United States v. Rios ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50000
Plaintiff-Appellee,
D.C. No.
v.
 CR-04-00177-
GILBERT L. RIOS, JR., a/k/a Seal C, RSWL-03
a/k/a Gilbert Lopez, Jr.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
March 6, 2006—Pasadena, California
Filed June 2, 2006
Before: M. Margaret McKeown and Marsha S. Berzon,
Circuit Judges, and Samuel P. King,* District Judge.
Opinion by Judge Berzon
*The Honorable Samuel P. King, Senior United States District Judge
for the District of Hawaii, sitting by designation.
6097
UNITED STATES v. RIOS 6101
COUNSEL
Jerry D. Whatley, Santa Barbara, California, for the
defendant-appellant.
Andrea L. Russi, Assistant United States Attorney, Los Ange-
les, California, for the plaintiff-appellee.
OPINION
BERZON, Circuit Judge:
Gilbert Rios, Jr. (Rios) was convicted by a jury of seven
counts relating to a conspiracy with his father, Gilbert Lopez
Rios, Sr. (Rios, Sr.) and his grandmother, Martha Lopez Rios
(Martha Rios), to buy prescription drugs with fraudulent pre-
scriptions from the Ar-Ex Pharmacy in Los Angeles and then
sell the drugs elsewhere for profit. Rios was convicted of (1)
one count of conspiracy to distribute and possession with
intent to distribute controlled substances, in violation of 21
U.S.C. § 846; (2) five counts of distribution of controlled sub-
stances and possession with intent to distribute controlled sub-
stances, in violation of 21 U.S.C. § 841(a)(1); and (3) one
count of possession of a firearm in furtherance of a drug traf-
ficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The
drug trafficking crime that Rios was convicted of furthering
was the conspiracy crime, 21 U.S.C. § 846.
Rios contends that the evidence produced at trial was not
sufficient to convict him of possession of a firearm in further-
ance of a drug trafficking crime under § 924(c)(1)(A). We
6102 UNITED STATES v. RIOS
agree. Rios also appeals his sentence, arguing that the district
court erred by failing to grant him a downward adjustment for
acceptance of responsibility pursuant to section 3E1.1 of the
United States Sentencing Guidelines. Because of our holding
on the sufficiency of the evidence claim, we do not reach this
issue.1
I.
At trial, the government put on evidence that the Rios fam-
ily used fraudulent prescriptions to obtain controlled sub-
stances from the Ar-Ex Pharmacy and then sold the drugs to
third parties. On at least one occasion agents observed the
three Rios family members transporting controlled substances
from the Ar-Ex Pharmacy to an apartment located at 1440
South Burlington Street in Los Angeles (Burlington apart-
ment). An undercover agent purchased controlled substances
from Rios, Sr. at the Burlington apartment on several occa-
sions and testified that Rios was present on at least three of
those occasions. When agents later executed search warrants,
they found large quantities of controlled substances at the
Burlington apartment, in Martha Rios’s car, and in bags des-
ignated for the Rios family at the Ar-Ex Pharmacy. Agents
also discovered large amounts of cash at the Burlington apart-
ment and on all three family members.
1
It appears that at trial Rios challenged only the firearm charge. The fact
that Rios contested that charge is no longer a valid reason to deny the
downward adjustment, because we reverse that conviction for insuffi-
ciency of the evidence. Accordingly, at resentencing the district court can
reconsider in light of this opinion its denial of the adjustment for accep-
tance of responsibility. See United States v. Fisher, 137 F.3d 1158, 1167
(9th Cir. 1998).
We further note that Rios was sentenced before United States v. Booker,
543 U.S. 220 (2005), so the district court’s reconsideration of a downward
adjustment for acceptance of responsibility will be in the context of the
now-advisory sentencing guidelines. See id. at 264.
UNITED STATES v. RIOS 6103
The firearm possession charge that Rios contests stems
from a shotgun that agents found at Rios’s residence, a motel
suite at the Bell Gardens Inn. Rios’s residence is a three-room
suite containing a rear bedroom, a bathroom, and a front room
divided by a partition into a living area and a bedroom. Rios
lived there with his teenage son.
