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INTRODUCTORY STATEMENT The defendant in this case, Brad Anderson (“Anderson”) is a methamphetamine dealer. One of his customers, Mark Schaeffer (“Schaeffer”) is a college student living with his cousin. As payment for the drugs he buys, Schaeffer usually gave Anderson stolen guns from his cousin’s collection. Throughout the 2001-2002 school year, the two completed thirteen transactions. During the summer of 2002, Schaeffer was arrested for possession of drugs. With hopes of receiving a lesser punishment, Schaeffer agreed to work with police to arrest his distributor, Anderson. Upon contacting Anderson, Schaeffer set up a meeting place behind an abandoned building where police then set up surveillance. Before they met, Schaeffer placed four handguns in the glove compartment of his car. When they met, Anderson inspected the handguns and, after the exchange, placed them in the trunk of his own vehicle. Moments later, he was arrested by police. Anderson was found guilty of possession of a firearm in furtherance of a drug trafficking crime by the lower court. The Supreme Court has granted certiorari to answer the question of whether Anderson has violated 18 U.S.C. § 924 (c)(1)(A).

ISSUES PRESENTED I.WHETHER ONE WHO BARTERS DRUGS FOR FIREARMS HAS “USED” THE FIREARM WITHIN THE MEANING OF 18 U.S.C. § 924 (C)(1)(A)

  A.GENERAL HISTORY AND GUIDELINES OF 18 U.S.C. § 924(C)(1)(A)
     1.1968 Enactment of 18 U.S.C. § 924 (c)(1)(A)
     2.Supreme Court case interpretation of the Statute
     3.1998 Amendment – “The Bailey Fix Act”
     4.Federal Circuit Court Split
       a.Bartering drugs for guns does constitute “use”
       b.Bartering drugs for guns does not constitute “use”
  B.PROPOSED ANALYSIS

BRIEF ANSWERS I. Bartering drugs for firearms should not constitute “use” within the meaning of 18 U.S.C. § 924(c)(1)(A) because a defendant does not use a firearm through active employment when he brings drugs and receives a firearm in return. DISCUSSION

I. ONE WHO BARTERS DRUGS FOR FIREARMS HAS NOT “USED” THE FIREARM WITHIN THE MEANING OF 18 U.S.C. § 924 (C)(1)(A). 18 U.S.C. § 924 (C)(1)(A) provides that upon conviction of a violent crime or a drug trafficking crime, additional time will be added to the sentence for the underlying offense if the defendant “uses” a gun in furtherance of the drug offense. We need to determine whether the gun obtained by Anderson in exchange for the methamphetamine, was “used” within the meaning of the statute. Specifically, we need to determine whether the gun was actively employed, or whether it was merely a passive form of payment received for the drugs exchanged. Bailey v. U.S., 516 U.S. 137, (1995). A broad history of the statute is presented along with two Supreme Court case interpretations of the “use” prong of the statute. Smith and Bailey interpret the “use” prong of the statute in different drug related offenses. U.S. v. Smith, 508 U.S. 223 (1993); Bailey, 516 U.S. 137. As a result of the Bailey interpretation, the legislature amended the statute in an effort to clarify what constitutes “use” of a firearm within the meaning of the statute. Despite all these efforts, a division among the Circuit Courts has emerged when the defendant is the person receiving the firearm in a drug-for-firearm exchange. A discussion of the division among the Circuit Courts will follow, as well as a recommendation on how this issue should be decided in the case at hand.

A. GENERAL HISTORY AND GUIDELINES OF 18 U.S.C. § 924(C)(1)(A).

1. 1968 Enactment of 18 U.S.C. § 924 (c)(1)(A). Congress originally enacted § 924(c) in 1968 as part of the Gun Control Act, which was passed in an effort to help fight the war on drugs. Busic v. U.S., 446 U.S. 398, 414 (1980). By imposing mandatory sentences, Congress hoped to discourage the use of weapons in relation to other criminal activities. Id. The statute’s purpose was to reduce gun related crimes, particularly in connection with drug offenses, by providing penalties in addition to the prison time the defendant already received for the conviction of the main offense. Sara Sun Beale, The Unintended Consequences of Enhancing Gun Penalties: Shooting down the commerce clause and arming Federal Prosecutors, 51 Duke L.J. 1641, 1668 (2002). The statutes’ sponsor, Representative Poff, expressed to Congress his view that the statute was an incentive “to persuade [a] man who is tempted to commit a Federal felony to leave his gun at home.” Busic, 446 U.S. at 414. Other circumstances that prompted the enactment of § 924(c) were the assassinations of Robert Kennedy and Martin Luther King Jr. Id. Due to the resulting chaos throughout the country, Congress sought to deter violent criminal activity by enforcing harsher punishments for felons who use a firearm in relation to their criminal activity.

