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

                                 TENTH CIRCUIT                         June 29, 2010

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-5153
    v.                                                 (N.D. Oklahoma)
    CHRISTOPHER MICHAEL                       (D.C. No. 4:09-CR-00092-GKF-1)
    MCGINNIS,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *



Before HENRY, PORFILIO, and BRORBY, Circuit Judges. **



         A grand jury indicted the defendant Christopher Michael McGinnis on four

counts relating to the attempted manufacture of methamphetamine: (1)

knowingly and intentionally possessing pseudoephedrine with the intent to

*
  This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.


**
  After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1) and 18

U.S.C. § 2; (2) possessing a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A)(i); ( 3) possessing a firearm after having

been convicted of a crime punishable by a term of imprisonment exceeding one

year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (4) knowingly

possessing a firearm while being subject to a state court protective order, in

violation of 18 U.S.C. §924(a)(2).

      Mr. McGinnis pleaded guilty to the first, third, and fourth counts. He

pleaded not guilty on the second count, but was convicted after a jury trial. The

district court sentenced Mr. McGinnis to 144 months’ imprisonment on the three

counts to which he pleaded guilty, followed by a consecutive term of 60 months’

imprisonment on the § 924(c) violation.

      Mr. McGinnis now appeals, arguing that the evidence is insufficient to

support the government’s allegation that he possessed a firearm in furtherance of

a drug trafficking crime. We are not persuaded and therefore affirm the § 924(c)

conviction.

                               I. BACKGROUND

      On April 1, 2009, agents from the Bureau of Alcohol, Tobacco, Firearms

and Explosives, Tulsa Police Department, and Claremore Police Department

conducted rolling surveillance of Cody Lee, a burglary suspect. Mr. Lee was



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riding in a car with three other individuals, including Mr. McGinnis. Over a

period of several hours, the agents observed Mr. Lee, Mr. McGinnis, and their

cohorts enter multiple drug stores and buy pseudoephedrine and other precursor

ingredients with which to manufacture methamphetamine.

      Based on surveillance, the agents decided to pull the suspect’s car over to

conduct a search. They found pseudoephedrine, eight lithium batteries, iodine

tincture, a large white tub, a cell phone, a device used to smoke

methamphetamine, and a digital scale. In Mr. McGinnis’s pants pocket the

officers found a Jennings, Model J22, .22 caliber pistol that was loaded with six

rounds of ammunition.

      After receiving his Miranda warnings, Mr. McGinnis spoke to the officers.

He admitted the items that he and his companions had purchased were related to

the manufacture of methamphetamine and that they intended to manufacture the

drug. During the trial, the government offered testimony from two agents from

the Bureau of Alcohol, Tobacco, and Firearms; two officers from the Tulsa Police

Department; and an officer from the Claremore Police Department. Each of

those officers participated in the rolling surveillance operation. Claremore Police

Officer John Singer testified that guns are commonly found on suspects involved

in the production of methamphetamine.




                                        -3-
      Mr. McGinnis testified in support of his defense. He told the jury that he

had purchased the .22 caliber pistol to protect himself from a violent drug gang.

He explained that he had been assaulted by members of the gang because he owed

them an outstanding drug debt. He stated that he was hospitalized following the

incident and received staples in the side of his head.

                                II. DISCUSSION

      On appeal, Mr. McGinnis argues that the evidence is insufficient to support

the § 924(c) conviction. We review the sufficiency of the evidence de novo,

taking all of the evidence in the light most favorable to the jury verdict and

drawing all reasonable inferences that support the verdict. United States v.

Wright, 506 F.3rd 1293, 1297 (10th Cir. 2007).

      One part of section 924 (c) prohibits the possession of a firearm “in

furtherance of” a drug trafficking crime. In order to establish a conviction under

this theory, the government must establish that the defendant (1) committed a

drug trafficking crime; (2) possessed a firearm; and (3) possessed the firearm in

furtherance of the underlying crime. See United States v. Poe, 556 F.3d 1113,

1127 (10th Cir.), cert. denied, 130 S. Ct. 395, (2009). Here, Mr. McGinnis

challenges only the third element. He argues that the evidence established that he

possessed the pistol to protect himself from a drug gang but not that he possessed




                                         -4-
it “in furtherance of” the crime of possessing pseudoephedrine with the intent to

manufacture methamphetamine.

      A firearm is possessed in furtherance of a drug trafficking crime if it assists

promotes, or aids in accomplishing, advancing or achieving the goal or objective

of the underlying offense. United States v. Rockey, 449 F.3d 1099, 1103 (10th

Cir. 2006). “[T]he mere presence of a firearm at the scene of a drug trafficking

crime is not sufficient to establish the ‘in furtherance’ element of § 924(c)(2).”

Id. In addition, expert testimony that drug traffickers generally use firearms to

further their drug crimes, standing alone, is not sufficient to establish the in-

furtherance-of element. See United States v. Rios, 449 F.3d 1009, 1014 (9th Cir.

2006) (examining H.R. Rep. No. 105-344, at 12, to find that the legislative

response to Bailey v. United States, 516 U.S. 137 (1995), was to state that

“[s]tanding on its own, [expert testimony that drug dealers typically possess

guns] may be insufficient to meet the ‘in furtherance of’ test”).

