                                                             [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                                                            FILED
                                                   U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                              No. 00-15795            FEBRUARY 26, 2002
                                                      THOMAS K. KAHN
                D.C. Docket   No. 99-00674-CR-1-1-WBH      CLERK



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant,

  versus

CLIFFORD TIMMONS,

                                                  Defendant-Appellee.

                     _______________________

                            No. 00-16326
                     ________________________
                D.C. Docket No. 99-00674-CR-1-1-WBH

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

    versus

CLIFFORD TIMMONS,

                                                  Defendant-Appellant.
                     Appeals from the United States District Court
                        for the Northern District of Georgia

                                   (February 26, 2002)

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and MORENO*,
District Judge.

MORENO, District Judge:

       This appeal concerns the sufficiency of the evidence at trial of two separate

charges of possessing a firearm illegally, as well as a challenge to the sentence

imposed pursuant to guilty pleas to drug offenses. The defendant appeals the refusal

of the district court to grant a post-verdict judgment of acquittal on Count One, which

charged the defendant with using and carrying a firearm on October 23, 1998 “during

and in relation to” a drug trafficking crime in violation of 18 U.S.C. § 924(c). The

government appeals the same district court’s grant of a post-verdict judgment of

acquittal on Count Two, which charged the defendant with possession of a firearm on

November 12, 1999 “in furtherance of” drug trafficking in violation of another section

of the same statute.

       We find the evidence sufficient as to both counts. Therefore, we affirm the

district court’s judgment as to Count One but reverse as to Count Two and remand

        *Honorable Federico A. Moreno, U.S. District Judge for the Southern District of Florida,
sitting by designation.

                                               2
for sentencing on the November 12, 1999 firearm possession charge, “in furtherance

of” drug trafficking. We also vacate the sentence for the underlying drug offenses

because it included a weapon enhancement for the possession of the weapons that

were part of the same course of conduct for which the defendant has been convicted.



                          I. PROCEDURAL HISTORY

      On August 8, 2000 the grand jury returned a second superseding indictment,

which charged Clifford Timmons with three counts of violating 18 U.S.C. § 924(c).

Count One charged Timmons with using and carrying a 9mm semi-automatic handgun

on October 23, 1998 “during and in relation to” a drug trafficking crime. Count Two

charged Timmons with possessing on November 12, 1999, a .380 caliber handgun “in

furtherance of” a drug trafficking crime. Count Three, charging Timmons with

possessing a semi-automatic assault weapon “in furtherance of” a drug trafficking

crime, was dismissed prior to trial.

      Before trial, Timmons pled guilty to possessing crack cocaine with intent to

distribute it on both October 23, 1998 and November 12, 1999. Thus, only the firearm

counts, “during and in relation” to the October 23, 1998 drug trafficking, and “in

furtherance” of the drug trafficking on November 12, 1999, were tried before a jury.

The jury returned a verdict of guilty on both counts. Subsequently, Timmons filed a


                                         3
renewed motion for judgment of acquittal on both counts. The court denied the

motion for judgment of acquittal on Count One but granted judgment of acquittal on

Count Two. Both Timmons and the government appeal these orders.

      Pursuant to Timmons’ guilty plea, he was sentenced to 115 months

imprisonment on the drug crimes. He was also sentenced to a consecutive five year

term on Count One, the firearm possession “during and in relation” to the October 23,

1998 drug trafficking. Even though the district court found the evidence insufficient

as to the November 12, 1999 firearms possession “in furtherance” of a drug trafficking

crime, it used the evidence of such possession to enhance by two levels the sentence

on the drug trafficking crimes to which Timmons had pled guilty. Timmons appeals

the sentence on the drug counts claiming error in the enhancement.



