dissenting as to Part II.B.:
Sometimes the law is “a ass, a idiot,” Mr. Bumble. Our recent holdings in United States v. Derr, 990 F.2d 1330 (D.C.Cir.1993), and United States v. Bruce, 939 F.2d 1053 (D.C.Cir.1991), are cases in point. But until the Supreme Court or this court sitting ere banc changes the law, those decisions are the law and we must apply them faithfully. Because I do not believe that our disposition of the § 924(c) issue can honestly be reconciled with Derr and Bruce, I respectfully dissent.
In Derr an unloaded .357 magnum and nine rounds of ammunition were found alongside cash, drugs packaged for sale, and a scale, all in a locked closet in an apartment. There was incontestable evidence of drug trafficking from the apartment. See 990 F.2d at 1332, 1338. Nonetheless, this court held that the gun could not have been “ ‘used’ to facilitate the predicate offense” of possession with intent to distribute drugs because the unloaded firearm was too inaccessible to protect the possession of the drugs in the apartment. Id., at 1337. Similarly, in Bruce a loaded gun was found stored with drugs, cash, and ziplock bags in a raincoat hanging in a closet. Again the court held that the gun’s location was too remote from the defendant for him to use it to protect his possession of the drugs and thus to facilitate the predicate offense of possession with intent to distribute the drugs. See 939 F.2d at 1056.
The present case presents a similar fact pattern: a loaded 9-mm. pistol was found alongside cash in the locked trunk of a car, while the drugs were located next to the defendant in the front seat of the car. The court distinguishes Derr and Bruce, however, on the ground that a jury could reasonably infer that Bailey had used the gun here to protect himself and his goods during drugs sales made before his arrest, as well as the cash proceeds thereof. The problem is that the exact same inference could easily have been drawn in Derr and Bruce, but the court in those cases found the evidence insufficient as a matter of law to support a conviction for *1120using a firearm to facilitate a drug trafficking offense. ■
I do not see any principled basis for distinguishing Derr or Bruce from the present case. That the gun in Derr was unloaded is certainly not dispositive. An unloaded gun can facilitate a drug trafficking crime almost as well as a loaded gun, by emboldening its owner and intimidating others. See United States v. Gutierrez-Silva, 983 F.2d 123, 124-25 (8th Cir.1993) (upholding § 924(c) conviction involving unloaded gun in closet of apartment containing no ammunition; crediting expert’s testimony that “it is very difficult for a person to determine whether a gun was loaded or not when the gun is pointed at that person”); cf. McLaughlin v. United States, 476 U.S. 16, 17, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986) (holding that unloaded handgun is “dangerous weapon” under federal bank robbery statute on the grounds that a gun “is always dangerous even though it may not be armed”).* Nor can Bruce be distinguished on the ground that the defendant there possessed a smaller firearm, a Derringer. The court can not substitute its judgment for the jury’s by inferring that an otherwise accessible gun is too small to be useful.
Such particularistic distinctions are all beside the point anyway under the highly formalistic analysis that this circuit has apparently adopted. In order to uphold a conviction under § 924(c) there must be evidence that the gun “facilitate[d] the predicate offense in some way.” United States v. Harris, 959 F.2d 246, 261 (D.C.Cir.1992). Although the issue of what constitutes a “predicate offense” in this context appears not to have been contested in prior cases, our case-law requires that a § 924(c) conviction be predicated upon a drug offense charged in the indictment and proved at trial — which in this case could only be possession with intent to distribute. See, e.g., Derr, 990 F.2d at 1337 (gun must have provided protection during “the time of the possession which is the basis of the charge”); cf United States v. Laing, 889 F.2d 281, 288 (D.C.Cir.1989) (upholding § 924(c) conviction despite acquittal for predicate offense because jury may have still been “convinced of the defendant’s guilt”).
Thus when the defendant is charged only with possession, “there must be evidence showing that the firearm actually facilitated the possession of the drugs.” See Derr, 990 F.2d at 1337 (emphasis in original). I for one cannot imagine how a gun in a locked car trunk could have been used to protect the possession of the 27 bags in the front seat — if one accepts the premise that the guns in Derr and Bruce could not protect the drugs with which they were closeted. See Derr, 990 F.2d at 1337-1339 (unloaded gun stowed together with ammunition, drugs, and cash in locked closet in apartment insufficiently accessible to protect drugs in same closet); Bruce, 939 F.2d at 1056 (gun in raincoat hanging in closet not sufficiently available to protect drugs in pocket of same raincoat).
It is irrelevant that the jury here might reasonably have inferred that the gun was used to protect the possession of drugs Bailey had sold earlier or the cash proceeds of those sales, because neither the cash nor the already-sold drugs formed “the basis of the indicted charge” against him. Compare Bruce, 939 F.2d at 1055 (rejecting Government’s argument “that since possession of drugs with intent to distribute is a ‘continuing crime,’ ” proximity is sufficient to establish “use”) with Op. at 1118 (“The jury could reasonably infer ... that the weapon located in the trunk was used to facilitate the defendant’s sales of narcotics and the possession of all of the drugs that necessarily preceded those transactions”).
All that said, it seems to me that the “predicate offense” analysis of our circuit defies both apparent congressional intent and common sense. Congress clearly enacted § 924(c) in order to deter drug dealers from *1121arming themselves, which vastly enhances the threat they pose to the community. See Smith v. United States, — U.S.-,-, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138 (1993), (“introduction [of guns] into the scene of drug transactions dramatically heightens the danger to society”) (quoting United States v. Harris, 959 F.2d 246, 262 (D.C.Cir.1992)). Common sense indicates that although he was not charged with distribution, Bailey had in fact been dealing drugs; he was not carrying more than $3000 in small bills for nothing and he was not planning to give the last of his drugs away free or to raffle them off for charity. Common sense also suggests that Bailey had taken the gun along to facilitate his drug transactions; he was not just delivering the gun to his fearful grandmother for use as domestic protection.
On its face § 924(c) reaches the use of a firearm “in relation to any ... drug trafficking crime,” not only to a “predicate [drug] offense” charged against the defendant. Presumably, therefore, if we were writing on a clean slate, we might hold that the “related” drug trafficking crime need not have been charged so long as all of its elements are proved beyond a reasonable doubt. Cf Op. at 1116-17 (stating that jury could reasonably infer that money was proceeds of prior drug distributions). Our circuit, however, in Bruce and Derr ignored ordinary rules of construction and adopted a cramped interpretation of § 924(c). Were it not for those cases I would gladly join the majority in upholding the .§ 924(c) conviction.
See also DIRTY HARRY (Warner Bros. 1971) (bank robber decides not to reach for pistol when inspector points gun at him and says, "I know what you're thinking: 'Did he fire six shots, or only five?’ Well, to tell you the truth, in all this excitement I've kinda lost track myself. But being this is a .44 magnum, the most powerful handgun in the world, and would blow your head clean off, you've got to ask yourself one question: ‘Do I feel lucky?' ... Well, do ya, punk?") (quoted in Eric Bailey, How to Get Your Own Back, Daily Telegraph, Feb. 5, 1993, at 17).