U.S. v. Ceballos-Torres, CEBALLOS-TORRE

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM; E. GRADY JOLLY
• Citation: 218 F.3d 409
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAVIERefendant-Appellant
• Docket Number: D,No. 99-20856,CEBALLOS-TORRE
• Decision Date: 06 July 2000

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218 F.3d 409 (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAVIER CEBALLOS-TORRES, Defendant-Appellant. No. 99-20856 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 6, 2000

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Appeal from the United States District Court for the Southern District of Texas

Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

After a bench trial, Javier Ceballos-Torres was found guilty of possession with intent to distribute cocaine, 21 U.S.C. § 841, and knowing possession of a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A)(i). Ceballos now appeals the latter conviction, asserting that the evidence was insufficient to convict him of that offense. He argues that "in furtherance" requires more than the mere presence of the firearm in an area where drug trafficking occurs. We consider the plain language and the legislative history and conclude that a possession

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is "in furtherance" of the drug trafficking offense when it furthers, advances, or helps forward that offense. For the reasons stated herein, we affirm his conviction.

I

Ceballos is an illegal alien who has been removed from the country once before. The High Intensity Drug Trafficking Area Task Force was investigating his involvement in a narcotics trafficking and money laundering operation. Ceballos was eventually indicted for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 and for knowing possession of a firearm in furtherance of that crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Before trial, Ceballos moved to suppress evidence obtained during a search of his apartment. The court denied his motion after a suppression hearing, and then tried Ceballos on evidence submitted during that hearing.¹

The evidence presented during the hearing established the following chain of events that led to Ceballos's indictment and conviction.² In February 1999, INS Special Investigator Ed Sanchez and IRS Special Agents Tom Mahoney and Mark Hughes went to Ceballos's home to conduct an immigration check. The men knocked on the door, and Ceballos invited them inside. He told them that he was lawfully in the United States and had documents relating to his immigration status in his bedroom closet. He then went to get them.

Sanchez followed Ceballos into the bedroom and noticed a 9mm Glock handgun lying in plain view on top of the bed. Ceballos said that he owned the gun for personal protection. The agents took possession of the gun and found that it was loaded. After inspecting Ceballos's immigration papers, the agents determined that Ceballos was in the country illegally, and they arrested him.

The agents later obtained a warrant to search the apartment. During that search, they discovered 569.8 grams of cocaine and several empty kilo wrappers in the hidden compartment of a closet. They also found $1,360 in cash in the pocket of a leather jacket hanging in the bedroom closet. This money later tested positive for cocaine. The agents also came upon an electronic gram scale and four modified straws for sniffing narcotics in the kitchen.

After trial, the court sentenced Ceballos to 130 months of imprisonment and four years of supervised release. Ceballos timely appealed on a single issue: whether prosecutors had presented sufficient evidence to convict him of possession of a firearm in furtherance of his drug trafficking offense.

II A

We review a district court's finding of guilt after a bench trial to determine whether it is supported by "any substantial evidence." United States v. Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir. 1992). Evidence is sufficient to support a conviction if any rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In conducting this inquiry, we examine the evidence as a whole and construe it in the light most favorable to the prosecution. United States v. Lombardi, 138 F.3d 559, 560-61 (5th Cir. 1998).³

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B

The central question before us is what it means to "possess a firearm in furtherance" of a drug trafficking crime. The relevant portion of the statute reads:

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 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, [be sentenced to an additional term of years].

18 U.S.C. § 924(c)(1)(A) (emphasis added).

In Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court was faced with an earlier version of this statute that prohibited "us[ing] or carr[ying] a firearm during and in relation to" drug trafficking. The statute, unlike the statutory language here, did not explicitly criminalize possession. The Court was asked to determine the meaning of the word "use" in that context.

The Court began its inquiry by turning to the dictionary, which provided several definitions of "use." Id. at 145, 116 S.Ct. at 506. Next, the Court considered the canon of statutory construction that warns against superfluousness: "'Judges should hesitate ... to treat [as surplusage] statutory terms in any setting, and resistance should be heightened when the words describe an element of a criminal offense.'" Id. at 145, 116 S.Ct. at 506-07 (quoting Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S.Ct. 655, 659, 126 L.Ed.2d 615 (1994)). Thus, the Court sought a definition of "use" that would not also encompass "carry," thereby rendering "carry" superfluous. Bailey 516 U.S. at 145, 116 S.Ct. at 507. Then the Court looked at other uses of the word "use" in § 924 to ensure that its interpretation would be harmonious with them. Id. at 146, 116 S.Ct. at 507. Apparently still lacking certainty, the Court reviewed various amendments to § 924 over time for an indication of the intended meaning of "use." Id. at 147, 116 S.Ct. at 507-08. The Court concluded that Congress' choice of the word "use" implied some "active employment" of the firearm, not its mere presence at the scene or possession. Id. at 148, 116 S.Ct. at 508.

We will follow the same route as the Bailey Court in interpreting "in furtherance." The dictionary defines "furtherance" as "[t]he act of furthering, advancing, or helping forward." Webster's II New College Dictionary 454 (1st ed. 1995); The American Heritage Dictionary of the English Language, 534 (10th ed. 1981). When would a gun further, advance, or help a drug trafficking? Five ways spring quickly to mind. First, an accessible gun provides defense against anyone who may attempt to rob the trafficker of his drugs or drug profits. Second, possessing a gun, and letting everyone know that you are armed, lessens the chances that a robbery will even be attempted. Third, having a gun accessible during a transaction provides protection in case a drug deal in the apartment turns sour. Fourth, the visible presence of a gun during the transaction may prevent the deal from turning sour in the first place. Fifth, having a gun may allow the drug trafficker to defend "turf," areas of the street from which lower level dealers operate for the trafficker. There may be other ways. But, in any event, the dictionary definition of "furtherance" clearly has relevant meaning in the context of this statute.

We next turn to the canons of construction to ensure that the dictionary definition fits within the statute's overall context. One canon of construction does raise a

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possible concern with...