IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20856
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER CEBALLOS-TORRES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
_________________________________________________________________
July 6, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
After a bench trial, Javier Ceballos-Torres was found guilty
of possession with intent to distribute cocaine, 21 U.S.C. § 841,
and knowing possession of a firearm in furtherance of a drug
trafficking offense, 18 U.S.C. § 924(c)(1)(A)(i). Ceballos now
appeals the latter conviction, asserting that the evidence was
insufficient to convict him of that offense. He argues that “in
furtherance” requires more than the mere presence of the firearm in
an area where drug trafficking occurs. We consider the plain
language and the legislative history and conclude that a possession
is “in furtherance” of the drug trafficking offense when it
furthers, advances, or helps forward that offense. For the reasons
stated herein, we affirm his conviction.
I
Ceballos is an illegal alien who has been removed from the
country once before. The High Intensity Drug Trafficking Area Task
Force was investigating his involvement in a narcotics trafficking
and money laundering operation. Ceballos was eventually indicted
for possession with intent to distribute cocaine in violation of 21
U.S.C. § 841 and for knowing possession of a firearm in furtherance
of that crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Before
trial, Ceballos moved to suppress evidence obtained during a search
of his apartment. The court denied his motion after a suppression
hearing, and then tried Ceballos on evidence submitted during that
hearing.1
The evidence presented during the hearing established the
following chain of events that led to Ceballos’s indictment and
conviction.2 In February 1999, INS Special Investigator Ed Sanchez
and IRS Special Agents Tom Mahoney and Mark Hughes went to
Ceballos’s home to conduct an immigration check. The men knocked
on the door, and Ceballos invited them inside. He told them that
1
Ceballos waived his right to a jury trial.
2
The prosecutors also introduced extensive evidence concerning
Ceballos’s drug operation, but none of this is relevant to the
issue before us on appeal.
2
he was lawfully in the United States and had documents relating to
his immigration status in his bedroom closet. He then went to get
them.
Sanchez followed Ceballos into the bedroom and noticed a 9mm
Glock handgun lying in plain view on top of the bed. Ceballos said
that he owned the gun for personal protection. The agents took
possession of the gun and found that it was loaded. After
inspecting Ceballos’s immigration papers, the agents determined
that Ceballos was in the country illegally, and they arrested him.
The agents later obtained a warrant to search the apartment.
During that search, they discovered 569.8 grams of cocaine and
several empty kilo wrappers in the hidden compartment of a closet.
They also found $1,360 in cash in the pocket of a leather jacket
hanging in the bedroom closet. This money later tested positive
for cocaine. The agents also came upon an electronic gram scale
and four modified straws for sniffing narcotics in the kitchen.
After trial, the court sentenced Ceballos to 130 months of
imprisonment and four years of supervised release. Ceballos timely
appealed on a single issue: whether prosecutors had presented
sufficient evidence to convict him of possession of a firearm in
furtherance of his drug trafficking offense.
II
A
3
We review a district court’s finding of guilt after a bench
trial to determine whether it is supported by “any substantial
evidence.” United States v. Rosas-Fuentes, 970 F.2d 1379, 1381
(5th Cir. 1992). Evidence is sufficient to support a conviction if
any rational trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318-19 (1979). In conducting this inquiry, we
examine the evidence as a whole and construe it in the light most
favorable to the prosecution. United States v. Lombardi, 138 F.3d
559, 560-61 (5th Cir. 1998).3
B
The central question before us is what it means to “possess a
firearm in furtherance” of a drug trafficking crime. The relevant
portion 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
3
We use this standard, rather than the plain error standard,
even though Ceballos did not move for acquittal at the end of
trial. This was a bench trial, and the not guilty plea therefore
served as a motion for acquittal. Rosas-Fuentes, 970 F.2d at 1381.
4
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, [be
sentenced to an additional term of years].
18 U.S.C. § 924(c)(1)(A) (emphasis added).
In Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133
L.Ed.2d 472 (1995), the Supreme Court was faced with an earlier
version of this statute that prohibited “us[ing] or carr[ying] a
firearm during and in relation to” drug trafficking. The statute,
unlike the statutory language here, did not explicitly criminalize
possession. The Court was asked to determine the meaning of the
word “use” in that context.
