Watson v. United States , 128 S. Ct. 579 ( 2007 )

(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WATSON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 06–571. Argued October 9, 2007—Decided December 10, 2007
After trading a controlled substance for a pistol, petitioner Watson was
indicted for, inter alia, violating 18 U.S. C. §924(c)(1)(A), which sets
a mandatory minimum sentence, depending on the facts, for a defen
dant who, “during and in relation to any . . . drug trafficking crime[,]
. . . uses . . . a firearm.” The statute does not define “uses,” but this
Court has spoken to it twice. In holding that “a criminal who trades
his firearm for drugs ‘uses’ it . . . within the meaning of §924(c)(1),”
Smith v. United States, 508 U.S. 223, 241, the Court rested primarily
on the “ordinary or natural meaning” of the verb in context, id., at
228, understanding its common range as going beyond employment
as a weapon to trading a weapon for drugs, id., at 230. Later, in
holding that merely possessing a firearm kept near the scene of drug
trafficking is not “use” under §924(c)(1), the Court, in Bailey v.
United States, 516 U.S. 137, again looked to “ordinary or natural”
meaning, id., at 145, deciding that Ҥ924(c)(1) requires evidence suffi
cient to show an active employment of the firearm by the defendant, a
use that makes the firearm an operative factor in relation to the
predicate offense,” id., at 143. Watson pleaded guilty but reserved
the right to challenge the factual basis for a §924(c)(1)(A) conviction
and sentence. The Fifth Circuit affirmed on its precedent foreclosing
any argument that Watson had not “used” a firearm.
Held: A person does not “use” a firearm under 18 U.S. C. §924(c)(1)(A)
when he receives it in trade for drugs. Pp. 4–9.
(a) The Government’s position lacks authority in either precedent
or regular English. Neither Smith, which addressed only the trader
who swaps his gun for drugs, not the trading partner who ends up
with the gun, nor Bailey, which ruled that a gun must be made use of
actively to satisfy §924(c)(1)(A), decides this case. With no statutory
2 WATSON v. UNITED STATES
Syllabus
definition, the meaning of “uses” has to turn on “everyday meaning”
revealed in phraseology that strikes the ear as “both reasonable and
normal.” Smith, supra, 228, 230. When Watson handed over the
drugs for the pistol, the officer “used” the pistol to get the drugs, but
regular speech would not say that Watson himself used the pistol in
the trade. Pp. 4–5.
(b) The Government’s first effort to trump ordinary English is re
jected. Noting that §924(d)(1) authorizes seizure and forfeiture of
firearms “intended to be used in” certain crimes, the Government in
fers that since some of those offenses involve receipt of a firearm,
“use” necessarily includes receipt of a gun even in a barter transac
tion. The Government’s reliance on Smith for the proposition that
the term must be given the same meaning in both subsections over-
reads Smith. The common verb “use” is not at odds in the two sub
sections but speaks to different issues in different voices and at dif
ferent levels of specificity. Section 924(d)(1) indicates that a gun can
be “used” in a receipt crime, but does not say whether both parties to
a transfer use the gun, or only one, or which one; however,
§924(c)(1)(A) requires just such a specific identification. Pp. 5–7.
(c) Nor is the Government’s second effort to trump ordinary Eng
lish persuasive. It claims that failing to treat receipt in trade as
“use” would create unacceptable asymmetry with Smith; i.e., it would
be strange to penalize one side of a gun-for-drugs exchange but not
the other. The problem is not with Smith, however, but with the lim
ited malleability of the language it construed, and policy-driven
symmetry cannot turn “receipt-in-trade” into “use.” Whatever the
tension between the prior result and the outcome here, law depends
on respect for language and would be served better by statutory
amendment than by racking statutory language to cover a policy it
fails to reach. Pp. 8–9.
191 Fed. Appx. 326, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ.,
joined. GINSBURG, J., filed an opinion concurring in the judgment.
Cite as: 552 U. S. ____ (2007) 1
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
_________________
No. 06–571
_________________
MICHAEL A. WATSON, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[December 10, 2007]
JUSTICE SOUTER delivered the opinion of the Court.
The question is whether a person who trades his drugs
for a gun “uses” a firearm “during and in relation to . . . [a]
drug trafficking crime” within the meaning of 18 U.S. C.
§924(c)(1)(A).1 We hold that he does not.
