[00:00:00] Speaker 03:
24-2145, US versus Jimenez-Marquez.

[00:00:05] Speaker 03:
Mr. Acton, you may proceed.

[00:00:09] Speaker 05:
Good morning, Your Honors.

[00:00:09] Speaker 05:
May it please the court?

[00:00:11] Speaker 05:
My name is Gregory Acton.

[00:00:12] Speaker 05:
I represent the appellant, Octavio Jimenez-Marquez, in this case.

[00:00:16] Speaker 05:
And Mr. Jimenez appealed his conviction in this case because he was not given fair warning that what he was doing violated the law.

[00:00:29] Speaker 05:
Obviously, he did violate the law, but not this particular law, not 924C, which imposes an additional five years mandatory to whatever other sentence he might get for what he was doing that was in violation of law.

[00:00:46] Speaker 05:
The court will remember that Mr. Jimenez was at his mother's house with a pickup truck unloading personal items out of the back of the pickup truck.

[00:00:57] Speaker 05:
And because there was a

[00:00:59] Speaker 05:
They traced this truck as being stolen.

[00:01:03] Speaker 05:
Law enforcement approached and they discovered that there were drugs in the cab of the vehicle, as well as firearms.

[00:01:13] Speaker 05:
It was an assault-style rifle in the passenger well and a pistol under the seat.

[00:01:20] Speaker 05:
And it was next to a bag of drugs under the seat.

[00:01:23] Speaker 05:
But that pistol was unloaded.

[00:01:25] Speaker 05:
uh, the ammunition might've been able to sort through in a, in a shaving kit bag in the back seat.

[00:01:32] Speaker 05:
But the point, uh, the point of all of this is that, I mean, he was, he was a drug trafficker.

[00:01:39] Speaker 05:
He was in possession of drugs with intent to, uh, with the intent to sell those drugs.

[00:01:45] Speaker 05:
Uh, he'd been doing that.

[00:01:48] Speaker 05:
Uh, and, but what he was doing, sorry, and he was in possession of firearms.

[00:01:52] Speaker 05:
And, but what he was doing was at the time that this,

[00:01:55] Speaker 05:
924C was rewritten by Congress.

[00:01:59] Speaker 05:
When it was rewritten, Congress and everybody else knew what it meant to possess a firearm during and in relation to a drug trafficking crime.

[00:02:09] Speaker 05:
It was very clear.

[00:02:10] Speaker 05:
We have to give an assortment here.

[00:02:13] Speaker 05:
The Muscareo case in 1998, the United States Supreme Court, we had a handgun locked in the truck's glove compartment and a bag

[00:02:26] Speaker 05:
a fireman, a bag in the trunk of the car, but that was during and in relation to the Bailey case from the DC Circuit.

[00:02:34] Speaker 03:
Let me stop you.

[00:02:36] Speaker 03:
You made a very interesting argument, but isn't the issue whether in furtherance of is too vague language, and we have lots of cases interpreting that language, and it doesn't matter what

[00:02:52] Speaker 03:
in relation to means.

[00:02:54] Speaker 03:
We know that in relation to, or we assume at least, that in relation to covers more than acting in furtherance of or possessing in furtherance of, but as long as we have clear guidance on what in furtherance of means, why do we care what another provision means?

[00:03:13] Speaker 05:
Well, it's the same provision and I think we care because it's what Congress tried to do with this.

[00:03:18] Speaker 05:
It's what Congress was

[00:03:19] Speaker 05:
Congress, after the Bailey case, U.S.

[00:03:22] Speaker 05:
Supreme Court case said, you know, you can't be having mere possession during a relationship, too.

[00:03:28] Speaker 05:
If you have mere possession, Congress has got to put in the word possession.

[00:03:32] Speaker 05:
And Congress looked at that and said, okay, we'll put in the word possession, but we're going to separate possession out from during a relationship.