                         II. FACTUAL BACKGROUND

I.    The October 1998 Incident (Count One)

      On the morning of October 5, 1998, Investigators Tullis and Brown from the

Atlanta Police Department Gang Unit went to Lakewood Village Apartments in an

undercover capacity. The investigators drove into the apartment complex in an

undercover vehicle, and were approached by several males who offered to sell them

marijuana and crack cocaine. One of the individuals who was present but did not


                                          4
participate in the sale was Clifford Timmons.

      The officers also agreed to purchase a handgun later that day from two men,

“Shorty” and “Black.” While attempting to purchase the gun, a situation developed

between the undercover officers and the gun sellers. At this point, Timmons

approached and diffused the situation by taking the handgun from the individuals and

removing the clip and all the bullets from the gun.     He then gave the clip to the

officers, received the money and gave them the gun. Shortly after completing this gun

sale, Timmons offered to sell the undercover officers another handgun with a laser

sight for $300. The officers and Timmons agreed to do future business and Timmons

gave the officers his beeper number and code.

      On October 23, 1998, during a subsequent recorded telephone conversation,

Timmons again offered to sell the undercover officers a handgun with a laser sight for

$300. The portion of the transcript of the October 23, 1998 sale of the gun reads:

      Officer R. Tullis: You got something?
      Clifford Timmons:        Yeah I got something.
      Tullis:                  Hey, uh, you got that, uh, laser?
      Timmons:           Yeah I still got it.
      Tullis:                  You still got it?
      Timmons:           Yeah.
      Tullis:                  You wanna get rid of it today?
      Timmons:           Yeah I’ll get rid of it today.

R4-29 at 1.

      Timmons claims that he did not explicitly discuss the sale of drugs on October

                                          5
5, 1998. The Government points out, however, that Timmons was not surprised when

the undercover officers asked about getting two “slabs” ($200 worth of drugs) during

their phone conversation of October 23, 1998. The relevant portion of the transcript

from that conversation reads:

        Officer R. Tullis: Okay, what about, uh, that breakdown we, we discussed?
        Clifford Timmons:        The breakdown?
        Tullis:                  Yeah.
        Timmons:           Yeah I got that too.
        Tullis:                  Uh, cause uh myself and my partner we got like two...
        Timmons:           Uh-uh.
        Tullis:                  ...that the wanna, we wanna try to get like uh two, you
can’t
                           give us two slabs?
        Timmons:           Yeah I can get for you.

R4-28 at 2.

        The sale as negotiated was completed later that day after Officer Tullis met

Timmons in the quad area of Lakewood Apartments. Timmons approached the car

and handed the investigator a shoe box containing a Lorcin pistol and 2.3 grams of

crack cocaine. The officers handed Timmons the $300 for the pistol and then $200

for the crack cocaine. The officers drove off after completing the sale.

II.     The November 1999 Incident (Count Two)

        On November 12, 1999, agents of the Bureau of Alcohol, Tobacco and Firearms

obtained a warrant to arrest Timmons and to search his apartment. The warrant was

executed at 8:30 p.m. that evening. When the officers arrived, Timmons was standing
                                            6
outside between his apartment and the apartment next door. Timmons was arrested

outside his apartment and agents recovered a cellular telephone and a pager from his

person and a two-way radio from the ground a few feet away. Inside the apartment,

the officers recovered photographs and documents confirming that it was his

apartment.

      In the living room was a stove top oven. On top of the oven were two fully

loaded firearms, an Intratec Model A B10 9mm luger and a Lorcin model 380. Inside

the oven was an empty ammunition box of 9mm cartridges. In a closet next to the

living room, agents found a bullet-proof vest. In addition, agents found crack cocaine

and $350 inside a drawer under the stove. A clear plastic baggy with individual hits

of crack cocaine was found under the cushions of the couch.          Six individually

packaged rocks of crack cocaine were recovered from a shoe of Timmons’ size

located in the bedroom of the apartment. In total, agents found 35.67 grams of crack

cocaine in Timmons’ apartment.



                              III. ANALYSIS

      Both counts that were the subject of the trial and this appeal involve 18 U.S.C.

