United States Court of Appeals

For the First Circuit

No. 03-1477

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE COTTO, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Lynch, and Lipez,

Circuit Judges.

Robert A. O'Meara for appellant.

John A. Capin, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief, for

appellee.

August 2, 2006
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LYNCH, Circuit Judge. The primary issue in this appeal

is whether one who barters drugs for firearms has "used" the

firearms within the meaning of 18 U.S.C. § 924(c)(1)(A), which

provides for a mandatory five-year sentence for using a firearm

"during and in relation to any . . . drug trafficking crime." The

circuit courts have split rather closely on this question. We hold

that bartering drugs for firearms constitutes "use" of the firearms

under § 924(c)(1)(A). We affirm the defendant's conviction and

sentence.

I.

We recount the facts in the light most favorable to the

verdict. United States v. Sanchez-Berrios, 424 F.3d 65, 71 (1st

Cir. 2005).

The defendant, Jose Cotto, Jr., was a heroin dealer. One

of his customers was Amanda Tew, a teenager who in early 1999 was

living with her grandparents. Tew paid Cotto by giving him guns

she stole from her grandparents' basement, where her grandfather

stored them. From the summer of 1999 until the spring of 2000,

Cotto engaged in more than twenty heroin-for-guns exchanges with

Tew. Tew testified that in return for her grandfather's guns,

Cotto never gave her cash or anything other than heroin.

Cotto generally paid Tew a "brick" of heroin for each

gun. Each brick consisted of fifty postage-stamp-sized bags

containing a pinch-of-salt's worth of heroin. Cotto's typical
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practice was to give Tew two to four "bundles" of heroin (each

bundle containing ten bags) after inspecting and taking delivery of

a gun. Tew would come back later for the remaining bundles. Cotto

always paid the first installment the same day he received the gun,

but only after examining the gun.

In the spring of 2000, Tew was arrested for possession of

heroin; she eventually agreed to cooperate with what was then the

Bureau of Alcohol, Tobacco, and Firearms (ATF). She telephoned

Cotto and spoke with him on July 10, 2000, in a recorded

conversation. Cotto asked her whether she had gotten any more

guns, and he specifically expressed an interest in handguns. Tew

told Cotto she could get him "whatever [he] want[ed]" from a "guy."

The two agreed to speak again the next day.

In a recorded conversation on the morning of July 11, Tew

told Cotto she had one MAC-11 and two .380-caliber handguns, and

that she wanted "a couple" of bricks for the guns. The guns were

actually supplied by the ATF. Cotto and Tew made plans to meet

that day at noon behind a particular store.

When Cotto arrived at the agreed-upon parking lot, Tew

was already there, with one MAC-11 handgun and two .380-caliber

handguns in the trunk of her car. The ATF had them under

surveillance. Cotto got into Tew's car and asked her where the

guns were. The two got out of her car, and Tew opened the trunk,

allowing Cotto to see the guns. After inspecting the guns, Cotto
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put them in the trunk of his own car. He was arrested moments

later, without having yet given anything to Tew. He had two

bundles of heroin and $38 in cash with him.

Cotto was charged in a superseding indictment with one

count of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1), and one count of using a firearm during and

in relation to a drug trafficking crime, and possessing a firearm

in furtherance of such crime, in violation of 18 U.S.C.

§ 924(c)(1). Both counts were based on the events of July 11 and

both charged Cotto's involvement with three specific guns (the MAC11 and the two .380-caliber handguns).

Cotto pled guilty to the felon-in-possession count and

went to trial on the § 924(c) count. His defense was that he was

not going to exchange heroin for firearms on July 11. Although

Cotto did not testify, the defense presented evidence that Cotto

abused heroin and that the heroin he had with him was only for

personal use. The jury returned a guilty verdict.

The court sentenced Cotto to 84 months of imprisonment on

the felon-in-possession count and 60 months on the § 924(c) count,

to be served consecutively, for a total of 144 months'

imprisonment. Cotto now appeals.
 Cotto was not charged under the "carry" provision. Although 1

the § 924(c) count in the indictment did charge "possession in

furtherance," the government concedes that this provision dropped

out of the case when it was not included in the jury instructions

or verdict slip.

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II.

