Something about "carry": Supreme Court broadens the scope of 18 U.S.C. sec. 924(C).

• Author: Marsella, Lynn

Muscarello v. United States, 118 S. Ct. 1911 (1998)

1. INTRODUCTION

   In Muscarello v. United States,(1) the Supreme Court held that the phrase "carries a firearm" for the purposes of 18 U.S.C. [sections] 924(c)(1)(2) "applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies."(3) Rejecting the argument that "carries" applies only to firearms carried on the person, the Court reasoned that the statutory language and legislative history of [sections] 924 supported the application of the statute to firearms "carried" in vehicles as well.(4)

   This Note argues that the Court properly expanded the scope of 18 U.S.C. [sections] 924 (c)(1) to include guns "carried" in vehicles during and in relation to drug trafficking crimes.(5) The Note explains how the text and policy goals of [sections] 924 justify the Court's holding.(6) In addition, this Note discusses a double standard created by the Muscarello decision, which results in stricter punishments for defendants who "carry" guns in a vehicle than for those who store guns nearby in a non-vehicular situation.(7) Ultimately, this Note concludes that amending 18 U.S.C. [sections] 924 to replace the language "uses or carries a firearm" with the phrase "possesses a firearm" would solve the double standard created by Muscarello.(8)

2. BACKGROUND

   1. LEGISLATIVE HISTORY OF 18 U.S.C. [sections] 924 (C)(1)

      Federal law mandates a minimum five-year sentence enhancement for anyone who, "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm."(9) This law, when originally adopted as part of the Gun Control Act of 1968, did not initially reach drug crimes. In 1968, 18 U.S.C. [sections] 924 provided that,

      (c) Whoever(1) (1) uses a firearm to commit any felony which may be prosecuted in a court of the United States, or (2) carries a firearm unlawfully during the commission of any felony which may be prosecuted in a court of the United States, shall be sentenced to a term of imprisonment for not less than one year nor more than 10 years.(10) In 1984, Congress amended the statute by changing the scope from "any felony" to "any crime of violence."(11) In addition, it combined the "use" and "carry" provisions, and added the "during and in relation to" language.(12) The amendment also eliminated the requirement that the firearm be carried "unlawfully," and increased the mandatory minimum sentence from one year to five.(13)

      In 1986, Congress specifically added drug trafficking as a predicate offense under the Firearm Owners' Protection Act.(14) This amendment corrected confusion in the courts of appeals about whether drug trafficking constituted a "crime of violence" under the statute.(15) The Attorney General's Office requested that Congress further amend the language of [sections] 924 to include drug crimes in light of the fact that "criminals involved in drug trafficking may often carry or use firearms during the commission of drug-related felonies."(16) Congress complied.(17) The new language made clear Congress's desire to "treat armed drug trafficking as seriously as we do other armed felonies threatening public safety."(18)

   2. JUDICIAL NARROWING OF THE "USE" PRONG

      The circuit courts of appeals did not agree on the proper interpretation of the term "uses" within 18 U.S.C. [sections] 924(c)(1). The First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C. circuits applied a "drug fortress" theory, premised on the idea that firearms on the premises could be used to protect drugs and cash, thereby creating a "drug fortress."(19) In contrast, the Second and Third Circuits used a "ready access theory," under which the possessor of the firearm "used" the weapon if he either intended to have it available for possible use during the crime or had it "strategically located so as to be quickly and easily available for use during such a transaction."(20)

      The Supreme Court first interpreted the "use" language of 18 U.S.C. [sections] 924 to determine whether bartering guns for drugs constituted "use" of a firearm.(21) The Circuits were split on the issue.(22) The Courts of Appeals for the Eleventh Circuit and the District of Columbia Circuit held that using a gun as barter in a drug trade constituted "using a firearm" in relation to a drug crime under [sections] 924(c)(1).(23) The Ninth Circuit, in contrast, held that trading a gun during a drug transaction did not qualify as using a firearm in relation to the drug offense.(24)