§ 924(c) which reads in pertinent part:

      (1)(A) Except to the extent that a greater minimum sentence is otherwise
      provided by this subsection or by any other provision of law, any person

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      who, during and in relation to any crime of violence or drug trafficking
      crime (including a crime of violence or drug trafficking crime that
      provides for an enhanced punishment if committed by the use of a deadly
      or dangerous weapon or device) for which the person may be prosecuted
      in a court of the United States, 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[.]


      This version of § 924(c) was passed in 1998 in response to the Supreme Court’s

decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995). See United

States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001); United States v. Ceballos-Torres,

218 F.3d 409, 413 (5th Cir. 2000). The Supreme Court “has described the statute’s

basic purpose broadly, as an effort to combat the ‘dangerous combination’ of ‘drugs

and guns.’” Muscarello v. United States, 524 U.S. 125, 132, 118 S.Ct. 1911, 1916

(quoting Smith v. United States, 508 U.S. 223, 240, 113 S.Ct. 2050, 2060 (1993)).

      As Timmons pled guilty to the two underlying counts of possession with intent

to distribute cocaine, the issues left for trial were: (1) whether Timmons used or

carried a 9mm semi-automatic handgun on October 23, 1998, “during and in relation

to” a drug trafficking crime, and (2) whether on November 12, 1999, Timmons

possessed a .380 caliber handgun “in furtherance of” a drug trafficking crime. We

find sufficient evidence as to both counts. Therefore, we affirm the district court’s

denial as to Count One (the October 23, 1998 charge) but reverse the judgment of

                                          8
acquittal on Count Two (the November 12, 1999 charge), remanding it for sentencing

on that count pursuant to the jury’s guilty verdict. In addition, because we find that

the district court erred when it included a weapon enhancement in its sentence on the

drug counts, we vacate that sentence and remand for re-sentencing.

I.    The § 924(c) Conviction for Use or Carrying of a Firearm “During and in
Relation To”      a Drug Trafficking Offense

      Timmons challenges the conviction on Count One, which involved using or

carrying a 9mm semi-automatic handgun on October 23, 1998 “during and in relation”

to a drug trafficking crime. To sustain this conviction the government must have

sufficient evidence on both the “uses or carries” prong and the “during and in relation

to” prong. Evidence is sufficient to support a conviction where “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979).

      A.     “Use or Carry” Under § 924(c)

      The government need only show either that Timmons used or carried the

firearm during and in relation to the drug trafficking crime, not both. Here, we need

not reach whether there was “use” of the firearm because the facts clearly prove the

“carry” element. We similarly conclude that any error in instructing the jury on “use”

is of no consequence since there is sufficient evidence on the “carry” prong.

                                           9
      The Supreme Count in Muscarello adopted the primary meaning for the word

“carry,” defining it as to “convey, originally by cart or wagon, hence in any vehicle,

by ship, on horseback, etc.” Muscarello, 524 U.S. at 128, 118 S.Ct. at 1914. The

Muscarello Court ultimately held that “[g]iven the ordinary meaning of the word

‘carry,’ it is not surprising to find that the Federal Courts of Appeals have

unanimously concluded that ‘carry’ is not limited to the carrying of weapons directly

on the person but can include their carriage in a car.” Id. at 131, 118 S.Ct. at 1916

(citations omitted). See also United States v. Wilson, 183 F.3d 1291, 1295 (11th Cir.

1999) (finding a firearm on the dashboard of the vehicle in which the defendant was

apprehended sufficient to support a finding that the defendant was “carrying” a

firearm); United States v. Range, 94 F.3d 614, 618 (11th Cir. 1996) (finding that the

firearm under the floor mat of the car the defendant drove to the site of a drug

transaction was sufficient to support a jury verdict that defendant was “carrying” a

firearm).