[00:03:43] Speaker 03:
But don't we do disagree that we have

[00:03:46] Speaker 03:
a fair number of cases that may clear what in furtherance of means in this context?

[00:03:54] Speaker 05:
The problem with these cases is that they don't define, it's not clear at all to me, because they don't define the space in between in furtherance of and during in relation to.

[00:04:06] Speaker 03:
Why do we care about that?

[00:04:07] Speaker 03:
If he knows what space is covered by in furtherance of, why do we care

[00:04:13] Speaker 03:
whether he knows or anyone else knows what uh in relation to means he he's not he's not charged with that doesn't that isn't he on notice of what can get him in trouble what can get him criminally liable i think what puts him on notice should be determined at the time that congress was writing this thing because at the time they because because i think congressional intent matters wait wait wait there's a whole

[00:04:41] Speaker 03:
body of law that a court can interpret it more or less narrowly and it's the once once it's been interpreted by the court and there are lots of decisions saying this is in further what can further itself means

[00:04:56] Speaker 03:
That's settled.

[00:04:57] Speaker 03:
It may not have been as clear at the time it was enacted, but the courts have interpreted it to make it clear.

[00:05:06] Speaker 03:
And I don't see what's unclear about the language and furtherance of.

[00:05:12] Speaker 03:
You make a good point that in relation to means something different, and you're curious about what that can mean.

[00:05:21] Speaker 03:
And that's an interesting argument, but I don't see how it has any relationship

[00:05:26] Speaker 03:
to whether and further itself is too vague.

[00:05:30] Speaker 05:
Well, I appreciate that, Your Honor, because I think you're focusing on the real point here, because I have been searching for to understand.

[00:05:41] Speaker 05:
I'm looking for an explanation here.

[00:05:43] Speaker 05:
I'm looking for why is it that if I take the hypothetical drug dealer who's who we have a long list of cases that if you have

[00:05:57] Speaker 05:
If you have the fortress analogy from the Sixth Circuit, but if you're using a firearm just to protect your drugs, it's just there in the event that you need it.

[00:06:07] Speaker 05:
And now Congress is amending this.

[00:06:11] Speaker 05:
Okay, so now I know, because what Congress just wrote, that I can do that.

[00:06:17] Speaker 05:
I can do that.

[00:06:18] Speaker 05:
It's not that I can, I may not be able to possess a firearm for some other reason.

[00:06:24] Speaker 05:
And I certainly cannot be possessing the drugs with the intent to distribute them and possess them otherwise.

[00:06:32] Speaker 05:
But the Congress has just told me that if that's all I'm doing, it's not an extra five years.

[00:06:38] Speaker 05:
And that's clearly what Congress was trying to do.

[00:06:41] Speaker 05:
And I don't think the courts are justified in ignoring what is the clear intention of Congress in amending this statute.

[00:06:49] Speaker 05:
And I have not actually addressed that, I'm sorry.

[00:06:52] Speaker 00:
The intention of Congress, Congress was upset with the court thinking that they weren't enforcing it broadly enough.

[00:07:00] Speaker 00:
And so Congress went back in to give it greater reach, not less.

[00:07:07] Speaker 05:
But your honor, then they narrowed it.

[00:07:09] Speaker 05:
They expanded by adding the word possession, and then narrowed possession from during and in relation to.

[00:07:18] Speaker 05:
And no court has been able to explain the difference.

[00:07:20] Speaker 00:
During and in relation to, you can meet the requirement by just showing in furtherance up, right?

[00:07:29] Speaker 00:
So does your client have, first of all, you make a facial challenge, but you can't challenge a criminal statute facially if it doesn't impact First Amendment rights.

[00:07:41] Speaker 00:
Would you agree with that?

[00:07:43] Speaker 05:
I do, Your Honor.

[00:07:43] Speaker 00:
This is really- Okay, so we're talking about this as applied to your client.

[00:07:51] Speaker 00:
As applied to your client, as Judge Hartz has pointed out, we're looking at

[00:07:58] Speaker 00:
the in-furtherance of language, not the in-relation to.

