
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2265                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  MICHAEL McFADDEN,                                a/k/a MICHAEL HUGHES,                                Defendant, Appellant.                                 ____________________        No. 92-2340                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                  MICHAEL McFADDEN,                                a/k/a MICHAEL HUGHES,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                           and McAuliffe,* District Judge.                                           ______________                                 ____________________                                    ____________________        *Of the District of New Hampshire, sitting by designation.                                 ____________________            Alan D.  Rose with whom  Marilee Denelle and  Nutter, McClennen  &            _____________            _______________      ____________________        Fish were on brief for appellant.        ____            Lon F.  Povich, Assistant  United States  Attorney,  with whom  A.            ______________                                                  __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   January 18, 1994                                 ____________________                      ALDRICH,  Senior  Circuit  Judge.    Defendant  was                                ______________________            indicted in two counts:  Count One, "On or about February 26,            1991,  at Boston  . . . defendant  herein  did knowingly  and            intentionally possess with intent to distribute . . . cocaine            . . .  in violation of Title 21,  United States Code, Section            841(a)(1)."   Count Two, "On  or about February 26,  1991, at            Boston . . . defendant herein did knowingly and intentionally            use  a firearm  . . .  during  and in  relation  to the  drug            trafficking crime  alleged in  Count One  of this  Indictment            . . . in violation  of Title 18, United States  Code, Section            924(c)."  A  jury found him guilty on both counts.  The court            sentenced him to 21 months on Count One, including points for            possession of  a firearm  under Sentencing  Guidelines.1   It            ordered an acquittal on Count  Two.  From this the government            appeals.   Defendant  appeals in  other respects.    The only            error we find is the acquittal.  We start there.                      Section  924(c) provides,  "Whoever  during and  in            relation to any crime  of violence or drug  trafficking crime            . . .  uses or carries  a firearm" shall  receive a mandatory            sentence  of  five years,  to  be  served  on and  after  the            sentence for  the principal  offense.   The seriousness  with            which Congress viewed this conduct  is emphasized by the fact                                            ____________________            1.  U.S.S.G.   2D1.1(b)(1) calls for a two level enhancement,            "[i]f   a  dangerous   weapon  (including   a   firearm)  was            possessed."   This is  an alternative  to a  conviction under              924(c).  U.S.S.G.   2K2.4 (commentary).                                         -3-            that it  denied parole at  a time when parole  was ordinarily            available  as  a matter  of  course.    If this  may  suggest            apprehension of violence (see also    924(c)(2) and (3)), the                                      ___ ____            Court has  not so  restricted the statute.   Smith  v. United                                                         _____     ______            States,  113  S.Ct.  2050  (1993)  (gun  bartered  for  drugs            ______            constitutes "use" in relation to drug trafficking).                      Before  discussing the  statute further,  we review            the  facts in  the light,  of course,  most favorable  to the            government.  United States v.  McNatt, 813 F.2d 499, 502 (1st                         _____________     ______            Cir.  1987).   Defendant, an  18 year  old student,  dealt in            "twenties," $20 single packs of  crack cocaine.2  On February            26, 1991, two undercover officers, armed with a warrant, rang            the downstairs doorbell  to his apartment, and  asked for two            twenties.  Defendant  brought down two from his  room and the            transaction, concededly, all took place  in the foyer.  As an            officer  sought  thereafter  to  seize   him,  declaring  his            identity, defendant  fled upstairs,  locking his  door.   The            officers broke  down the door  and conducted a search.   This            revealed their marked money under his mattress, together with            an unloaded  shotgun.   Under the bed,  in a  container, were            more money and packs.   Was this use of the  gun "in relation            to the crime"?                                            ____________________            2.  At sentencing it appeared that the government had weighed            seven of eighteen packs and that they totalled .83 gram.                                         -4-                      That the gun was unloaded, and no ammunition found,            could be evidence in defendant'sfavor, but unloaded guns can             be used aggressively.  McLaughlin v. United States, 476  U.S.                                   __________    _____________            16,  17-18 (1986)  (unloaded gun  is  "dangerous weapon"  for            purposes of 18 U.S.C.   2113(d)).   