                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                         July 11, 2016
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                  No. 15-3322
                                         (D.C. Nos. 2:15-CV-07616-CM and
MARDELL TROTTER,                             No. 2:04-CR-20140-CM-2)
                                                    (D. Kansas)
       Defendant-Appellant.
                   _________________________________

                                 ORDER *
                     _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                _________________________________

      Mr. Mardell Trotter was convicted on federal drug and gun charges.

After an unsuccessful direct appeal, Mr. Trotter moved to vacate the

sentence on one of the gun charges (Count 11). The district court denied

relief and a certificate of appealability. Mr. Trotter now asks us for a

certificate of appealability. We deny this request and dismiss the appeal.




*
     Because oral argument would not be helpful, we decide this appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. The order
may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and
10th Cir. R. 32.1(A).
I.    Procedural History

      On the disputed gun charge, Mr. Trotter was sentenced under 18

U.S.C. § 924(c), which imposes a five-year mandatory minimum sentence

for those who, during and in relation to any drug trafficking crime, “use[]

or carr[y] a firearm, or who, in furtherance of any such crime, possess[] a

firearm.” According to the government, Mr. Trotter traded drugs for a gun.

The jury found Mr. Trotter guilty, and the court imposed a sentence that

included a five-year prison term for the § 924(c) charge.

      On direct appeal, Mr. Trotter challenged the refusal to depart

downward and argued that the evidence was insufficient for a conviction

under § 924(c). We affirmed the conviction and remanded to the district

court for clarification of the reasons for declining to depart downward.

United States v. Trotter (Trotter II), 518 F.3d 773 (10th Cir. 2008). 1

      On remand, the district court clarified its reasoning without

modifying its earlier judgment or sentence. Mr. Trotter appealed and we

remanded for resentencing under the revised sentencing guidelines. United

States v. Trotter, No. 13-3145 (10th Cir. Nov. 21, 2013) (unpublished). On

remand, the district court reduced Mr. Trotter’s sentence from 322 to 180

months.

1
      Before remanding, we had affirmed the conviction and sentence.
United States v. Trotter, 483 F.3d 694 (10th Cir. 2007). That decision was
vacated by the U.S. Supreme Court. Trotter v. United States, 552 U.S. 1091
(2008).

                                      2
     In appealing that sentence again, Mr. Trotter’s counsel filed a brief

under Anders v. California, 386 U.S. 738 (1967), identifying potentially

appealable issues. In part, the Anders brief stated that Mr. Trotter might

argue that the jury had been improperly instructed on the § 924(c) count in

light of the U.S. Supreme Court’s opinion in Watson v. United States, 552

U.S. 74 (2007). United States v. Trotter, 601 F. App’x 721, 725 (10th Cir.

2015) (unpublished). In Watson, the Supreme Court held that trading drugs

for a gun cannot constitute a “use” for purposes of § 924(c). Watson, 552

U.S. at 83. But the Supreme Court did not address § 924(c)’s “possession

in furtherance of” prong. Id.

     We reviewed the issue for plain error. Doing so, we concluded that

Watson did not apply because it addresses only one of the two prongs in

§ 924(c). See Trotter, 601 F. App’x at 725. Because we had previously held

that trading guns for drugs may satisfy the “possession in furtherance of”

prong, we concluded that the district court had not plainly erred. Id.

(quoting United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007)

(holding that trading drugs for guns satisfies § 924(c)’s “possession in

furtherance of” prong)); see also United States v. Gurka, 605 F.3d 40, 44

(1st Cir. 2010) (expressing agreement with the Second, Seventh, and Ninth

Circuits that “Watson does not affect the prong of 18 U.S.C.

§ 924(c)(1)(A) concerned with ‘possession in furtherance of’”).



                                      3
       Mr. Trotter now claims that under Watson, his counsel was

ineffective by failing to present claims of insufficiency of the evidence and

actual innocence.

II.    Standard for a Certificate of Appealability

       To appeal the denial of relief, Mr. Trotter needs a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(B). We may issue a certificate only

if Mr. Trotter “has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). To make this showing, Mr. Trotter

must demonstrate that “jurists of reason could disagree with the district

court’s resolution of his constitutional claims or . . . jurists could conclude

the issues presented are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

III.   Standard for Ineffective Assistance of Counsel

       In his motion, Mr. Trotter claims that his counsel was ineffective for

failing to argue that Watson constitutes an intervening change in the law.

To determine whether counsel was ineffective, we apply the two-pronged

test articulated in Strickland v. Washington, 466 U.S. 668 (1984).

       Under Strickland, Mr. Trotter must first show that his attorney’s

“performance was deficient” and “fell below an objective standard of

reasonableness.” 466 U.S. at 687-88. If Mr. Trotter makes that showing, he

must also demonstrate prejudice, which exists only if there is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

                                       4
proceeding would have been different.” Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id.

IV.   Counsel’s omissions were not prejudicial to the outcome.

      Section 924(c) contains two prongs. The first prong prohibits the

“use” of a firearm during and in relation to a drug trafficking crime, and

the second prong prohibits “possession” of a firearm in furtherance of a

drug trafficking crime. Mr. Trotter was indicted on both prongs. A “crime

denounced in the statute disjunctively may be alleged in an indictment in

the conjunctive, and thereafter proven in the disjunctive.” United States v.

Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976). Thus, the § 924(c)

conviction required the government to satisfy only one of the two prongs.

      Mr. Trotter contends that in light of Watson v. United States, there is

no longer sufficient evidence for his § 924(c) conviction. 552 U.S. 74

(2007). It is true that Mr. Trotter’s conviction cannot be sustained under

§ 924(c)’s “use” prong because that possibility is foreclosed by the

Supreme Court’s opinion in Watson. Id. at 83. But Watson does not address

the “possession in furtherance of” prong, and we have held that trading

drugs for guns satisfies the “possession in furtherance of” prong. See id.;

United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007).

Similarly, we have held that Watson does not bear on the sufficiency of the

evidence for a conviction under the “possession in furtherance of” prong.

                                      5
Trotter, 601 F. App’x 721, 725 (10th Cir. 2015) (unpublished); United

States v. Trotter, 483 F.3d 694, 702 (10th Cir. 2007), vacated on other

grounds, 552 U.S. 1091 (2008). Thus, even after Watson, Mr. Trotter’s

conviction under § 924(c) may be upheld under the “possession in

furtherance of” prong.

     Mr. Trotter also claims that Watson constitutes an intervening change

in law that renders him actually innocent. A claim of actual innocence

requires new evidence that would prevent any reasonable jury from finding

Mr. Trotter guilty. See Schlup v. Delo, 513 U.S. 298, 329 (1995). Mr.

Trotter did not present any new evidence. Instead, his claim is based solely

on the opinion in Watson. Again, Watson does not bear on the “possession

in furtherance of” prong of § 924(c) and Mr. Trotter does not question the

applicability of that prong to his conviction. See Trotter, 601 F. App’x at

725; Trotter, 483 F.3d at 702. Absent other evidence, this claim fails as a

matter of law.

V.   Disposition

     We deny Mr. Trotter’s request for a certificate of appealability and

dismiss the appeal.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge


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