[00:08:03] Speaker 00:
He was charged in-furtherance of.

[00:08:09] Speaker 05:
But, Your Honor, I don't think that that is fair to read a statute in parsing it that way, rather than reading it in context.

[00:08:19] Speaker 05:
I think that's the proper statutory interpretation, is to look at the language in the context.

[00:08:24] Speaker 05:
And you have to compare those two terms, those two phrases,

[00:08:28] Speaker 05:
in this statute to be able to understand them.

[00:08:30] Speaker 05:
And that can't be explained.

[00:08:31] Speaker 04:
If that difference can't be explained, then it's unconstitutionally vague.

[00:08:35] Speaker 04:
Is there any case that's found in furtherance of vague?

[00:08:40] Speaker 04:
I've not found cases arguing that.

[00:08:43] Speaker 04:
How about the converse?

[00:08:46] Speaker 04:
I'm sorry?

[00:08:47] Speaker 02:
Aren't there cases that find this language is not vague?

[00:08:51] Speaker 05:
Well, I think there are, I think there are, but I don't think it's, I don't think it's making the argument that I'm making that they have, because yeah, when the courts say that that's not vague, they're saying, well, in furtherance, we know what that means.

[00:09:05] Speaker 05:
But they don't take on, they never ever take on straight up what's the difference between those two, because Congress clearly intended a difference.

[00:09:14] Speaker 03:
Well, let's start with that.

[00:09:17] Speaker 03:
So during and in relation to is broader than in furtherance of.

[00:09:22] Speaker 03:
You agree with that?

[00:09:23] Speaker 05:
Yes.

[00:09:25] Speaker 03:
So what you're relying on is that in the past, courts have found that during and in relation to covers situations like the situation in this case.

[00:09:38] Speaker 05:
Correct.

[00:09:39] Speaker 03:
So why does that mean that it's not also covered by in furtherance of the fact that the language before was broader and covered this doesn't mean that actions in furtherance of June does not encompass what happened here.

[00:09:57] Speaker 03:
It could have satisfied the during in relation to

[00:10:01] Speaker 03:
and still satisfy in furtherance of.

[00:10:04] Speaker 03:
There may be other situations where it could satisfy during in relation to, but it wouldn't satisfy in furtherance of.

[00:10:12] Speaker 03:
But that's not the case we had.

[00:10:14] Speaker 05:
But I can't find any explanation, even theoretical, as to what kind of facts fall in that space.

[00:10:21] Speaker 05:
In what space?

[00:10:23] Speaker 05:
The space in between those two standards.

[00:10:25] Speaker 05:
Congress said it's supposed to be a slightly higher standard.

[00:10:27] Speaker 05:
They're two different standards.

[00:10:29] Speaker 05:
They're not being treated as two different standards.

[00:10:30] Speaker 00:
If this is an as applied challenge, why does your client get to challenge that?

[00:10:38] Speaker 00:
Your client was convicted based on, in furtherance of, and that's not vague.

[00:10:48] Speaker 05:
I think it is vague if you are, if your understanding, which these are kind of, these are,

[00:10:53] Speaker 05:
A criminal's understanding of the law is a fiction, right, but so using that fiction, we have a hypothetical criminal that understands the law and understands the jurisprudence underlining that and looks at that amendment and says, I can

[00:11:13] Speaker 05:
I can do this because Congress narrowed it.

[00:11:16] Speaker 05:
It said that you need something more than just protection.

[00:11:20] Speaker 05:
That's what they say, because possession protection was during in relation to, and Congress said, you need something more, and nobody can explain what that is.

[00:11:29] Speaker 05:
So all I know is if I just hold that gun for protection, I'm not violating that law.

[00:11:35] Speaker 05:
And if the result is I am, then it's so vague, because I can't explain how it's different.

[00:11:41] Speaker 02:
It seems to me that in furtherance of is less vague or more clear than in relation to.

