            United States Court of Appeals
                       For the First Circuit

No. 12-1447

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                      JOSÉ LUIS BOBADILLA-PAGÁN,
                  a/k/a José Luis Bombadilla-Pagán,

                         Defendant-Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

           [Hon. José Antonio Fusté, U.S. District Judge]


                               Before

                  Torruella, Baldock,* and Thompson,
                           Circuit Judges.




     Anita Hill Adames for appellant.
     John A. Mathews II, Assistant United States Attorney,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.



                           March 28, 2014




     *
         Of the Tenth Circuit, sitting by designation.
            THOMPSON, Circuit Judge.      When ill luck began for José

Luis Bobadilla-Pagán ("Bobadilla"), it came not in sprinkles, but

in showers.     First, Bobadilla had the misfortune to live one floor

above his sketchy brother-in-law, suspected drug dealer Héctor

Patrón.     Second, when federal agents came looking for Patrón,

Bobadilla went out to greet them.         And third, the day the agents

came, Bobadilla had left his driver's license in his minivan.             As

so often happens, one thing led to another, and soon enough the

agents found the marijuana and unlicensed gun that Bobadilla had

stashed in his vehicle.       Bobadilla now comes before us appealing a

jury verdict convicting him of possessing controlled substances

with intent to distribute and possessing a firearm in furtherance

of   a   drug   trafficking    offense.    He   says   the   evidence    was

insufficient to convict him of either crime.       Because we disagree,

we must reject his appeal.

                                BACKGROUND

            We begin by recounting the facts in the light most

flattering to the verdict, consistent with record support.              See,

e.g., United States v. Polanco, 634 F.3d 39, 40 (1st Cir. 2011);

United States v. Echeverri, 982 F.2d 675, 676 (1st Cir. 1993).

            Before dawn on September 27, 2011, Bobadilla and his wife

were abruptly awakened by loud noises outside their home in Barrio

Cacao, Carolina, Puerto Rico. U.S. Drug Enforcement Administration

("DEA") agents investigating a drug trafficking ring had shown up


                                    -2-
at their house to search the ground-floor apartment of alleged drug

dealer   Patrón.     Bobadilla   and   his   wife   lived   in   a   separate

apartment on the second floor. When they heard the commotion, they

rushed outside to see what was going on.        In retrospect, Bobadilla

probably wishes he had stayed in bed.         But without the benefit of

20/20 hindsight, he wandered directly into the agents' cross-hairs.

           The agents asked Bobadilla who he was and how (or if) he

knew their intended target, Patrón.          Bobadilla gave his name and

said that Patrón — who was not home at the time — was his wife's

brother.   When asked for his identification, he explained that his

driver's license was in his minivan, which was parked a little ways

down the road.1      An agent went with him to get his license and

bring it back to the house.       And this was when Bobadilla's luck

really took a turn for the worse.

           Shortly thereafter, other agents brought a canine unit to

check out Bobadilla's van.        The dog alerted the agents to the

presence of narcotics in the trunk. Bobadilla then gave permission

for the agents to search the vehicle and also admitted there was

marijuana inside.2    With the agents watching, Bobadilla opened the


     1
      At trial, one agent testified that parking far away from the
house might indicate that Bobadilla was trying to hide or
disassociate himself from the vehicle or its contents. Bobadilla
insisted that he parked his van away from the house because its
emergency brake did not work and his home was on a hill.
     2
       Bobadilla filed a pre-trial motion to suppress evidence from
the search, arguing his consent was coerced.       The trial judge
denied the motion. Bobadilla does not raise that argument again on

                                   -3-
van and pulled a bag containing roughly 210 grams (about 7.5

ounces, or just under half a pound) of marijuana from beneath the

driver's seat.     He also let on that he kept an illegal firearm in

the   van   and   proceeded   to   fish    out   a   partially   loaded   nine-

millimeter Beretta from a fanny pack in the middle console.                The

gun was about three feet from where he stowed the marijuana, and

both the gun and the drugs were within reach of the driver's seat.