2. Supreme Court case interpretations of the statute. Two Supreme Court decisions that interpret the “use” prong are Smith and Bailey. When these cases were decided, the statute provided that a defendant may be prosecuted under the statute if he “uses” a firearm “during and in relation to” a violent or drug trafficking crime. 18 U.S.C. § 924 (c)(1) (2007). The Smith case is significant because the defendant bartered his gun in exchange for drugs. Smith, 508 U.S. 223. The Court held that during a gun-for-drugs barter, a defendant uses the gun during and in relation to the offense. Id. The case at bar represents the opposite fact situation in that the defendant bartered drugs in exchange for the gun. The “use” prong was further clarified by a subsequent case, Bailey, which held that a defendant uses the gun under the statute when he actively employs it. Bailey, 516 U.S. 137. Because the Court held that bartering constitutes active employment, it did not overrule Smith. Id. Smith held that a defendant who barters his firearms for drugs “uses” the firearm during and in relation to a drug trafficking offense within the meaning of the statute. Smith, 508 U.S. 223. The defendant in this case met with an undercover officer and offered to trade his gun in exchange for cocaine. Id. at 226. The defendant was later arrested and charged with various drug trafficking offenses and with using his gun during and in relation to a drug trafficking crime. Id. He argued that under § 924 (c)(1)(A) using a firearm includes only those situations where the firearm is used as a weapon. Additionally, he maintained that bartering with a weapon was not included in the statute’s interpretation of “use.” Id. at 227. The court looked at various definitions of the word “use” and concluded that defendant benefitted by using the gun as an item of barter to receive drugs in return. Id. at 229. Smith stands for the notion that bartering guns-for-drugs where defendant supplied the guns, does constitute “use” of a gun in relation to a drug trafficking crime and therefore violates § 924(c)(1)(A). Subsequently, Bailey held that a firearm is “used” within the meaning of the statute only if the weapon is actively employed. Bailey v. U.S., 516 U.S. 137, 143 (1995). A gun is not “used” if defendant merely possessed it. Id. The court consolidated two separate cases under the same ruling. Id. at 141. In the first case, the police stopped the defendant and upon searching his car, the officers found a loaded pistol in the trunk. Id. at 139. In the other case, upon defendant’s arrest police found a gun in a locked footlocker in one of the closets of her house. Id. at 140. Both defendants were convicted under § 924(c)(1)(A) because the guns were within the “proximity and accessibility” range from which the defendant could easily make use of the gun during the drug trafficking crime. Id. at 138. In their appeal, defendants successfully argued that “use” within the meaning of the statute suggests that the firearm be actively employed. Id. at 143. The court agreed with defendant arguments and established that mere possession of a firearm was not sufficient to constitute “use”. Id. at 144. In its analysis, the majority rejected the “proximity and accessibility” standard set by the lower court. Id. According to the “proximity and accessibility” test, a gun is “used” within the meaning of the statute if it is in close range of a defendant who has immediate access to it and could possibly use it in furtherance of the crime being committed. Id. According to the Supreme Court, the “proximity and accessibility” standard would widen the interpretation of “use” under § 924(c)(1)(A). Such interpretation of “use” would cause any possession of a gun with intent to use it at some point to be considered criminal under the statute. Id. Hence the Supreme Court rejected the proximity and accessibility test in favor of a narrower active employment of the firearm in relation to the drug trafficking offense. Id. However, Bailey did not overrule Smith. It explicitly held that bartering a gun to obtain drugs was considered active employment of the gun and therefore constitutes “use” within the meaning of § 924 (c)(1)(A). Id. at 148. Smith tells us that a barter of guns-for-drugs constitutes “use” of the firearm under the statute. Bailey narrows the interpretation of “use” by imposing a higher standard of active employment, yet it holds that a gun for drugs barter constitutes active employment of the gun. Nevertheless, the reverse situation remains open, whether a defendant who barters drugs and receives a gun in return has actively employed the gun and thus “used” it within the meaning of the statute.

