10-2828-cr
USA v. Echeverry

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                              August Term 2010
   (Submitted: June 13, 2011               Decided: August 19, 2011)

                           Docket No. 10-2828-cr



                           UNITED STATES OF AMERICA,

                                                  Appellee,

                                      v.
                              CARLOS ECHEVERRY,

                                                  Defendant-Appellant.



Before:
               WINTER, PARKER, and CHIN, Circuit Judges.



             Appeal from a July 6, 2010, judgment of the United

States District Court for the Southern District of New York
(Scheindlin, J.) convicting defendant-appellant Carlos
Echeverry of conspiracy to distribute narcotics and

possession of a firearm during and in relation to a drug-

trafficking crime.         The district court imposed a sentencing
enhancement for the discharge of the weapon even though it
was the intended victim and not the defendant who fired the

gun.
             AFFIRMED.
                   GEORGE ROBERT GOLTZER, Law Office of George
                         Robert Goltzer, New York, New York,
                         for Defendant-Appellant.

                   DANIEL L. STEIN, KATHERINE POLK FAILLA,
                         Assistant United States Attorneys,
                         for Preet Bharara, United States
                         Attorney for the Southern District
                         of New York, for Appellee.

PER CURIAM:

          Defendant-appellant Carlos Echeverry appeals from

a judgment of the United States District Court for the
Southern District of New York (Scheindlin, J.) convicting

him, pursuant to a guilty plea, of conspiracy to distribute

narcotics, 21 U.S.C. § 846, and possession of a firearm
during and in relation to a drug-trafficking crime, 18

U.S.C. § 924(c)(1)(A).   The district court imposed a

sentencing enhancement pursuant to § 924(c)(1)(A)(iii) for

the discharge of the weapon, even though it was the intended

victim -- and not Echeverry -- who fired the gun.     Echeverry
contends that because he did not possess the gun when it was

discharged, the district court erred in applying the
enhancement.   We disagree, and affirm.
                          BACKGROUND

          From September 2001 through September 2004,
Echeverry participated in a conspiracy to distribute and


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possess with intent to distribute cocaine, heroin, and
crack.

          In September 2002, in furtherance of the
conspiracy, Echeverry and a co-conspirator attempted to

recover stolen narcotics from an individual.     Echeverry and
the co-conspirator possessed and brandished a firearm. 1     The
intended victim, however, grabbed the gun and discharged it,

wounding the accomplice.
          On September 27, 2004, as part of the conspiracy,

Echeverry delivered 315 grams of heroin to an undercover

detective.   He was arrested a few days later.    On September
16, 2005, he waived indictment and pleaded guilty to one

count of conspiracy to distribute narcotics and one count of

possessing a firearm in relation to a drug-trafficking

crime.

          At sentencing on June 29, 2010, the parties
disagreed whether Echeverry was subject to the sentencing

enhancement under § 924(c)(1)(A)(iii) for the discharge of a
weapon during the course of a drug-trafficking crime.
Relying on the Supreme Court's decision in Dean v. United

States, 129 S. Ct. 1849 (2009), the district court applied


     1
          The record is unclear whether it was Echeverry or the
co-conspirator who initially possessed the weapon, but Echeverry
agrees that he is responsible for its possession and brandishment
during a narcotics-trafficking offense.

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the firearm-discharge enhancement.     The district court held
that if a defendant possesses a firearm in relation to a

drug-trafficking offense, he is responsible for a subsequent
discharge of that firearm, even if he does not have

possession of the firearm when it is fired.    The guidelines
range was 288 to 330 months' imprisonment, but the district
court imposed a below-guidelines sentence of the mandatory

minimum of twenty years, consisting of ten years on the
conspiracy count and, as required by § 924(c)(1)(A)(iii), an

additional consecutive ten years on the gun count.

          This appeal followed.
                          DISCUSSION

          The question before the Court is whether Echeverry

was subject to the firearm-discharge enhancement set forth
in 18 U.S.C. § 924(c)(1)(A)(iii), when he and an accomplice

brandished a firearm during a drug-related attempted robbery

and the intended victim managed to grab the gun and shoot

the accomplice.   As the district court's interpretation of §
924(c)(1)(A)(iii) presents a question of law, we review de
novo.   See United States v. Thorn, 446 F.3d 378, 388 (2d

Cir. 2006).
          We conclude that the district court correctly held
that Echeverry was subject to the discharge enhancement.