      The government’s case against Timmons is stronger than it was against the

defendants in Wilson and Range. On October 23, 1998, Timmons carried a shoe-box

that contained both the gun and the drugs in his hands. Given that the facts clearly

indicate that Timmons “carried” the firearm, even if the evidence was insufficient to

sustain a conviction under the “use” prong as defined by the Supreme Court in Smith


                                         10
v. United States, 508 U.S. 223, 237, 113 S.Ct. 2050, 2058 (1993) and Bailey, 516 U.S.

at 146, 116 S.Ct. at 507, we must affirm the conviction, so long as the evidence

sufficiently supports the “during and in relation to” element of § 924(c). See Wilson,

183 F.d at 1298 (affirming the conviction holding that error committed in defining use

was of no moment as the evidence supported a conviction under the “carry” element

of § 924(c)).

      B.        “During and in Relation To” under § 924(c)

      The inclusion of the “during and in relation to” requirement of § 924(c) was

intended to be a limiting phrase to “prevent the misuse of the statute [from]

penaliz[ing] those whose conduct does not create the risks of harm at which the statute

aims.” Muscarello, 524 U.S. at 139, 118 S.Ct. at 1919. There is little question that to

the extent that an offense occurred, it happened “during” the commission of a drug

offense as the gun was sold along with the drugs. Timmons’ challenge therefore rests

on whether the carrying of the firearm occurred “in relation to” a drug trafficking

offense. In Smith the Supreme Court defined “in relation to” as follows:

      The phrase “in relation to” thus, at a minimum, clarifies that the firearm
      must have some purpose or effect with respect to the drug trafficking
      crime; its presence or involvement cannot be the result of accident or
      coincidence. As one court has observed, the “in relation to” language
      “allay[s] explicitly the concern that a person could be” punished under
      § 924(c)(1) for committing a drug trafficking offense “while in
      possession of a firearm” even though the firearm’s presence is
      coincidental or entirely “unrelated” to the crime. Instead, the gun at least

                                          11
      must “facilitat[e], or ha[ve] the potential of facilitating,” the drug
      trafficking offense.

Smith, 508 U.S. at 238, 113 S.Ct. at 2058-59 (internal and subsequent citations

omitted).

      The Smith Court also directed that, “[t]he phrase ‘in relation to’ is expansive,

as the Courts of Appeals construing § 924(c)(1) have recognized.” Id. at 237, 113

S.Ct. at 2058 (internal citation omitted). The Smith Court ultimately determined:

      The fact that a gun is treated momentarily as an item of commerce does
      not render it inert or deprive it of destructive capacity. Rather, as
      experience demonstrates, it can be converted instantaneously from
      currency to cannon. We therefore see no reason why Congress would
      have intended courts and juries applying § 924(c)(1) to draw a fine
      metaphysical distinction between a gun’s role in a drug offense as a
      weapon and its role as an item of barter; it creates a grave possibility of
      violence and death in either capacity.

Id. at 240, 113 S.Ct at 2060 (internal citation omitted).

      In this case, the evidence demonstrates that the gun was not there

“coincidentally,” nor was “entirely unrelated” to the drug crime. If the gun did not

facilitate the drug offense, it certainly had the “potential of facilitating” the drug

offense. The evidence revealed that on the morning of October 23, 1998, the

undercover officers and Timmons finalized the negotiations for the gun by

determining that it was still available and that Timmons would sell it that day, and

then proceeded to arrange for the sale of $200 worth of crack cocaine. Timmons


                                          12
brought the gun and the drugs together to the officers in a shoe-box. If indeed the

purpose of the statute is to combat the dangerous combination of drugs and guns, as

Muscarello held, and Timmons combined the drugs and gun in a single shoe-box in

what essentially amounts to a single transaction, as the jury found, it would flout the

purpose of the statute to hold anything but that the gun was carried “during and in

relation” to the drug offense.