Nor would use be rebutted            by  lack of ownership.  See  United States v. Wight, 968 F.2d                                    ___  _____________    _____            1393  (1st  Cir.  1992).   The  jury,  further,  could reject            defendant's  claim  that  the gun  belonged  to  his sister's            former boyfriend, and  that he was merely hiding  it from his            nephews.     While  mere  possession  is  not  a  crime,  the            government properly asked the jury, why did he keep it?                      We  agree with defendant that the word "uses" calls            for something  more than "possesses."   We may  further agree            that in defendant's transaction with the officers he  did not            use the gun,  and had no intent  to.  The difficulty  is that            the  drug  trafficking   crime,  as  defined  in   21  U.S.C.              841(a)(1),  with which he  was charged was  possession with            intent,  not the  sale.  We  have held that  mere presence of            arms for  the protection  of drugs for  sale is  present use.            United States v.  Wilkinson, 926 F.2d 22 (1st  Cir.) (guns in            _____________     _________            duffel  bag  with cocaine),  cert.  denied, 111  S.  Ct. 2813                                         _____________            (1991); United  States v.  Hadfield, 918  F.2d 987  (1st Cir.                    ______________     ________            1990) (guns on  the drug premises), cert. denied,  111 S. Ct.                                                ____________            2062  (1991).   Wilkinson's  taking  guns with  the  drugs to            someone else's house would seem  active use.  And it is  true                                         -5-            that defendant Hadfield publicly advertised that he had guns,            clearly a present use  as a deterrent.  However, we based our            opinion  broadly,  on  simple  presence  for protection,  the            maintenance of a "fortress."                      It could be said that mere maintenance of  a secret            fortress is  not a  present use, but  is an  intent regarding            possible future use.   However, we did not,  and the majority            of the  circuits do not,  draw that distinction.   See United                                                               ___ ______            States  v.  Wesley,  990  F.2d  360,   365  (8th  Cir.  1993)            ______      ______            ("presence and  ready availability  of a firearm  at a  house            where  drugs  are  dealt" is  sufficient);  United  States v.                                                        ______________            Young-Bey, 893 F.2d  178, 181 (8th  Cir. 1990) (presence  and            _________            availability crucial),  cited with  approval in Hadfield  and                                                            ________            Wilkinson; United  States v. Hager,  969 F.2d 883,  889 (10th            _________  ______________    _____            Cir.)  (following  Hadfield),  cert. denied,  113  S.Ct.  437                               ________    ____________            (1992);  United States v. Torres-Medina, 935 F.2d 1047, 1049-                     _____________    _____________            50  (9th Cir. 1991)  (availability sufficient); United States                                                            _____________            v.  Boyd, 885  F.2d 246, 250  (5th Cir. 1989)  ("It is enough                ____            that the firearm  was present at the  drug-trafficking scene,            that the weapon could have been used to protect or facilitate            the operation,  and that  the presence of  the weapon  was in            some  way connected with  the drug trafficking"),  cited with            approval  in Hadfield and Wilkinson; United States v. Acosta-                         ________     _________  _____________    _______            Cazares, 878 F.2d  945, 952 (6th Cir.) ("We  hold that 'uses'            _______            and 'carries' should be construed broadly to  cover the gamut                                         -6-            of situations  where drug  traffickers have  ready access  to            weapons   with   which   they   secure   or   enforce   their            transactions"),  cited  with  approval   in  Hadfield,  cert.                                                         ________   _____            denied,  493 U.S.  899  (1989).   But  see  United States  v.            ______                            ___  ___  _____________            Robinson, 997  F.2d 884 (D.C.  Cir. 1993);  United States  v.            ________                                    _____________            Derr, 990 F.2d 1330 (D.C. Cir. 1993).            ____                      There is, of  course, a difference between  a large            quantity  of cocaine  with a  "fortress" of  guns, and  a $20            dealer with two grams of cocaine and an unloaded shotgun, but            it is a difference in degree, not in kind.  It can not be for            the court  to control the  U.S. Attorney's use of  this truly            fortress of  a statute; a  defendant's only hope is  the U.S.            Attorney's judgment, and the jury.  Here he failed.                      Alternatively,  defendant seeks  a new  trial.   We            have examined  his several  contentions with  care, but  they            require little  comment.   Defendant's complaints  as to  the            charge, and to the weight of the evidence, are in accord with            his  claims on  the acquittal,  and must  fail equally.   