United States v. William Mahan ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30475
Plaintiff-Appellee,
v.  D.C. No.
6:06-CR-60045-AA
WILLIAM JOHN MAHAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted
October 6, 2009—Portland, Oregon
Filed November 16, 2009
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Charles R. Wolle,*
Senior District Judge.
Opinion by Judge O’Scannlain
*The Honorable Charles R. Wolle, Senior United States District Judge
for the Southern District of Iowa, sitting by designation.
15259
UNITED STATES v. MAHAN 15261
COUNSEL
Terri Wood, of Eugene, Oregon, argued the cause for the
defendant-appellant and filed the briefs.
Frank R. Papagini, Jr., Assistant United States Attorney for
the District of Oregon, Eugene, Oregon, argued the cause for
the appellee and filed the brief. Karin J. Immergut, United
States Attorney for the District of Oregon, and Kelly A. Zus-
man, Assistant United States Attorney for the District of Ore-
gon, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether an individual who trades drugs for
guns possesses the firearms “in furtherance of” his drug traf-
ficking offense.
I
15262 UNITED STATES v. MAHAN
A
Late on the evening of November 30, 2005, Zane Isabell
and Shawn Copley offered to sell several stolen firearms to
William Mahan. Copley initially called his mother to gauge
her interest in acquiring them; during this phone call, he ulti-
mately spoke with Mahan, who was living with Copley’s
mother at the time. Based on Copley’s conversation with
Mahan, Copley and Isabell drove to his mother’s house with
the stolen firearms. After smoking some methamphetamine
that Mahan supplied, the three left the house and went to a
nearby shed, where Copley showed Mahan the guns. After
viewing the firearms, Mahan agreed to buy them for a combi-
nation of 1/8 ounce of methamphetamine and approximately
$700 in cash.
B
Mahan was eventually arrested and charged on a three-
count indictment. The final count charged him with posses-
sion of a firearm “in furtherance of” a drug trafficking offense
in violation of 18 U.S.C. § 924(c). Mahan’s motion for acquit-
tal was denied before closing argument. The jury convicted
Mahan, who timely appeals.1
II
Mahan challenges the district court’s decision to deny his
motion for acquittal.2 In essence, we are confronted with a
1
Mahan’s claim that the district court’s sentence was improper is dis-
posed of in a memorandum disposition filed concurrently with this opin-
ion.
2
A motion for acquittal must be filed within seven days of a jury ver-
dict. Fed. R. Crim. P. 29(c). Mahan did not file his motion until nine
months after the jury verdict, and thus, it was untimely. However, because
Mahan made a Rule 29(a) motion as to the sufficiency of the evidence (at
the conclusion of the evidence adduced at trial), we review de novo the
denial of a Rule 29 motion for acquittal. United States v. Tisor, 96 F.3d
370, 379 (9th Cir. 1996).
UNITED STATES v. MAHAN 15263
narrow question of law: whether a defendant who receives
guns in exchange for drugs possesses those guns “in further-
ance of” his drug trafficking offense within the meaning of 18
U.S.C. § 924(c).
A
[1] Section 924(c)(1)(A) establishes minimum penalties for
offenders who use firearms to commit drug trafficking
offenses. It provides, in pertinent part:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime . . . for
which the person may be prosecuted in a court of the
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—
(i) be sentenced to a term of imprisonment of not
less than 5 years;
(emphasis added).
[2] “[T]he natural meaning of ‘in furtherance of’ is ‘fur-
thering, advancing or helping forward.’ ” United States v.
Hector, 474 F.3d 1150, 1157 (9th Cir. 2007) (internal cita-
tions omitted). The government can establish that a defendant
has used a gun to “promote or facilitate” a crime if “facts in
evidence reveal a nexus between the guns discovered and the
underlying offense.” United States v. Krouse, 370 F.3d 965,
968 (9th Cir. 2004). Mahan rather argues that, in order to
obtain a conviction under the “in furtherance of” prong of sec-
tion 924(c), “the government must show that the defendant
intended to use the firearm to promote or facilitate the drug
crime.” United States v. Rios, 449 F.3d 1009, 1012 (9th Cir.
