UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 09-5153

v. (N.D. Oklahoma) CHRISTOPHER MICHAEL MCGINNIS, Defendant-Appellant. (D.C. No. 4:09-CR-00092-GKF-1)

ORDER AND JUDGMENT *

Before HENRY , PORFILIO , and BRORBY , Circuit Judges. **

A grand jury indicted the defenda nt Christopher Michae l McGinnis on four counts relating to the attempted manuf acture of methamphetamine: (1) knowingly and intentionally possessing pseudoephedrine with the intent to

* This order and judgment is no t binding precedent except under the doctrines of law of the case, res judicata, and coll ateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argume nt would not materially a ssist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitte d without oral argument. FILED United States Court of Appeals Tenth Circuit 

### June 29, 2010
Elisabeth A. Shumaker Clerk of Court-2- manufacture methamphetami ne, in violation of 21 U.S.C. § 841(c)(1) and 18 U.S.C. § 2; (2) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924( c)(1)(A)(i); ( 3) possess ing a firearm after having been convicted of a crim e punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924( a)(2); and (4) knowingly possessing a firearm while be ing subject to a state c ourt protective order, in violation of 18 U.S. C. §924(a)(2). Mr. McGinnis pleaded guilt y to the first, third, and fourth counts. He pleaded not guilty on the seco nd count, but was convicted af ter a jury tr ial. The district court sent enced Mr. McGinnis to 144 months ’ imprisonment on the three counts to which he pleaded guilty, followe d by a consecutive te rm of 60 months’ imprisonment on the § 924(c) violation. Mr. McGinnis now appeals, arguing that the evidence is insufficient to support the government’s allegation that he possessed a firearm in furtherance of a drug trafficking crime. We are not pe rsuaded and therefore affirm the § 924(c) conviction. I. BACKGROUND On April 1, 2009, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives, Tulsa Poli ce Department, and Clar emore Police Department conducted rolling surveillance of Cody Lee, a burglary suspect. Mr. Lee was-3- riding in a car with three other individuals, including Mr. McGinni s. Over a period of several hour s, the agents observed Mr. Le e, Mr. McGinnis, and their cohorts enter multiple dr ug stores and buy pseudoephedr ine and other precursor ingredients with which to ma nufacture methamphetamine. Based on surveillance, the agents deci ded to pull the suspect’s car over to conduct a search. They f ound pseudoephedrine, eight lithium batt eries, iodine tincture, a large white tub, a cell phone, a de vice used to smoke methamphetamine, and a digi tal scale. In Mr. Mc Ginnis’s pants pocket the officers found a Jennings, Mode l J22, .22 caliber pistol that was load ed with six rounds of ammunition. After receiving his Miranda warnings, Mr. McGinnis s poke to the officers. He admitted the items that he and his companions had purchased were related to the manufacture of methamphetamine and that they intended to manufacture the drug. During the trial, the government offered test imony from two agents from the Bureau of Alcohol, Tobacco, and Firear ms; two officers fro m the Tulsa Police Department; and an officer from the Claremore Police Department. Each of those officers participated in the rolling surveillance operation. Claremore Police Officer John Singer te stified that guns are commonly found on suspects involved in the production of methamphetamine.-4- Mr. McGinnis testified in support of his defense. He told the ju ry that he had purchased the .22 caliber pistol to pr otect himself from a violent drug gang. He explained that he had been assaulte d by members of the gang because he owed them an outstanding drug debt . He stated that he wa s hospitalized following the incident and received staples in the side of his head. II. DISCUSSION On appeal, Mr. McGinnis argues that th e evidence is insufficient to support the § 924(c) conviction. We review th e sufficiency of th e evidence de novo, taking all of the evidence in the light most favorable to the jury verdict and drawing all reasonable inferences that s upport the verdict. United States v. Wright , 506 F.3rd 1293, 1297 (10th Cir. 2007). One part of section 924 (c) prohib its the possession of a firearm “in furtherance of” a drug trafficking crime. In orde r to establish a conviction under this theory, the government must establish that the defendant (1) committed a drug trafficking crime; (2) possessed a firearm; and (3 ) possessed th e firearm in furtherance of the underlying crime. See United States v. Poe , 556 F.3d 1113, 1127 (10th Cir.), cert. denied , 130 S. Ct. 395, (2009). Here, Mr. McGinnis challenges only the third elemen t. He argues that the ev idence established that he possessed the pistol to pr otect himself from a drug gang but not that he possessed-5- it “in furtherance of” the crime of possessing pseudoephedrine with the intent to manufacture methamphetamine. A firearm is possessed in furtherance of a drug trafficking cr ime if it assists promotes, or aids in accomp lishing, advanci ng or achieving th e goal or objective of the underlyi ng offense. United States v. Rockey , 449 F.3d 1099, 1103 (10th Cir. 2006). “[T]he mere pres ence of a firearm at the scene of a drug trafficking crime is not sufficient to establish the ‘in furtherance’ element of § 924(c)(2).” Id. In addition, expert te stimony that drug traffickers generally use firearms to further their drug crimes, st anding alone, is not sufficie nt to establish the infurtherance-of element. See United States v. Rios , 449 F.3d 1009, 1014 (9th Cir. 2006) (examining H.R. Rep. No. 105-344, at 12, to find that the legislative response to Bailey v. United States , 516 U.S. 137 (1995), wa s to state that “[s]tanding on its own, [e xpert testimony that drug dealers typical ly possess guns] may be insufficient to meet the ‘in furt herance of’ test”). Rather, the in-furtherance element requires the jury to find “a nexus between the defendant’s po ssession of the firearm and the drug offense.” United States v. Thorpe , 447 F.3d 565, 568 (8th Cir. 2006). “[A] sufficient nexus exists where the firearm protects dr ug stockpiles or the defenda nt’s territory, enforces payment for the drugs, or guards the sale s proceeds.” United States v. Sherman , 551 F.3d 45, 49-50 (1st Cir. 20 08) (citations omitted); see United States v.-6- Coleman , 603 F.3d 496, 501(8th Ci r. 2010) (holding that a gun discovered “in close proximity” to drugs supported “an inference that the firearm was for the protection of the drugs”) (i nternal quotation marks omitte d). The element is also satisfied when a fir earm is “kept av ailable for use should it be needed during a drug transaction, and the de fendant intended the firearm to be accessible for that
purpose. Poe , 556 F.3d at 1127. This circuit has c oncluded that the jury may cons ider a variety of factors in determining whether a defendant has posse ssed a firearm in furtherance of the underlying crime. The factor s include (1) the type of drug activity that is being conducted; (2) the accessibilit y of the firearm; (3) the type of fire arm involved; (4) whether the possession of the firearm is illegal or legitimate; (5) whether the gun is loaded; (6) the proximity of the fir earm to drugs or drug profits; and (7) the time and circumstances un der which the gun is found. United States v. Lott , 310 F.3d 1231, 1247 ( 10th Cir. 2002). 1

