FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-30475 Plaintiff-Appellee,

D.C. No.

v.  6:06-CR-60045-AA

WILLIAM JOHN MAHAN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted

October 6, 2009—Portland, Oregon

Filed November 16, 2009

Before: Diarmuid F. O’Scannlain and N. Randy Smith,

Circuit Judges, and Charles R. Wolle,*

Senior District Judge.

Opinion by Judge O’Scannlain

*The Honorable Charles R. Wolle, Senior United States District Judge

for the Southern District of Iowa, sitting by designation. 

15259
COUNSEL

Terri Wood, of Eugene, Oregon, argued the cause for the

defendant-appellant and filed the briefs.

Frank R. Papagini, Jr., Assistant United States Attorney for

the District of Oregon, Eugene, Oregon, argued the cause for

the appellee and filed the brief. Karin J. Immergut, United

States Attorney for the District of Oregon, and Kelly A. Zusman, Assistant United States Attorney for the District of Oregon, were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether an individual who trades drugs for

guns possesses the firearms “in furtherance of” his drug trafficking offense.

I

UNITED STATES v. MAHAN 15261
A

Late on the evening of November 30, 2005, Zane Isabell

and Shawn Copley offered to sell several stolen firearms to

William Mahan. Copley initially called his mother to gauge

her interest in acquiring them; during this phone call, he ultimately spoke with Mahan, who was living with Copley’s

mother at the time. Based on Copley’s conversation with

Mahan, Copley and Isabell drove to his mother’s house with

the stolen firearms. After smoking some methamphetamine

that Mahan supplied, the three left the house and went to a

nearby shed, where Copley showed Mahan the guns. After

viewing the firearms, Mahan agreed to buy them for a combination of 1/8 ounce of methamphetamine and approximately

$700 in cash. 

B

Mahan was eventually arrested and charged on a threecount indictment. The final count charged him with possession of a firearm “in furtherance of” a drug trafficking offense

in violation of 18 U.S.C. § 924(c). Mahan’s motion for acquittal was denied before closing argument. The jury convicted

Mahan, who timely appeals.1

II

Mahan challenges the district court’s decision to deny his

motion for acquittal.2 In essence, we are confronted with a

1Mahan’s claim that the district court’s sentence was improper is disposed of in a memorandum disposition filed concurrently with this opinion. 

2A motion for acquittal must be filed within seven days of a jury verdict. Fed. R. Crim. P. 29(c). Mahan did not file his motion until nine

months after the jury verdict, and thus, it was untimely. However, because

Mahan made a Rule 29(a) motion as to the sufficiency of the evidence (at

the conclusion of the evidence adduced at trial), we review de novo the

denial of a Rule 29 motion for acquittal. United States v. Tisor, 96 F.3d

370, 379 (9th Cir. 1996). 

15262 UNITED STATES v. MAHAN
narrow question of law: whether a defendant who receives

guns in exchange for drugs possesses those guns “in furtherance of” his drug trafficking offense within the meaning of 18

U.S.C. § 924(c).

A

[1] Section 924(c)(1)(A) establishes minimum penalties for

offenders who use firearms to commit drug trafficking

offenses. It provides, in pertinent part:

[A]ny person who, during and in relation to any

crime of violence or 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 crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not

less than 5 years;

(emphasis added).

[2] “[T]he natural meaning of ‘in furtherance of’ is ‘furthering, advancing or helping forward.’ ” United States v.

Hector, 474 F.3d 1150, 1157 (9th Cir. 2007) (internal citations omitted). The government can establish that a defendant

has used a gun to “promote or facilitate” a crime if “facts in

evidence reveal a nexus between the guns discovered and the

underlying offense.” United States v. Krouse, 370 F.3d 965,

968 (9th Cir. 2004). Mahan rather argues that, in order to

obtain a conviction under the “in furtherance of” prong of section 924(c), “the government must show that the defendant

intended to use the firearm to promote or facilitate the drug

crime.” United States v. Rios, 449 F.3d 1009, 1012 (9th Cir.