The Court began its inquiry by turning to the dictionary,
which provided several definitions of “use.” Id. at 145, 116 S.Ct.
at 506. Next, the Court considered the canon of statutory
construction that warns against superfluousness: “‘Judges should
hesitate ... to treat [as surplusage] statutory terms in any
setting, and resistance should be heightened when the words
describe an element of a criminal offense.’” Id. at 145, 116 S.Ct.
at 506-07 (quoting Ratzlaf v. United States, 510 U.S. 135, 140-41,
114 S.Ct. 655, 659, 126 L.Ed.2d 615 (1994)). Thus, the Court
sought a definition of “use” that would not also encompass “carry,”
thereby rendering “carry” superfluous. Bailey 516 U.S. at 145, 116
S.Ct. at 507. Then the Court looked at other uses of the word
5
“use” in § 924 to ensure that its interpretation would be
harmonious with them. Id. at 146, 116 S.Ct. at 507. Apparently
still lacking certainty, the Court reviewed various amendments to
§ 924 over time for an indication of the intended meaning of “use.”
Id. at 147, 116 S.Ct. at 507-08. The Court concluded that
Congress’ choice of the word “use” implied some “active employment”
of the firearm, not its mere presence at the scene or possession.
Id. at 148, 116 S.Ct. at 508.
We will follow the same route as the Bailey Court in
interpreting “in furtherance.” The dictionary defines
“furtherance” as “[t]he act of furthering, advancing, or helping
forward.” Webster’s II New College Dictionary 454 (1st ed. 1995);
The American Heritage Dictionary of the English Language, 534 (10th
ed. 1981). When would a gun further, advance, or help a drug
trafficking? Five ways spring quickly to mind. First, an
accessible gun provides defense against anyone who may attempt to
rob the trafficker of his drugs or drug profits. Second,
possessing a gun, and letting everyone know that you are armed,
lessens the chances that a robbery will even be attempted. Third,
having a gun accessible during a transaction provides protection in
case a drug deal in the apartment turns sour. Fourth, the visible
presence of a gun during the transaction may prevent the deal from
turning sour in the first place. Fifth, having a gun may allow the
6
drug trafficker to defend “turf,” areas of the street from which
lower level dealers operate for the trafficker. There may be other
ways. But, in any event, the dictionary definition of
“furtherance” clearly has relevant meaning in the context of this
statute.
We next turn to the canons of construction to ensure that the
dictionary definition fits within the statute’s overall context.
One canon of construction does raise a possible concern with the
use of this definition--the same canon against superfluousness that
the Bailey Court used. Here, we examine the whole of the statute
to determine whether the dictionary meaning of “furtherance”
creates a redundancy, either itself or with respect to other
statutory provisions.
The first question is whether this definition of “in
furtherance” renders § 924(c)(1)(A)'s phrase “during and in
relation to” superfluous. It does not. There are situations where
a possession would be “during and in relation to” drug trafficking
without “furthering or advancing” that activity. For example, a
drug buyer might steal a gun from his dealer’s house during a deal.
The buyer’s possession would be during and in relation to drug
trafficking, but the buyer’s possession would not advance that
operation. As another example, if a buyer came to the seller’s
home for a purchase and left a gun there by mistake, the seller’s
7
possession would be “during and in relation to” the trafficking
without furthering it. Thus, “in furtherance” does not render
“during and in relation to” superfluous.
The second question concerns the “uses or carries” part of the
statute. If our definition of “possession in furtherance”
encompasses every instance of “use or carrying” a firearm “during
and in relation to drug trafficking,” then we have rendered the
“use or carrying” element superfluous.
Given the Supreme Court’s interpretation of “use” in Bailey,
which requires “active employment,” every “use of a firearm during
and in relation to drug trafficking” would also seem to constitute
a possession that furthers or advances the enterprise. Similarly,
carrying a firearm “during and in relation to” drug trafficking
will also always seem to constitute “possession in furtherance.”