      In Smith v. United States, the Supreme Court held that trading a gun in exchange for drugs constitutes "use" under 18 U.S.C. [sections] 924 (c)(1).(25) The petitioner in Smith argued that because he had not "fired the MAC-10, threatened anyone with it, or employed it for self-protection" he had not actually "used" the firearm under [sections] 924.(26) Persuaded by the petitioner's arguments, the dissent found that "to use an instrumentality ordinarily means to use it for its intended purpose."(27)

      The Court, however, interpreted the word "use" more broadly, and reasoned that the fact "that one example of `use' is the first to come to mind when the phrase `uses ... a firearm' is uttered does not preclude us from recognizing that there are other `uses' that qualify as well."(28) According to the Court, the "petitioner `used' his MAC-10 in an attempt to obtain drugs by offering to trade it for cocaine," and thus "used" a weapon in relation to a drug offense in violation of [sections] 924.(29) The Smith decision clarified that a defendant did not have to use a firearm in a traditional sense--for example, by brandishing or firing it--to have "used" it under [sections] 924.(30)

      Two years after the Smith decision, the Court significantly narrowed the scope of the "use" language in Bailey v. United States.(31) In a unanimous decision, the Court held that "to sustain a conviction under the `use' prong of 18 U.S.C. [sections] 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime."(32) The Supreme Court rejected the accessibility and proximity test, and instead held that in order to sustain a conviction under [sections] 924, one must show "active employment" of a firearm in a manner that "makes the firearm an operative factor in relation to the predicate offense."(33) The Court based its conclusion on "the language, context, and history" of [sections] 924. The Court went on to define active employment as including "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm," as well as "a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense."(34)

      This definition of "use," the Court reasoned, "preserves a meaningful role for `carries' as an alternative basis for a charge."(35) A broader definition of "use" would have left virtually no meaning for "carry"--if any gun put into place near a drug crime constituted "use," the "carry" prong would be unnecessary.(36) The presence of the gun on the scene would satisfy the use prong, whether the defendant "carried" the gun or not; therefore, a defendant could never "carry" but not "use" a firearm.(37) The Court assumed that Congress "intended each term to have a particular, nonsuperfluous meaning," and thus found a narrower definition of "use" necessary to preserve the weight of the "carry" language.(38)

   3. POST-BAILEY JUDICIAL TREATMENT OF THE "CARRY" PRONG

      The Court remanded Bailey for consideration under the carry prong of 18 U.S.C. [sections] 924. However, lower courts differed greatly in their determinations of what actions fell within the scope of the term "carry" as well.(39) All the courts of appeals eventually agreed that weapons in vehicles were "carried" under [sections] 924.(40) However, they varied considerably in the application of this general rule.

      The Second, Sixth, and Ninth Circuits required a showing of immediate availability of the firearm along with transport.(41) Transport meant that the defendant must have carried the firearm "on or about his person," but in the case of automobiles, the vehicle carried both the weapon and the defendant, satisfying the transport requirement.(42) Under the Second Circuit's analysis, "a person cannot be said to `carry' a firearm without at least a showing that the gun is within reach during the commission of the drug offense."(43) The Ninth Circuit, after noting that "circuits all over the map are all over the map on the issue," adopted a similar approach.(44) The Sixth Circuit used a slightly more expansive definition of "immediate availability," which included a weapon "in a location where the defendant must make some effort in order to retrieve it."(45)

      The Fourth, Seventh, and Tenth Circuits, although requiring availability of the weapon and transport in non-vehicular cases, held that a gun could be "carried" in a vehicle without being immediately accessible.(46) The Seventh Circuit considered the issue in United States v. Molina, which involved drugs and a gun stored together in a secret compartment on the driver's-side wall of the back seat.(47) The compartment contained electronic wiring, which led investigators to believe it could be opened from the front seat.(48) The court held that it "need not conclude that the gun was within Molina's immediate reach" in order to uphold the defendant's conviction.(49) Rather, the court ruled that the movement of guns and drugs stored together in an automobile satisfies the "in relation to" and "carry" prongs of 18 U.S.C. [sections] 924.(50) This view is consistent with the Tenth Circuit's conclusion that "when a motor vehicle is used, `carrying a weapon' takes on a less restrictive meaning than carrying on the person."(51) The automobile "carries" the weapon, just as a defendant's...