2006) (emphasis added).
15264 UNITED STATES v. MAHAN
[3] This argument misreads Rios, where we applied the
familiar “nexus” requirement to uphold the defendant’s con-
viction. Although we described the government’s burden as
requiring proof of intent, we clarified that “[e]vidence of this
intent is sufficient when facts in evidence reveal a nexus
between the guns discovered and the underlying offense.” Id.(internal quotation marks and citations omitted).
[4] Moreover, the text of the statute clearly demonstrates
that “in furtherance of” does not simply mean “intends to
use.” Section 924(d), the subsection following the one in
issue, draws a distinction between firearms “used” in an
offense and those “intended to be used.” 18 U.S.C.
§ 924(d)(1); see also Bailey v. United States, 516 U.S. 137,
146 (1995). Thus, we reject Mahan’s attempt to recharacterize
the meaning of “in furtherance of,” and again reaffirm that
“intended to be used” and “in furtherance of” are different
standards. Given that the statute uses these two phrases in dif-
ferent contexts, there is no reason to interpret the two provi-
sions as identical. Thus, Mahan’s attempt to redefine the
phrase “in furtherance of” is unpersuasive.
B
The determination of whether a defendant possessed fire-
arms in furtherance of a drug offense “turns on the intent of
the defendant,” and is generally fact specific, focusing on the
evidence linking the firearm to the drug crime. See Krouse,
370 F.3d at 967. When guns are located within strategic reach
of a dealer such that he can use the guns to protect his illicit
trade or the proceeds thereof, then a defendant’s possession
would typically be characterized as “in furtherance of” the
drug crime. Compare id. at 968 (holding that high-caliber
firearms located within easy reach in a room containing drugs
were possessed “in furtherance of” a drug offense), with
United States v. Mann, 389 F.3d 869, 872-73 (9th Cir. 2004)
(holding that guns located within a locked safe in the defen-
UNITED STATES v. MAHAN 15265
dant’s truck were not possessed “in furtherance of” trafficking
drugs located within a tent).
[5] From these cases, Mahan attempts to glean the principle
that a gun must be within close physical proximity to a drug
trafficker or his drugs in order to be possessed “in furtherance
of” the drug offense. Although all of this court’s prior deci-
sions interpreting this statute have done so in the context of
a defendant who possessed a firearm near drugs, see, e.g.,
United States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007)
(holding that the defendant violated section 924(c) when both
drugs and firearms were within his reach when he was
stopped by the police), neither the statute nor our prior cases
limit it to such situations.
[6] Five other courts of appeals have confronted cases fac-
tually similar to this one, and all have either decided or
assumed without deciding that a defendant who, like Mahan,
receives firearms in exchange for drugs possesses those fire-
arms “in furtherance of” a drug trafficking offense. See
United States v. Sterling, 555 F.3d 452, 458 (5th Cir. 2009)
(“We thus assume, without deciding, that bartering drugs for
guns constitutes ‘possession in furtherance’ [of a drug traf-
ficking offense.]”); United States v. Dolliver, 228 F. App’x 2,
3 (1st Cir. 2007) (holding that trading drugs for a gun is a vio-
lation of the “in furtherance of” prong of the statute); United
States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007)
(same); United States v. Boyd, 209 F. App’x 285, 290 (4th
Cir. 2006) (“We conclude that accepting possession of fire-
arms as payment for crack cocaine is possession in further-
ance of a drug trafficking crime.”); United States v. Frederick,
406 F.3d 754, 764 (6th Cir. 2005) (holding that trading drugs
for a firearm violates the “in furtherance of” prong of the stat-
ute).
[7] These cases demonstrate the common sense proposition
that when one accepts a gun in exchange for drugs, the gun
is an integral part of the drug sale because without the gun—
15266 UNITED STATES v. MAHAN
the “currency” for the purchase—the drug sale would not take
place. As the Sixth Circuit observed:
As a matter of logic, 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. If the defendant did not accept pos-
session 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.
Frederick, 406 F.3d at 764. When a defendant accepts a gun
as payment for his drugs, his sale—and thus his crime—is
incomplete until he receives possession of the firearm. We fail
to see how possession that completes a drug trafficking
offense is not possession “in furtherance of” a drug trafficking
offense.