At the scene, Bobadilla told the agents that the marijuana belonged

to him and said the gun was for his protection.

            The only other things the agents found in the fanny pack

with the gun were a single "Phillies" cigar, a nickel, a pack of

gum, and some miscellaneous documents.               They did not find any

additional illicit or suspicious items in Bobadilla's minivan or

his home, such as drugs, cash, or run-of-the-mill drug-processing

paraphernalia, like scales or plastic bags.             But, as we will see,

what the agents had already found was enough to sink Bobadilla.

            A couple of weeks later, the government charged Bobadilla

with (1) possession of a controlled substance (specifically, a

mixture or substance containing a detectable amount of marijuana)

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(D) ("Count One"); and (2) possession of a firearm in




appeal, and at oral argument Bobadilla's counsel conceded that
consent-to-search was not at issue.

                                     -4-
furtherance of a drug trafficking offense, in violation of 18

U.S.C. § 924(c) ("Count Two").

          A two-day jury trial began on December 14, 2011.              Among

other witnesses, DEA Special Agent Christopher Díaz, a narcotics

expert, testified on the government's behalf.3          Agent Díaz was part

of the team that seized the marijuana from Bobadilla's minivan. He

observed that, when it was confiscated, the marijuana was wet,

green, soft, and contained red hairs, stems, and seeds.4           Based on

its condition, he opined that the marijuana was not ready to be

used that day; rather, it needed to be cured for several weeks in

a cool environment and the stems and seeds needed to be removed

before it could be smoked.     He continued to say that — given the

amount of marijuana, its rough condition, and the fact that it was

stored in a large Ziplock bag in a hot van — he believed the

marijuana was intended for distribution, not for personal use.

Furthermore,   when   asked   about   the   role   of    weapons   in    drug

trafficking, Agent Díaz said that drug traffickers use firearms to




     3
       Bobadilla objected at trial to Agent Díaz's qualification as
an expert in the peculiarities of marijuana-smoking in Puerto Rico,
but he does not renew this challenge on appeal. The government
also called DEA Special Agent Ricardo Ramos, DEA Special Agent
Marisol Pagán, and San Juan Municipal Police Officer Juan Valentín
Marrero, who participated in the September 27 investigation; as
well as DEA Senior Forensic Chemist Peter Echevarría, who tested
the drugs confiscated from Bobadilla's van.
     4
       By the time of trial, the marijuana had dried up and was
less green.

                                  -5-
protect themselves and their merchandise and sometimes even to kill

people.

          On cross, Bobadilla's counsel questioned Agent Díaz about

the relationship between a Phillies cigar and marijuana.     Agent

Díaz responded that a Phillies cigar, like the one found in

Bobadilla's van, could be used to smoke marijuana by removing the

tobacco and replacing it with about 0.5 grams of marijuana. Later,

based on this testimony, the government calculated that Bobadilla

had enough marijuana to make a whopping 420 joints (by dividing the

210 grams of marijuana that he possessed into 0.5 grams per joint).

          At the close of the government's case, defense counsel

moved for a judgment of acquittal under Federal Rule of Criminal

Procedure 29 ("Rule 29"), arguing there was no evidence Bobadilla

intended to distribute marijuana. See Fed. R. Crim. P. 29(a) ("The

court . . . shall order the entry of judgment of acquittal . . . if

the evidence is insufficient to sustain a conviction."). The trial

judge denied the motion, noting (out of the jury's earshot) that

there was "overwhelming evidence of distribution."

