Watson v. United States and "use" of a gun in drug crimes

This is a sad case all the way around, though it is relieved by one small bit of wording humor. Let's get the humor out of the way quickly and then we get to sadness. The question, to use language of a Supreme Court Justice, is whether trading drugs in order to obtain an unloaded firearm triggers the federal firearms law imposing a mandatory consecutive sentence of at least five years' imprisonment on the defendant. Ok, humor over. Let's begin with the law. It says:

"[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...," 18 USC 924(c)(1)(A).

According to a later section of the law, these five years are additional years (additional to whatever penalty you get for having, buying, conspiring to sell, etc. the drugs). If you merely have the gun with you when you do the transaction, you get five additional years; you get seven years if you "brandish" it; ten years are awarded if you "discharge" it. And then, if you kill people, well, the sky is the limit.

The crucial point in this case is whether, under the facts I will now tell you, Mr. Watson "used" the firearm in this instance. It is almost as technical and interesting a question as what "is" "is."

Facts of the Case

These facts are in the petitioner's brief, so a few will be designed to tug on the heart strings of judges. But judges are notoriously hard to appeal to on that level, especially if drugs are involved. Well, Mr. Watson was 55, legally blind, and living in Louisiana. He wanted a gun to protect himself. So, for some unexplained reason he met with a government informant who suggested to Watson that he could get him a gun in exchange for drugs. Watson procured the drugs, 24 dosage units of oxycodone hydrochloride (OxyContin), gave them to the agent, who placed an unloaded gun in Watson's possession. Sometime later he arrested him. This is what was happening to one man in Louisiana the year before Katrina hit.

So, Watson was indicted in federal court. The only problem was (well, it wasn't the only problem) that Watson had two prior felonies, even though they happened more than 15 years previously. No matter. Felonies come back to bite you. They did here. So, he was indicted for three things: (1) the sale of the drugs; (2) the use of a firearm in relation to the drug trafficking offense (under the statute bolded above) and (3) possession of a firearm by a convicted felon. Watson and the government entered into a plea agreement, pleading guilty to all three charges though reserving the right to challenge whether his conduct constituted a violation of (2).

And, then, the sentencing judge went to town. He accepted the guilty pleas and concluded that Watson's conduct did violate the gun statute above. Thus, he would get the five extra years. But five years added to what? Well, the judge first concluded that he was an armed career criminal because of his two prior felony convictions, and that the sentencing range for Counts 1 and 3 was between 151-188 months. But, there is a catch. When the conviction for Counts 1 and 3 includes also a violation of sec. 924(c), the career offender Guidelines require a significantly higher minimum sentence. This led to an advisory Guideline range of 262-327 months--a really long time.

Well, I won't bore you with all the numbers. Suffice it to say that when the judge ended up adding, subtracting, adding the five years of sec. 924, using his good judgment, etc. Mr. Watson got a sentence of 262 months imprisonment. This, friends, is more than 21 years. Since Mr. Watson is now 58 years old, that means that he ought to plan to spend almost the rest of his life in a federal penitentiary.

Looking at the Law

An interesting question that this case broaches, that it doesn't intend to broach, is how the "numbers" work in sentencing. Maybe Mr. Watson is indeed a really bad guy who is a "career criminal," but maybe the numbers here are a little high. I also don't know Mr. Watson's race. Do you?

Well, here is the issue, pure and simple, as stated in the petition for review:

"Whether mere receipt of an unloaded firearm as payment for drugs constitutes “use” of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. § 924(c)(1)(A) and this Court's decision in Bailey."

The Bailey case is at 516 US 137 (1995). That case defines the word "use" in the statute quoted near the beginning of this essay. According to Bailey, "use" of a firearm under 924(c)(1) means the "active employment of the firearm by the defendant," Id. at 143. Yet, the circuit courts are divided as to whether the scenario described in this case constitutes "use" of a firearm. Some say it does; some say it doesn't. That is for the Court to decide.

It seems to me that the most natural reading of the statute, and its original intent, had to do with people who made use of a gun when they were pulling off a drug deal. That is, the law meant to get at violent criminals who engage in drug deals. Yet, laws "grow" with time, especially when you have ingenious prosecutors bringing charges and "tough on crime" judges handing down decisions.

But, in the meantime, and for a great deal of time after the meantime, Mr. Watson will sit in prison in Louisiana for his offense. That is the one sure thing from this case...Well, the other sure thing is that the Supreme Court will decide it. And it did so here.

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