The            court's adjustments  and failure  to adjust  the sentence  on            Count One were, routinely, within its discretion.                      A word  as to the  dissent.  We share  in approving            the flexibility of  the Sentencing Guidelines, but  we see no            give, and no surrender, in this monolith of a statute, on the            books for many  years and not  disturbed when the  Guidelines            were enacted.  Moreover, how does one measure  for this?  And                                         -7-            in what way do our differing facts, on a case by  case basis,            indicate that we are  taking a new approach?   Only one  gun?            Possible  lack  of   title?    No   ammunition?3    Lack   of            exhibiting?   No  instant access?   Under  our cases  none of            these failures  is fatal.   The reason  for this is  that the            difference between mere possession and  use is in the mind of            the user.   United States v.  Payero, 888 F.2d  928, 929 (1st                        _____________     ______            Cir. 1989)  (possession lending  courage is  use); Wilkinson,                                                               _________            926  F.2d  at  25 ("emboldening,"  quoting  United  States v.                                                        ______________            Stewart, 779 F.2d 538, 540 (9th Cir. 1985)); United States v.            _______                                      _____________            Castro-Lara, 970 F.2d 976, 983  (1st Cir. 1991), cert. denied            ___________                                      ____________            sub  nom Sarraff  v. United  States, 113  S. Ct.  2935 (1993)            ________ _______     ______________            (possession  with "intent to  have it available  for possible            use"); Wilkinson at 26 ("intended the guns for protection").                   _________                      Was the stash too small  to make intent more than a            theoretical possibility?  Even without defendant's admission,            "It's good  protection for anyone in the neighborhood to have            a  gun in  their house  also because  people get  robbed," we            cannot think that $360 in drugs  plus $510 in cash, would not            warrant a jury's finding  that defendant's thinking  included                                            ____________________            3.  While  other circuits have  held that lack  of ammunition            does  not prevent conviction  in a "drug  trafficking crime,"            e.g., United States v. Martinez, 912 F.2d 419, 421 (10th Cir.            ____  _____________    ________            1990), cited with  approval in United States  v. Castro-Lara,                                           _____________     ___________            post, 970 F.2d at 983, we have held this only  in a "crime of            ____            violence" case.   United States v. Kirvan, 997  F.2d 963, 966                              _____________    ______            (1st Cir. 1993) (gun need not  be "loaded or operable").   We            see no distinction.                                         -8-            the gun.   The statute does not measure  the crime.  In light            of  the accounts  we read  daily of  mayhem over  trifles, we            adopt  what we  said  in  Wilkinson,  (and  remembering  what                                      _________            Wilkinson itself said was "help"), "[U]ltimately, whether  or            _________            not the  gun[ ] helped appellant  commit the drug crime  is a            matter  for a jury,  applying common-sense theories  of human            nature and  causation."  926 F.2d at 26.   This is not to say            that it need  "automatically" find it.  Nor is it to say that            we like the inflexibility of this statute, or the judgment of            the United  States Attorney in  invoking it for such  a minor            defendant.                      The  case  is  remanded to  the  district  court to                      ___________________________________________________            vacate  the acquittal;  reinstate the  verdict  of guilty  on            _____________________________________________________________            Count  Two; to  sentence on  Count Two,  and to  readjust the            _____________________________________________________________            sentence on Count One appropriately.            ___________________________________                      (Dissent follows.)                                         -9-                       BREYER, Chief  Judge  (dissenting).    The  narrow                               ____________             legal question before  this panel is not  whether possession                                                       _______             of  a gun ("in relation to the [drug] crime") means a longer             sentence for  a convicted drug  dealer.   It most  certainly             does.  Nor is the question whether the "possession" here was             "in  relation to"  the  drug  crime, ante  at  4.   It  was.              _______________                     ____             Rather,  the  question  concerns  which  sentencing  statute                                               __________________________             governs the precise length of the  extra term of punishment,             a blunt "mandatory  minimum" gun "use" statute, 18  U.S.C.               924(c) (mandatory five-year sentence), or the somewhat  more             sophisticated  sentencing  guideline statutes,  under  which             extra punishment for drug-related gun possession varies with             the  seriousness of the drug crime.   