          Bobadilla then took to the stand in his own defense.   He

stressed that the marijuana found in his van was for his own

personal use and claimed he smoked between 10 and 12 joints per

day, with each joint containing 1 to 2 grams of marijuana.       He

estimated that, after he removed the stems and seeds, the 7.5-ounce

bag found in his car would yield only 5 or 5.5 ounces of usable


                               -6-
drug.       Thus, he figured he only had enough marijuana to make about

50 joints, which he said would last him a week or two.5             He

explained that buying his marijuana in bulk was more economical,

more convenient, and reduced the risk of getting caught.6

               Continuing his direct testimony, Bobadilla admitted that

what he said on the stand about his daily marijuana intake did not

jibe with what he had told the pre-trial services officer the day

he was arrested. That day, having tested positive for marijuana as

well as oxycodon (commonly known as "Percocet"), he had said he

only smoked a single joint per day.7       While testifying, Bobadilla

explained that he had lied to the officer because he was nervous

and did not want to get in trouble.       In truth, he said, he smoked

far more often than he had previously confessed.




        5
       This math doesn't quite add up. Even crediting Bobadilla's
assertions that only 5 ounces — i.e., 140 grams — of the marijuana
he had were usable and that he used 1 to 2 grams to make each
joint, he possessed enough marijuana to make 70 to 140 joints.
However, his point was that the government overestimated how many
joints he could produce from the bag.
        6
       To illustrate the risk of purchasing marijuana, Bobadilla
volunteered his own arrest for possession of marijuana in the late
1990's as an example. According to Bobadilla, he and two or three
friends were stopped by police after one of the friends bought
marijuana for them to share.       However, only the friend who
purchased the marijuana was charged.
        7
       Pre-Trial Services Officer Tanya Correa Hernandez, who
conducted Bobadilla's pre-trial interview, confirmed that Bobadilla
said he only smoked one joint per day and said that he appeared
nervous during the interview.

                                    -7-
            Bobadilla went on to say that the illegal firearm in his

minivan belonged to a friend who was traveling.       He said he kept

the gun in his van instead of in his house because he did not want

his young daughter to find it.

            On   cross-examination,   government   counsel   confronted

Bobadilla about lying to the pre-trial services officer regarding

his daily marijuana consumption.        He also questioned Bobadilla's

professed willingness to hold a gun for a "friend" — about whom

Bobadilla would reveal few details — apparently without asking when

the friend would collect the gun or why he needed Bobadilla to

store it.    Counsel further pressed Bobadilla as to how he could

support such an expensive marijuana habit after losing his job as

a civil engineer several months before his arrest.        Counsel also

challenged Bobadilla's assertion that he had no ties to his bad-

news brother-in-law and neighbor, Patrón, for whom the agents were

looking the day Bobadilla was arrested.

            Government counsel went on to probe how Bobadilla could

smoke so often without shirking his family responsibilities.        In

response to a series of questions about how Bobadilla managed to

fit smoking 10 to 12 joints in his daily schedule, Bobadilla

mentioned that he sometimes smoked marijuana with his friends.      He




                                  -8-
went on to admit that, on such occasions, he sometimes shared his

own marijuana with those friends.8

             Bobadilla's wife took the stand next on her husband's

behalf.      She testified that Bobadilla did not talk with her

brother, Patrón. She said Bobadilla smoked marijuana all the time.

She   also   said    she   had   seen   some   Phillies   wrappers   in   their

apartment, though not "10, 20, 30, or 40" on a particular day.

             At the end of trial, Bobadilla's counsel renewed his Rule

29 motion, again arguing there was absolutely no evidence of

distribution.        The trial judge denied the motion, and, after

deliberating for roughly two hours, the jury convicted Bobadilla on

both counts.     After trial, Bobadilla filed a third Rule 29 motion

and the judge again denied it.

             On March 16, 2012, the judge sentenced Bobadilla, who had

no prior convictions, to zero months for Count One (possession of

a   controlled      substance    with   intent    to   distribute)   and    the

statutorily mandatory sixty months (five years) for Count Two

(possession of a firearm in furtherance of a drug trafficking

offense).     Judgment entered on March 19, 2012.           Bobadilla timely

appealed.