I
A
Section 924(c)(1)(A) sets a mandatory minimum sen
tence, depending on the facts, for a defendant who, “during
and in relation to any crime of violence or drug trafficking
crime[,] . . . uses or carries a firearm.”2 The statute leaves
the term “uses” undefined, though we have spoken to it
twice before.
Smith v. United States, 508 U.S. 223 (1993) raised the
converse of today’s question, and held that “a criminal who
——————
1 Formerly 18 U.S. C. §924(c)(1) (1994 ed.).
2 Any violation of §924(c)(1)(A), for example, demands a mandatory
minimum sentence of 5 years. See 18 U.S. C. §924(c)(1)(A)(i). If the
firearm is brandished, the minimum goes up to 7 years, see
§924(c)(1)(A)(ii); if the firearm is discharged, the minimum jumps to 10
years, see §924(c)(1)(A)(iii).
2 WATSON v. UNITED STATES
Opinion of the Court
trades his firearm for drugs ‘uses’ it during and in relation
to a drug trafficking offense within the meaning of
§924(c)(1).” Id., at 241. We rested primarily on the “ordi
nary or natural meaning” of the verb in context, id., at
228, and understood its common range as going beyond
employment as a weapon: “it is both reasonable and nor
mal to say that petitioner ‘used’ his MAC–10 in his drug
trafficking offense by trading it for cocaine,” id., at 230.
Two years later, the issue in Bailey v. United States, 516
U.S. 137 (1995) was whether possessing a firearm kept
near the scene of drug trafficking is “use” under §924(c)(1).
We looked again to “ordinary or natural” meaning, id., at
145, and decided that mere possession does not amount to
“use”: “§924(c)(1) requires evidence sufficient to show an
active employment of the firearm by the defendant, a use
that makes the firearm an operative factor in relation to
the predicate offense,” id., at 143.3
B
This third case on the reach of §924(c)(1)(A) began to
take shape when petitioner, Michael A. Watson, told a
Government informant that he wanted to acquire a gun.
On the matter of price, the informant quoted no dollar
figure but suggested that Watson could pay in narcotics.
Next, Watson met with the informant and an undercover
law enforcement agent posing as a firearms dealer, to
whom he gave 24 doses of oxycodone hydrocholoride
(commonly, OxyContin) for a .50 caliber semiautomatic
pistol. When law enforcement officers arrested Watson,
they found the pistol in his car, and a later search of his
house turned up a cache of prescription medicines, guns,
——————
3 In 1998, Congress responded to Bailey by amending §924(c)(1). The
amendment broadened the provision to cover a defendant who “in
furtherance of any [crime of violence or drug trafficking] crime, pos
sesses a firearm.” 18 U.S. C. §924(c)(1)(A). The amendment did not
touch the “use” prong of §924(c)(1).
Cite as: 552 U. S. ____ (2007) 3
Opinion of the Court
and ammunition. Watson said he got the pistol “to protect
his other firearms and drugs.” App. to Pet. for Cert. 11a.
A federal grand jury indicted him for distributing a
Schedule II controlled substance and for “using” the pistol
during and in relation to that crime, in violation of
§924(c)(1)(A).4 Watson pleaded guilty across the board,
reserving the right to challenge the factual basis for a
§924(c)(1)(A) conviction and the added consecutive sen
tence of 60 months for using the gun. The Court of Ap
peals affirmed, 191 Fed. Appx. 326 (CA5 2006) (per cu
riam), on Circuit precedent foreclosing any argument that
Watson had not “used” a firearm, see id., at 327 (citing
United States v. Ulloa, 94 F.3d 949 (CA5 1996) and
United States v. Zuniga, 18 F.3d 1254 (CA5 1994)).
We granted certiorari to resolve a conflict among the
Circuits on whether a person “uses” a firearm within the
meaning of 18 U.S. C. §924(c)(1)(A) when he trades nar
cotics to obtain a gun.5 549 U.S. ___ (2007). We now
——————
4 The grand jury also indicted Watson as a felon in possession of a
firearm, in violation of §922(g)(1). This count referred to the five
firearms found in Watson’s house, but not the pistol he got for the
narcotics.
5 Compare United States v. Cotto, 456 F.3d 25 (CA1 2006) (trading
drugs for a firearm constitutes “use” of the firearm under §924(c)(1)(A));
United States v. Sumler, 294 F.3d 579 (CA3 2002) (same); United
States v. Ramirez-Rangel, 103 F.3d 1501 (CA9 1997) (same); United
States v. Ulloa, 94 F.3d 949 (CA5 1996) (same); United States v.