In the front room, agents found approximately one hundred
documents related to the conspiracy. These documents
included fake driver’s licenses, blank prescription forms,
completed prescription forms, and a “price list” — a hand-
written note listing the prices of controlled substances. Also
in the front room was a dresser. During a search of the motel
room, an agent discovered an unloaded sawed-off shotgun
under the dresser. The agents did not find any ammunition at
Rios’s residence, nor was there any evidence that drugs were
found at that residence.
The motel manager testified that Rios paid his rent in cash
and had three to four visitors a week, some of whom arrived
around midnight. He further testified that his cleaning staff
had never seen drugs in Rios’s apartment when they cleaned
the unit, which they did periodically.
II.
A.
Because Rios preserved his sufficiency of the evidence
challenge by making a motion for judgment of acquittal after
the close of evidence, we review the denial of the motion de
novo. See United States v. Munoz, 233 F.3d 1117, 1129 (9th
Cir. 2000). In reviewing a sufficiency of the evidence claim,
the central inquiry is whether, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
6104 UNITED STATES v. RIOS
307, 319 (1979); see United States v. Mann, 389 F.3d 869,
878 (9th Cir. 2004).
[1] In relevant part, 18 U.S.C. § 924(c)(1)(A) provides:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime . . . 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.
To prove that Rios possessed a firearm in furtherance of a
drug trafficking crime in violation of § 924(c)(1)(A), the gov-
ernment must show that (1) Rios participated in the conspir-
acy to traffic in prescription drugs; (2) Rios possessed the
firearm; and (3) Rios’s possession of the firearm was “in fur-
therance” of the drug trafficking conspiracy. See Mann, 389
F.3d at 879. Rios does not dispute that he participated in the
conspiracy and possessed the firearm. He maintains, however,
that the evidence was insufficient to satisfy the third factor,
that his possession of the firearm was in furtherance of the
drug trafficking conspiracy.
[2] Two of our cases have addressed whether the evidence
was sufficient to support a conviction for possession of a fire-
arm in furtherance of a drug trafficking crime — Mann and
United States v. Krouse, 370 F.3d 965 (9th Cir. 2004).2 Under
2
In addition, in United States v. Monzon, 429 F.3d 1268 (9th Cir. 2005),
we addressed whether there was a factual basis for a plea to possession in
furtherance of a drug trafficking crime. In Monzon, authorities found over
two hundred grams of heroin in the defendant’s bedroom and a loaded
handgun in his bed. Id. at 1269. Monzon pleaded guilty to, inter alia, pos-
session of a firearm in furtherance of a drug trafficking crime. Id. at 1269-
70. On appeal, Monzon argued that the facts that he had a loaded handgun
in his bed and over two hundred grams of heroin in his bedroom were not
UNITED STATES v. RIOS 6105
these cases, mere possession of a firearm by an individual
convicted of a drug crime is not sufficient for a rational trier
of fact to convict under § 924(c)(1)(A). See Mann, 389 F.3d
at 879-80; Krouse, 370 F.3d at 967. Instead, the government
must show that the defendant intended to use the firearm to
promote or facilitate the drug crime. See Krouse, 370 F.3d at
967. Evidence of this intent is sufficient “when facts in evi-
dence reveal a nexus between the guns discovered and the
underlying offense.”3 Id. at 968. Whether the requisite nexus
is present may be determined by examining, inter alia, the
proximity, accessibility, and strategic location of the firearms
in relation to the locus of drug activities. See id. We have
declined, however, to permit reliance solely on the nature of
the firearms themselves. See Mann, 389 F.3d at 880 (holding
that the possession of “inherently dangerous” firearms that are
“generally lacking in usefulness except for violent and crimi-
nal purposes” does not satisfy the ‘in furtherance of’ element”
of § 924(c)(1)(A)).
In Krouse, local police officers discovered three loaded
firearms, two unloaded firearms, ammunition, 86.5 grams of
cocaine, and almost 150 pounds of marijuana in the defen-
dant’s home. 370 F.3d at 966, 968 n.4. The firearms were
stashed in a dresser in the defendant’s home office. Id. at 968
alone sufficient under Federal Rule of Criminal Procedure 11(b)(3) to
establish a factual basis for his plea of guilty to the possession in further-
ance charge. Id. at 1271. The government conceded that there was no fac-
tual basis for the possession in furtherance of a drug trafficking charge. Id.
at 1271 & n.1. Accordingly, Monzon does not inform the inquiry here.
