UNITED STATES of America, Appellee, v. William GURKA, Defendant, Appellant.
No. 08-2584.
United States Court of Appeals, First Circuit.
Heard April 6, 2010. Decided May 12, 2010.
40-47
Thus, after careful consideration, we conclude that Morales has failed to prove that he suffered any adverse employment action capable of supporting his claims for discrimination or retaliation.17 Accordingly, we vacate the verdict and remand to the district court with instructions to enter judgment as a matter of law in Potter‘s favor. No costs are awarded.
Vacated and Remanded.
Action No. L-05-191, 2008 U.S. Dist. LEXIS 77675, 2008 WL 4450311, *6 (S.D.Tex. Sept.30, 2008) (“Even if the Burlington standard applies, a change in schedule, shift, and days off, in this setting, is insufficient to establish an adverse employment action“).
Angela G. Lehman for the appellant.
Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Noronha, United States Attorney, and Kenneth P. Madden, First Assistant United States Attorney, were on brief for appellee.
Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.
LYNCH, Chief Judge.
William Gurka appeals from the denial of his motion to withdraw that portion of his guilty plea pleading to gun charges related to a cocaine trafficking crime. See United States v. Gurka, No. 07-118-S (D.R.I. July 7, 2008). His arguments turn on a single legal question: whether a defendant who exchanges drugs for guns “possesses” the guns “in furtherance” of a drug trafficking crime within the meaning of
I.
We begin with the undisputed facts, to which Gurka agreed when he pleaded guilty. On June 26, 2007, Gurka met with an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms (“ATF“) in the agent‘s parked car, beside a highway in Smithfield, Rhode Island. Gurka had previously expressed interest in purchasing “a cold throw-away .380 caliber pistol.” At the June 26 meeting, the agent showed Gurka three guns: (1) a Bryco model 38, .380 caliber semi-automatic pistol, (2) a Lorcin .380 caliber pistol with an obliterated serial number, and (3) a High Standard .22 caliber semi-automatic pistol with a silencer attached. Gurka examined the guns and the silencer and informed the agent that he wanted to buy all of them. In exchange for these items, Gurka agreed to pay the agent three bags of cocaine and $400 cash.
Gurka first paid the agent the $400 cash.1 The agent then brought all three guns to Gurka‘s nearby pickup truck. Gurka placed the guns in the truck and paid the agent two bags of cocaine, weighing a combined 4.97 grams. Gurka was then arrested.
Gurka waived his Miranda rights and wrote a statement, admitting to the purchase of the guns and silencer for cocaine and cash. He also admitted that he had additional cocaine and guns in his home.
On October 12, 2007, Gurka pled guilty to a six-count information, pursuant to a written plea agreement. This appeal concerns Count Six,2 which charged Gurka with knowing possession of a firearm—the Bryco semi-automatic pistol3—in furtherance of a drug trafficking crime, in violation of
A few weeks before Gurka‘s scheduled sentencing, the Supreme Court decided Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007). The decision concerned a defendant who had pled guilty to bartering drugs for guns under a different prong of
Gurka moved to vacate his guilty plea as to Count Six on January 28, 2008, urging that Watson “ha[d] a direct impact on the viability of the charge.” Gurka‘s written motion conceded that the defendant in Watson was charged under a separate provision of
The district court heard argument from both sides on Gurka‘s motion at a hearing on March 27, 2008. On July 7, 2008, the district court issued a written order, rejecting Gurka‘s argument and denying the motion to vacate his guilty plea. See Gurka, slip op. at 5.
On December 3, 2008, the district court sentenced Gurka to a below-guidelines sentence of six months imprisonment on Counts One through Five, and a consecutive five-year mandatory-minimum sentence on Count Six.
This appeal followed.
II.
