at 225, even
though neither gun nor drugs had changed hands and the defendant
had only "attempt[ed] to trade his [gun] for the drugs," id. at
229; see also id. at 230 (stating that "petitioner 'used' his [gun]
in his drug trafficking offense by trading it for cocaine").
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B. Challenge to Sentence
Cotto challenges his sentence on the felon-in-possession
count. His objection is twofold: first, that his offense level
under the Sentencing Guidelines was increased based on judicial
factfinding by a preponderance of the evidence, and second, that
the district court was unable to take full account of the factors
set forth in 18 U.S.C. § 3553(a). As we have explained, the error
under United States v. Booker, 543 U.S. 220 (2005), "is not that a
judge (by a preponderance of the evidence) determined facts under
the Guidelines which increased a sentence beyond that authorized by
the jury verdict or an admission by the defendant; the error is
only that the judge did so in a mandatory Guidelines system."
United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).
Cotto concedes that the Booker error is unpreserved, so
we apply plain error review.7 Id. Cotto must "point to
circumstances creating a reasonable probability that the district
court would impose a different sentence more favorable to [him]
under the new 'advisory Guidelines' Booker regime." Id. This test
7
Cotto argues that the judicial factfinding and the then-
mandatory status of the Guidelines were structural errors
warranting automatic reversal. We have repeatedly rejected both
arguments. Neither judicial factfinding nor having been sentenced
under mandatory Guidelines warrants automatic reversal. See
Sanchez-Berrios, 424 F.3d at 80; Antonakopoulos, 399 F.3d at 75,
79-80; see also Washington v. Recuenco, 126 S. Ct. 2546, 2553
(2006).
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"is not met by the mere assertion that the court might have given
the defendant a more favorable sentence." Id. at 80.
Cotto points to two specific factors here that, he says,
warrant a remand for resentencing. First, the district judge said
that "the double-counting issue bothers me." The court was merely
explaining why it chose not to impose a particular enhancement
sought by the government, not indicating that it would have imposed
a lesser sentence if not for the mandatory Guidelines. Indeed, the
court could have sentenced Cotto more leniently by selecting a
sentence at the bottom of the Guidelines range; instead it chose a
middle-of-the-range sentence on the felon-in-possession count.
Second, Cotto argues, there is a newly available sentencing
consideration: his drug addiction. The court took this factor into
account at sentencing8 and, where it easily could have selected a
lower sentence within the range but chose not to, we are not
persuaded that there is a reasonable probability that it would
impose a more lenient sentence on remand. As to Cotto's general
argument that he is entitled to a Booker remand so that the
district court can take greater account of the § 3553(a) factors,
it is not enough merely to suggest that the § 3553(a) factors
"might well have persuaded" the court to impose a lower sentence.
See Sanchez-Berrios, 424 F.3d at 80.
8
The court recommended, on Cotto's request, that Cotto be
given a spot in a drug treatment program in prison.
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III.
Cotto's conviction and sentence are affirmed.
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