A. Challenge to Conviction

Cotto challenges his conviction only on the § 924(c)

count. He argues that the evidence was insufficient to support

conviction on that count. We review this preserved claim de novo,

asking whether the evidence, if viewed in the light most favorable

to the prosecution, would allow a rational jury to find all

elements of the crime beyond a reasonable doubt. United States v.

Hall, 434 F.3d 42, 49 (1st Cir. 2006).

The statute in question provides that "any person who,

during and in relation to any . . . drug trafficking crime . . . ,

uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm," is subject to at least five years'

imprisonment, "in addition to the punishment provided for [the]

. . . drug trafficking crime." 18 U.S.C. § 924(c)(1)(A)(i). Only

the "use" provision is at issue here.1

Cotto's primary argument is that bartering drugs for

firearms cannot constitute "use" of the firearms under § 924(c).

He acknowledges that the Supreme Court has held that bartering in

the other direction -- that is, exchanging guns in order to obtain

drugs -- does constitute "use" of the firearms. The Court so held
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in Smith v. United States, 508 U.S. 223 (1993). There, the Court

reasoned that "[b]y attempting to trade his [gun] for the drugs,

[the defendant] 'used' or 'employed' it as an item of barter to

obtain cocaine; he 'derived service' from it because it was going

to bring him the very drugs he sought." Id. at 229. Cotto notes,

though, that the Supreme Court soon returned to the issue of what

constitutes "use," holding that "§ 924(c)(1) requires evidence

sufficient to show an active employment of the firearm by the

defendant, a use that makes the firearm an operative factor in

relation to the predicate offense." Bailey v. United States, 516

U.S. 137, 143 (1995).

Four circuit courts have treated a drugs-for-firearms

barter as "use." See United States v. Sumler, 294 F.3d 579, 580

(3d Cir. 2002); United States v. Ramirez-Rangel, 103 F.3d 1501,

1506, 1509 (9th Cir. 1997); United States v. Ulloa, 94 F.3d 949,

955-56 (5th Cir. 1996); United States v. Cannon, 88 F.3d 1495,

1508-09 (8th Cir. 1996). Two circuits can be viewed as leaning

that way. See United States v. Cox, 324 F.3d 77, 82-84 (2d Cir.

2003) (holding that accepting a gun as collateral for the purchase

price of drugs is "use"); United States v. Harris, 39 F.3d 1262,

1269 (4th Cir. 1994) (holding, post-Smith but pre-Bailey, that
 The Fourth Circuit has, in several unpublished post-Bailey 2

decisions, reaffirmed Harris and held that trading drugs for guns

constitutes "use." See, e.g., United States v. Belcher, No. 98-

4845, 1999 U.S. App. LEXIS 30693, at *3 (4th Cir. Nov. 29, 1999)

(per curiam) (unpublished).

 The government attempts to distinguish several of the cases 3

on which Cotto relies on the ground that they involved merely

passive acceptance of guns, as opposed to the defendant's

deliberate activity here. Our holding does not turn on this

distinction.

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supplying someone with crack in exchange for aid in obtaining a gun

is "use").2

The government exaggerates in claiming the support of

"the overwhelming weight of authority." In fact, four circuits

have adopted Cotto's interpretation. See United States v. Montano,

398 F.3d 1276, 1282-84 (11th Cir. 2005) (per curiam); United States

v. Stewart, 246 F.3d 728, 731-33 (D.C. Cir. 2001); United States v.

Warwick, 167 F.3d 965, 975-76 (6th Cir. 1999); United States v.

Westmoreland, 122 F.3d 431, 434-36 (7th Cir. 1997).

We hold that bartering drugs in order to obtain firearms

is "use" of the firearms. In doing so, we recognize that Cotto's

position is not without merit. His interpretation of the word

"use" has some force given the common understanding of that term:

while it is easy to see how he "used" the heroin to get the guns,

it is somewhat less natural to say that he "used" the guns as

well. See Stewart, 246 F.3d at 731; Westmoreland, 122 F.3d at 3

435-36. Were we writing on a blank slate, we might well be
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inclined to say, based on the most natural reading of the statute,

that Cotto did not "use" the guns by bartering for them.