      8
       Like many unfamiliar with the law, Bobadilla did not seem to
realize that sharing drugs with friends, as we discuss later,
qualifies as distribution. On re-direct, defense counsel attempted
to clarify that Bobadilla did not sell marijuana to his friends,
but, as the trial judge ruled, whether Bobadilla was compensated is
not determinative.

                                        -9-
                    SUFFICIENCY OF THE EVIDENCE

            On appeal, Bobadilla contends the government failed to

present sufficient evidence to support his conviction on either

count.

            We review his preserved sufficiency claims de novo,

considering the evidence, both direct and circumstantial, in the

light most friendly to the verdict.    United States v. Howard, 687

F.3d 13, 19 (1st Cir. 2012).9     Our role at the stage is "quite

limited."   United States v. Cortés-Cabán, 691 F.3d 1, 12 (1st Cir.

2012) (quoting United States v. Hernández, 218 F.3d 58, 64 (1st

Cir. 2000)).   It is not our job to re-weigh the evidence or second-

guess the jury's credibility determinations.      United States v.

Polanco, 634 F.3d 39, 45 (1st Cir. 2011).   Rather, we will reverse

only if we find that "even after 'crediting the government's

witnesses and drawing all reasonable inferences in its favor,' no

levelheaded jury could have found [Bobadilla] guilty" of the

charged crimes. United States v. Guerrier, 669 F.3d 1, 7 (1st Cir.

2011) (quoting United States v. Aranjo, 603 F.3d 112, 116 (1st Cir.

2010)).     In other words, if the verdict is "supported by a

plausible rendition of the record," we must uphold it.      Cortés-

Cabán, 691 F.3d at 16 (quoting Hernández, 218 F.3d at 64).



     9
       Sufficiency claims are preserved by moving for judgment of
acquittal at the close of the government's case and at the end of
trial, as Bobadilla did here. See United States v. Jones, 674 F.3d
88, 91 (1st Cir. 2012).

                                -10-
              Because      Bobadilla      cannot        surmount       this     formidable

standard as to either count of his conviction, his appeal fails.

A. Count One: Possession With Intent To Distribute

              First, Bobadilla says there was not enough evidence to

convict him of possessing a controlled substance with intent to

distribute.

              In   order     to   prove    Bobadilla          possessed    a    controlled

substance with intent to distribute, in violation of 21 U.S.C.

§§     841(a)(1),     841(b)(1)(D),        "the        government      must     show    that

[Bobadilla] knowingly and intentionally possessed, either actually

or constructively, a controlled substance with the specific intent

to distribute it."         United States v. García-Carrasquillo, 483 F.3d

124,    129   (1st    Cir.    2007).       It     is    undisputed       that    Bobadilla

possessed 210 grams of marijuana, a controlled substance.                                The

question then is whether he possessed it with the requisite intent

to distribute.

              Courts,      including       this        one,        interpret    the     term

"distribute" as used in 21 U.S.C. § 841(a)(1) quite broadly.

Cortés-Cabán, 691 F.3d at 17-18 (collecting cases); see, e.g.,

United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994)

("[I]n enacting the 1970 Act, Congress intended to proscribe a

range of conduct broader than the mere sale of narcotics.").                             The

statute defines "distribute" as "to deliver . . . a controlled

substance."        Cortés-Cabán,     691    F.3d        at    17    (quoting    21     U.S.C.


                                           -11-
§   802(11)).   "Deliver"   is   further   defined    as   "the   actual,

constructive, or attempted transfer of a controlled substance."

