United States v. Martinez , 557 F.3d 597 ( 2009 )

BRIGHT, Circuit Judge,

concurring.

I concur but write separately to comment on one point presented in the supplemental briefs, which were requested by the court.

Judge Shepherd’s opinion observes that our cases have held that the acceptance of unloaded weapons for drugs can trigger the two-level sentencing enhancement of section 2D1.1(b)(1) of the Sentencing Guidelines. Here, the district court applied the enhancement. Slip op. at 3.

For me, a question arises about the scope of the Supreme Court’s recent decision in Watson v. United States, — U.S. -, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007), which held that a person who sells drugs in exchange for a firearm does not “use” a firearm under 18 U.S.C. § 924(c)(1)(A).

Although I recognize that this case involves a different provision, U.S.S.G. § 2Dl.l(b)(l), it seems to me that Watson’s reasoning may extend beyond § 924(c)(1)(A).

As noted, we asked for supplemental briefing on whether Watson affects the sentencing procedure here. The parties disagree in their supplemental briefs on the merits. But as the government correctly notes, the issue is not properly before us, inasmuch as appellants did not raise that issue in the district court or in their opening briefing with this court. However, I call attention to this matter, which may arise in other cases.