But we do not write on a blank slate. First, Smith

controls here. In Smith, the Court stated that "[b]oth a firearm's

use as a weapon and its use as an item of barter fall within the

plain language of § 924(c)(1), so long as the use occurs during and

in relation to a drug trafficking offense." 508 U.S. at 240. The

Court employed a very broad understanding of what it means for a

firearm to be "used . . . as an item of barter or commerce." Id.

at 234. The Court's examples included not only variations on

delivery, but also multiple instances of receipt. See id. at 234

& n.* (listing several offenses involving receipt as examples of

"offense[s] involv[ing] use as an item in commerce"); see also id.

at 235 (referring generally to offenses in which firearms "function

as items of commerce"). We are not free to disregard Smith, which

we view as controlling.

Nor does Bailey compel us to distinguish Smith. To the

contrary, Bailey was careful to reaffirm Smith, stating that "[t]he

active-employment understanding of 'use' certainly includes . . .

bartering . . . a firearm." 516 U.S. at 148; see also id. at

147-48 (explaining that Smith's recognition that "use" includes

"use as an item of barter" is consistent with the Bailey holding).

Cotto "used" firearms within the active-employment meaning of

Bailey. That he received guns does not mean he was passive with
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respect to them. He "required that he be furnished firearms in

exchange for his drugs," Ulloa, 94 F.3d at 956, and he accepted the

guns as a way of "clos[ing] the drug transaction," Cox, 324 F.3d at

84, thereby making the guns an operative factor in the drug

trafficking offense. Cf. United States v. Frederick, 406 F.3d 754,

764 (6th Cir. 2005) (stating in a possession-in-furtherance case

that "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," and that "[i]f the defendant did not

accept possession of the gun, and instead insisted on being paid

fully in cash for his drugs, some drug sales -- and therefore some

drug trafficking crimes -- would not take place") (internal

quotation marks and citation omitted).

Even if Supreme Court precedent did not require the

interpretation that we adopt here, there are other reasons for

rejecting Cotto's position based on a reading of the statutory

language. First, our reading is consistent with Congress'

employment of the word "use" in other parts of § 924. In Smith,

the Court looked at the ways in which one can "use" a firearm under

§ 924(d)(1) and (d)(3), and it reasoned that "using a firearm"

should have the same meaning under § 924(c)(1). See 508 U.S. at

233-36. Likewise, in Bailey, the Court referred to its approach in

Smith and again looked to § 924(d) for assistance in interpreting

§ 924(c). See 516 U.S. at 146. Applying that method here, we note
 Under § 924(d)(1), any firearm "intended to be used" in any 4

offense referred to in § 924(d)(3) is subject to seizure and

forfeiture. Section 924(d)(3), in turn, lists offenses consisting

of the receipt of a firearm, including those described in 18 U.S.C.

§ 922(a)(1)(A) (unlicensed importing, dealing in, or receiving

firearms), § 922(a)(3) (unlicensed receipt of firearms obtained out

of state), § 922(j) (receipt and bartering of stolen firearms),

§ 922(l) (importation of firearms or receipt of imported firearms),

§ 922(n) (receipt of firearm by person under indictment), and

§ 924(b) (receipt of firearm with intent to commit a felony).

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that under § 924(d), a gun can be "used" in an offense consisting

of receipt of the gun. This supports treating the receipt of guns 4

in a drugs-for-guns barter as "use" of the guns under § 924(c).

See Cannon, 88 F.3d at 1509.

Finally, the rationale of § 924(c) supports our

interpretation. As the Court observed in Smith, "[w]hen Congress

enacted the current version of § 924(c)(1), it was no doubt aware

that drugs and guns are a dangerous combination." 508 U.S. at 240.

"The fact that a gun is treated momentarily as an item of commerce

does not render it inert or deprive it of destructive capacity.

Rather, as experience demonstrates, it can be converted

instantaneously from currency to cannon." Id. That is so whether

the defendant transfers or receives the gun. Just as the Supreme

Court did not think Congress "intended courts and juries applying

§ 924(c)(1) 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," id., we do not think it intended to draw a distinction

between bartering with a firearm and bartering for a firearm.
 Cotto argues that the heroin he had with him was for 5

personal use. But there was ample evidence from which the jury

could find that Cotto intended to buy three firearms from Tew at a

price of two bricks of heroin and that the two bundles of heroin

were meant to serve as Cotto's usual first installment.