Cannon, 88 F.3d 1495 (CA8 1996) (same), with United States v.
Montano, 398 F.3d 1276 (CA11 2005) (per curiam) (defendant did not
“use” a firearm within the meaning of §924(c)(1)(A) when he traded
drugs for a firearm); United States v. Stewart, 246 F.3d 728 (CADC
2001) (same); United States v. Warwick, 167 F.3d 965 (CA6 1999)
(same); United States v. Westmoreland, 122 F.3d 431 (CA7 1997)
(same). The Fourth Circuit has held that a defendant “used” a firearm
where he gave cocaine base to a compatriot in exchange for assistance
in obtaining a gun. See United States v. Harris, 39 F.3d 1262 (1994).
Subsequent unpublished opinions in that Circuit have relied on Harris
for the proposition that the receipt of a firearm in exchange for drugs
constitutes use of the firearm. See, e.g., United States v. Belcher, No.
4 WATSON v. UNITED STATES
Opinion of the Court
reverse.
II
A
The Government’s position that Watson “used” the
pistol under §924(c)(1)(A) by receiving it for narcotics lacks
authority in either precedent or regular English. To begin
with, neither Smith nor Bailey implicitly decides this case.
While Smith held that firearms may be “used” in a barter
transaction, even with no violent employment, see 508
U. S., at 241, the case addressed only the trader who
swaps his gun for drugs, not the trading partner who ends
up with the gun. Bailey, too, is unhelpful, with its rule
that a gun must be made use of actively to satisfy
§924(c)(1)(A), as “an operative factor in relation to the
predicate offense.” 516 U. S., at 143. The question here is
whether it makes sense to say that Watson employed the
gun at all; Bailey does not answer it.
With no statutory definition or definitive clue, the
meaning of the verb “uses” has to turn on the language as
we normally speak it, see, e.g., Lopez v. Gonzales, 549
U.S. ___, ___ (2006) (slip op., at 5); Asgrow Seed Co. v.
Winterboer, 513 U.S. 179, 187 (1995); FDIC v. Meyer, 510
U.S. 471, 476 (1994); there is no other source of a reason
able inference about what Congress understood when
writing or what its words will bring to the mind of a care
ful reader. So, in Smith we looked for “everyday mean
ing,” 508 U. S., at 228, revealed in phraseology that
strikes the ear as “both reasonable and normal,” id., at
230. See also Bailey, supra, at 145. This appeal to the
ordinary leaves the Government without much of a case.
The Government may say that a person “uses” a firearm
simply by receiving it in a barter transaction, but no one
else would. A boy who trades an apple to get a granola bar
——————
98–4845, 1999 WL 1080103 (CA4, Nov. 29, 1999) (per curiam).
Cite as: 552 U. S. ____ (2007) 5
Opinion of the Court
is sensibly said to use the apple, but one would never
guess which way this commerce actually flowed from
hearing that the boy used the granola. Cf. United States
v. Stewart, 246 F.3d 728, 731 (CADC 2001) (“[W]hen a
person pays a cashier a dollar for a cup of coffee in the
courthouse cafeteria, the customer has not used the coffee.
He has only used the dollar bill”). So, when Watson
handed over the drugs for the pistol, the informant or the
agent6 “used” the pistol to get the drugs, just as Smith
held, but regular speech would not say that Watson him
self used the pistol in the trade. “A seller does not ‘use’ a
buyer’s consideration,” United States v. Westmoreland, 122
F.3d 431, 436 (CA7 1997), and the Government’s contrary
position recalls another case; Lopez, supra, at ___ (slip op.,
at 7), rejected the Government’s interpretation of 18
U.S. C. §924(c)(2) because “we do not normally speak or
write the Government’s way.”7
B
The Government would trump ordinary English with
two arguments. First, it relies on Smith for the pertinence
of a neighboring provision, 18 U.S. C. §924(d)(1), which
authorizes seizure and forfeiture of firearms “intended to
be used in” certain criminal offenses listed in §924(d)(3).