[00:11:48] Speaker 05:
It gets us back to the same place, though.

[00:11:56] Speaker 05:
It's not necessarily that you can't just clearly define in furtherance versus in relation to.

[00:12:05] Speaker 05:
It's how in relationships is defined in the jurisprudence

[00:12:11] Speaker 05:
And Congress saying we need to, if it's gonna be possession, we need a closer connection, but nobody can define what that connection is.

[00:12:19] Speaker 05:
What is found in that closeness?

[00:12:23] Speaker 05:
What is the fact scenario that makes this closer than a possession for protection?

[00:12:29] Speaker 05:
Because possession protection meets the lower standard.

[00:12:32] Speaker 05:
How do you get to the higher standard?

[00:12:36] Speaker 03:
we've been at the same issue the whole time that you've been arguing today but what you seem to be saying is we know that during and in relation to is broader than in furtherance of and you want to know what the difference is but as long as it's as long as it's within the in furtherance of who cares

[00:13:03] Speaker 03:
if during and in relation to is broader or how much broader it is.

[00:13:12] Speaker 05:
Because it's not a lower standard, it's a higher standard.

[00:13:16] Speaker 03:
During and in relation to is broader, is it not?

[00:13:19] Speaker 05:
But it's a lower standard.

[00:13:20] Speaker 05:
I don't know if I'm following you.

[00:13:22] Speaker 03:
You mean you don't have to prove as much for that.

[00:13:25] Speaker 03:
So why do we care what more could have been covered

[00:13:33] Speaker 03:
if for procession.

[00:13:34] Speaker 03:
I'm sorry, go ahead.

[00:13:38] Speaker 03:
Go ahead.

[00:13:39] Speaker 05:
I think as the government argued, it's the difference between preponderance of the evidence and beyond a reasonable doubt.

[00:13:45] Speaker 05:
We all know that if you've got a preponderance of the evidence, that's not enough reasonable doubt.

[00:13:50] Speaker 05:
I think it goes that direction.

[00:13:52] Speaker 05:
I think it's like you can have enough for during a relationship too, but Congress intended that not to be enough.

[00:13:59] Speaker 05:
So maybe we're not using the word broad and narrow the same.

[00:14:03] Speaker 05:
Congress intended that that would not be enough because it is a higher standard.

[00:14:08] Speaker 05:
It's a closer connection.

[00:14:10] Speaker 05:
Mere possession for protection is not a sufficient connection.

[00:14:15] Speaker 05:
But what is that connection?

[00:14:17] Speaker 02:
I'd like to resume the question.

[00:14:19] Speaker 05:
Why isn't that enough?

[00:14:21] Speaker 02:
Our cases say that drug dealers carry guns both for protection from

[00:14:29] Speaker 02:
people that want to steal their drugs and money and to use offensively if they're of that type.

[00:14:35] Speaker 02:
So who cares if it's for personal safety?

[00:14:38] Speaker 05:
I could argue the policy of it, but this is what Congress was intending when they wrote new words into this statute.

[00:14:46] Speaker 05:
They had some reason to put in further and so all they had to do is say during a relationship too, and all of this would have been covered.

[00:14:54] Speaker 03:
But they put in, in furtherance of, and- I'm going to give you a minute to address your second issue, because I'm not going to let you wait until you hear from the government and then give rebuttal when you haven't said anything indirect.

[00:15:08] Speaker 03:
So one minute to discuss the sufficiency of the evidence.

[00:15:12] Speaker 05:
Your Honor, I really don't need much time on that at all.

[00:15:15] Speaker 05:
I think that the insufficiency of the evidence is a natural byproduct.

[00:15:21] Speaker 05:
I'm saying that you need some other kind of evidence to get you from the lower standard of the higher standard.

[00:15:27] Speaker 05:
If we can't define what that is, we don't know what it is.

[00:15:30] Speaker 05:
We certainly didn't have it in this case.

[00:15:32] Speaker 03:
Okay.