3
The Fifth Circuit requires consideration of “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 (legiti-
mate or illegal), whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is found.”
United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000).
Krouse rejected this multi-factor test as “less helpful in closer, and more
common, cases.” 370 F.3d at 968.
6106 UNITED STATES v. RIOS
n.4. A jury convicted the defendant of, inter alia, one count
of possession of firearms in furtherance of a drug trafficking
offense under 18 U.S.C. § 924(c)(1)(A). Id. at 966 n.2. We
held that the evidence was sufficient to support the
§ 924(c)(1)(A) conviction because “[n]o less than five high
caliber firearms, plus ammunition, were strategically located
within easy reach in a room containing a substantial quantity
of drugs and drug trafficking paraphernalia.” Id. at 968.
In Mann, local authorities discovered a methamphetamine
lab in a tent at a campsite. 389 F.3d at 872-73. Not long after
the search of the campsite had begun, the defendants returned
to the campsite in a truck. Id. at 873. The authorities searched
the truck and discovered a “semi-automatic pistol, a loaded
‘pen gun,’ ammunition, 30 pseudoephedrine pills, and other
drug paraphernalia.” Id. The firearms were locked inside a
safe, the key to which was in a second tent, used for sleeping.
Id. at 879. A jury convicted the defendants of, inter alia, two
counts of possessing a firearm in furtherance of a drug traf-
ficking conspiracy, in violation of § 924(c)(1)(A). Id. at 874.
Distinguishing Krouse, we held that there was insufficient
evidence to support the § 924(c)(1)(A) conviction. Id. at 880.
Of critical importance was that the firearms in Mann were
locked inside a safe in the defendants’ truck, the key to which
was in the tent used for sleeping, not for drug manufacturing,
and were therefore not strategically located in or “easily
accessible” to an area where “drugs were manufactured and
stored,” as was the case in Krouse. Id.
[3] The legislative history of § 924(c)(1)(A) provides addi-
tional insight into the meaning of the “in furtherance of” lan-
guage. Before 1998, § 924(c)(1) did not include the “in
furtherance of” provision and instead covered only “us[ing] or
carr[ying]” a firearm “during and in relation to any . . . drug
trafficking crime.” 18 U.S.C. § 924(c)(1) (1994), amended by
18 U.S.C. § 924(c)(1) (Supp. IV 1998). In 1998, § 924(c)(1)
was amended to include possession “in furtherance of” a
UNITED STATES v. RIOS 6107
crime of violence or a drug trafficking crime. The House Judi-
ciary Committee Report (House Report) on the amendment
states that the new language was aimed at including more
conduct under the statute than strict “use” or “carrying.” H.R.
REP. NO. 105-344, at 6 (1997). Nonetheless, the House Report
explains that possession “in furtherance of” requires the gov-
ernment to
clearly show that a firearm was possessed to advance
or promote the commission of the underlying
offense. The mere presence of a firearm in an area
where a criminal act occurs is not a sufficient basis
for imposing this particular mandatory sentence.
Rather, the government must illustrate through spe-
cific facts, which tie the defendant to the firearm,
that the firearm was possessed to advance or pro-
mote the criminal activity.
Id. at 12.
This amendment stemmed, at least in part, from Congress’s
disapproval of the Supreme Court’s decision in Bailey v.
United States, 516 U.S. 137 (1995), which defined “use” to
require active employment of a firearm. See id. at 148-50;
H.R. REP. NO. 105-344, at 4-6. While disapproving of the
standard set forth in Bailey and increasing the reach of the
statute, the House Report also used the facts of Bailey to dis-
cuss the new possession “in furtherance of” standard. Specifi-
cally, the House Report noted that the facts relating to one of
the defendants in Bailey may not meet the requirements of
possession “in furtherance of” a drug trafficking crime. H.R.
REP. NO. 105-344, at 12. In Bailey, police pulled over the
defendant for a traffic stop and found cocaine and ammuni-
tion in the passenger compartment of his car, as well as a fire-
arm and a large amount of cash in a bag locked in the trunk.