U.S.S.G.   2D1.1(b)(1)             (2-level sentence enhancement).                 The   answer             to this  question turns on the  meaning of a single  word in             the "mandatory  minimum" statute, the word "use."  Does that             word "use" include  simple "possession" of a  gun "connected                   ___             with"  a drug crime?   If so,  the majority is  right, for I             have  no  doubt  that  the  jury  here  could  find  both  a             "possession"  and some  kind of  "relation" or  "connection"             between gun and  crime.  But, in  my view, prior cases,  and             likely congressional intent,  indicate that the word  "use,"             in this particular statute, carries a more active meaning --             ameaning thatexcludes simple(drug-crime-related) possession.                                         -10-                       Let me be  more specific.  The  special "mandatory             minimum"  sentencing statute says  that anyone who  "uses or                                                                  _______             carries" a gun  "during and in  relation to any  . . .  drug             _______             trafficking crime" must receive a mandatory five-year prison             term  added on  to his  drug crime  sentence.   18  U.S.C.               924(c).   At  the  same  time,  the  Sentencing  Guidelines,             promulgated under the  authority of a different  statute, 28             U.S.C.   994, provide for a  two-level (i.e., a 30% to  40%)             sentence enhancement where a  "firearm . . .  was possessed"             by  a  drug  offender, U.S.S.G.     2D1.1(b)(1),  unless the             possession  clearly  was  not  "connected  with  the  [drug]             offense."   Id. app.  n.3.   The  Guideline enhancement  for                         ___             drug-crime-related gun possession  may amount  to less  than             five  additional years,  as  it would  here.   The  specific             question  before us  is  whether, for  sentencing  purposes,             courts should try to distinguish between a gun's drug-crime-             related  "use"  and   its  drug-crime-related  "possession,"             particularly when  the predicate  drug crime  is "possession             with intent to distribute."                       Courts  might   have  simplified  the   matter  by             answering this question  in the negative.   They might  have             reasoned  that, at least in drug possession cases, virtually                                              __________             any possession of a gun  amounts to "use" within the meaning                                         -11-                                          11             of   924(c).  Arguably, any gun that is both possessed  by a                                     ___             drug offender,  and present at  or near the  site of a  drug             possession  crime, helps  the offender  carry  out the  drug             crime.  It might do this by "emboldening" him, or perhaps by             being available, should  the need arise, to  frighten others             or to  protect the  drugs possessed.   Cf. United  States v.                                                    ___ ______________             Stewart, 779  F.2d 538, 540  (9th Cir. 1985).   Until today,             _______             however,  courts  have  not taken  this  approach.    On the                                     ___             contrary,  they have  insisted on maintaining  a significant             distinction  between "possession" and "use" of a gun by drug             offenders in  the context  of prosecutions  under    924(c).             United States v.  Castro-Lara, 970 F.2d  976, 983 (1st  Cir.             _____________     ___________             1992), cert. denied,  113 S. Ct. 2935  (1993); United States                    ____________                            _____________             v. Payero, 888 F.2d 928,  929 (1st Cir. 1989); United States                ______                                      _____________             v. Robinson,  997 F.2d  884, 887  (D.C. Cir. 1993)  (statute                ________             "conspicuously fails to criminalize mere possession").                         Traditional  tools  of   statutory  interpretation             support the  near-universal judicial effort to  maintain the             distinction between  (drug-related) "use"  and "possession."             First,   the  ordinary  meanings  of  the  words  "use"  and             "carry" -- the language in the "mandatory minimum" statute -             - connote activity  beyond simple possession.   Cf. Smith v.                                                             ___ _____             United States, 113 S. Ct.  2050, 2054 (1993) (the term "use"             _____________                                         -12-                                          12             is  to  be  given  its  "ordinary  or  natural  meaning"  in             construing   924(c)).  Second, Congress wrote those words in             the context of gun crime statutes that often use the broader             word  "possess"  to   describe  the  prohibited  gun-related             conduct.   See, e.g., 18 U.S.C.   922(g), (q)(1)(A).  As the                        ___  ____             somewhat  hackneyed  judicial aphorism  goes,  when Congress             wants to criminalize gun possession,  it knows how to do so.             