[00:15:33] Speaker 03:
Thank you, counsel.

[00:15:35] Speaker 01:
Thank you.

[00:15:36] Speaker 03:
Mr. Matei.

[00:15:38] Speaker 01:
Thank you, your honor.

[00:15:39] Speaker 01:
May I please the court Lou Matei on behalf of the United States.

[00:15:43] Speaker 01:
I want to start with what I think is the

[00:15:45] Speaker 01:
the central theme of the discussion that we just had.

[00:15:49] Speaker 01:
And I think it really points to the key flaw in the defendant's argument.

[00:15:53] Speaker 01:
He's misunderstanding the relationship between in furtherance of and in relation to.

[00:15:58] Speaker 01:
I think it's clear from this court's cases that in relation to is a broader circle that we're dealing with and that in furtherance of is a narrower subset of relationship within that broader circle.

[00:16:12] Speaker 01:
If we're thinking of it as a Venn diagram, in furtherance of is a smaller subset within in relation to.

[00:16:19] Speaker 01:
And so if, if, as the court was indicating, the problem is with that broader outer reach of the circle of in relation to cases, those defects are not applicable to the in furtherance of scenario that we have here.

[00:16:34] Speaker 01:
This case was only charged as an in furtherance of case.

[00:16:37] Speaker 01:
It only went to the jury on that theory.

[00:16:38] Speaker 01:
And that's the only version of 924C that we have before the court in this case.

[00:16:44] Speaker 01:
And so even if there are theoretically some issues at the periphery of, in relation to, those issues would not create a constitutional defect within the furtherance of statute that we're dealing with here.

[00:16:58] Speaker 01:
The key misunderstanding I think that the defendant's brief makes is that in relation to and in furtherance over two completely separate things, really the overlap here does not create ambiguity.

[00:17:11] Speaker 01:
And I've thought of some analogies on this, but the one that I keep coming back to from popular culture is if

[00:17:17] Speaker 01:
If we're on Family Feud and the category is green things in a forest, the top answer might be trees, right?

[00:17:25] Speaker 01:
That's going to be a pretty common subset of in relation to.

[00:17:29] Speaker 01:
But there are other green things in the forest.

[00:17:32] Speaker 01:
And just because trees might take up a large portion of the playing field of the in relation to space, that doesn't create ambiguity or any inability to distinguish between these two categories of things.

[00:17:45] Speaker 00:
What's the point of having in furtherance of, if it already is fully assumed by in relation to?

[00:17:54] Speaker 01:
Joanna, I think the answer to that question really comes from the Bailey case and then Congress's response to it.

[00:18:01] Speaker 01:
When we're looking at the prior version of section 924C, of course, pre Bailey, it only criminalized use and carry of a firearm

[00:18:11] Speaker 01:
during and in relation to a drug trafficking crime in a case like this.

[00:18:16] Speaker 01:
And the problem that the Bailey Court found is that courts had been construing use and carry to include possession for protection.

[00:18:25] Speaker 01:
The Bailey Court says Congress knew how to criminalize possession.

[00:18:30] Speaker 01:
And here, it didn't use that word.

[00:18:32] Speaker 01:
It used the word use and carry.

[00:18:33] Speaker 01:
And so to construe use or carry to include possession is a problem.

[00:18:38] Speaker 01:
And so in that context, all of those pre Bailey cases, finding that possession for protection fell within that prior version of section 924 C, all of a sudden possession for protection was excluded from the scope of section 924 C. And so Congress acts to fix that problem.

[00:18:58] Speaker 01:
And that's where we have the current.

[00:18:59] Speaker 01:
Part of 924 see that is that issue in this case, Congress amends it to add this new prom saying that possession in furtherance of a drug trafficking crime is now back within the scope of section 924 C. And so it was clear that it was trying to correct the issue that the Bailey court pointed out.

