NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1090n.06 No. 11-6195 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, ) ) Plaintif f-Appellee , ) ) On Appea l from the United v. ) States District Court for the ) Easter

n District of Tenne ssee ROCENDO RI VERA, ) ) Defendant-

Appellant

. )

Be fore : CL AY and WHI TE, Circuit J udg es; and HO OD, District Judge. * Hood, District Judge

. Def endant- Appellant Rocendo Rivera argues that no rea sonable jury could have conclude d that he used or carrie d a firear m during and in rela t i on to a drug traffic king crime under 18 U.S.C. § 924(c) (1)( A). He thus argues t h at t he dis trict court erre d when it denied his motions for judgme nt of acquittal as to Count Five of the indictment. We disag ree . For t he

rea sons set forth below, the judgme nt of the district court is AF F IRMED

. BACK GR OUND I n spring 2010, the Fe dera l Bur eau of I nvestig ation and the L oudon County Sheriff’ s Offic e develope d a confide ntial informant (C.I .) to investigate the drug traff icking activities of Omar Rivera, who is Def

endant’ s brother. Ag ents paid the C.I

. to make controlled coca ine and marijuana purcha ses from Omar Rivera. During two of these controlled purcha ses, on J uly 8, 2010, and Aug ust

The Honora

ble J oseph M. Hood, United States District J udg e for the Easter n District of Kentucky , * sitti ng by desig nation.4, 2010, Def endant delivere d drug s to the C.I . on Omar River a’s be half. This appe al conce rns the Au gu s t 4, 2010 transac tion. On that occa sion, the C.I

. called Omar Rivera and order ed an “e i gh t ball” of coca ine and a .25 caliber pistol. Offic ers observe d Def endant g et into the C.I .’s vehicle, at which time he delivered to the C .I

. approximately 3.5 g rams of coca ine, an unloaded pist ol, and a bag with a mag azine and loose bullets in exchang e for four hundr ed dollars c ash. Def endant was orig inally char g ed in a six -count indictment in the United States District Court f or the Easter

n District of Tenne ssee. The only count that is rele vant to this a ppeal is Count Five of the indictment, which char ged Def endant with using or car

rying a firea

rm during and in rela tion to a d ru g t ra ff

i ck i ng crime in violation of 18 U.S.C. § 924(c) (1)( A). At the close of the g overnme nt’s case -in-chie f and at the close of all of the evidenc e, Def endant moved for a judgme nt of acquittal on all counts under Rule 29 of the Fe dera l Rules of Criminal Procedur e, but the district
court denied both motions. The jury then convicted Def endant of Counts One, Two, Four and Five of the indictment, and he was sente nced to se venty -five months’ imprisonment. Def endant filed this timely appea l from Count Five of the indictment, arguing that there was insufficient evidenc e for the jury to convict him of using or car ry ing a firea rm during and in rela tion
to a drug traff

icking crime under § 9 2 4 (c )(1)(A). He there fore argues that the district court err ed when it denied his motions for judg ment of ac quittal. STANDARD OF REVIEW “This court revie ws de novo a denial of a motion for judgme nt of acquittal.” United States

v. Ramirez , 635 F.3d 249, 255 (6th Cir. 2011) (quoting United States v. Solorio , 337 F.3d 580, 588 (6th Cir. 2003)). The denial should be aff irmed “if the evidenc e, viewed in the light most favor able
to the g overnme nt, wo u l d allow a rational trier of fac t to find the defe ndant g uilty bey ond a

2rea sonable doubt.” Solorio , 337 F.3d at 588 (quoting United States v. Harrod , 168 F.3d 887, 889–90

(6th Cir. 1 9 99)). The standard is a g reat obstacle to overc ome and prese nts the appellant in a criminal case with a very heavy burden. United States v. W inkle , 477 F.3d 407, 413 (6th Cir. 2007); United States v. J

ackson , 473 F.3d 660, 669 ( 6th Cir. 2007).