Third, a House Report  accompanying the 1986 amendment to                924(c)  (which extended the statute to drug crimes) provides             some indication  of Congress's expectation about the meaning             of  the  word  "use."    In the  course  of  discussing  the             "carrying"  part of  the  statute,  the  Report  offers  the             example of a  drug trafficker who "carrie[s]"  a weapon "for             protection  against rival traffickers."  Such a person quite             clearly  "possesses"  the  weapon with  the  intent  to make             active use of it if necessary; yet, the Report adds, "he did             not  actually use  the weapon."    H.R. Rep.  No. 495,  99th                           ___             Cong.,  2d Sess. 10  (1986), reprinted in  1986 U.S.C.C.A.N.                                          ____________             1327, 1336.                       Most importantly,  courts  normally  try  to  read             language in different, but related, statutes, so as best  to             reconcile those statutes, in light  of their purposes and of             common  sense.  In this instance,  one relevant statute, the                                         -13-                                          13             statute creating the Sentencing Guidelines, reflects a major             congressional  effort  to  create  a  fairly   sophisticated             Sentencing  Guidelines   system  that   distinguishes  among             different   kinds   of   criminal  behavior   and   punishes             accordingly.    The  other statute,  the  mandatory  minimum             statute,  represents  an  ad hoc  deviation  from  that more             general policy.  Given the  importance (to Congress) of  the             Guidelines  system, see Mistretta v. United States, 488 U.S.                                 ___ _________    _____________             361,   363-370  (1989),  courts  should  take  care  not  to             interpret other  statutes that  represent ad hoc  deviations             from   the   basic    congressionally-directed   effort   to             rationalize sentencing with unnecessary breadth.  Yet, here,                                         ___________             to interpret the word "use"  to encompass "possession" is to             swallow  up a guideline  that distinguishes,  for punishment             purposes,  among different  kinds  of drug-  and gun-related             criminal  behavior.    Moreover,  it is  to  swallow  up the             guideline  unnecessarily, for  neither the  language  of the                        _____________             mandatory  minimum  statute  nor its  purpose  (the  need to             punish drug offenders with guns) requires that it do so.                       I confess  that it  is easier to  see the  need to             distinguish  (drug-crime-related)  "use"  from  "possession"             than it is  to explain  just how to  make the distinction.               Courts  might  have  interpreted  "use"  by  insisting  upon                                         -14-                                          14             activity with the gun, such  as firing it or brandishing it,             ________             or, at least,  displaying it (or even trading  it for drugs,             see Smith,  supra).  But they  have not done this.   Rather,             ___ _____   _____             they have  held that  the word  "use" sometimes  encompasses             more passive  activity, such as "possession,"  but sometimes             it  does  not.    Thus,   we  must  try  to  articulate  the             distinguishing line they have drawn.                       As I read the case law, when courts have held that             "use" encompasses "possession,"  they have always  found (1)             possession, (2)  in connection  with a drug  crime, and  (3)             something more.  See United  States v. Wilson, 884 F.2d 174,             ______________   ___ ______________    ______             177  (5th  Cir.  1989)  (except  in  "drug  fortress"  cases             involving  large amounts of drugs and money, "something more             than  strategic proximity of drugs and firearms is necessary             to honor Congress'  concerns.").  And,  they have tended  to             describe this "something more" as possession of the guns for                                                                      ___             protection of the drugs,  thereby "facilitat[ing]" the  drug             __________             crime.  See, e.g., United  States v. Wilkinson, 926 F.2d 22,                     ___  ____  ______________    _________             26  (1st  Cir.)  (conviction sustained  where  circumstances             allowed jury to  find that defendant "intended  the guns for             protection"), cert. denied,  111 S. Ct. 2813  (1991); United                           ____________                            ______             States  v.  Hadfield, 918  F.2d  987,  998 (1st  Cir.  1990)             ______      ________             (conviction sustained "so  long as one purpose  in situating                                         -15-                                          15             the weapon nearby was to protect the narcotics enterprise"),             cert.  denied, 111  S.  Ct. 2062  (1991);  United States  v.             _____________                              _____________             Payero,  888 F.2d  928,  929  (1st  Cir.  1989)  (conviction             ______             possible where  firearm gave  defendant courage  by allowing             him to  protect himself); United  States v. Bruce,  939 F.2d                                       ______________    _____             1053, 1055 (D.C. Cir. 1991)  (guns may be "used" in relation             to a possession crime "because they are  intended to protect             the  stash of drugs that will subsequently be distributed");             ante  at 5  ("mere presence  of arms  for the  protection of             ____                                  ______________________             drugs for sale is present use") (emphasis added).             ______________                       Of  course,  language  such  as  "possession   for             protection"  would not  help the problem  very much  if that             language  itself were broadly  interpreted or applied.   If,             for example,  courts simply said  that possession  of a  gun             when  drugs are  around means  a  fortiori that  the gun  is                                            ___________             present "for protection" of the drugs, the mandatory minimum             statute's  word  "use"  would (once  again)  swallow  up the             Guideline and  eradicate the  distinction between  "use" and             "possession"  that courts  have tried  to  maintain.   It is             therefore   not   surprising  that   the  courts   have  not                                                                      ___             interpreted or  applied this  language broadly.   They  have             avoided  the   "swallowing  up"  result   by  applying   the             "possession for protection" concept only where circumstances                                         -16-                                          16             demonstrate  that  a  drug offender,  possessing  a  gun (in             connection  with the  crime), would  likely put  the gun  to                                           _____________             active use  (such as firing  or brandishing it, or  at least             displaying it in  an effort to intimidate) were  the need to                                                        _________________             arise.   In determining whether  this later,  active use  is             _____             likely (i.e., in separating a theoretical possibility from a             real risk), courts have looked  at such factors as the gun's             accessibility, whether  it is  loaded, the  amount of  drugs             possessed, the presence  of other  guns, and  the extent  to             which  dangerous transactions likely take place nearby, as a             way of deciding whether the "circumstances of the case show"             that the gun  was present for protection.   United States v.                                                         _____________             Plummer, 964 F.2d  1251, 1254 (1st Cir.),  cert. denied, 113             _______                                    ____________             S.  Ct. 350  (1992); see,  e.g., Robinson,  997 F.2d  at 887                                  ___   ____  ________             (listing factors);  United States  v. Derr,  990 F.2d  1330,                                 _____________     ____             1338 (D.C. Cir. 1993).                       Examined in light of the case law's possession/use             distinction, the record  before us indicates that  this drug             offender's "possession" of  the gun, even if related  to the             drug  crime, does  not rise to  the level  of a "use."   The             defendant here was  a small-time drug dealer,  selling drugs             in  $20 packages.   The  police found  a shotgun,  unloaded,             wrapped in  a cloth bag,  hidden between his  bed's mattress                                         -17-                                          17             and its box spring (but next to $40 the police had paid him,             and above a  strongbox on the floor containing  two grams of             cocaine and  $510 cash).  They found  no ammunition anywhere             in  the   apartment.    The  defendant   testified,  without             contradiction and  consistently with  an earlier  government             affidavit, that the  gun belonged to someone else.   The gun             was   not  visible,   so  its   mere   presence  could   not             automatically  have frightened  a buyer  or  intruder.   The             defendant did not  brandish, display, touch, or  mention the             gun  during the transaction  with police, nor  was there any             evidence  that  he had  ever  done  so  during the  time  he             possessed  drugs.    To  make  active  use  of  the  gun  in             protecting his drugs or intimidating a buyer or intruder, he             would  have had  to lift  the mattress,  seize the  gun, and             unwrap it.  To fire the gun, the defendant would have had to             find  ammunition, bring it  to the  apartment, and  load the             gun.   The  small  amount  of  cocaine  possessed  makes  it             somewhat less likely  that, in fact, he had  (or would have)             done  either.  In context, the defendant's "admission," ante                                                                     ____             at 8, does not seem particularly relevant.                         Of course, one cannot exclude the possibility that             any gun that is present, the way this gun was present, might             be put to active "use."  But that is so virtually whenever a                                         -18-                                          18             gun is present  near the scene of  a drug crime.   