In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2278
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRYAN R. LANG,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 CR 50013—Philip G. Reinhard, Judge.
____________
ARGUED MARCH 31, 2008—DECIDED AUGUST 8, 2008
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Before KANNE, EVANS, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Bryan Lang appeals the four-
level enhancement he received pursuant to U.S.S.G.
§ 2K2.1(b)(6). He argues that his trade of a firearm in
exchange for drugs was improperly characterized as “use”
of the firearm for purposes of the enhancement. We
disagree, and affirm Lang’s sentence.
I. HISTORY
Bryan Lang, a convicted felon, used a .38 caliber hand-
gun to purchase cocaine in February 2006. Lang was
2 No. 07-2278
short on cash, so he traded the gun for the drugs in the
parking lot of a Rockford, Illinois bar. The exchange
was observed by FBI agents who were conducting sur-
veillance at the location. After questioning him about the
transaction, law-enforcement officers arrested Lang on
February 25, 2006. He was charged by indictment with
being a felon in possession of a firearm. See 18 U.S.C.
§ 922(g)(1). He entered a guilty plea without a written
plea agreement with the government.
Lang’s Presentence Report included a four-level en-
hancement pursuant to U.S.S.G. § 2K2.1(b)(6), which calls
for the enhancement if the defendant “used or possessed
any firearm or ammunition in connection with another
felony offense,” or if the defendant “possessed or trans-
ferred any firearm or ammunition with knowledge, intent,
or reason to believe that it would be used or possessed
in connection with another felony offense.” After adding
the four levels, Lang’s total offense level was 25, and
his Criminal History Category was VI. This subjected
Lang to a guidelines range of 110 to 137 months’ imprison-
ment. The statutory maximum for his offense was
capped at 120 months.
Lang objected to the § 2K2.1(b)(6) enhancement, arguing
that the guidelines did not contemplate its application
where the defendant exchanged his firearm for cocaine.
The district court disagreed. Although the court did not
think Lang’s conduct fell under the second provision of
§ 2K2.1(b)(6) because he did not possess or transfer the
gun with “knowledge, intent, or reason to believe that
it would be used in connection with another felony
offense,” the court viewed Lang’s conduct as falling
within the first part of § 2K2.1(b)(6) because Lang had
used the firearm as an “item of trade” in an illicit
No. 07-2278 3
cocaine deal that would constitute a felony under either
federal or Illinois law.
After considering the sentencing factors enunciated in
18 U.S.C. § 3553(a), the court sentenced Lang to 110
months’ imprisonment. Lang timely filed this appeal.
II. ANALYSIS
The sole issue on appeal is whether the district court
erred by applying the four-level enhancement pursuant
to U.S.S.G. § 2K2.1(b)(6). Lang argues that the text of the
guidelines delineates between “use” and “transfer,” and
that the district court should not have viewed Lang’s
bartering of his gun for drugs as “use” under the first
provision of § 2K2.1(b)(6), because he actually “trans-
ferred” the gun. According to Lang, transfers are ex-
cluded in the first part of the provision, and the district
court erred by categorizing Lang’s gun activity as use.
We review de novo the district court’s legal interpreta-
tion of the sentencing guidelines, United States v. Katalinic,
510 F.3d 744, 746 (7th Cir. 2007), as well as its application
of the guidelines to the facts of the case, United States
v. Samuels, 521 F.3d 804, 815 (7th Cir. 2008). Specifically,
we are reviewing the district court’s determination that
a defendant’s exchange of a gun for cocaine was con-
sidered “use” of the firearm in connection with the
felony offense of cocaine distribution or sale, pursuant
to U.S.S.G. § 2K21.1(b)(6).
In Smith v. United States, 508 U.S. 224, 241 (1993), the
Supreme Court considered what “use” meant for the
purposes of 18 U.S.C. § 924(c)(1), which prescribes an
enhanced penalty if a person uses a fiream in relation to a
4 No. 07-2278
crime of violence or drug trafficking crime. Although the
language in § 2K2.1(b)(6) is different from the statutory
language at issue in Smith, the Supreme Court’s reasoning
and ultimate definition of “use” is persuasive here. “[A]
criminal who trades his firearm for drugs ‘uses’ it during
and in relation to a drug trafficking offense within the
meaning of § 924(c)(1).” Id. The Court explained that
the attempted drug deal in that case—involving a pur-
chaser who attempted to trade his firearm for cocaine—
would not have been possible but for the trade of the
gun, so the gun’s role in the furtherance of the de-
fendant’s activity was not accidental or coincidental. Id.
at 237-38. Because the gun played an “integral part” in
the attempted offense, it was “used” in relation to the
drug trafficking crime. Id.
The Supreme Court recently upheld Smith in Watson v.
United States, but limited its scope: Smith “addressed only
the trader who swaps his gun for drugs, not the trading
partner who ends up with the gun.” Watson v. United States,
128 S. Ct. 579, 583, 585 (2007). The Court again explained
that the person who hands over a firearm in exchange for
something else “uses” it in order to secure the desired item,
but the person who simply receives the item in a barter
transaction does not use it. Id. at 583. The Court’s distinc-
tion between the giver and the receiver of a firearm in a
trade reflects the same distinction we recognized in
United States v. Westermoreland, 122 F.3d 431, 436 (7th
Cir. 1997). “ ‘A seller does not ‘use’ a buyer’s consider-
ation.’ ” Watson, 128 S. Ct. at 583 (quoting Westermoreland,
122 F.3d at 436).
Lang argues that the still-valid holding of Smith is not
analogous here because the statutory language in 18 U.S.C.