DISCUSSIO N 18 U.S.C. § 924(c) (1)( A) imposes a minimum five-y ear term of imprisonment upon a person who “during and in r elation to a ny crime of violence or drug traff icking crime

. . . uses or car ries a firea rm.” Thus, to convict Def endan t u n d er § 924(c) (1)( A), the g overnme nt had to prove two elements: (1) that Def

endant used or car

ried a firea

rm; (2) during and in rela tion to a drug traff icking crime. United States v. W arwick , 167 F.3d 965, 971 ( 6th Cir. 1999). Be cause the United States only neede d to pro v e t hat Def endant either used or car ried a firea rm, it chose to focus its arg uments both at trial and on appea l on a car riag e theory

. See United States v. L ayne , 192 F.3d 556, 569 (6th Cir. 1999) (“ W h er e an indictment, such as the one in this

case , char g es a defe ndant with both ‘using ’ and ‘ca rry ing’ a firea

rm under § 924(c) (1)( A), evidenc e sufficie nt to support a conviction under either element will sustain a § 924 conviction.”) (citing Fair

v. United States , 157 F.3d 427, 430 (6th Cir. 1998). Be cause we ag ree that Def endant ca rr i ed a firea rm during and in rela tion to his dr ug traff icking crime, an analy sis of whether Def endant used a fire arm is unnec essar

y . United States v. Mauldin , 109 F.3d 1159, 1161 (6th Cir. 1997) (holding that it was unnecessa

ry to deter

mine whether or not the defendant was using a firea rm if the ca

rry prong is satisfied). A defe ndant car

ries a firea

rm under § 924(c) (1)( A) not only when he bear s it on his person, but also if he “knowing ly possesses and convey s firea rms in a vehicle, including in the locked g love

3compar

tment or trunk of a car , which [he] acc ompanies.” Muscare llo v. United States , 524 U.S. 125, 126–27 (1998). “Af

ter Muscare llo , this court conclude d that, to constitute a ‘ca rry ing’ offe nse, the firea rm need not be immediately available for use and that ‘the proper inqu i ry [ i n d et ermining whet h er a fi rearm is being ‘ca rried’ ] is phy sical transporta tion’ of the firea rm.” United States v. Combs , 369 F.3d 925, 933 (6th Cir. 2004) (alter ation in orig inal) (quoting Hilliard v. United States , 157 F.3d 444, 449 (6th Cir. 1998) ); accord United States v. Robinson , 290 F.3d 853, 878 (6th Cir. 2004). Her e, i t i s u ndisputed that Def endant broug ht the firea

rm to the drug transac tion and delivere d the firea

rm and coca ine to the C.I

. in exchang e for cas h

. Al though the firea rm was unloaded, we have held that a “we apon need not be opera ble or loaded to sustain a conviction under § 924(c) ” for

a ca rry offe nse. Robinson , 390 F.3d at 878. Of cour s e, a fi n d i n g that Def endant car

ried a firea

rm is not enoug h to subject him to the punishment in § 924(c) (1)( A). Smith v. United States , 508 U.S. 223, 237 (1993). Rather, Def endant al s o must have car

ried a firea

rm “during and in rela tion to” his drug traff icking crime. Id. ; § 924(c) (1)( A). Def

endant does not deny that the firea rm was prese nt during the drug traff i cking crime, nor could he. Both parties ag ree that Def endant concur

rently exchang ed both the firea rm and the coc aine f

or ca sh. I nstead, Def

endant argues that his car

rying of the firea

rm cannot have been in rela tion to his drug traff icking crime. The “in rela tion to” require ment is “expansive”; at a minimum , it means that “the firear

m must have some purpose or eff ect with respe ct t o the drug trafficking crime.” Smith , 508 U.S. at 237–38. Specifica lly , “its prese nce or involvement cannot be the re sult of acc ident or coincidenc e,” and its prese nce “at least must fac ilitate, or have the potential of fac ilitating, the drug traff icking offe nse.” Id. at 238 (interna l citation omitted). This cou rt l o oks to the totality of the