To find a             "possession  for protection"  (i.e., a  "use")  here is,  in             effect, to find that possession of  a gun (when related to a             drug crime) automatically means a  "use."  It thereby erases                         _____________             the line  that the statutes,  and the courts, have  tried to             draw, and again  allows the "use" statute to  swallow up the             "possession" Guideline.                       A  brief review  of  these cases  indicates rather             strong support for the  distinction I am drawing.   Consider             cases in which courts have permitted a jury to infer that  a             defendant "used" nearby guns to  "protect" a stash of drugs.             They  involve  drug-related  risks  of  actually  firing  or             brandishing (or "carry[ing]") the gun that are significantly             greater  than the  risks  present here.   In  this circuit's             Hadfield  case, for  example,  the  inference  --  that  the             ________             defendant "used"  the  guns to  "protect" the  drugs --  was             neither uncertain nor theoretical:  it was inescapable.  The             defendants ran a  massive drug  operation from  a barn  that             contained hundred of marijuana  plants, thousands of dollars             in  cash, and  several  guns,  at least  two  of which  were             loaded, standing on a nearby gun rack or hanging on the barn             walls.  A sign  near the barn said,  "This house guarded  by             shotgun three nights per week.  You guess which three."  918                                         -19-                                          19             F.2d at 991.  A clearer case of using guns for protection is             hard to imagine.                         Our Wilkinson case,  although closer, presented  a                           _________             somewhat  different legal  question.   There, the  defendant             "carr[ied]" with him  to a friend's house a  duffel bag that             contained two loaded  guns (wrapped in a towel)  and a cache             of  drugs (although the  Wilkinson opinion is  silent on the                                      _________             point, the record indicates that the guns were loaded).  The             proximity of loaded guns to the drugs  and the fact that the             defendant was  carrying them  together from  place to  place             permitted the jury to infer that the defendant "intended the             guns for  protection," and  thus  that he  carried them  "in             relation  to"  his  drug  crime.   Id.  at  25-26.    (Since                                                ___             Wilkinson  involved  the  statutory  terms  "carry" and  "in             _________             relation  to,"  strictly  speaking  it  did  not  raise  the             "use/possession" problem here discussed.)                       Similarly, other  cases allowing  an inference  of             presence "for protection" have  involved close proximity and             loaded  guns, or large drug operations, or multiple weapons,             ______           _____                     ________             or easy accessibility, or some factor suggesting more than a                ____                   ____             theoretical  possibility  that  the guns  might  be  used to             protect the drugs if necessary.  See, e.g., Castro-Lara, 970                                              ___  ____  ___________             F.2d at  983 (gun was  "near a large  sum of cash,  in close                                         -20-                                          20             proximity to  live ammunition" while  defendant was  "taking             delivery  of a sizable  quantity of cocaine");  Plummer, 964                                                             _______             F.2d at 1254 (gun in defendant's car with ammunition in easy             reach of  driver; evidence  that defendant  "had moved"  the             gun); United States v. Abreu, 952 F.2d 1458, 1466 (1st Cir.)                   _____________    _____             (five  weapons  in apartment  with  "significant  amount" of             drugs;  testimony  and  palmprint  connected  the   guns  to             defendants' drug operation),  cert. denied, 112 S.  Ct. 1695                                           ____________             (1992); see also United States  v. Wesley, 990 F.2d 360 (8th                     ________ _____________     ______             Cir. 1993) (fully loaded gun  found on floor within reach of             sleeping  defendant); United States  v. Hager, 969  F.2d 883                                   _____________     _____             (10th Cir.) (three guns, at least one loaded, found near 2.8             kilograms of cocaine in apartment), cert. denied, 113 S. Ct.                                                 ____________             437  (1992); United States  v. Torres-Medina, 935  F.2d 1047                          _____________     _____________             (9th  Cir. 1991) (loaded gun  found next to cocaine); United                                                                   ______             States v. Boyd, 885 F.2d 246 (5th Cir. 1989) (loaded shotgun             ______    ____             in   arm's   reach   of   defendant   near   methamphetamine             manufacturing operation; agent testified  that defendant had             taken shotgun from  car with drug paraphernalia and  took it             with  him during  a subsequent  journey);  United States  v.                                                        _____________             Acosta-Cazares,  878 F.2d 945  (6th Cir.)  ("numerous loaded             ______________             weapons," thousands of dollars in cash, and two kilograms of             cocaine  found  in two  apartments  used by  coconspirators;                                         -21-                                          21             coconspirator testified that defendant carried weapons while             engaging in drug  transactions), cert. denied, 493  U.S. 899                                              ____________             (1989); United States v. Anderson, 881 F.2d 1128 (D.C.  Cir.                     _____________    ________             1989) (crack  house contained several loaded  weapons, large             quantities  of  crack  cocaine, cocaine  powder,  and  cash;             expert testimony indicated  that weapons frequently  protect             "crack houses"); United States v.  Matra, 841 F.2d 837  (8th                              _____________     _____             Cir. 1988)  (fortress  contained  numerous  loaded  weapons,             ammunition,  thousands of dollars  of cash, and  hundreds of             thousands of dollars worth of cocaine).                       Consider,  by  way  of contrast,  cases  in  which             courts have  refused to  permit the jury  to infer  that the             defendant "used"  nearby guns to  protect a stash  of drugs.             Many  seem to  involve  risks of  firing or  brandishing (or             displaying) a gun  at least as great as  those present here;             in  some, the  risk  seems  greater.   In  United States  v.                                                        _____________             Robinson,  the D.C.  Circuit refused  to permit a  "used for             ________             protection"  inference where  a defendant  kept an  unloaded             pistol and  drugs in  a locked footlocker  in a  closet (the             footlocker, in contrast  with Wilkinson, apparently was  not                                           _________             "carried" from place to place).   997 F.2d 884, 887-88 (D.C.             Cir. 1993).   In  United States v.  Sullivan, 919  F.2d 1403                               _____________     ________             (10th Cir. 1990), even though defendant kept an unregistered                                         -22-                                          22             gun in her home where  she also maintained a drug laboratory             (and   was  convicted  for  possession  of  an  unregistered             firearm),  the court  refused  to  permit  the  "protection"             inference because no additional evidence supported an intent             to  use the  weapon in  that way  with  respect to  the drug             operation.  Id. at  1432 & n.45.  In United  States v. Derr,                         ___                      ______________    ____             990 F.2d 1330  (D.C. Cir. 1993), the court  would not permit             the  inference where the  defendant kept an  unloaded pistol             and his drug  supply in a  locked closet.   See also,  e.g.,                                                         ________   ____             United States v.  Matthews, 942 F.2d 779, 783-84  (10th Cir.             _____________     ________             1991) (reversing   924(c) conviction where, despite presence             of weapons  in plain view in an  apartment containing drugs,             evidence did not  suggest that defendant "intended  to avail             himself of the firearms"); United States v. Bruce,  939 F.2d                                        _____________    _____             1053,  1055-56   (D.C.  Cir.  1991)   (reversing      924(c)             conviction because presence of loaded gun in  one pocket and             drugs  in other  pockets of  defendant's  raincoat indicated             intent   to  use   the  gun   in   connection  with   future             distribution, not  protection of  present possession).   The             theoretical  possibility of active use was always present in             these cases,  but the  courts  considered it  too remote  to             allow a  jury to find,  beyond a reasonable doubt,  that the             gun was present "for protection."                                         -23-                                          23                       Of course, one might simply argue that these cases             are not all consistent with each other.  However, whether or             not that is so  seems to me beside the point.   The division             in  the case law indicates a  perceived need to draw a legal             line  between simple  possession of a  gun and its  use.  In             order to  draw that line, one  must say that at  some point,             the risk that a defendant  will actually fire or brandish or             display a nearby  gun "to protect" a drug  stash becomes too             small to permit the jury to infer an intent to protect.  Our             previous cases  lie on one side of that  line.  If we are to             maintain the  legal distinction  that courts  have tried  to             draw  (and if  we are to  avoid collapsing  the "possession"             Guideline into  the mandatory  five-year term  of the  "use"             statute), this case, as the district court held, must lie on             the other.                       For  these reasons, I would affirm the decision of             the district court.                                         -24-                                          24