3. 1998 Amendment – The Bailey Fix Act. Bailey’s requirement that a gun has to be actively employed in order to criminalize gun use under § 924(c)(1)(A), narrowed the applicability of the statute and was against the very reasons for which the statute was originally enacted. As a result, in 1998, the legislature amended the statute in response to Bailey. H.R. 424, 105th Cong., § 924(c)(1)(A) (Oct. 24, 1997). The narrow interpretation of the “use” prong set by Bailey applied only to cases where the defendant actively employed the weapon. The amendment expanded the scope to cases where a defendant possesses a firearm in furtherance of a felony. Id at 6. As summarized in the House Report, one of the consequences brought on by Bailey was a decrease of about 17% in the number of federal cases filed under § 924(c)(1)(A). Id at 5. Thus Congress intended to modify the statute to restore the law to its pre-Bailey interpretation. Id at 14. The House passed the bill in February 24, 1998. Similarly, a bill in the Senate maintained that Congress had an obligation to fix the Supreme Court’s “latest blunder” in Bailey. Sen. 191, 105th Cong. (Oct. 16, 1998) (statement of Sen. Helms). Upon passing both the House and the Senate the bill became known as the “Bailey Fix Act”. Id. The amendment increased the scope of § 924(c)(1)(A) by adding that anyone who “in furtherance of any such crime, possesses a firearm” shall be subject to the mandatory sentencing. Pub. L. No. 105-386, § 1(a)(1), 112 Stat. 3469 (1998). Specifically, in order to broaden the interpretation from the narrow standard set by Bailey, Congress added the term “possession.” Id. Additionally, it also set the new standard that a gun be possessed “in furtherance of” the underling offense, instead of the previous standard of “during and in relation to.” Id. The amendment did not overrule Bailey because in those circumstances the gun was not possessed in furtherance of the underlying offense. In circumstances where the gun is not used to promote the crime, the evidence of a gun is not sufficient to meet the “in furtherance of” test adopted by the Amendment. By requiring that the gun be used “in furtherance of” the underlying offense, Congress established a slightly higher standard.” H.R. 424, 105th Cong., § 924(c)(1)(A) (Oct. 24, 1997). This new established standard includes the old standard of criminalizing use if a weapon is employed “during and in relation to” the drug trafficking offense. Id. By criminalizing possession of a gun in furtherance of a violent or drug related offense, the amendment criminalized conduct that is beyond the old “uses” prong. U.S. v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001). By including “possession”, the meaning of the statute expands, but that expansion is curtailed by the requirement that the gun be used “in furtherance of” the underlying offense. Id. Therefore, the statute applies to criminal possession of a gun while it does not apply to mere possession of a gun. Although Congress intended to clarify § 924 (c)(1)(A), it did not discuss whether a gun is used in furtherance of the underlying offense if received in drugs for gun barter. Since the Amendment most Circuit Courts have addressed this issue, and the decisions are not consistent across the Circuits.

4. Circuit Appellate Court Split After legislature passed the 1998 Amendment, a split among the federal circuits emerged as to whether bartering with drugs in exchange for a gun constitutes use under § 924(c)(1)(A). Research has revealed that the First, Second, Third, Fourth, Fifth, Sixth, Eight, Ninth and Tenth Circuits have ruled that bartering drugs in receipt for guns does constitute use under the statute. On the other hand, the District of Columbia Circuit, together with Seventh and Eleventh Circuits held that bartering drugs-for-guns does not constitute use under the statute.