4circ umstances when deciding whether a fi rea rm has been car

ried in rela tion to a drug transac tion, not the specific intentions of the defe ndant. W arwick , 167 F.3d at 971. I n t h i s ca s e, the totality of the circ umstances indicates that the firea rm was not prese nt by

mere acc ident or coincidenc e, but was car ri ed t o fa ci l itate the drug transac tion. An example of a

mere acc ident or coincidenc e can be found in United States v. Nance , 40 F. App’x 59 (6th Cir. 2002) (unpublished). I n Nance , the defe ndant was in the proce ss of moving out of his apar tment when he

was caug ht by the police eng ag ing in a drug transac tion, at which time the police found firea rms in the trunk along side the rest of his belong ings. Id. at 66. Contrarily in t h i s ca s e, the firea rm’s prese nce was the exac t opposite of an acc ident or coincidenc e, beca use the C.I

. specific ally reque sted to purcha se a f

irea rm and De fenda

nt broug ht one to him. The fac t that Def

endant was car

rying this particula

r firea rm for sale and not ne cessa rily for his own prot ec t i o n d oes not prec lude a finding that he car ried the firea

rm to fac ilitate the drug
transac tion. This court reje cted this arg ument in W

arwick , noting that just beca use a “gun is trea ted momentarily as an item of commerc e does not rende r it inert,” since “it can be conver ted instantaneously from currenc y to cannon.” W arwick , 167 F.3d at 972 (quoting Smith , 508 U.S. at 240). At the very least, Defenda n t ’s p o s session of t he firear m’s components had the pot ential t o fac ilitate his drug traff

icking offe nse, which is sufficie nt to satisfy the “in rela tion to” element of § 924(c) (1)( A). Id. (“Indeed the evidenc e indicates that these firea rms at the very least had the potential of fac ilitating Warwick’s drug traff icking offe nses. The law require s no m o re.” ). This court has not previously had occa sion to addre ss the issue of whether the contempora

neous sale of drug s and a firea rm in e x chang e for money constitutes car rying a firea

rm during and in rela tion to a drug traff icking crime under § 924(c) (1)( A), but the Four th and Eleventh

5Circuits have answe red that question aff irmatively , albeit with slightly differ ent rea soning. United States v. Timmons , 283 F.3d 1246 (11th Cir. 2002); United States v. Lipfor d , 203 F.3d 259 (4th Cir. 2000). The Four

th Circuit based its decision on the notion that the offe r to purcha se firea rms along with drug s makes the sale more desirable to the seller, thus fac ilitating the transac tion in its entirety

. Lipfor d , 203 F.3d at 267. The cour t rea soned that: [A] drug purcha ser can often “swe eten the pot,” offe ring to purcha se not only drug s, but other illega l g oods as well. Where that other illega l g ood is a firea rm, that g un’s involvement in the transac tion is not “spontaneo u s” or “co- incidental;” on the contra ry , the firea

rm fac ilitates the drug transac tion, making it possible for the drug buy er to g et the drugseller to take the risks inhere nt in selling contra band. Id. Alterna tively , when the defe ndant in Timmons sold drug s and a firea rm to an underc over office r toge ther in a s h o eb o x , t he Eleventh Circuit examined the purpose of § 924(c) (1)( A), which is primarily “to combat the dang erous combination of drug s and g uns.” Timmons , 283 F.3d at 1251. The court rea soned that “it would flout the purpose of the statute to hold any thing but that the g un

was car ried ‘during and in rela tion’ to the drug offe nse” since the firea rm and drug s wer e contained i n t h e s am e box and sold simult aneously

. Id. at 1252 (citing § 924(c) (1)( A)). Given the fac tu al simil arity of those case s to this one and the consistency of the conclusions with this court’s prec edent in W arwick , we ag ree with the compelling re as o n i n g o f the Four th and Eleventh Circuits. Her e, gi v en that the C.I

. order ed a firea rm and drug s, and Def

endant dutifully delivere d the fi re ar m components and drug s as reque sted, it would indeed flout the purpose of § 924(c) (1)( A) wer e we to hold that the firea

rm did not facilitate the dr ug traff icking offe nse. CONCLUSION Be cause the district court did not commit err or when it denied Def endant- Ap p e ll a

nt Rocendo Rivera’ s motions for judgment of acquittal, we AF F IRM the judg ment of the district cour t.

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