UNITED STATES of America, Appellee, v. Carlos ECHEVERRY, Defendant-Appellant.
Docket No. 10-2828-cr.
United States Court of Appeals, Second Circuit.
Submitted: June 13, 2011. Decided: Aug. 19, 2011.
655 F.3d 159
Before: WINTER, B.D. PARKER, and CHIN, Circuit Judges.
George Robert Goltzer, Law Office of George Robert Goltzer, New York, NY, 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,
BACKGROUND
From September 2001 through September 2004, Echeverry participated in a conspiracy to distribute and 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
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
This appeal followed.
DISCUSSION
The question before the Court is whether Echeverry was subject to the firearm-discharge enhancement set forth in
We conclude that the district court correctly held that Echeverry was subject to the discharge enhancement.
First, the statutory language supports this conclusion. In pertinent part,
[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.
In reaching its conclusion, the Court relied on the use of the passive voice in
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. 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. 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
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.