[00:19:17] Speaker 01:
At the same time, it's long been a concern, both of Congress and I think of the courts, that we don't want to be criminalizing mere possession, where a firearm is just incidentally present during an underlying crime.

[00:19:29] Speaker 01:
That has always been something that's outside the scope of the statute.

[00:19:32] Speaker 01:
And that's why Congress here created this more strict intent element.

[00:19:40] Speaker 01:
The furtherance of component was added to make sure that we're not criminalizing mere possession, incidental possession.

[00:19:47] Speaker 00:
And so to me, it still doesn't make it.

[00:19:51] Speaker 00:
You still have the first category completely covers the second.

[00:19:57] Speaker 00:
And all you had to do was put possession with carry and use, and it still be in relation to the drug crime.

[00:20:06] Speaker 00:
So it still doesn't, to me, explain why you have this separate and further inside that is completely assumed under in relation to.

[00:20:18] Speaker 01:
I think in addition to the concern about criminalizing mere possession, I think there is some daylight between these two standards.

[00:20:27] Speaker 01:
So accepting the defendant's premise that we need to be able to clearly articulate some difference between the in relation to and in furtherance of standards, I think the cases actually do shed some light on that.

[00:20:40] Speaker 01:
The in furtherance of standard is supposed to mean or indicates that the firearm is going to help or promote

[00:20:45] Speaker 01:
or actively facilitate the underlying crime.

[00:20:49] Speaker 01:
Whereas in relation to is broader in the sense that it includes even the potential to facilitate.

[00:20:55] Speaker 01:
And so we don't even, we don't need to have actual facilitation.

[00:20:58] Speaker 01:
Even the potential of facilitation is enough during the, under an in relation to context.

[00:21:04] Speaker 00:
And there's a case- Again, under your Venn diagram example, the, in furtherance of would be completely within side the diagram

[00:21:14] Speaker 00:
of the in relation to, right?

[00:21:18] Speaker 00:
I mean, so aren't we interpreting in a way that makes some furtherance of surplusage?

[00:21:25] Speaker 01:
Well, I don't think so, because if we take the Venn diagram example where on this intent component, the furtherance of is completely contained within the in relation to universe, they're paired with different act elements, right?

[00:21:37] Speaker 01:
And so the carrying and use is a narrower act component that is then paired with the broader intent component under that prong of the statute.

[00:21:46] Speaker 01:
Whereas on the act side for possession, that's going to be much broader.

[00:21:50] Speaker 01:
and every possession is going to include using or carrying.

[00:21:54] Speaker 01:
And so we have this sort of inverted relationship between the acts component and the intent component.

[00:21:59] Speaker 02:
And I think that shows that... Why would the government ever charge in furtherance of when they could make it easier on themselves by charging in relation to?

[00:22:10] Speaker 01:
Well, I think the answer to that is because not every case is going to have the using and the carrying in a provable way.

[00:22:17] Speaker 01:
Possession has a much broader category of act.

[00:22:20] Speaker 02:
Give me an example of that.

[00:22:23] Speaker 01:
I mean, I think there's some good example in the case law, actually.

[00:22:26] Speaker 01:
So the Combs case, which is not, I don't think it's cited in our briefs, but it's discussed in this court's cases on this topic.

[00:22:34] Speaker 01:
They give examples of a drug dealer who, or a drug buyer who goes to the dealer's house and surreptitiously steals the dealer's gun.

[00:22:44] Speaker 01:
Or there's the Shuler case from this court.

[00:22:47] Speaker 01:
talking about firearms that were stolen as a loop of the robbery.

[00:22:51] Speaker 01:
And so firearms in that context are possessed.

[00:22:54] Speaker 01:
Those firearms are in relation to the underlying crime, but they're not being used to facilitate or to further the underlying crime.

[00:23:00] Speaker 01:
And so I think cases like that really illustrate the space between these two standards in a way that even if it isn't a ton of space, there is space there.

[00:23:09] Speaker 01:
And I think there is logic to Congress crafting the statute in that way.