a. Bartering drugs for guns does constitute “use” The majority of the circuits have held that a barter of drugs-for-guns falls under the “use” prong of § 924 (c)(1)(A). A number of courts have held that the gun was used under the statue because is was an operative factor to the transaction, while others maintained that it was used in connection with the drug trafficking offense. Yet a few other circuits have held that the gun was used in furtherance of the underlying offense because it facilitated the transaction that would otherwise not have occurred. First and Fifth Circuits held that the gun was an operative factor in the offense. U.S. v. Cotto, 456 F.3d 25 (1st Cir. 2006); U.S. v. Ulloa, 94 F.3d 949 (5th Cir. 1996). In Cotto receiving the guns was a condition of the transaction, so the guns were an operative factor in the offense and therefore used under § 924 (c)(1)(A). Cotto, 456 F.3d at 29. Similarly, Ulloa held that the gun was an operative factor in the trafficking offense because the defendant asked for the firearm in exchange for his drugs. Ulloa, 94 F.3d at 956. While Ulloa was decided before the amendment, Watson validates that it is considered good law in the Fifth Circuit by refusing to overturn it. U.S. v. Watson, 191 Fed.Appx. 326 (5th Cir. 2006). Other Circuits have held that a gun is used within the meaning of the statute because it is used in connection with the underlying offense. U.S. v. Sumler, 294 F.3d 579 (3rd Cir. 2002). Sumler held that bartering drugs for a gun constitutes use of the firearm in connection with drug trafficking and invokes the minimum sentences under § 924(c)(1)(A). Sumler, 294 F.3d at 580. The Third Circuit held in Navaro that a defendant used the gun because he possessed it in connection with the underlying felony offense. U.S. v. Navaro, 476 F.3d 188 (3rd Cir. 2007). Similarly, the Eighth Circuit held in Cannon that selling a narcotic is as much a crime as buying a narcotic. U.S. v. Cannon, 88 F.3d 1495 (8th Cir. 1996). Therefore the court found that there is no distinction between bartering with, or bartering for a gun. Cannon, 88 F.3d at 1509. While Cannon was decided before the 1998 amendment, it remains good law by which the Eighth Circuit is bound. U.S. v. Pruett, 501 F.3d 976 (8th Cir. 2007). The Second, Fourth, Sixth and Tenth Circuits ruled that when a defendant accepts possession of a gun as consideration for the drugs he is selling, the felon possesses the gun in furtherance of the underlying offense. U.S. v. Cox, 324 F.3d 77 (2nd Cir. 2003); U.S. v. Boyd, 209 Fed.Appx. 285 (4th Cir. 2006); U.S. v. Frederick, 406 F.3d 754 (6th Cir. 2005); US. v. Luke-Sanchez, 483 F.3d 703, (10th Cir. 2007). The courts reasoned that the illegal drug sale is promoted and facilitated because of defendant’s possession of the gun in furtherance of the offense. Frederick, 406 F.3d at 764. If the gun would not be accepted as payment the crime of drug trafficking would not occur therefore the gun is being actively used in furtherance of the drug sale. Luke-Sanchez, 483 F.3d at706. The court argued in Cox that receipt of a gun to pay for the drug transaction affirms that the gun plays a significant role in the drug trade. Cox, 324 F.3d at 84. The Ninth Circuit recognizes the doctrine of “sentencing entrapment” in U.S. v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997). The court examined how a defendant can be set up by the police to commit a greater offense and as a result receive an extended prison sentence. Id. If defendant did not negotiate for guns prior to the trade, then the defendant “neither agreed nor knew” about the gun involvement. Id. at 1507. However, in Ramirez-Rangel, the defendants agreed to receipt of the guns in exchange for drugs before the actual exchange. Id. The court reasoned that if defendant and undercover agent did not have a prior agreement, then defendant would have a strong case for sentencing entrapment. Id. While we are not explicitly told, it is at least implied that if defendants were not aware of the drug for guns exchange prior to the transaction, they might be able to invoke the entrapment doctrine and prevail.

b. Bartering drugs for guns does not constitute “use” On the other hand, a minority of circuits have held that a barter of drugs-for-guns does not constitute “use” under § 924(c)(1)(A). The District of Columbia together with the Eleventh and Seventh Circuits are examples. The District of Columbia Circuit held that a defendant who barters drugs for a firearm does not “use” the firearm under the statute. U.S. v. Stewart, 246 F.3d 728 (D.C. Cir. 2001). The defendant sold crack cocaine to undercover police officers. Id. at 729. On one occasion, defendant initiated the gun sale by asking the undercover officers to sell him a gun. Id. The court held that the receipt of the gun did not constitute “use.” Id. at 732. The court reasoned that while Bailey did list barter as an example of active employment, the Supreme Court could not have intended to include any situation of bartering. Id. The inclusion of bartering on the list of active uses in Bailey does not imply a barter of drugs-for-guns, but the reverse. Id. The defendant in Stewart did not use the gun, or make use of it, or received any service from it by bartering to receive it in exchange for the drugs. Id. at 731. Similarly, the Eleventh Circuit found in Montano that bartering for a firearm does not constitute “use” under the statute, but that “bartering with a firearm constitutes use.” U.S. v. Montano, 398 F.3d 1276, 1283 (11th Cir. 2005). The court required that some type of affirmative control be exercised over the firearm that amounts to more than possession. Id. at 1284. In Westmoreland, the Seventh Circuit held that a drugs-for-guns exchange does not constitute “use” under § 924 (c)(1)(A). U.S. v. Westmoreland, 122 F.3d 431 (7th Cir. 1997). Similarly to the D.C. and the Eleventh Circuits, the Seventh Circuit concluded that bartering constituted active employment of the gun only in guns-for-drugs barter but not the reverse. Id. at 435. The court reasoned that accepting a firearm as consideration amounts to mere passive use of a gun, and that is distinguished from the Smith case where the defendant actively employed the firearm by bringing it into the exchange. Id. The Seventh Circuit appears to be in contradiction with itself. In the same year Woodruff concluded that exchanging drugs-for-guns was “use” under § 924(c)(1)(A). U.S. v. Woodruff, 131 F.3d 1238 (7th Cir. 1997). The defendant had an accomplice who received the firearm by exchanging drugs for it. Id. at 1240. The court held the defendant liable for his co-conspirators’ action because of receiving a gun in exchange for narcotics. Id. at 1243. This ruling seems to be in direct contradiction with Westmoreland. Furthermore, the Seventh Circuit has not interpreted whether bartering with drugs in exchange for guns constitutes active employment or whether it qualifies as “use” under § 924 (c)(1)(A) since the 1998 amendment.