Carrying must fall within the definition of possess. And carrying
a firearm always serves to protect the holder. Because the
carrying must be during drug trafficking, the carrying also
furthers the trafficking by protecting the holder during that
activity.4
4
It is possible that a situation exists that would fall within
the “use-or-carrying-during-and-in-relation-to” element but not the
“possession-in-furtherance” element. But because we cannot imagine
what that situation would be, for the purposes of the present
analysis, we must conclude that the latter element renders the
former superfluous. Thus, our inquiry must continue.
8
Thus, giving “in furtherance” the broad dictionary definition
seemingly renders other parts of the statute superfluous. That
concerns us. The rest of § 924 is of no help in resolving this
ambiguity, however, because we find no other uses of the term “in
furtherance.”
We will therefore turn to the legislative history of this
statute to seek further guidance. As already discussed, the
earlier version of § 924 criminalized use and carrying, but not
possession. In United States v. Bailey, 36 F.3d 106, 115 (D.C.
Cir. 1994)(en banc), the D.C. Circuit had interpreted “use” to
encompass situations where the defendant merely put or kept a gun
“accessible and proximate.” This would allow the defendant access
to the gun to facilitate the drug crime. Id. The Supreme Court,
however, overturned the D.C. Circuit, holding that “use” required
some active employment. Bailey, 516 U.S. at 148, 116 S.Ct. at 508.
In response to that decision, 5 however, Congress amended § 924 to
add the “possession-in-furtherance” language. Thus, Congress
clearly intended to broaden the reach of the statute in the wake of
the Supreme Court’s narrow construction. The question is how far
Congress intended to go.
5
The Senate bill was titled the “Bailey ‘Use or Carry’
Firearms Bill.”
9
Reading “possession in furtherance” to encompass any
possession that furthers, advances, or helps with the drug
trafficking would lead to almost the same result as the one reached
by the D.C. Circuit concerning “use.” Putting or keeping a gun in
a place that is accessible and proximate when one is engaged in
drug trafficking would further the operation simply by providing
protection. Did Congress intend to go that far?
The report on the bill to amend the statute by the House
Committee on the Judiciary provides the best indication we have of
congressional intent.6 It begins by reciting the dictionary
6
There are also two statements by individual legislators made
during floor debate, but this type of legislative history is
generally unreliable. As Justice Scalia recently noted,
“statements of individual Members of Congress [are] ordinarily
addressed to a virtually empty floor . . . [and are not] a reliable
indication of what a majority of both Houses of Congress intended
when they voted for the statute.” Crosby v. National Foreign Trade
Council, 2000 WL 775550 at *13 (Scalia, J., dissenting).
Moreover, neither of the two statements is helpful:
The purpose of adding the "in furtherance" language is to
assure that someone who possesses a gun that has nothing
to do with the crime does not fall under 924(c). I
believe that the "in furtherance" language is a slightly
higher standard that encompasses "during and in relation
to" language, by requiring an indication of helping
forward, promote, or advance a crime. This provision
applies equally to the individual simply exercising his
or her right to own a firearm, as well as the prosecutor
who would bring a 924(c) action where there is, arguably,
an insufficient nexus between the crime and the gun.
144 Cong. Rec. S16270-71, 1998 WL 723068 (1968)(statement of Sen.
DeWine).
10
definition of the term “furtherance.” H.R. Rep. No. 105-344
(1997), at 11 (1997). The report then points out that “mere
presence” of a firearm at the scene is not enough to convict. Id.
This part of the legislative history probably supports, and
certainly does not contradict, the dictionary definition we are
considering. The Judiciary Committee’s recitation of that
definition is a good indication that its use is appropriate. And
that definition inherently requires more than “mere presence” of
the firearm at the scene.
But the report does not end there. It also suggests that the
evidence akin to that actually introduced in Bailey “may be
insufficient” to establish possession in furtherance under the
proposed new §924(c). Id. at 11-12. The evidence in that case had
established that the defendant was arrested with drugs in the
passenger compartment of his car, while the firearm was discovered
It is also important to note that this bill will not
affect any person who merely possesses a firearm in the
general vicinity of a crime, nor will it impact someone
who uses a gun in self defense. . . . [The bill
criminalizes] possession of a gun in the commission of a
crime.