During the interval between the acceptance of a guilty plea and sentencing,
A. The Record on Appeal
On appeal, Gurka revisits his argument before the district court, with a new twist: he now claims that his case should be remanded so that the district court may consider further evidence,4 which Gurka claims would have altered the judge‘s ruling “in light of Watson‘s concerns.” This material was not presented to the district court, is in violation of Fed. R.App. P. 10, and is not properly before us. E.g., United States v. Rosario-Peralta, 175 F.3d 48, 56 (1st Cir.1999) (“It is elementary that evidence cannot be submitted for the first time on appeal.“). In any event, given our holding, the facts contained in Gurka‘s proffer are immaterial. There is no basis for remand.
We nonetheless consider and reject Gurka‘s preserved argument concerning whether the ordinary meaning of “in furtherance of” creates liability under
B. The Statute, 18 U.S.C. § 924(c)(1)(A)
Some background on the statutory text at issue provides context for Gurka‘s misplaced reliance on Watson.
As originally enacted,
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any ... drug trafficking crime ... 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 ... drug trafficking crime ... (i) be sentenced to a term of imprisonment of not less than 5 years.
Watson was the second case in which the Supreme Court considered the application of the “use” language to transactions involving the exchange of guns and drugs. The Court had earlier held that
Nonetheless, Gurka contends that Watson‘s reasoning undercuts the basis for his guilty plea to Count Six and that it was error to deny him leave to withdraw his plea. He says the facts to which he admitted do not constitute a crime under
Watson does not bear the weight Gurka says it does. “Use” is a different word than “possess,” with a different meaning. Compare Merriam-Webster‘s Collegiate Dictionary 1301 (10th ed.1993) (defining “use” as “to put into action or service“), with id. at 909 (defining “possess” as “to have and hold as property“). And the fact that the relevant possession of a firearm is limited to possession in furtherance of a drug trafficking crime is not informed by Watson at all. We join the three circuits holding Watson does not affect the prong of
For purposes of
As the district court said, whether or not receiving a gun is “use,”
[w]hen one receives a gun he clearly possesses it; and his possession of the gun at the end of the transaction is essential to the completion of that transaction. Common sense tells us if the defendant had not accepted the gun (and never possessed it) the transaction would not have been consummated.
Gurka, slip op. at 5. Given the terms of his barter agreement with the agent, Gurka‘s possession of the gun was an essential component of the drug sale. See Gardner, 602 F.3d at 102-03 (“Whether a person who acquires a gun with drugs does so in order to obtain the gun ... or to sell drugs, that person furthers the sale of the drugs by possessing the gun because, in either case, but for the possession of the gun, the sale of drugs would not have occurred.“); Mahan, 586 F.3d at 1189 (“When a defendant accepts a gun as payment for his drugs, his sale—and thus his crime—is incomplete until he receives possession of the firearm.“); see also United States v. Frederick, 406 F.3d 754, 764 (6th Cir.2005) (“As a matter of logic, a defendant‘s willingness to accept possession of a gun as consideration for some drugs he wishes to sell does promote or facilitate that illegal sale.“) (internal quotation marks omitted).
To the extent that Watson has any bearing on Gurka‘s claims, it is in the Supreme Court‘s emphasis on the normal meaning of words, see 552 U.S. at 79, 128 S.Ct. 579, which only reinforces our conclusion. Gurka‘s possession of the gun “furthered” the drug crime with which he is charged by the ordinary understanding of the term. “[W]hile it is not natural to say that a person who trades drugs for guns ‘uses’ the guns in the transaction, it is natural to say that a person who trades drugs for guns ‘possesses’ the guns ‘in furtherance of the transaction.‘” Gardner, 602 F.3d at 102-03.
Our holding as to the possession of a firearm in furtherance of a drug crime prong is consistent with the six circuits to have reached this issue, both before and after Watson. In United States v. Dolliver, 228 Fed.Appx. 2 (1st Cir.2007) (per curiam), which was unpublished, and issued several months before Watson was decided, we noted a “growing consensus” among circuit courts that bartering drugs for firearms constituted possession in furtherance. Id. at 3; see United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir.2007); United States v. Boyd, 209 Fed. Appx. 285, 290 (4th Cir.2006) (per curiam); Frederick, 406 F.3d at 764.