Id. (quoting 21 U.S.C. § 802(8)).       Nothing in the statute limits

distribution to sale; rather, "[i]t is well accepted that drugs may

be distributed by giving them away for free."        Id. at 19 (quoting

United States v. Cormier, 468 F.3d 63, 71 n.3 (1st Cir. 2006));

United States v. Boidi, 568 F.3d 24, 29 (1st Cir. 2009).10

           An inference of intent to distribute may be drawn from

the circumstances surrounding possession, including the drug's

quantity (i.e., whether it is too large for personal use only), the

drug's purity, the defendant's statements or conduct, or the number

of people involved and their relationship to the defendant.          See

Cormier, 468 F.3d at 71 (quoting with approval the factors listed

in United States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977));

United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993)

("[A]n intent to distribute drugs can legitimately be inferred from

factors such as quantity and purity.").     For example, with respect



      10
        The Second Circuit has held that when "two individuals
simultaneously and jointly acquire possession of a drug for their
own use, intending only to share it together, their only crime is
personal drug abuse - simple joint possession, without any intent
to distribute the drug further." United States v. Swiderski, 548
F.2d 445, 450 (2d Cir. 1977).       However, this court has never
expressly decided whether Swiderski is good law in this circuit.
Cormier, 468 F.3d at 72 & n.5 (explaining that "[t]he only . . .
cases in this circuit to have addressed Swiderski found that it was
inapplicable to the facts").      Moreover, the Swiderski court's
holding is not on point here because Bobadilla does not contend he
jointly acquired this marijuana with anyone else.

                                 -12-
to drug quantity, in Cormier, this court found that the defendant's

retention of at least two pounds (roughly 900 grams) of marijuana,

"although not dispositive, at least suggests that it may not have

been intended only for personal use."             468 F.3d at 71.11     Likewise,

in Echeverri, this court held that the quantity and purity of the

drugs the defendant possessed — two pounds of eighty-six percent

pure cocaine — were factors that supported the jury's finding of

intent to distribute.          982 F.2d at 677, 678.

               Here, at trial, the government presented the following

evidence        of   Bobadilla's       intent     to     distribute   marijuana:

(1) Bobadilla possessed 210 grams of marijuana, an amount that

Agent Díaz testified indicated an intent to distribute; (2) the

marijuana was wet and contained stems and seeds, which Agent Díaz

said meant it was not ready for immediate consumption; (3) the

marijuana was found about three feet away from an illegal partially

loaded firearm, and Agent Díaz testified that drug traffickers

sometimes use guns for protection; (4) agents seized the marijuana

while        executing   a    search   warrant     for     a   drug   trafficking

organization allegedly run out of the ground-floor apartment of

Bobadilla's house (though there was no evidence directly connecting

Bobadilla       to   that    conspiracy);   and    (5)    Bobadilla   explicitly

testified that he sometimes shared his marijuana with friends.


        11
        We note, as did the government in its brief, that
Bobadilla's brief misstated both the drug quantity at issue and the
court's conclusions in this case.

                                        -13-
            Bobadilla, for his part, refutes each point and claims

the marijuana was for his personal use only, citing the following

evidence: (1) the 210 grams of marijuana seized was a "personal

amount" that Bobadilla could consume on his own in just one or two

weeks (though this differed from Bobadilla's statements to the

pre-trial services officer after his arrest); (2) the marijuana's

condition     indicated     good   quality    for   Bobadilla's    personal

consumption; (3) the gun belonged to a friend and was not related

to the marijuana found in Bobadilla's van; (4) Bobadilla was not a

target   of    the   drug    trafficking     investigation   and   had   no

relationship with his brother-in-law, Patrón; (5) Bobadilla's

testimony about sharing marijuana with friends was unrelated to the

particular marijuana seized here; and (6) unlike a "typical" drug

dealer, Bobadilla voluntarily permitted police to search his van,

where they found no other evidence of drug trafficking (e.g.,

scales, plastic bags, or large amounts of cash).

            Though Bobadilla's explanation is plausible, so is the

government's.    Unfortunately for Bobadilla, this dual plausibility

dooms his claim.          See Cortés-Cabán, 691 F.3d at 16 (quoting

Hernández, 218 F.3d at 64) (internal quotation marks omitted)

("[W]e must uphold any verdict that is supported by a plausible

rendition of the record.").          A reasonable jury crediting the

government's witnesses and drawing reasonable inferences in its




                                    -14-
favor could readily find that Bobadilla possessed marijuana with

intent to distribute.