Bailey, 516 U.S. at 139. The primary evidence tying the fire-
arm to the promotion of a drug crime was an expert who testi-
fied that drug dealers often carry firearms to protect their
6108 UNITED STATES v. RIOS
drugs, money and themselves. Id. The Judiciary Committee
noted that “[s]tanding on its own, this evidence may be insuf-
ficient to meet the ‘in furtherance of’ test. The government
would have to show that the firearm located in the trunk of the
car advanced or promoted Mr. Bailey’s drug dealing activity.”
H.R. REP. NO. 105-344, at 12. The House Report then sug-
gested that “additional witness testimony connecting Mr. Bai-
ley more specifically with the firearm” could establish that the
firearm was possessed “in furtherance of” the drug crime. Id.B.
The government presented both general and particularized
evidence suggesting that Rios possessed the firearm in fur-
therance of the drug conspiracy. In light of Krouse, Mann,
and the legislative history of the 1998 amendment, neither
type of evidence is independently sufficient in the present
case, nor are the two types sufficient when considered
together.
[4] As to the general evidence, the government presented
testimony regarding the usual use of sawed-off shotguns and
the common practices of drug traffickers. One expert stated
that “sawing off” a shotgun makes it easier to conceal and
control and has no “sporting purpose.” As we held in Mann,
however, mere possession of a firearm recognized as one fit
for illegal activity, such as a sawed-off shotgun, does not sat-
isfy the “in furtherance” requirement. Mann, 389 F.3d at 880.
[5] Similarly, another expert testified that drug traffickers
often use firearms for protection and intimidation in drug traf-
ficking crimes. The House Report’s discussion of Bailey sug-
gests that such expert testimony alone is not sufficient to
establish the weapon was possessed “in furtherance of” the
offense. H.R. REP. NO. 105-344, at 12. Nor could it be. Such
testimony could be submitted in any case in which a drug traf-
ficker possesses a gun, functionally eliminating any indepen-
dent role for the possession “in furtherance” language. Had
UNITED STATES v. RIOS 6109
Congress wished to make possession of a gun by a drug traf-
ficker, without more, a crime, it presumably would have done
so. See Mann, 389 F.3d at 880. We therefore hold that expert
testimony that drug traffickers generally use firearms to fur-
ther their drug crimes, standing alone, is not sufficient to
establish that a firearm was possessed in furtherance of a par-
ticular drug crime.
[6] The government also introduced particularized evidence
seeking to establish a connection between the firearm and the
drug conspiracy. The government presented no evidence,
however, that the firearm was ever present at the pharmacy or
at the Burlington apartment, the locations of the known drug
activities. Rather, the government attempted to establish that
possession of the firearm at Rios’s residence furthered the
drug conspiracy.
[7] In furtherance of that position, the government con-
tends, principally, that there was evidence from which an
inference can arise that Rios dealt drugs from his apartment.
There is, however, no evidence establishing that any drugs
were ever present at Rios’s residence. No drugs were found
there during the search, nor did the motel staff see any drugs
in the unit when they cleaned. Furthermore, Rios was never
seen transporting drugs into or out of his motel room.
[8] Maintaining that there was nonetheless sufficient evi-
dence that Rios dealt drugs from his apartment, the govern-
ment argues, first, that the fact that Rios had three to four
visitors per week, some of whom came late at night, suggests
he was dealing drugs. It is, however, hardly unusual to have
that number of visitors at one’s home, nor can one infer —
especially beyond a reasonable doubt — that a few visitors
around midnight indicate that drugs were being sold at that
location.
[9] The government next contends that the presence of the
drug-related documents suggested that Rios was dealing drugs
6110 UNITED STATES v. RIOS
from his home. Although the contention in the brief was
broader, at oral argument the government conceded that the
“price list” for prescription drugs is the only paperwork found
at the motel room arguably relevant to the question of whether
drugs were present at, or dealt from, the apartment. The other
documents pertain to the acquisition of drugs through fraudu-
lent prescriptions and indicate nothing about the location of
the drugs once acquired, or of drug sales. A single document
listing prices for controlled substances is not sufficient evi-
dence that Rios actually dealt drugs from his residence, as
opposed to from elsewhere. Nor does the price list in any
other way support the required inference that the firearm was
possessed in furtherance of the drug crime.
[10] Finally, the government argues that the fact that Rios
paid his rent in cash and was found with $2013 on his person
suggests he sold drugs at his residence. Rios was a drug
dealer, so he was likely to have a great deal of cash. The pres-
ence of cash on his person does not, however, illuminate
where Rios dealt the drugs or otherwise indicate a connection
between the drugs and the gun. In sum, there simply was not
sufficient evidence to support the conclusion that Rios was
dealing drugs from his home and that possession of the gun
was in furtherance of that activity.