Some of those offenses involve receipt of a firearm,8 from
——————
6 The record does not say which.
7 Dictionaries confirm the conclusion. “Use” is concededly “elastic,”
Smith v. United States, 508 U.S. 223, 241 (1993) (SCALIA, J., dissent
ing), but none of its standard definitions stretch far enough to reach
Watson’s conduct, see, e.g., Webster’s New International Dictionary of
the English Language 2806 (2d ed. 1939) (“to employ”); The Random
House Dictionary of the English Language 2097 (2d ed. 1987) (to “apply
to one’s own purposes”; “put into service; make use of”); Black’s Law
Dictionary 1541 (6th ed. 1990) (“[t]o avail oneself of; . . . to utilize”); see
also Smith, supra, at 228–229 (listing various dictionary definitions).
8 See, e.g., 18 U.S. C. §922(j) (prohibiting, inter alia, the receipt of a
stolen firearm in interstate commerce); §924(b) (prohibiting, inter alia,
6 WATSON v. UNITED STATES
Opinion of the Court
which the Government infers that “use” under §924(d)
necessarily includes receipt of a gun even in a barter
transaction. Smith is cited for the proposition that the
term must be given the same meaning in both subsections,
and the Government urges us to import “use” as “receipt
in barter” into §924(c)(1)(A).
We agree with the Government that §924(d) calls for
attention; the reference to intended use in a receipt crime
carries some suggestion that receipt can be “use” (more of
a hint, say, than speaking of intended “use” in a crime
defined as exchange). But the suggestion is a tepid one
and falls short of supporting what is really an attempt to
draw a conclusion too specific from a premise too general.
The Smith majority rested principally on ordinary
speech in reasoning that §924(c)(1) extends beyond use as
a weapon and includes use as an item of barter, see 508
U. S., at 228–230, and the Smith opinion looks to §924(d)
only for its light on that conclusion. It notes that the
“intended to be used” clause of §924(d)(1) refers to offenses
where “the firearm is not used as a weapon but instead as
an item of barter or commerce,” id., at 234, with the impli
cation that Congress intended “use” to reach commercial
transactions, not just gun violence, in §924(d) generally,
see id., at 234–235. It was this breadth of treatment that
led the Smith majority to say that, “[u]nless we are to hold
that using a firearm has a different meaning in §924(c)(1)
than it does in §924(d)—and clearly we should not—we
must reject petitioner’s narrow interpretation.” Id., at 235
(citation omitted); see also Bailey, supra, at 146 (“[U]sing a
firearm should not have a different meaning in §924(c)(1)
than it does in §924(d)” (internal quotation marks omit
ted)).
The Government overreads Smith. While the neighbor
——————
the receipt of a firearm in interstate commerce with the intent to
commit a felony).
Cite as: 552 U. S. ____ (2007) 7
Opinion of the Court
ing provision indicates that a firearm is “used” nonoffen
sively, and supports the conclusion that a gun can be
“used” in barter, beyond that point its illumination fails.
This is so because the utility of §924(d)(1) is limited by its
generality and its passive voice; it tells us a gun can be
“used” in a receipt crime, but not whether both parties to a
transfer use the gun, or only one, or which one. The
nearby subsection (c)(1)(A), however, requires just such a
specific identification. It provides that a person who uses
a gun in the circumstances described commits a crime,
whose perpetrator must be clearly identifiable in advance.
The agnosticism on the part of §924(d)(1) about who
does the using is entirely consistent with common speech’s
understanding that the first possessor is the one who
“uses” the gun in the trade, and there is thus no cause to
admonish us to adhere to the paradigm of a statute “as a
symmetrical and coherent regulatory scheme, . . . in which
the operative words have a consistent meaning through
out,” Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), or
to invoke the “standard principle of statutory construction
. . . that identical words and phrases within the same
statute should normally be given the same meaning,”
Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S.
___, ___ (2007) (slip op., at 7). Subsections (d)(1) and
(c)(1)(A) as we read them are not at odds over the verb
“use”; the point is merely that in the two subsections the
common verb speaks to different issues in different voices
and at different levels of specificity. The provisions do
distinct jobs, but we do not make them guilty of employing
the common verb inconsistently.9
——————
9 For that matter, the Government’s argument that “use” must al
ways have an identical meaning in §§924(c)(1)(A) and 924(d)(1) would
upend Bailey v. United States, 516 U.S. 137 (1995). One of the rele
vant predicate offenses referred to by §924(d)(1) is possession of “any
stolen firearm . . . [in] interstate or foreign commerce.” 18 U.S. C.