[00:23:13] Speaker 02:
Why do you make it harder on yourselves by charging in further and so forth?

[00:23:18] Speaker 01:
Well, I think the answer to that in a case like this is because, you know, we have solid evidence of possession, but we don't necessarily have using and carrying like this defendant here, you know, clearly possessed the two firearms at issue.

[00:23:30] Speaker 01:
He was in the driver's seat of this truck and right underneath that seat was one firearm.

[00:23:35] Speaker 01:
and within arms reach and the passenger seat was a loaded rifle, he clearly possessed those firearms and admitted to police that he had moved the rifle.

[00:23:43] Speaker 01:
And so possession is easy to prove there, but we don't necessarily have using or carrying those firearms other than the mere act of possession itself.

[00:23:52] Speaker 03:
Let me see if I'm understanding the history correctly.

[00:23:56] Speaker 03:
The statute used to, that was addressed in Bailey,

[00:24:01] Speaker 03:
covered using or carrying a firearm during and in relation to a drug trafficking crime.

[00:24:08] Speaker 03:
The Supreme Court said that language doesn't cover possession.

[00:24:15] Speaker 03:
You have to be using or carrying it.

[00:24:17] Speaker 03:
Just possessing isn't enough.

[00:24:20] Speaker 03:
So Congress could have changed the statute to prohibit

[00:24:25] Speaker 03:
using carrying or possessing in relation to a drug trafficking crime, but possession never appeared in the subsection during and in relation to.

[00:24:36] Speaker 03:
Instead, they added to the charge to the prohibition on using or carrying a firearm in relation to a drug trafficking crime.

[00:24:47] Speaker 03:
They added a second, possession

[00:24:50] Speaker 03:
but only possession in furtherance of a drug trafficking crime.

[00:24:54] Speaker 03:
So it's not like the government here could have prosecuted him for possessing a firearm in relation to a drug trafficking crime.

[00:25:04] Speaker 03:
There's no statutory language allowing that.

[00:25:07] Speaker 03:
Is that fair?

[00:25:08] Speaker 01:
That's correct.

[00:25:09] Speaker 01:
That's absolutely correct, Your Honor.

[00:25:11] Speaker 01:
There is no prohibition on possessing in relation to an underlying crime.

[00:25:15] Speaker 01:
And so really, the modified or the current version of Section 924C sets out these two separate avenues that the government can pursue, either using carrying in relation to the underlying crime or possessing in furtherance of.

[00:25:29] Speaker 01:
And so I take the Court's question to perhaps be aimed at the idea of why did Congress add this different intent component, the in furtherance of component,

[00:25:39] Speaker 01:
when it wanted to address the possession for protection scenario.

[00:25:44] Speaker 01:
And I think the reason it did that is, as I indicated before, there is concern about criminalizing innocent, mere possession of a firearm.

[00:25:51] Speaker 01:
And the classic example of this in the case law is the drug dealer who has a stash of drugs in his house and has a firearm, a hunting rifle that's unloaded, locked away in a closet during a drug deal.

[00:26:03] Speaker 01:
And so it's hard to say that that firearm is used or has some kind of strong nexus to the drug deal if it's a unloaded hunting rifle that's locked away.

[00:26:12] Speaker 01:
Similarly, this court's cases, like the Island case, for instance, and even the facts of Bailey to a certain extent, talk about the proximity and accessibility of the firearms.

[00:26:21] Speaker 01:
And so when these firearms are stored in a way or possessed in a way that they're not readily accessible or proximate to the underlying crime, Congress wanted to be careful about not criminalizing scenarios like that.

[00:26:34] Speaker 01:
And I think that really leads into the sufficiency argument here.

[00:26:37] Speaker 01:
And I'll spend just a few moments discussing that.

[00:26:40] Speaker 01:
Of course, I welcome the court's questions on any of the issues we're talking about.

[00:26:44] Speaker 01:
But the sufficiency of the evidence here, I think there's no real question or no real doubt that the firearms in this case were possessed in furtherance of the drug trafficking crime.