Post-Watson, three more circuits have arrived at the same result. See Doody, 600 F.3d at 755-56; Gardner, 602 F.3d at 103; Mahan, 586 F.3d at 1189; see also United States v. Sterling, 555 F.3d 452, 458 (5th Cir.2009) (“We ... assume, without deciding, that bartering drugs for guns constitutes ‘possession in furtherance’ of a drug trafficking offense....“). These courts’ clear and persuasive reasoning further supports our conclusion.
In an argument largely independent of Watson, Gurka asserts that the fleeting nature of his handling of the guns before his arrest cannot be possession. The argument fails.
Finally, Gurka makes two unpreserved arguments not presented in his motion to withdraw his plea. Gurka first attempts to recharacterize the exchange as a gun transaction rather than a drug sale. Gurka did not present this argument before
Gurka also urges that the ATF agent “actively pressured” him into using drugs to pay for the guns. This entrapment claim was not presented to the district court and is, moreover, utterly unsupported by any evidence in the record. Both arguments fail.
III.
For the reasons stated above, we affirm the judgment.
BOUDIN, Circuit Judge, concurring, with whom TORRUELLA, Circuit Judge, joins in the concurrence and joins in the result.
In construing federal statutes, an emphasis on literal language has much to be said for it, but phrases that at first glance seem to have a single meaning sometimes turn out to be more malleable. In this case, the statute‘s phrase “in furtherance of” can be read to extend to any firearm causally connected to the drug offense—the view taken by a number of circuits. On this view, receiving a gun as payment for drugs facilitates (and therefore its possession furthers) the drug sale. Indeed, if nothing but words mattered, using the gun as a paper weight or door stop during the transaction might qualify.
Yet, in adopting the “in furtherance” test, Congress likely had in mind a gun‘s possession in order to threaten or use it, if necessary, to accomplish the drug sale or at least to make the other party (or interlopers) fear its use. Possessing a gun to protect one‘s drugs from theft incident to a sale or to secure a base of operations are obvious examples. E.g., 144 Cong. Rec. 1719 (1998) (statement of Rep. McCollum); id. at 26,608-09 (statement of Sen. DeWine); cf. Smith v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (typical case under use prong is one in which the firearm is used as “a means of protection or intimidation“).6
That Congress had any special concern with guns used solely as payment for drugs is not clear,7 nor is it obvious why the simple transfer of a gun from one drug dealer to another creates a new danger; conceivably a transfer from a consumer to
But the Supreme Court resolved in Smith the question of whether
Neither Smith nor Watson directly controls here (since neither addressed the meaning of the statute‘s possession “in furtherance” prong and Watson explicitly left that issue open, 552 U.S. at 83, 128 S.Ct. 579); but Smith rejected the view that “the relationship between the gun and the drug offense [in a gun-for-drugs exchange] is not the type of connection Congress contemplated when it drafted
And Smith expressly rejected a claim of contrary congressional purpose: it reasoned that Congress probably did not intend 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; [the gun] creates a grave possibility of violence and death in either capacity” because its “treat[ment] momentarily as an item of commerce does not render it inert or deprive it of destructive capacity.” 508 U.S. at 240, 113 S.Ct. 2050. Instead, “it can be converted instantaneously from currency to cannon.” Id.
Watson provides Gurka no escape. Although Watson (unlike Smith) addressed a drugs-for-gun trade and reserved the “in furtherance” question, its restriction of the “use” prong was predicated on the word‘s connotation of action, 552 U.S. at 78-79, 128 S.Ct. 579; “possession,” as our panel opinion explains, does not pose for the government the same semantic barrier, nor did Watson disturb Smith‘s inferences about congressional purpose, id. at 82-83, 128 S.Ct. 579. Only if the Supreme Court were to re-examine its basic premise as to the statute‘s purpose could a favorable result follow for Gurka. See Watson, 552 U.S. at 84, 128 S.Ct. 579 (Ginsburg, J., concurring).