 Indeed, Smith upheld "use" liability and based its holding 6

on "the exchange of a gun for narcotics," 508 U.S. at 225, even

though neither gun nor drugs had changed hands and the defendant

had only "attempt[ed] to trade his [gun] for the drugs," id. at

229; see also id. at 230 (stating that "petitioner 'used' his [gun]

in his drug trafficking offense by trading it for cocaine").

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Cotto's fallback argument is that, even if a drugs-forfirearms barter could constitute "use," there was no such barter

here, because he had not given Tew any heroin before he was

arrested. The fact that Cotto was arrested by ATF agents before he

could distribute heroin to Tew is immaterial to whether, under

§ 924(c), there was "use" during and in relation to a drug

trafficking crime. There was ample evidence that Cotto possessed

heroin with the intent to distribute it, which is a drug

trafficking crime. See 21 U.S.C. § 841(a)(1). And there was 5

ample evidence that he actively employed firearms by making them an

operative factor in that crime, and that he did so during and in

relation to that crime. Cotto required Tew to give him guns in

exchange for heroin, and he possessed heroin with the intent to

distribute it to Tew in exchange for the guns. By the time he was

arrested, he had actually taken delivery of the guns, which he had

made integral to the deal and to his own possession with intent to

distribute. Nothing turns on whether he had paid for them yet.6
 Cotto argues that the judicial factfinding and the then- 7

mandatory status of the Guidelines were structural errors

warranting automatic reversal. We have repeatedly rejected both

arguments. Neither judicial factfinding nor having been sentenced

under mandatory Guidelines warrants automatic reversal. See

Sanchez-Berrios, 424 F.3d at 80; Antonakopoulos, 399 F.3d at 75,

79-80; see also Washington v. Recuenco, 126 S. Ct. 2546, 2553

(2006).

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B. Challenge to Sentence

Cotto challenges his sentence on the felon-in-possession

count. His objection is twofold: first, that his offense level

under the Sentencing Guidelines was increased based on judicial

factfinding by a preponderance of the evidence, and second, that

the district court was unable to take full account of the factors

set forth in 18 U.S.C. § 3553(a). As we have explained, the error

under United States v. Booker, 543 U.S. 220 (2005), "is not that a

judge (by a preponderance of the evidence) determined facts under

the Guidelines which increased a sentence beyond that authorized by

the jury verdict or an admission by the defendant; the error is

only that the judge did so in a mandatory Guidelines system."

United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

Cotto concedes that the Booker error is unpreserved, so

we apply plain error review. Id. Cotto must "point to 7

circumstances creating a reasonable probability that the district

court would impose a different sentence more favorable to [him]

under the new 'advisory Guidelines' Booker regime." Id. This test
 The court recommended, on Cotto's request, that Cotto be 8

given a spot in a drug treatment program in prison.

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"is not met by the mere assertion that the court might have given

the defendant a more favorable sentence." Id. at 80.

Cotto points to two specific factors here that, he says,

warrant a remand for resentencing. First, the district judge said

that "the double-counting issue bothers me." The court was merely

explaining why it chose not to impose a particular enhancement

sought by the government, not indicating that it would have imposed

a lesser sentence if not for the mandatory Guidelines. Indeed, the

court could have sentenced Cotto more leniently by selecting a

sentence at the bottom of the Guidelines range; instead it chose a

middle-of-the-range sentence on the felon-in-possession count.

Second, Cotto argues, there is a newly available sentencing

consideration: his drug addiction. The court took this factor into

account at sentencing and, where it easily could have selected a 8

lower sentence within the range but chose not to, we are not

persuaded that there is a reasonable probability that it would

impose a more lenient sentence on remand. As to Cotto's general

argument that he is entitled to a Booker remand so that the

district court can take greater account of the § 3553(a) factors,

it is not enough merely to suggest that the § 3553(a) factors

"might well have persuaded" the court to impose a lower sentence.

See Sanchez-Berrios, 424 F.3d at 80.
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III.

Cotto's conviction and sentence are affirmed.