§ 924(c)(2) (at issue in Smith and Watson) differs from the
No. 07-2278 5
language in § 2K2.1(b)(6) of the Sentencing Guidelines.
Section 924 prescribes an enhanced penalty if a person,
“during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm . . . .” Section
2K2.1(b)(6) provides for a four-level enhancement of the
offense level if the defendant either “used or possessed
any firearm or ammunition in connection with another
felony offense,” or “possessed or transferred any firearm
or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connec-
tion with another felony offense . . . .” Lang argues that
because the second provision of § 2K2.1(b)(6) specifically
mentions “transfers” of firearms, the word “used” in the
first provision does not encompass transfers.
To prevail on this argument, Lang would have to con-
vince us that the presence of the word “transferred” in the
second provision of § 2K2.1(b)(6) modifies the word “used”
in the first provision, because, as normally read, the
word “used” means having employed an item for some
purpose. See Watson, 128 S. Ct. at 583 (“With no statutory
definition or definitive clue, the meaning of the verb ‘uses’
has to turn on the language as we normally speak it . . . .
When Watson handed over the drugs for the pistol, the
officer ‘used’ the pistol to get the drugs”); Smith, 508 U.S.
at 228 (“ ‘When a word is not defined by statute, we
normally construe it in accord with its ordinary or natural
meaning.’ ” (citing Perrin v. United States, 444 U.S. 37, 42
(1979))). The ordinary meaning of the word “use” in
relation to a firearm-for-drugs trade was explained in
Watson, see 128 S. Ct. at 583, and that meaning expressly
contemplates what happened with Lang—he traded his
gun for cocaine. See also Smith, 508 U.S. at 229 (“By attempt-
ing to trade his MAC-10 for the drugs, he ‘used’ or ‘em-
6 No. 07-2278
ployed’ 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.”).
“Use” is a broader concept than “transfer,” and nothing
in the text of § 2K2.1(b)(6) suggests that the sentencing
commission’s choice of “use” would exclude the type of
use at issue here—trading a firearm for drugs. A firearm
can be used as a form of currency to purchase an item in
trade, see Watson, 128 S. Ct. at 583, or it can be used as a
firearm, see Smith, 508 U.S. at 236. It might also be used
as a device for bludgeoning. See id. at 232. Use and trans-
fer are not synonymous—the dictionary defines transfer
as: “to convey or cause to pass from one place, person, or
thing to another.” American Heritage Dictionary of the
English Language (4th ed. 2000). The term “transfer”
contemplates more than the type of exchange involved
here—transferring includes passing a gun to another
person for nothing in exchange. Simply put, a defendant
may use a weapon in one of several ways; one of those
ways might be to transfer it. Because use is a broader
concept than transfer, the presence of transfer in the
second provision of § 2K2.1(b)(6) does not suggest that
it should also have been present in the first provision of
§ 2K2.1(b)(6) to apply the enhancement in a case where
the defendant’s use of the weapon could also broadly
be classified as a transfer.
Further, the Application Note to § 2K2.1 suggests that
the word “used” should be read very broadly in sub-
section (b)(6): “in the case of a drug trafficking offense
in which a firearm is found in close proximity to drugs,
drug-manufacturing materials, or drug paraphernalia . . .
application of subsection[ ] (b)(6) . . . is warranted be-
cause the presence of the firearm has the potential of
No. 07-2278 7
facilitating another felony offense . . . .” U.S.S.G. § 2K2.1
application note 14(B). If merely finding a firearm near
drugs allows for the application of subection (b)(6) and
its four-level enhancement, certainly Lang’s active em-
ployment of the firearm as part of the drug-trafficking
crime falls within the scope of the provision.
Finally, as the governmnet points out in its brief,
the two provisions in § 2K2.1(b)(6) speak to different
scenarios. The first provision—in which the verbs “used”
and “possessed” are employed—addresses situations
where the defendant himself commited the additional
felony. The second provision—in which the verbs “pos-
sessed” and “transferred” are employed—addresses
situations where the defendant merely knew, intended, or
had reason to know that the firearm would be used or
possessed in a separate felony. The second provision
contemplates felonies committed by third parties—it does
not make sense in such a scenario to employ the word
“used” because the defendant himself would likely not be
present at the felony that he has knowledge, intent, or rea-
son to believe will ensue, see id., or at the very least,
the defendant would not be committing the other felony.
His contribution to that felony would be in providing the
firearm—not in personally using the firearm as a weapon,
bludgeoning device, or item of trade. A defendant who is
participating in a crime can personally use a weapon in one
of several ways, as previously discussed—such conduct
would fall under the first provision. A defendant who
knows about another crime he is not in the process of
committing can provide a weapon by “transferring” it with
knowledge, intent, or reason to be believe it will be used
or possessed in connection with the other felony of-
fense—such conduct would fall under the second provi-
sion.
8 No. 07-2278
III. CONCLUSION
Lang’s sentence is AFFIRMED.
8-8-08