          First, while the quantity of marijuana seized here does

not overwhelmingly indicate an intent to distribute, Agent Díaz

testified that the amount found was large enough to imply such

intent, and the jury was entitled to believe him.          See United

States v. Rivera-Rodríguez, 617 F.3d 581, 596 n.6 (1st Cir. 2010)

(quoting United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009))

(assessing the credibility of a witness is a role reserved for the

jury).    Furthermore,   this   court   has   previously   found   that

possessing even a relatively small amount of marijuana might

suggest an intent other than mere personal use.     See Cormier, 468

F.3d at 71.

          Second, the jury could reasonably rely on the unprocessed

condition of the marijuana when it was seized to infer that it had

not yet reached its final user.     See Echeverri, 982 F.2d at 678

(explaining that purity is a factor from which intent to distribute

may be inferred).

          Third, the jury could rationally think that the nearby

presence of an illegal gun — which, according to Agent Díaz, drug

traffickers sometimes use to protect themselves or their product —

showed Bobadilla intended to distribute the marijuana.         Though

Bobadilla protests that he was holding the gun for a friend and the




                                -15-
gun bore no relation to the drugs in the van, as we will discuss

further below, the jury was not required to believe him.

          Fourth, the jury could determine that Bobadilla was a

drug distributor independent of any possible connection to the drug

trafficking organization allegedly run out of the ground-floor

apartment of his house.

          Finally, and perhaps most damagingly, Bobadilla's own

statements that he sometimes shared marijuana with friends can be

easily interpreted to indicate an intent to distribute the seized

marijuana to others.    See Cormier, 468 F.3d at 71 n.3 (recognizing

that giving drugs away for free counts as distribution).           Because

the statutory term "distribution" is broader than sale and includes

giving drugs away for free, see id., Bobadilla's statements are

equal to an admission that he sometimes engages in the very conduct

that the government said he intended to pursue here.

          Considering     the   totality   of   this   evidence,    it   is

difficult to imagine how we could say that "no levelheaded jury"

could have found as this jury did.       See Guerrier, 669 F.3d at 7.

But we take a moment to note that the evidence of distribution was

by no means as "overwhelming" as the trial judge suggested.              To

recap the evidence to the contrary: The small amount of raw

marijuana found in Bobadilla's van might very well have been

intended solely for his personal enjoyment.       Bobadilla's behavior

when DEA agents descended upon his house was hardly reminiscent of


                                  -16-
a sophisticated drug trafficker: He came outside to speak with the

agents voluntarily, led them to the van where he stored the drugs

and gun, and, when asked, freely copped to the contraband and

retrieved it for the agents. Other than his kinship tie to Patrón,

there was nothing linking him to any drug trafficking organization.

And, beyond the drugs and the gun, none of the other trappings of

a drug distributor — e.g., bags, scales, or cash — were found in

Bobadilla's vehicle or apartment. In other words, the jury could

easily have found that Bobadilla lacked the requisite intent to

distribute.   But, because the evidence could plausibly support

either conclusion, the choice was up to the jury.          Accordingly,

Bobadilla's first attempt to undermine the jury's determination

falls short, and we proceed to his second claim.

B. Count Two: Possession "In Furtherance Of" Drug Trafficking

          Second,    Bobadilla   maintains   there   was   insufficient

evidence to convict him of possessing a firearm "in furtherance of"

a drug trafficking crime.

          18 U.S.C. § 924(c)(1)(A) prescribes a mandatory minimum

sentence for any person who, "during and in relation to any . . .

drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm." United States

v. Pena, 586 F.3d 105, 112 (1st Cir. 2009) (quoting 18 U.S.C.

§ 924(c)(1)(A)).    To prove possession of a firearm "in furtherance

of" a drug trafficking crime, "the government must prove that the


                                 -17-
defendant: (1) committed a drug trafficking crime; (2) knowingly

possessed a firearm; and (3) possessed the firearm in furtherance

of the drug trafficking crime."          Id. (citing United States v.