2006) (emphasis added).

UNITED STATES v. MAHAN 15263
[3] This argument misreads Rios, where we applied the

familiar “nexus” requirement to uphold the defendant’s conviction. Although we described the government’s burden as

requiring proof of intent, we clarified that “[e]vidence of this

intent is sufficient when facts in evidence reveal a nexus

between the guns discovered and the underlying offense.” Id.

(internal quotation marks and citations omitted). 

[4] Moreover, the text of the statute clearly demonstrates

that “in furtherance of” does not simply mean “intends to

use.” Section 924(d), the subsection following the one in

issue, draws a distinction between firearms “used” in an

offense and those “intended to be used.” 18 U.S.C.

§ 924(d)(1); see also Bailey v. United States, 516 U.S. 137,

146 (1995). Thus, we reject Mahan’s attempt to recharacterize

the meaning of “in furtherance of,” and again reaffirm that

“intended to be used” and “in furtherance of” are different

standards. Given that the statute uses these two phrases in different contexts, there is no reason to interpret the two provisions as identical. Thus, Mahan’s attempt to redefine the

phrase “in furtherance of” is unpersuasive.

B

The determination of whether a defendant possessed firearms in furtherance of a drug offense “turns on the intent of

the defendant,” and is generally fact specific, focusing on the

evidence linking the firearm to the drug crime. See Krouse,

370 F.3d at 967. When guns are located within strategic reach

of a dealer such that he can use the guns to protect his illicit

trade or the proceeds thereof, then a defendant’s possession

would typically be characterized as “in furtherance of” the

drug crime. Compare id. at 968 (holding that high-caliber

firearms located within easy reach in a room containing drugs

were possessed “in furtherance of” a drug offense), with

United States v. Mann, 389 F.3d 869, 872-73 (9th Cir. 2004)

(holding that guns located within a locked safe in the defen15264 UNITED STATES v. MAHAN
dant’s truck were not possessed “in furtherance of” trafficking

drugs located within a tent).

[5] From these cases, Mahan attempts to glean the principle

that a gun must be within close physical proximity to a drug

trafficker or his drugs in order to be possessed “in furtherance

of” the drug offense. Although all of this court’s prior decisions interpreting this statute have done so in the context of

a defendant who possessed a firearm near drugs, see, e.g.,

United States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007)

(holding that the defendant violated section 924(c) when both

drugs and firearms were within his reach when he was

stopped by the police), neither the statute nor our prior cases

limit it to such situations.

[6] Five other courts of appeals have confronted cases factually similar to this one, and all have either decided or

assumed without deciding that a defendant who, like Mahan,

receives firearms in exchange for drugs possesses those firearms “in furtherance of” a drug trafficking offense. See

United States v. Sterling, 555 F.3d 452, 458 (5th Cir. 2009)

(“We thus assume, without deciding, that bartering drugs for

guns constitutes ‘possession in furtherance’ [of a drug trafficking offense.]”); United States v. Dolliver, 228 F. App’x 2,

3 (1st Cir. 2007) (holding that trading drugs for a gun is a violation of the “in furtherance of” prong of the statute); United

States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007)

(same); United States v. Boyd, 209 F. App’x 285, 290 (4th

Cir. 2006) (“We conclude that accepting possession of firearms as payment for crack cocaine is possession in furtherance of a drug trafficking crime.”); United States v. Frederick,

406 F.3d 754, 764 (6th Cir. 2005) (holding that trading drugs

for a firearm violates the “in furtherance of” prong of the statute).

[7] These cases demonstrate the common sense proposition

that when one accepts a gun in exchange for drugs, the gun

is an integral part of the drug sale because without the gun—

UNITED STATES v. MAHAN 15265
the “currency” for the purchase—the drug sale would not take

place. As the Sixth Circuit observed:

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. If 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.

Frederick, 406 F.3d at 764. 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. We fail

to see how possession that completes a drug trafficking

offense is not possession “in furtherance of” a drug trafficking

offense.