B. PROPOSED ANALYSIS. Anderson did not “use” the gun within the meaning of § 924 (c)(1)(A) as interpreted by Smith and Bailey. Smith expressly limited “use” to those situations in which the defendant exchanged guns and received drugs in return. In such circumstances the defendant used the gun by bringing it into the trade. While Bailey narrowed the “use” interpretation by requiring that a weapon be actively employed during and in relation to an offense, it also held that bartering with a gun for drugs amounts to active use in furtherance of the offense. Anderson did not actively use the gun by accepting it as payment for the drugs, therefore he did not “use” the gun within the interpretation of § 924(c)(1)(A). Finding a drugs-for-guns exchange to be “use” under the statute implies that both, the party bringing the gun to the trade and the receiving party are actively employing the gun at the same time. The active employment test established by Bailey helps us differ between the two situations here. Both individuals cannot actively use the same gun at the same time. Hence it is logical to say that the party who brings the gun to the exchange actively employs it, while the party at the receiving end is merely accepting it as payment for the drugs. In addition, as previously noted the statute was enacted by the legislature in an effort to help combat the newly declared war on drugs. Busic, 446 U.S. at 414. By enforcing harsher punishments, the statute was designed to discourage a drug offender from using a gun while committing the underlying offense. Representative Poff expressed to Congress his view that § 924(c)(1)(A)’s intent is to make a man think twice before taking his gun with him from home. Id. It is a widely held view that mandatory minimum sentences are a weapon used in the war on drugs. Christopher Mascharka, Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences, 28 Fla. St. U.L. Rev. 935, 947 (2001). In essence, if the potential defendant was aware of harsher penalties, he would refrain from violating the law. Id. An aspect not taken into consideration is that drug dealers are mostly young males who do not characteristically think of the long term effects of their actions. Id. at 948. Such young males are more likely to act on impulse without taking into consideration the adverse consequences they might suffer as a result of their decisions. Id. at 948-49. Therefore mandatory sentencing would not act as an incentive to discourage their criminal activity. Another issue to be taken into consideration is the rising costs associated with the overcrowded federal prison system. Id. at 949. It costs the government $24,000 per year to incarcerate a federal inmate. Id. Because of the increasing prison population the government’s annual expense for running and keeping prisons is at $40 billion. Id. at 950. Moreover, studies have shown that there is no correlation between crime rates and prison sentences. JFA Assoc., Unlocking America: Why and How to Reduce America’s Prison Population, http://www.jfa-associates.com/publications/srs/UnlockingAmerica.pdf, (Nov. 2007). A new study by the JFA institute released in November 2007 points out that while inmate population has increased the impact on crime has been minimal if at all, but at a high cost to taxpayers and society. Id. Among other recommendations, the JFA suggests the decriminalization of victimless crimes such as those of drug use by enforcing shorter sentences and possibly removing mandatory sentences altogether. Id. While this may be contrary to the public support which brought about the enactment § 924 (c)(1)(A), it is not contrary to the realities we live in today. Steps need to be taken to remedy realistic problems such as prison overcrowding and reducing federal funds that bleed into supporting the prison population. This is why enforcing a mandatory sentence of drugs-for-guns trade would be counterproductive to the realities we live with in 2007.

CONCLUSION Anderson should not be subject to the mandatory sentencing provisions of § 924(c)(1)(A). He did not actively employ the gun in furtherance of the drug offense. Through mere receipt of the gun he did not “use” it within the meaning of 18 U.S.C. § 924(c)(1)(A). He should only be convicted for the underlying drug offense, that of distributing methamphetamine, not for the additional mandatory sentence.