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            First, the statutory language supports this
conclusion.    In pertinent part, § 924(c)(1)(A) provides as

follows:
            [A]ny person who, during and in relation
            to any crime of violence or drug
            trafficking crime . . . , uses or carries
            a firearm, or who, in furtherance of any
            such crime, possesses a firearm, shall,
            in addition to the punishment provided
            for such crime of violence or drug
            trafficking crime --
                (i) be sentenced to a term of
                imprisonment of not less than 5
                years;
                (ii) if the firearm is
                brandished, be sentenced to a
                term of imprisonment of not less
                than 7 years; and

                (iii) if the firearm is
                discharged, be sentenced to a
                term of imprisonment of not less
                than 10 years.

18 U.S.C. § 924(c)(1)(A) (emphasis added).    Hence, the

statute provides that the ten-year mandatory minimum applies
"if the firearm is discharged," and it does not require that

the firearm be discharged by the defendant.       Here, as
Echeverry possessed a firearm in furtherance of a drug-

related crime and the firearm was discharged during the
course of that crime, by its plain terms the statute

applies.
            Second, the Supreme Court's decision in Dean
controls.     In Dean, the Supreme Court faced the question of

                               -5-
whether the discharge enhancement applied where the
defendant's gun accidentally discharged while in his

possession during a robbery.    129 S. Ct. at 1853.   The Court
concluded that "[t]he 10-year mandatory minimum applies if a

gun is discharged in the course of a violent or drug
trafficking crime, whether on purpose or by accident."        Id.
at 1856.

           In reaching its conclusion, the Court relied on
the use of the passive voice in § 924(c)(1)(A)(iii).       See 18

U.S.C. § 924(c)(1)(A)(iii) (imposing ten years' imprisonment

"if the firearm is discharged").     The Court reasoned:
"Congress's use of the passive voice . . . indicates that

subsection (iii) does not require proof of intent.     The

passive voice focuses on an event that occurs without
respect to a specific actor, and therefore without respect

to any actor's intent or culpability."     Dean, 129 S. Ct. at

1853 (emphasis added); see also id. at 1854 (holding that

whether a subsection (iii) enhancement applies turns on
"whether something happened -- not how or why it happened").
           The clear import of the Supreme Court's decision

is that a defendant need not directly cause a discharge to
be subject to the firearm-discharge enhancement.      Subsection
(iii) enhances a defendant's sentence based on "event[s]

that occur[] without respect to a specific actor."      Id.


                               -6-
Thus, that neither Echeverry nor his accomplice pulled the
trigger -- intentionally or accidentally -- does not isolate

Echeverry from the subsection (iii) enhancement.      In
essence, by possessing the gun in furtherance of a narcotics

transaction, Echeverry and his accomplice assumed the risk
that a discharge would occur during the transaction -- even
if unintentional, as in Dean, or directly caused by a third
party, as here.   Echeverry and his accomplice certainly

should have foreseen, for example, that the intended victim
might try to take the gun away from them during the

attempted robbery.   In short, Dean forecloses Echeverry's
proposed interpretation of subsection (iii).

          Echeverry attempts to distinguish Dean by arguing
that the discharge there was accidental while the discharge

here was intentional.   The effort fails.   For these

purposes, there is no meaningful distinction between an
accidental discharge and an intentional discharge by a third
party.   The key, again, is "whether something happened --

not how or why it happened."    129 S. Ct. at 1853.    When a

defendant possesses a firearm during a drug-trafficking
offense, the risk of an intended victim trying to seize the
gun is just as real as an accidental discharge.

          Third, Echeverry's reliance on United States v.
Daija, 529 F. Supp. 2d 465 (S.D.N.Y. 2008), is unavailing.


                               -7-
In Daija the district court held that subsection (iii) did
not apply unless the discharge was contemporaneous with the

defendant's possession of the weapon.   See Daija, 529 F.
Supp. 2d at 469 (requiring that "defendant continued to

possess [the firearm] in furtherance of the crime when it
was discharged" for subsection (iii) to apply).     Daija,
however, was decided before the Supreme Court issued Dean,

and in Dean the Supreme Court expressly noted that "[t]he
discharge provision on its face contains no temporal or

causal limitations."   129 S. Ct. at 1854.   Moreover, the

district court in Daija relied on reasoning -- "the
defendant discharged the firearm intentionally, that is, not

accidentally," 529 F. Supp. 2d at 469 & n.1 -- that the

Supreme Court squarely rejected in Dean.     129 S. Ct. at
1853.

         Accordingly, we hold that the district court

correctly held that the firearm discharge enhancement

applied in the circumstances of this case.
                          CONCLUSION

         For the foregoing reasons, the judgment of the

district court is AFFIRMED.




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