[8] Mahan cites no precedent, from this circuit or any other,
for the proposition that accepting guns as payment for drugs
does not constitute possession of firearms “in furtherance of”
a drug trafficking offense.3 In light of the unanimity and clar-
ity of our sister circuits’ precedent, we decline Mahan’s invi-
tation to create a circuit split, and hold that a defendant who
accepts firearms in exchange for drugs possesses the firearms
“in furtherance of” a drug trafficking offense.
3
For these same reasons, we reject Mahan’s claim that he did not pos-
sess the firearms “in furtherance of” his drug trafficking offense since he
did not acquire possession of the firearms until the completion of his
offense. This argument incorrectly interprets the phrase “in furtherance of”
to mean “during.” The statute does not require that the defendant possess
the gun throughout the entirety of his drug deal; rather, it simply requires
that whatever the specific nature of his gun possession, it “further[ ],
advanc[e] or help[ ] forward” the underlying drug sale. Hector, 474 F.3d
at 1157 (quoting United States v. Castillo, 406 F.3d 806, 814 (7th Cir.
2005)).
UNITED STATES v. MAHAN 15267
III
Mahan offers several arguments to rebut our construction.
A
[9] First, Mahan cites a pair of Supreme Court opinions. He
compares Watson v. United States, 552 U.S. 74 (2007), where
the Court held that a defendant does not “use” a gun when he
receives it in trade for drugs, to Smith v. United States, 508
U.S. 223 (1993), where the Court held that a defendant does
use a gun if he trades it to “purchase” drugs. Watson, how-
ever, interpreted only section 924(c)’s “use” prong. The gov-
ernment did not charge Mahan under section 924(c)’s “use”
prong, however. Instead, it charged him under section
924(c)’s “in furtherance of” prong. Therefore, Watson’s hold-
ing does not control. Indeed, Watson expressly declined to
discuss whether receiving guns in exchange for drugs violates
the “in furtherance of” prong of section 924(c). Thus, these
Supreme Court decisions shed no light on whether Mahan’s
conduct falls within the “in furtherance of” prong of section
924(c).
B
[10] Second, Mahan claims that his possession of the fire-
arms was not “in furtherance of” his drug trafficking offense
because they did not play an “emboldening role” in his
offense. He argues that Congress amended the statute to
include the “in furtherance of” prong to address a situation
“where a defendant kept a firearm available to provide secur-
ity for the transaction, its fruit or proceeds, or was otherwise
emboldened by its presence in the commission of the
offense.” 144 Cong. Rec. 26,608-09 (1998) (statement of Sen.
DeWine).4 This lone senator’s statement, however, cannot
4
Mahan also points to United States v. Polanco, 93 F.3d 555, 566-67
(9th Cir. 1996), for the proposition that, in order to demonstrate that he
15268 UNITED STATES v. MAHAN
overcome the plain language of the statute. To whatever
extent the legislative history is relevant, the frequently cited
House Judiciary Committee Report5 states that in order to
obtain a conviction under this prong of the statute, “[t]he gov-
ernment must clearly show that a firearm was possessed to
advance or promote the commission of the underlying
offense.” H.R. Rep. No. 105-344, at 12 (1997). Thus, we
deem Mahan’s attempt to import additional elements into sec-
tion 924(c) unpersuasive.
IV
For the foregoing reasons, the district court’s denial of
Mahan’s motion for acquittal is
AFFIRMED.
possessed the firearms “in furtherance of” his drug trafficking crime, the
government must prove that his use of a gun “emboldened” him to commit
his offense. We decided Polanco two years before Congress amended sec-
tion 924(c) to include the “in furtherance of” prong, so the case does not
bear on the meaning of this phrase.
5
This court, as well as other courts interpreting this portion of the stat-
ute, has frequently looked to the House Report accompanying the statute
for guidance. See Rios, 449 F.3d at 1013 (quoting House Report 105-344);
see also United States v. Combs, 369 F.3d 925, 932 (6th Cir. 2004)
(same).