                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 21 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-30370

              Plaintiff - Appellee,               D.C. No. 9:10-cr-00022-DWM-1

  v.
                                                  MEMORANDUM *
DAVID MICHAEL PALUMBO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                      Argued and Submitted February 7, 2012
                               Seattle, Washington

Before: SCHROEDER and GOULD, Circuit Judges, and BEISTLINE, Chief
District Judge.**

       David Palumbo (“Palumbo”) appeals the sentence imposed following his

guilty plea to possession of a firearm in furtherance of a drug trafficking crime, in




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
violation of 18 U.S.C. § 924(c)(1). Palumbo discharged the gun when his drug co-

conspirators threatened him with a weapon in order to take the drugs Palumbo

thought they were transporting together for sale.

      The district court did not err by issuing an order in limine preventing

Palumbo from arguing that he possessed the gun in self-defense. See United States

v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985), overruled on other grounds by

Bailey v. United States, 516 U.S. 137, 149 (1995). Palumbo contends that at the

time that he discharged the gun, he was no longer possessing the gun in furtherance

of a drug offense. The sentencing enhancement for discharge, 18 U.S.C.

§ 924(c)(1)(A)(iii), does not require the discharge to be in furtherance of the drug

offense. It requires only that the defendant possessed the gun in furtherance of a

drug offense, and that the gun discharged during the possession. See Dean v.

United States, 129 S.Ct. 1849, 1854–56 (2009). The attempted robbery, moreover,

did not end the relational nexus between his gun possession and the underlying

drug trafficking offense. The district court found that Palumbo possessed the gun

to protect himself and his drugs, and in fact so used the gun when he resisted the

robbery attempt and fled with the drugs. This finding was not clearly erroneous.

      Palumbo’s contention that his punishment for discharging the gun violated

his Second Amendment rights therefore must be rejected. There is no


                                          2
constitutional right to possess a gun for unlawful purposes. See United States v.

Potter, 630 F.3d 1260, 1261 (9th Cir. 2011).

      Palumbo’s contention that the firearm discharge should have been treated as

an element of the crime, rather than a sentencing factor, is foreclosed by the

Supreme Court’s decision in Harris v. United States, 536 U.S. 545 (2002), as he

now concedes.

      AFFIRMED.




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