1 The Ninth Circuit has “expressly condemned the notion that loaded or unregistered firearms are pa rticularly indicative of dr ug trafficking [crimes]” and holds instead that “suffici ent evidence supports a c onviction under § 924(c) when facts in evidence reveal a nexus between the gun[] di scovered and the underlying offense.” United States v. Mann , 389 F.3d 869, 879 (9th Cir. 2004) (internal quotation marks omitted). The Ninth Circuit has decided th at a factor test similar to the kind employed by the Te nth Circuit is “not helpfu l in all cases since it [does] not ‘distinguish possession for th e promotion of drug trafficking from possession for other, perhap s legitimate, purposes.” United States v. Mosley , 465 F.3d 412, 416 (9th Cir. 2006) (quoting United States v. Krouse , 370 F.3d 965, 968 (9th Cir. 2004)). Distinguishing between legitimate and il legitimate purposes for possessing firearms near the locus of drug activity is why the Ninth Circuit-7- We considered these factors in Rockey , 449 F.3d at 1103. There, the defendant was found with “[a] small black bag cont aining a loaded Ruger Super Blackhawk .44 Magnum affixed with a scope, as well as lith ium batteries, a syringe, a bottle of iodine, and [a] plastic baggie containing ephedrine.” Id

. at 1102. We concluded that “[b]ased on this evidence, a rational jury could conclude that [the de fendant] possessed a firearm in furtherance of a drug trafficking crime—his possession of ephedrine.” Id

. at 1103. In contrast, in United States v. Iiland law enforcement agents discovered weapons in the defendant’s residence and cocaine in a storage unit that he had rented. 254 F.3d 1264, 1268 (10th Cir. 2001). We conclude d that the evidence was insufficient to establish that he had possessed the weapons in furtherance of a drug trafficking crime. Id . at 1274. We reasoned that “[t]here was no evidence that the g un and drugs were ever kept in the same place or that [the defe ndant] ever kept the gun accessible when conducting drug transactions.” Id. We noted that “[t]he fact that drug dealers in general often carry guns for protection is insufficient to show possession in furtherance of drug activity in [the defendant’s] particular case.” Id. Here, several factors support the jury ’s determination that Mr. McGinnis possessed the .22 caliber pistol in furthe rance of a drug trafficking crime— knowingly and intentionally possessing pseudoeph edrine with the intent to manufacture methamphetamine. First, the officers discove red the pistol in Mr. McGinnis’s pants

has abandoned a “‘checklist’ approach to determining whether a firearm was possessed ‘in furtherance’ of a drug trafficking offense.” Id at 415.-8- pocket, making it readily accessible to him. 2 In addition, the fire arm was loaded, and Mr. McGinnis did not legally possess it. The proxim ity of the firearm to the materials to be used to manufacture methamphetamine also su pports the jury’s finding. Mr. McGinnis purchased the pseudoephedrine with the gun in his pocket and carried the gun in the car where the materials were stored. Accordingly, we conclude that the gove rnment presented sufficient circumstantial evidence to allow a reasonable jury to infer that the loaded .2 2 caliber pistol in his pants pocket was used in furtherance of Mr. McGi nnis’s possession of pseudoephedrine with the intent to manufacture methamphetamine. III. CONCLUSION For the foregoing reasons, we affirm M r. McGinnis’s § 924(c) conviction. Entered for the Court,

Robert H. Henry Circuit Judge

2 Compare with Rockey , where the court noted that “a drug dealer whose only firearms are unloaded antiques mounted on the wall does not possess those firearms ‘in furtherance’ of a drug trafficking crime, ” and that “[s]imilarly, a drug trafficker who engages in target shooting or in hunti ng game likely [will not] violate the law by keepi ng a pistol for that purpose that is otherwise locked and inaccessible.” 449 F.3d at 1103 (i nternal quotation marks omitted).