                            NONPRECEDENTIAL DISPOSITION
                              To be cited only in accordance with
                                      Fed. R. App. P. 32.1




              United States Court of Appeals
                                      For the Seventh Circuit
                                      Chicago, Illinois 60604

                                      Argued October 27, 2009
                                       Decided March 1, 2010

                                              Before

                             FRANK H. EASTERBROOK, Chief Judge

                               TERENCE T. EVANS, Circuit Judge

                             ANN CLAIRE WILLIAMS, Circuit Judge

No. 09-1420
U NITED STATES OF A MERICA,                             Appeal from the United States
                Plaintiff-Appellee,                     District Court for the Northern
                                                        District of Illinois, Eastern Division.
       v.
                                                        No. 06 CR 812
C HARLES SPAULDING,
              Defendant-Appellant.                      John F. Grady,
                                                        Judge.


                                           ORDER


       Following a bench trial, Charles Spaulding was convicted of carrying a firearm during
and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). On appeal,
2                                                                                   No. 09-1420


Spaulding challenges the sufficiency of the evidence and the constitutionality of § 924(c)’s “in
relation to” prong as applied to him in light of the Supreme Court’s decision in District of
Columbia v. Heller, 128 S. Ct. 2783 (2008). Because the evidence is sufficient to prove Spaulding
carried the firearm “in relation to” a drug trafficking charge and Spaulding’s Second
Amendment rights were not violated, we affirm his conviction.


                                     I. BACKGROUND
        During an investigation of a drug conspiracy, federal agents recorded multiple
conversations between defendant Charles Spaulding and several other people. On September
2, 2005, agents listened to a conversation in which Spaulding asked a cocaine buyer to get him
ammunition for a .22 caliber handgun. The next day, Spaulding told his brother he would take
a taxi to the brother’s house and bring him cocaine, a handgun and ammunition. Officers
stopped the taxi and searched Spaulding. In Spaulding’s left pocket, officers found a loaded
and operable .22 caliber handgun. In his right pocket, they found a box of ammunition and
72.6 grams of cocaine.
        Spaulding was charged with multiple counts of possession and intent to distribute
cocaine. He was also charged with one count of carrying a firearm during and in relation to
a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). Spaulding pleaded guilty
to one count of conspiracy to distribute cocaine and one count of possession of 72.6 grams of
cocaine with intent to distribute. Spaulding moved to dismiss the firearm count, asserting that
18 U.S.C. § 924(c)(1)(A) violated his Second Amendment right to keep and bear arms in light
of the Supreme Court’s decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The
district court denied his motion to dismiss and Spaulding proceeded to a bench trial on the §
924(c) charge. The government presented its evidence and Spaulding presented the additional
evidence of a telephone conversation in which a co-defendant told Spaulding that two
individuals had confronted Spaulding’s brother. The district court found Spaulding guilty and
then denied a motion for a new trial. Spaulding timely appealed.


                                        II. ANALYSIS
       A.     Section 924(c)’s “In Relation To” Requirement
        We have said that a defendant posing a sufficiency of the evidence challenge “faces a
nearly insurmountable hurdle.” United States v. Morris, 576 F.3d 661, 665-66 (7th Cir. 2009)
(citations omitted). To succeed, Spaulding must show that no rational factfinder, based on the
No. 09-1420                                                                                        3


evidence presented at trial, could find the defendant guilty beyond a reasonable doubt. Id. at
666. We review sufficiency of the evidence challenges in the light most favorable to the
government. Id.
       Section 924(c) of Title 18 of the U.S. Code makes it a crime to use or carry a firearm
“during and in relation to any crime of violence or drug trafficking crime.” Here, Spaulding
does not dispute that he was carrying a firearm, and he pleaded guilty to a drug trafficking
crime. He argues however, that the evidence was insufficient to prove he was carrying the
firearm “in relation to” his drug trafficking crime.
        In United States v. Smith, the Supreme Court interpreted § 924(c)’s “in relation to” phrase
as “expansive.” 508 U.S. 223, 237 (1993). At a minimum, “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.” Id. at 238. Put another way, the gun must “facilitate, or
have the potential of facilitating,” the trafficking offense. Id. (emphasis added). This court has
repeatedly held that carrying a gun while committing a drug trafficking offense provides
enough evidence of the “potential to facilitate” to sustain a § 924(c) conviction. See United
States v. Molina, 102 F.3d 928, 932 (7th Cir. 1996) (“In establishing whether a gun . . . was carried
in relation to a drug trafficking crime, if the drugs and gun are together in the same place it is
nearly an inescapable conclusion that they satisfy the in relation to prong of § 924(c)(1).”); see
also United States v. Franklin, 547 F.3d 726, 732 (7th Cir. 2008) (“Franklin had both the drugs and
the gun in the car at the same time. That proximity is sufficient to establish a violation of §
924(c)(1).”).
        Spaulding contends there was insufficient evidence to prove that he carried the gun “in
relation to” a drug delivery. Spaulding argues that his is an instance where the gun’s presence
was merely a coincidence – he made a drug delivery, and while doing so, he happened to have
a gun. Spaulding tells us he was just being helpful, delivering the gun because his brother
needed to protect himself (for reasons not connected to drugs), and that he had no fears or
need for protection from his brother. But, in United States v. Stott, this court upheld a § 924(c)
conviction under similar circumstances. 245 F.3d 890, 906-07 (7th Cir. 2001). In Stott, a drug
customer brought a gun to his drug supplier because the supplier needed a gun for personal
protection. As is the case here, the person holding the gun, the drug customer, claimed he was
not the person who needed protection. There, we held that the fact finder could conclude that
the gun was to be delivered for (1) the supplier’s personal protection, and (2) any potential
protection needed for the drug supplier’s drugs. Id. at 907. The same is true here. The fact
that his brother may have needed protection creates a possibility that Spaulding was
4                                                                                     No. 09-1420