[8] Mahan cites no precedent, from this circuit or any other,

for the proposition that accepting guns as payment for drugs

does not constitute possession of firearms “in furtherance of”

a drug trafficking offense.3 In light of the unanimity and clarity of our sister circuits’ precedent, we decline Mahan’s invitation to create a circuit split, and hold that a defendant who

accepts firearms in exchange for drugs possesses the firearms

“in furtherance of” a drug trafficking offense.

3For these same reasons, we reject Mahan’s claim that he did not possess the firearms “in furtherance of” his drug trafficking offense since he

did not acquire possession of the firearms until the completion of his

offense. This argument incorrectly interprets the phrase “in furtherance of”

to mean “during.” The statute does not require that the defendant possess

the gun throughout the entirety of his drug deal; rather, it simply requires

that whatever the specific nature of his gun possession, it “further[ ],

advanc[e] or help[ ] forward” the underlying drug sale. Hector, 474 F.3d

at 1157 (quoting United States v. Castillo, 406 F.3d 806, 814 (7th Cir.

2005)). 

15266 UNITED STATES v. MAHAN
III

Mahan offers several arguments to rebut our construction.

A

[9] First, Mahan cites a pair of Supreme Court opinions. He

compares Watson v. United States, 552 U.S. 74 (2007), where

the Court held that a defendant does not “use” a gun when he

receives it in trade for drugs, to Smith v. United States, 508

U.S. 223 (1993), where the Court held that a defendant does

use a gun if he trades it to “purchase” drugs. Watson, however, interpreted only section 924(c)’s “use” prong. The government did not charge Mahan under section 924(c)’s “use”

prong, however. Instead, it charged him under section

924(c)’s “in furtherance of” prong. Therefore, Watson’s holding does not control. Indeed, Watson expressly declined to

discuss whether receiving guns in exchange for drugs violates

the “in furtherance of” prong of section 924(c). Thus, these

Supreme Court decisions shed no light on whether Mahan’s

conduct falls within the “in furtherance of” prong of section

924(c).

B

[10] Second, Mahan claims that his possession of the firearms was not “in furtherance of” his drug trafficking offense

because they did not play an “emboldening role” in his

offense. He argues that Congress amended the statute to

include the “in furtherance of” prong to address a situation

“where a defendant kept a firearm available to provide security for the transaction, its fruit or proceeds, or was otherwise

emboldened by its presence in the commission of the

offense.” 144 Cong. Rec. 26,608-09 (1998) (statement of Sen.

DeWine).4 This lone senator’s statement, however, cannot

4Mahan also points to United States v. Polanco, 93 F.3d 555, 566-67

(9th Cir. 1996), for the proposition that, in order to demonstrate that he

UNITED STATES v. MAHAN 15267
overcome the plain language of the statute. To whatever

extent the legislative history is relevant, the frequently cited

House Judiciary Committee Report5 states that in order to

obtain a conviction under this prong of the statute, “[t]he government must clearly show that a firearm was possessed to

advance or promote the commission of the underlying

offense.” H.R. Rep. No. 105-344, at 12 (1997). Thus, we

deem Mahan’s attempt to import additional elements into section 924(c) unpersuasive.

IV

For the foregoing reasons, the district court’s denial of

Mahan’s motion for acquittal is

AFFIRMED. 

possessed the firearms “in furtherance of” his drug trafficking crime, the

government must prove that his use of a gun “emboldened” him to commit

his offense. We decided Polanco two years before Congress amended section 924(c) to include the “in furtherance of” prong, so the case does not

bear on the meaning of this phrase. 

5This court, as well as other courts interpreting this portion of the statute, has frequently looked to the House Report accompanying the statute

for guidance. See Rios, 449 F.3d at 1013 (quoting House Report 105-344);

see also United States v. Combs, 369 F.3d 925, 932 (6th Cir. 2004)

(same). 

15268 UNITED STATES v. MAHAN