[11] The government also contends that even if there is
insufficient evidence to establish that Rios dealt drugs from
his residence, the firearm’s proximity to the conspiracy docu-
ments is sufficient to establish the requisite nexus. There was
substantial evidence that many documents found in Rios’s
apartment were part of the conspiracy to buy and sell pre-
scription drugs and that the firearm was in close proximity to
the documents needed to carry out the conspiracy. The record,
however, in no way suggests that Rios intended to use the
firearm to protect the conspiracy documents or to intimidate
others into staying away from the motel room, or otherwise
possessed the firearm to further the conspiracy. No court of
appeals has held that even close proximity between a firearm
UNITED STATES v. RIOS 6111
and a collateral product of a drug trafficking crime, such as
prescription drug paperwork, satisfies the requisite nexus.4
That the gun in this instance was hidden and unloaded and no
ammunition was found in the apartment makes any inference
that the gun was possessed to protect the documents all the
weaker. Without further evidence of a nexus between the fire-
arm and the conspiracy documents, we cannot hold that the
presence of the documents in the apartment provides suffi-
cient evidence of possession of the firearm “in furtherance of”
a drug trafficking crime.
[12] In sum, no “rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319. Here, as in Mann, the firearm was
not readily accessible to Rios when he would have been
involved in drug conspiracy activities for which possession of
a gun would be useful. The firearm was unloaded and hidden
under a dresser in a drug-free residence that was in another
4
See, e.g., United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002)
(holding that there was sufficient evidence when, inter alia, the defendant
was found running down the street with a loaded semiautomatic pistol in
his hands and nineteen packaged hits of crack on his person); United
States v. Wahl, 290 F.3d 370, 376-77 (D.C. Cir. 2002) (holding that there
was sufficient evidence when, inter alia, a loaded, illegally possessed gun
was within defendant’s reach and in close proximity to defendant’s drug
stash and a small amount of money); United States v. Timmons, 283 F.3d
1246, 1253 (11th Cir. 2002) (holding that there was sufficient evidence
when agents found a “bullet proof vest, crack cocaine on the stove and
under the cushions of the couch, two fully loaded firearms on top of the
oven and ammunition inside the oven in the living room of [the defen-
dant’s] apartment”); United States v. Mackey, 265 F.3d 457, 459, 462-63
(6th Cir. 2001) (holding that there was sufficient evidence when the defen-
dant was found with 2.3 grams of crack on his person, and an illegally
possessed loaded shotgun, scales, and razor blades were found in the
house from which the defendant sold drugs); Ceballos-Torres, 218 F.3d at
411, 415 (holding that there was sufficient evidence when, inter alia, the
defendant had an illegally possessed handgun lying on his bed, 569.8
grams of cocaine in a hidden compartment of his closet, $1360 in cash
which tested positive for cocaine in the pocket of a leather jacket, and
tools for sniffing narcotics in the kitchen).
6112 UNITED STATES v. RIOS
part of town from the locus of the drug activities. The firearm
was not locked away, as it was in Bailey and Mann, although
it was hidden, somewhat like in Krouse. The firearm, how-
ever, was found far from the locus of drug activities, unlike
Krouse. Therefore, the presence of the firearm in Rios’s resi-
dence does not make it any more “strategically located” than
the firearm in the trunk of the car in Bailey or the several fire-
arms in the locked safe in the truck in Mann. Furthermore, the
presence of a firearm in some proximity to collateral products
of a drug crime but far from the locus of drug activities does
not establish the requisite nexus.
Were we to subscribe to the government’s theory that the
facts presented here are sufficient, we would render posses-
sion in furtherance and mere possession nearly indistinguish-
able. Any person involved in a drug conspiracy who happens
to have a weapon at home, for whatever purpose, could be
convicted under § 924(c)(1)(A). This outcome, however, is
precisely what the House Report, Krouse, and Mann caution
against.
[13] For the foregoing reasons, we REVERSE Rios’s con-
viction under 18 U.S.C. § 924(c)(1)(A), VACATE his sen-
tence, and REMAND for resentencing.