Marin, 523 F.3d 24, 27 (1st Cir. 2008)).

            Here, Bobadilla first renews the claim we disposed of

above that the evidence was insufficient to prove he possessed a

controlled substance with intent to distribute — i.e., that he

committed a drug trafficking crime.12       However, even assuming the

first element is satisfied, and not contesting the second element

of   knowing   possession,   Bobadilla   says   there   was   insufficient

evidence to make out the third element of the crime: that he

possessed the firearm seized from his vehicle "in furtherance of"

a drug trafficking crime.

            To establish that a defendant possessed a firearm "in

furtherance of" a drug trafficking crime, the government must show

by specific facts "a sufficient nexus between the firearm and the

drug crime such that the firearm advances or promotes the drug

crime."    Id. at 113 (citing Marin, 523 F.3d at 27); United States

v. Grace, 367 F.3d 29, 35 (1st Cir. 2004). Recognizing that "[t]he

'in furtherance of' element does not have a settled, inelastic


      12
        "A 'drug trafficking' crime means any felony punishable
under the Controlled Substances Act." United States v. Sherman,
551 F.3d 45, 49 n.3 (1st Cir. 2008) (citing 18 U.S.C.
§ 924(c)(1)(D)(2)).   This court has observed that possessing a
controlled substance with intent to distribute is a drug
trafficking crime. Id. (citing United States v. Luciano, 329 F.3d
1, 6 (1st Cir. 2003)).

                                  -18-
definition," this court analyzes "in furtherance of" evidence from

both objective and subjective standpoints. Marin, 523 F.3d at 27.

Objective factors the court considers include: (1) the proximity of

the firearm to drugs or contraband; (2) whether the firearm was

easily accessible; (3) whether the firearm was loaded; and (4) the

surrounding circumstances.           Pena, 586 F.3d at 113 (citing United

States v. Robinson, 473 F.3d 387, 399-400 (1st Cir. 2007)).

Evidence of subjective intent might include a showing that a

defendant obtained a firearm to protect drugs or proceeds.                      See

Marin, 523 F.3d at 27.        Where direct evidence of subjective intent

is   lacking,    the   jury    may    infer     intent    from       the   objective

circumstances.    Id. at 28.

           "The mere presence of a firearm in the area where the

drug offense occurred is insufficient" to constitute possession "in

furtherance of" a drug trafficking crime.                Pena, 586 F.3d at 113

(citing Grace, 367 F.3d at 35).               However, this court has shown

considerable    latitude      in   determining     whether       a    firearm   was

sufficiently proximate to drugs or drug proceeds or accessible to

support an "in furtherance of" conviction.               For example, in Grace,

this court affirmed a conviction for possession "in furtherance of"

a drug trafficking crime where the defendant kept an unloaded gun

under a bed in a drawer that was blocked by a duffel bag, a trash

can, and box of books, even though there was no ammunition in the

house and the drugs were stored in a separate room.                    367 F.3d at


                                       -19-
31, 35-36. There was also evidence that the defendant obtained the

gun to protect the drugs she sold.            Id. at 36.     Likewise in Marin,

this court affirmed a conviction where the defendant kept a loaded

handgun in his bedroom where it was easily accessible to him and

only a few feet away from the drugs he sold.               523 F.3d at 27-28.

In that case, "the jury also heard testimony that drug traffickers

often   possess      firearms   for    protection     of     their   trafficking

activities."    Id. at 28.