      Rather, the in-furtherance element requires the jury to find “a nexus

between the defendant’s possession of the firearm and the drug offense.” United

States v. Thorpe, 447 F.3d 565, 568 (8th Cir. 2006). “[A] sufficient nexus exists

where the firearm protects drug stockpiles or the defendant’s territory, enforces

payment for the drugs, or guards the sales proceeds.” United States v. Sherman,

551 F.3d 45, 49-50 (1st Cir. 2008) (citations omitted); see United States v.



                                          -5-
Coleman, 603 F.3d 496, 501(8th Cir. 2010) (holding that a gun discovered “in

close proximity” to drugs supported “an inference that the firearm was for the

protection of the drugs”) (internal quotation marks omitted). The element is also

satisfied when a firearm is “kept available for use should it be needed during a

drug transaction, and the defendant intended the firearm to be accessible for that

purpose. Poe, 556 F.3d at 1127.

      This circuit has concluded that the jury may consider a variety of factors in

determining whether a defendant has possessed a firearm in furtherance of the

underlying crime. The factors include (1) the type of drug activity that is being

conducted; (2) the accessibility of the firearm; (3) the type of firearm involved;

(4) whether the possession of the firearm is illegal or legitimate; (5) whether the

gun is loaded; (6) the proximity of the firearm to drugs or drug profits; and (7)

the time and circumstances under which the gun is found. United States v. Lott,

310 F.3d 1231, 1247 (10th Cir. 2002). 1


1
  The Ninth Circuit has “expressly condemned the notion that loaded or
unregistered firearms are particularly indicative of drug trafficking [crimes]” and
holds instead that “sufficient evidence supports a conviction under § 924(c) when
facts in evidence reveal a nexus between the gun[] discovered and the underlying
offense.” United States v. Mann, 389 F.3d 869, 879 (9th Cir. 2004) (internal
quotation marks omitted). The Ninth Circuit has decided that a factor test similar
to the kind employed by the Tenth Circuit is “not helpful in all cases since it
[does] not ‘distinguish possession for the promotion of drug trafficking from
possession for other, perhaps legitimate, purposes.” United States v. Mosley, 465
F.3d 412, 416 (9th Cir. 2006) (quoting United States v. Krouse, 370 F.3d 965,
968 (9th Cir. 2004)). Distinguishing between legitimate and illegitimate purposes
for possessing firearms near the locus of drug activity is why the Ninth Circuit
                                          -6-
       We considered these factors in Rockey, 449 F.3d at 1103. There, the defendant

was found with “[a] small black bag containing a loaded Ruger Super Blackhawk .44

Magnum affixed with a scope, as well as lithium batteries, a syringe, a bottle of iodine,

and [a] plastic baggie containing ephedrine.” Id. at 1102. We concluded that “[b]ased on

this evidence, a rational jury could conclude that [the defendant] possessed a firearm in

furtherance of a drug trafficking crime—his possession of ephedrine.” Id. at 1103.

       In contrast, in United States v. Iiland law enforcement agents discovered weapons

in the defendant’s residence and cocaine in a storage unit that he had rented. 254 F.3d

1264, 1268 (10th Cir. 2001). We concluded that the evidence was insufficient to

establish that he had possessed the weapons in furtherance of a drug trafficking crime.

Id. at 1274. We reasoned that “[t]here was no evidence that the gun and drugs were ever

kept in the same place or that [the defendant] ever kept the gun accessible when

conducting drug transactions.” Id. We noted that “[t]he fact that drug dealers in general

often carry guns for protection is insufficient to show possession in furtherance of drug

activity in [the defendant’s] particular case.” Id.

       Here, several factors support the jury’s determination that Mr. McGinnis

possessed the .22 caliber pistol in furtherance of a drug trafficking crime—

knowingly and intentionally possessing pseudoephedrine with the intent to manufacture

methamphetamine. First, the officers discovered the pistol in Mr. McGinnis’s pants



has abandoned a “‘checklist’ approach to determining whether a firearm was
possessed ‘in furtherance’ of a drug trafficking offense.” Id at 415.
                                             -7-
pocket, making it readily accessible to him.2 In addition, the firearm was loaded, and Mr.

McGinnis did not legally possess it. The proximity of the firearm to the materials to be

used to manufacture methamphetamine also supports the jury’s finding. Mr. McGinnis

purchased the pseudoephedrine with the gun in his pocket and carried the gun in the car

where the materials were stored.

       Accordingly, we conclude that the government presented sufficient circumstantial

evidence to allow a reasonable jury to infer that the loaded .22 caliber pistol in his pants

pocket was used in furtherance of Mr. McGinnis’s possession of pseudoephedrine with

the intent to manufacture methamphetamine.

                                    III. CONCLUSION

       For the foregoing reasons, we affirm Mr. McGinnis’s § 924(c) conviction.

                                           Entered for the Court,



                                           Robert H. Henry
                                           Circuit Judge




2
 Compare with Rockey, where the court noted that “a drug dealer whose only
firearms are unloaded antiques mounted on the wall does not possess those
firearms ‘in furtherance’ of a drug trafficking crime,” and that “[s]imilarly, a
drug trafficker who engages in target shooting or in hunting game likely [will
not] violate the law by keeping a pistol for that purpose that is otherwise locked
and inaccessible.” 449 F.3d at 1103 (internal quotation marks omitted).
                                             -8-