concerned about the safety of his drug delivery or the safety of the drugs post-delivery. The
assertions he makes – his brother needed the protection; this was merely a delivery of two
items at the same time – equally support the prosecution’s view of the case. The gun was
present to protect Spaulding and the drugs during his delivery of the cocaine. Contrary to
Spaulding’s argument, the facts of this case do not extend our precedent any further than the
facts of Stott.
        Furthermore, there is a frequently noted, well-known connection between guns and
drugs: “weapons are tools of the trade of drug dealers.” United States v. Cooper, 19 F.3d 1154,
1163 (7th Cir. 1994) (citation omitted). This is because guns are frequently used to intimidate
associates or provide security during drug deals. United States v. Pike, 211 F.3d 385, 389 (7th
Cir. 2000). Spaulding carried a loaded and operable .22 caliber handgun in his left pocket, and
the drugs and a box of ammunition in his right pocket. Viewing these facts in the light most
favorable to the government, a fact finder could rationally conclude that the loaded gun in one
pocket was meant to protect the drugs in the other pocket in case something happened while
the drugs were in transit.
        As a final matter, we reject Spaulding’s reliance on Abuelhawa v. United States, 129 S. Ct.
2102 (2009). Abuelhawa interpreted the statutory meaning of “facilitate” in 21 U.S.C. § 843(b)
and held that a person cannot be convicted of facilitating the felony of drug distribution just
by using a phone to make a drug purchase, but must rather “aid, abet or assist” the crime. Id.
at 2108. This holding has no bearing on the statutory interpretation of “in relation to” in 18
U.S.C. § 924, nor does it offer any insight on what the Supreme Court meant in Smith when it
stated that a gun must have the potential of “facilitating” a drug crime. 508 U.S. at 238.
Furthermore, even if it did have some bearing on our analysis of the “in relation to” prong of
§ 924(c), the government would only need to show that the gun had the potential to aid, assist
or abet the drug trafficking. See Abuelhawa, 129 S. Ct. at 2106 (2009); Smith, 508 U.S. at 238.
Here, the government has met its burden. The evidence was sufficient to show that the gun
had the potential to assist Spaulding in the successful transfer of his drugs by protecting him
during transit. So, even if Abuelhawa has any impact on this case, the government had
sufficient evidence to sustain the § 924(c) conviction.


       B.      No Second Amendment Violation
        Spaulding also pursues a Second Amendment challenge to his 18 U.S.C § 924(c)(1)(A)
conviction in light of the Supreme Court’s recent decision in District of Columbia v. Heller, 128
S. Ct. 2783 (2008). In Heller, the Supreme Court held that the Second Amendment protects an
No. 09-1420                                                                                        5


individual right to possess a firearm and to use that firearm for traditionally lawful purposes.
Heller, 128 S. Ct. at 2797-98. Spaulding does not challenge the constitutionality of § 924 itself,
but instead argues that the“in relation to” prong, as applied to the facts of his case, is
unconstitutional. Appellant’s Brief at 32. He argues that to withstand constitutional scrutiny,
the government must prove actual facilitation to establish the “in relation to” element of §
924(c), and that a mere potential to facilitate is insufficient. Spaulding’s arguments are
foreclosed by Smith, 508 U.S. at 223, as well as United States v. Jackson, 555 F.3d 635 (7th Cir.
2009).
        As stated above in rejecting Spaulding’s sufficiency of the evidence claim, the Supreme
Court in Smith defined § 924(c)’s “in relation to” element expansively, stating it is satisfied if
a firearm facilitated, or had the potential of facilitating, the drug trafficking offense. Smith, 508
U.S. at 238. This expansive reading of 18 U.S.C. § 924(c) remains binding precedent, and
nothing in Heller established otherwise. Spaulding’s argument that the government did not
satisfy its burden by proving his firearm had the potential of facilitating his drug trafficking
is not persuasive.
        Spaulding next argues that United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), vacated,
reh’g granted on February 22, 2010, compels remand to determine whether § 924(c)’s “in relation
to” prong can withstand constitutional scrutiny. In Skoien, the court considered the level of
scrutiny necessary to uphold laws that regulate conduct falling within the scope of the Second
Amendment. Here, Skoien is inapplicable because carrying a gun during and in relation to a
drug trafficking crime does not implicate any protected conduct. In Jackson, we rejected a
defendant’s Second Amendment challenge to the same statute at issue here, holding that “[t]he
Constitution does not give anyone the right to be armed while committing a felony.” 555 F.3d
at 636. The defendant’s choice to engage in an illegal business is an important factor: as Jackson
pointed out, Congress can forbid people who possess guns to deal drugs just as it can forbid
people who deal drugs to possess guns. We concluded that “there is no constitutional problem
with separating guns from drugs.” Id. Jackson’s conclusion that § 9249(c) does not implicate
conduct protected under the Second Amendment is dispositive in the government’s favor.


                                       III. CONCLUSION
       Because the government provided sufficient evidence to prove the “in relation to”
prong of 18 U.S.C. § 924(c), and because Spaulding does not have a Second Amendment right
to carry a firearm during and in relation to his drug trafficking, we AFFIRM the decision of
the district court.