II.  The Post-Verdict Judgment of Acquittal on the “In Furtherance Of”
Requirement of
     18 U.S.C. § 924(c)

      Timmons challenged and succeeded in convincing the district court that the

evidence was insufficient for a conviction based on the firearm possession “in

furtherance of” a drug-trafficking offense pursuant to 18 U.S.C. § 924(c). Timmons

does not challenge that the firearms were in his possession. The basis of his claim is

that there was insufficient evidence that the firearms were possessed “in furtherance

of” drug trafficking. We analyze here, for the first time, the sufficiency of the

evidence required to support a conviction for possession of a firearm in a “furtherance

of” a drug trafficking crime.

      We start with the language of the statute. The word “furtherance” should be

given its plain meaning where as here it is not defined within the statute. See

Muscarello, 524 U.S. at 128, 118 S.Ct. at 1914. “Furtherance” means “a helping


                                          13
forward.” Webster’s Third New International Dictionary 924 (1981). Thus, a

conviction under this portion of § 924(c) requires that the prosecution establish that

the firearm helped, furthered, promoted, or advanced the drug trafficking.

      Further, we agree with the Fifth and Sixth Circuits’ determination in Ceballos-

Torres, 218 F.3d at 415, and in Mackey, 265 F.3d at 461, that the plain meaning of

“furtherance” is consistent with the legislative intent of the amendment and not in

violation of the canons of statutory construction. To properly understand this 1998

amendment to § 924(c), we must look to the reason for its genesis. In 1995, the

Supreme Court in Bailey, 516 U.S. at 143, 116 S.Ct. at 505, narrowed the definition

of “use” under § 924(c), holding that “§ 924(c)(1) requires evidence sufficient to show

an active employment of the firearm by the defendant, a use that makes the firearm an

operative factor in relation to the predicate offense.” Id. The legislative history

indicates that the amended versions of the statute added the phrase criminalizing

possession “in furtherance of” a drug trafficking crime in order to “revers[e] the

restrictive effect of the Bailey decision.” H.R. Rep. 105-344, at 6 (1997) . The House

Judiciary Committee explained, “[t]he word ‘possession’ has a broader meaning than

either ‘uses’ or ‘carries’ . . . . In order to sustain a conviction under § 924(c), the

government must prove that a firearm was possessed ‘in furtherance of’ the

commission of the federal crime of violence or drug trafficking offense.” Id. The


                                          14
congressional analysis elaborated on what the prosecution must show.

         The government must clearly show that a firearm was possessed to
      advance or promote the commission of the underlying offense. The mere
      presence of a firearm in an area where a criminal act occurs is not a
      sufficient basis for imposing this particular mandatory sentence. Rather,
      the government must illustrate through specific facts, which tie the
      defendant to the firearm, that the firearm was possessed to advance or
      promote the criminal activity.

           The facts of the Bailey decision, reiterated above, proved a good
      example. The Committee believes that the evidence presented by the
      government in that case may not have been sufficient to sustain a
      conviction for possession of a firearm “in furtherance of” the
      commission of a drug trafficking offense. In that case, a prosecution
      expert testified at Mr. Bailey’s trial that drug dealers frequently carry a
      firearm to protect themselves, as well as their drugs and money.
      Standing on its own, this evidence may be insufficient to meet the “in
      furtherance of” test. The government would have to show that the
      firearm located in the trunk of the car advanced or promoted Mr.
      Bailey’s drug dealing activity. The Committee believes that one way to
      clearly satisfy the “in furtherance of” test would be additional witness
      testimony connecting Mr. Bailey more specifically with the firearm.

Id. at *12.