           Here, to establish a satisfactory nexus between the

firearm seized from Bobadilla's van and his possession of marijuana

with intent to distribute, the government musters the following:

First, as objective factors, the government cites (1) the firearm

was found in a fanny pack in Bobadilla's van's center console,

within three feet of the marijuana seized from under the driver's

seat;   (2)    the     gun   and      the     marijuana     could    be   reached

simultaneously; (3) the gun was loaded with three rounds (and could

hold up to thirteen rounds); and (4) Bobadilla did not have a

license for the gun and gave shaky testimony about how he acquired

it - he said he was holding it for a friend, but he provided little

other information about the circumstances.                Second, as subjective

evidence, the government says Bobadilla specifically told officers

at the time of his arrest that the gun was for "protection," an

admission which dovetails with Agent Díaz's testimony that drug




                                       -20-
traffickers sometimes use firearms to protect themselves, their

drugs, or their profits.

            Bobadilla attempts to counter this evidence as follows:

First, Bobadilla says the objective factors here indicate only the

"mere presence" of a gun in a van where marijuana was kept, not

possession of a gun "in furtherance of" a drug trafficking crime.

Other than the marijuana, no evidence related to the drug trade was

found in the van.         There was also no evidence that Bobadilla ever

actually used or carried the gun.              And the gun was only partially

loaded when the police seized it - a "real" drug dealer, he says,

might have kept the gun fully loaded. Second, as to his subjective

intent, Bobadilla reiterates that he was holding the gun for a

friend.    He kept it in the van so his young daughter would not find

it, rather than to protect himself or his stash.

            Again, Bobadilla's explanation is plausible, but it does

not    overcome     the   extremely     high    bar   set    for   a   sufficiency

challenge. Here, the evidence showed that Bobadilla kept a loaded,

unlicensed firearm a few feet away from drugs concealed in his

minivan.    Moreover, the jury heard testimony that drug traffickers

often     possess    firearms     for    protection     of    drug     trafficking

activities.       From this evidence, the jury could rationally infer

that    Bobadilla     possessed    the    firearm      to    protect    his   drug

trafficking activities.




                                        -21-
             It was up to the jury to weigh the government's and

Bobadilla's versions of the facts and to decide which to believe.

See, e.g., Rivera-Rodríguez, 617 F.3d at 596 n.6.                   And, though we

recognize    that     Bobadilla's    second      sufficiency-of-the-evidence

challenge, like the first, presents a close question, it is not

within our purview to disturb the jury's record-supported finding.

See United States v. Sherman, 551 F.3d 45, 50-51 (1st Cir. 2008)

(upholding a jury determination though "the sufficiency issue is

arguably close").      Because, viewing the evidence in the light most

favorable to the government, a reasonable jury could have found

that Bobadilla possessed the firearm "in furtherance of" a drug

trafficking offense, Bobadilla's second attempt to discredit the

jury's verdict comes up short.

                                  CONCLUSION

             Before   we   wrap   up,    we    pause    to   make    explicit   our

ambivalence towards the jury's findings.                While it is clear that

Bobadilla guiltily possessed a small quantity of marijuana and an

illegal firearm, whether he intended to distribute that marijuana,

as well as whether he possessed the firearm "in furtherance of" a

drug trafficking crime, are harder questions.                 The jury answered

"yes"   to   both.      Another   jury     may   have    concluded     otherwise.

Obviously too, another prosecutor could have opted to indict

Bobadilla on lesser charges, i.e., simple possession of marijuana

and an unlicensed firearm.          This prosecutor chose not to, as was


                                        -22-
within her discretion.   And at this stage, we are duty-bound to

enforce the jury's amply supported verdict.   Consequently, today,

like September 27, 2011, is not Bobadilla's lucky day.

          For the foregoing reasons, Bobadilla's conviction is

affirmed as to both counts.



                  -Concurring Opinion Follows-




                              -23-
              BALDOCK, Circuit Judge, concurring. I gladly join in the

well-written and well-reasoned opinion of the Court.

              I write separately because I do not join the dicta on the

last   page    identified   as   "Conclusion."   Rather   than   discuss

hypothetical juries and prosecutors, I would simply conclude by

stating "For the foregoing reasons, Bobadilla’s conviction is

affirmed as to both counts."




                                    -24-