[00:26:54] Speaker 01:
It's important to point out, I think, first that the defendant doesn't challenge the underlying drug trafficking activity or the conviction for possession with intent to distribute methamphetamine.

[00:27:03] Speaker 01:
And so when we start applying the factors that this court has created from the Basham case going forward to analyze whether we have

[00:27:11] Speaker 01:
possession in furtherance of a drug trafficking crime, those factors all weigh in favor of the conviction here.

[00:27:17] Speaker 01:
The two primary ones are the proximity and accessibility of this defendant's firearms.

[00:27:21] Speaker 01:
I mean, this defendant had a revolver right under the driver's seat where he was seated, right next to a large package of methamphetamine, the rifle which was loaded in the front passenger seat,

[00:27:31] Speaker 01:
within arm's reach of where he was seated.

[00:27:34] Speaker 01:
Again, that's clearly distinguishable from the facts of a case like Island or a case like Bailey where the firearms are stored some distance away or locked in a separate storage compartment away from the drugs.

[00:27:45] Speaker 01:
That's not the facts that we have here.

[00:27:47] Speaker 01:
I think on top of that, we have a strong

[00:27:51] Speaker 01:
factual context in the time and circumstances underlying this particular defendant's possession of these firearms, there were text messages that the jury saw indicating both that this defendant had been asked by drug trafficking associates for firearms, and then more to the point that he himself had been the subject of a drug-related robbery where he's indicating text messages, and this is in the record at volume 3, 356 to 358,

[00:28:19] Speaker 01:
he's receiving text messages or sending text messages saying that his storage of drugs had just been stolen and he needed some straps or some firearms to

[00:28:30] Speaker 01:
to fix that situation and to protect himself.

[00:28:33] Speaker 01:
And so we have specific evidence of this defendant's particular intent with these firearms that he obtained them in response to being robbed of drugs himself.

[00:28:41] Speaker 01:
And so the time and circumstances of this case strongly indicate that in furtherance of Nexus.

[00:28:48] Speaker 01:
Of course, the type of activity here, drug trafficking with over 500 grams of methamphetamine, there was testimony

[00:28:54] Speaker 01:
that it was worth at least up to $10,000, something that a drug trafficker would certainly want to protect.

[00:29:01] Speaker 01:
And then there was testimony about how each type of firearm in this case, both the revolver and the rifle, had particular advantages to drug traffickers, either in the case of the revolver, concealability, or in the case of the rifle, a longer range and the ability to store additional ammunition beyond what a revolver could hold.

[00:29:20] Speaker 01:
The last two bastion factors here, the legal status of these firearms, this defendant was not legally permitted to possess any firearms because he was unlawfully present in the country.

[00:29:30] Speaker 01:
On top of that, the revolver had been reported stolen.

[00:29:32] Speaker 01:
So both of those factors weigh in favor of a finding that in furtherance of was satisfied here.

[00:29:38] Speaker 01:
And finally, the defendant makes a point about the revolver being unloaded as compared to the rifle, which was loaded with two rounds of ammunition.

[00:29:46] Speaker 01:
But there was expert testimony in this case that even an unloaded revolver could be used to achieve the purpose of protection for the simple reason that the person on the other side of that firearm is not necessarily going to know.

[00:29:58] Speaker 01:
whether it's loaded or not.

[00:29:59] Speaker 01:
So if we're looking at the objective of protecting the drug trafficker, that can be achieved whether the firearm is loaded or not.

[00:30:06] Speaker 01:
That protection goal or component is only strengthened in the case of the rifle, which actually was loaded, could have easily been used to actually fire a bullet.

[00:30:16] Speaker 01:
And so I welcome the court's questions if there are any.

[00:30:21] Speaker 03:
If not so, thank you, counsel.

[00:30:23] Speaker 03:
Case is submitted.

[00:30:25] Speaker 03:
Counselor excused.