§922(j). If we were to hold that all criminal conduct covered by the
8 WATSON v. UNITED STATES
Opinion of the Court
C
The second effort to trump regular English is the claim
that failing to treat receipt in trade as “use” would create
unacceptable asymmetry with Smith. At bottom, this
atextual policy critique says it would be strange to penal
ize one side of a gun-for-drugs exchange but not the other:
“[t]he danger to society is created not only by the person
who brings the firearm to the drug transaction, but also by
the drug dealer who takes the weapon in exchange for his
drugs during the transaction,” Brief for United States 23.
The position assumes that Smith must be respected, and
we join the Government at least on this starting point. A
difference of opinion within the Court (as in Smith) does
not keep the door open for another try at statutory con
struction, where stare decisis has “special force [since] the
legislative power is implicated, and Congress remains free
to alter what we have done.” Patterson v. McLean Credit
Union, 491 U.S. 164, 172–173 (1989). What is more, in 14
years Congress has taken no step to modify Smith’s hold
ing, and this long congressional acquiescence “has en
hanced even the usual precedential force” we accord to our
interpretations of statutes, Shepard v. United States, 544
U.S. 13, 23 (2005).
The problem, then, is not with the sturdiness of Smith
but with the limited malleability of the language Smith
construed, and policy-driven symmetry cannot turn “re
ceipt-in-trade” into “use.” Whatever the tension between
the prior result and the outcome here, law depends on
respect for language and would be served better by statu
tory amendment (if Congress sees asymmetry) than by
——————
“intended to be used” clause in §924(d)(1) is “use” for purposes of
§924(c)(1)(A), it would follow that mere possession is use. But that
would squarely conflict with our considered and unanimous decision in
Bailey that “ ‘use’ must connote more than mere possession of a fire
arm.” 516 U. S., at 143.
Cite as: 552 U. S. ____ (2007) 9
Opinion of the Court
racking statutory language to cover a policy it fails to
reach.
The argument is a peculiar one, in fact, given the Gov
ernment’s take on the current state of §924(c)(1)(A). It
was amended after Bailey and now prohibits not only
using a firearm during and in relation to a drug trafficking
crime, but also possessing one “in furtherance of” such a
crime. 18 U.S. C. §924(c)(1)(A); see n. 3, supra. The
Government is confident that “a drug dealer who takes a
firearm in exchange for his drugs generally will be subject
to prosecution” under this new possession prong. Brief for
United States 27; see Tr. of Oral Arg. 41 (Watson’s case
“could have been charged as possession”); cf. United States
v. Cox, 324 F.3d 77, 83, n. 2 (CA2 2003) (“For defendants
charged under §924(c) after [the post-Bailey] amendment,
trading drugs for a gun will probably result in . . . posses
sion [in furtherance of a drug trafficking crime]”). This
view may or may not prevail, and we do not speak to it
today, but it does leave the appeal to symmetry under-
whelming in a contest with the English language, on the
Government’s very terms.
* * *
Given ordinary meaning and the conventions of English,
we hold that a person does not “use” a firearm under
§924(c)(1)(A) when he receives it in trade for drugs. The
judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 552 U. S. ____ (2007) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–571
_________________
MICHAEL A. WATSON, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[December 10, 2007]
JUSTICE GINSBURG, concurring in the judgment.
It is better to receive than to give, the Court holds today,
at least when the subject is guns. Distinguishing, as the
Court does, between trading a gun for drugs and trading
drugs for a gun, for purposes of the 18 U.S. C. §924(c)(1)
enhancement, makes scant sense to me. I join the Court’s
judgment, however, because I am persuaded that the
Court took a wrong turn in Smith v. United States, 508
U.S. 223 (1993), when it held that trading a gun for drugs
fits within §924(c)(1)’s compass as “us[e]” of a firearm
“during and in relation to any . . . drug trafficking crime.”
For reasons well stated by JUSTICE SCALIA in his dissent
ing opinion in Smith, 508 U. S., at 241, I would read the
word “use” in §924(c)(1) to mean use as a weapon, not use
in a bartering transaction. Accordingly, I would overrule
Smith, and thereby render our precedent both coherent
and consistent with normal usage. Cf. Henslee v. Union
Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949)
(Frankfurter, J., dissenting) (“Wisdom too often never
comes, and so one ought not to reject it merely because it
comes late.”).