      Thus, the plain meaning of § 924(c), uncontradicted by the accompanying

legislative intent, dictates that the presence of a gun within the defendant’s dominion

and control during a drug trafficking offense is not sufficient by itself to sustain a §

924(c) conviction. As the Second Circuit explained in United States v. Finley, 245

F.3d 199, 202 (2d Cir. 2001), there must be “a showing of some nexus between the

firearm and the drug selling operation.” Id. The nexus between the gun and the drug


                                          15
operation can be established by “the type of drug activity that is being conducted,

accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the

status of the possession (legitimate or illegal), whether the gun is loaded, proximity

to the drugs or drug profits, and the time and circumstances under which the gun is

found.” Ceballos-Torres, 218 F.3d at 414-15; accord Mackey, 265 F.3d at 462.

While these factors are not exclusive, they “distinguish possession in furtherance of

a crime from innocent possession of a wall-mounted antique or an unloaded hunting

rifle locked in a cupboard.” Id.

      The facts of this case are similar to those of either Ceballos-Torres or Mackey.

See Ceballos-Torres, 218 F.3d at 411 (involving a loaded 9mm gun found in the open

on defendant’s bed, which defendant claimed was for personal protection, along with

569.8 grams of cocaine and $1,360 found nearby in a bedroom closet); Mackey, 265

F.3d at 462 (involving an illegally possessed, loaded, short-barreled shotgun in the

living room located near the scales and razor blades in a house from which the

defendant sold drugs). Yet, after considering the evidence in light of the relevant

factors, we find that the evidence against Timmons (bullet proof vest, crack cocaine

on the stove and under the cushions of the couch, two fully loaded firearms on top of

the oven and ammunition inside the oven in the living room of his apartment) was

sufficient for the jury to have concluded that Timmons was guilty of possessing the


                                          16
firearms “in furtherance of” drug trafficking.1 Therefore, the district court erred in

setting aside the guilty verdict.

III.   Sentencing Enhancements

       Finally, we address Timmons’ appeal of the district court’s sentence for the

drug offenses to which Timmons pled guilty. Timmons argues, and the government

concedes, that the district court erred in applying a two-level enhancement to

Timmons’ sentence. The district court applied the enhancement pursuant to USSG

§ 2D1.1(b)(1), based on the two weapons seized pursuant to the November 12, 1999

search warrant. The commentary to USSG § 2K2.4 states, however, that a sentence

imposed for a conviction under 18 U.S.C. § 924(c) accounts for any enhancement that

would apply to the underlying offense based on any relevant conduct for which the

defendant is accountable.      Timmons contends that the October 23, 1998 and

November 12, 1999 drug charges are relevant conduct to each other under § 1B1.3 of

the Sentencing Guidelines because they are part of the same course of conduct or



       1
        Timmons moved to strike references in the government's brief to expert
testimony showing that drug dealers keep guns. Because the district court gave an
instruction to the jury limiting this testimony to show that the drugs were for
distribution rather than personal use, the testimony could not have been used by the
jury to determine whether the firearms were possessed "in furtherance of" the drug
trafficking offense. We therefore grant Timmons' motion to strike. However, we
find that there was sufficient evidence even without this expert testimony.
       Likewise, Timmons' motion to file a supplemental letter brief is granted.
                                         17
common scheme or plan. We agree. Therefore, because Timmons was convicted and

sentenced for violating § 924(c) by possession of a firearm during and in relation to

the drug-trafficking crime he committed in October 23, 1998, and in accordance with

this opinion will be sentenced on the firearm possession of November 12, 1999, the

district court is precluded from applying a weapons enhancement pursuant to USSG

§ 2D1.1(b)(1) to the underlying drug charges. When a defendant is convicted of a §

924(c) violation as well as an underlying offense, his possession of a weapon cannot

be used to enhance the level of the underlying offense. United States v. Diaz, 248 F.3d

1065, 1107 (11th Cir. 2001).



                                IV. CONCLUSION

      Accordingly, we affirm the district court’s judgment with respect to Count One

but vacate and remand with directions to reinstate the conviction of Count Two. We

also vacate Timmons’ sentence for the drug offenses and remand for re-sentencing

consistent with this opinion.

      AFFIRMED, VACATED AND REMANDED.




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