144 Cong. Rec. H10,329-01, *H10,330, 1998 WL 701303
(1998)(statement of Rep. Bill McCollum). The DeWine statement uses
almost exactly the same words as the dictionary definition of in
“furtherance.” The McCollum statement seems to contradict that
interpretation, since it would exclude the possession of firearms
that serve to protect drug dealers. Ultimately, these statements
are ambiguous, contradictory, and unreliable. We therefore will
ignore them.
11
during a search of the trunk. An expert had testified that drug
dealers typically carry firearms to protect themselves and their
drugs. The report states, however, that “[a]dditional witness
testimony connecting [the defendant] more specifically with the
firearm” may be necessary. Id.
While this portion of the report is somewhat ambiguous, we
understand it to reemphasize that “mere presence” is not enough.
The “mere presence” test is one based on generality--anytime a drug
dealer possesses a gun, that possession is in furtherance, because
drug dealers generally use guns to protect themselves and their
drugs. What is instead required is evidence more specific to the
particular defendant, showing that his or her possession actually
furthered the drug trafficking offense.
Some factors that would help determine whether a particular
defendant’s possession furthers, advances, or helps forward a drug
trafficking offense might include: the type of drug activity that
is being conducted, accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the status of the possession
(legitimate or illegal), whether the gun is loaded, proximity to
drugs or drug profits, and the time and circumstances under which
the gun is found.
These factors help distinguish different types of firearm
possession. For example, a drug dealer whose only firearms are
12
unloaded antiques mounted on the wall does not possess those
firearms “in furtherance” of drug trafficking. Nor will a drug
trafficker who engages in target shooting or in hunting game likely
violate the law by keeping a pistol for that purpose that is
otherwise locked and inaccessible.
We therefore conclude that using the dictionary definition of
“in furtherance” is the appropriate way to construe the statute.
There are four reasons for doing so. First, the dictionary
definition remains our first and most reliable resource in
construing the language of a statute, while the canons’ primary use
is to resolve ambiguity. Here, it is the canon itself that creates
the ambiguity. Given the choice, we favor the plain meaning of the
words themselves.7 Second, surplusage in this statute is
understandable given the history behind the amended version of §
924. In the wake of Bailey, the Court sought to broaden the
statute by amending it to include “possession in furtherance.” It
would not surprise us if Congress gave less consideration to the
way the new words interacted with the rest of the statute than
Congress normally would if drafting a provision from scratch.
Thus, we are more willing to overlook the surplusage of “use” and
7
And we clearly do have such a choice. As the Supreme Court
explained in Bailey, we must “hesitate. . . to treat statutory
terms [as surplusage].” 516 U.S. at 145, 116 S.Ct., at 506-07.
That does not mean that we must never do so.
13
“carrying” in this case. Third, the legislative history seems to
support this construction in referring to the dictionary definition
as well. Fourth, we have found no suggestion of any other meaning
for the term “in furtherance.” Nor can we envision a way to
further limit that term than in the manner provided by the
dictionary definition.
Thus, firearm possession that furthers, advances, or helps
forward the drug trafficking offense violates the statute. In the
present case, the evidence before us supports a conclusion that
Ceballos’s possession of the Glock was “in furtherance” of his drug
trafficking offense. The weapon was loaded and easily accessible
in Ceballos’s apartment, and he confessed to ownership of the
firearm. It was stolen and possessed illegally. And it was
possessed in the apartment along with a substantial amount of drugs
and money.8 Together, these factors reasonably support a finding
that Ceballos’s gun protected his drugs and money against robbery.
Possession of the Glock was, therefore, in furtherance of drug
trafficking.
III
For the reasons stated herein, Ceballos’s conviction is
A F F I R M E D.
8
Though the government presented no evidence on this point, we
understand that Glocks are favored by participants in drug
trafficking operations.
14
15