United States v. Lomax ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4487
CLARENCE J. LOMAX,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-00-406)
Argued: May 9, 2002
Decided: June 14, 2002
Before WILKINSON, Chief Judge, and WILLIAMS and
KING, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Williams and Judge King joined.
COUNSEL
ARGUED: Brian Jay Grossman, ECK, COLLINS & MARSTILLER,
Richmond, Virginia, for Appellant. Stephen Wiley Miller, Assistant
United States Attorney, Richmond, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Richmond, Vir-
ginia, for Appellee.
2 UNITED STATES v. LOMAX
OPINION
WILKINSON, Chief Judge:
In the wake of Bailey v. United States, 516 U.S. 137 (1995), Con-
gress amended 18 U.S.C. § 924(c) to criminalize the "possession" of
a firearm "in furtherance of" certain crimes. Defendant Clarence
Lomax was indicted and found guilty of, inter alia, possession of a
firearm in furtherance of a drug trafficking crime under the amended
version of § 924(c). Lomax contends that there was insufficient evi-
dence to convict him. However, the evidence was clearly sufficient
for a rational trier of fact to find Lomax guilty. We therefore affirm.
I.
On December 2, 2000, Clarence Lomax placed a 911 call while in
a state of cocaine-induced paranoia. When Richmond Police Officer
Steven Jones responded to the call, he observed Lomax running
toward him with a clearly visible 9mm semiautomatic pistol in his
right hand. Following Jones’ instructions, Lomax eventually tossed
down his weapon and got to the ground. As Officer Jones approached,
Lomax pulled a plastic bag out of his pants pocket and placed it under
his body. Jones recovered the bag during Lomax’s arrest, and it was
later found to contain nineteen individually wrapped packages of
cocaine base (crack).
Lomax was subsequently charged in a nine-count federal indict-
ment with drug and weapons offenses stemming from this December
2 incident and from unrelated events on May 7, 2000. After a bench
trial, the district court convicted Lomax on, inter alia, the following
counts arising from the December 2 incident: possession of cocaine
base with the intent to distribute, in violation of 21 U.S.C. § 841; pos-
session of cocaine base, in violation of 21 U.S.C. § 844; possession
of a firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c); and possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1).
The district court denied Lomax’s motion for a judgment of acquit-
tal with respect to the § 841 and § 924(c) counts. As the fact finder,
UNITED STATES v. LOMAX 3
the district court first concluded that Lomax intended to distribute the
nineteen "hits" of crack to his friends. Next, the court found that there
was "a nexus between [Lomax’s] possession of the gun and the drugs
because the only thing of value that [Lomax] had on him was the
drugs." The district court explained that Lomax "wouldn’t be waving
a heavy duty 9 millimeter firearm unless it was for the purpose of pro-
tecting something of value, which the drugs would have been." And
the court stressed that "obviously you don’t have a 9 millimeter for
shooting rats in a dump or starlings or pigeons or anything. That is
a weapon that you would use for protecting something of value."
The district court sentenced Lomax as an armed career criminal to
concurrent terms of 210 months imprisonment on various drug and
firearms offenses, and to a consecutive term of 60 months imprison-
ment on the § 924(c) violation. Lomax appeals his conviction under
§ 924(c) for possession of a firearm in furtherance of a drug traffick-
ing crime.*
II.
Section 924(c) currently provides in relevant part that:
any person who, during and in relation to any crime of vio-
lence 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, pos-
sesses a firearm, shall, in addition to the punishment pro-
vided for such crime of violence or drug trafficking crime
—
*Lomax also appeals the district court’s enhancement of his sentence
under the armed career criminal provision of 18 U.S.C. § 924(e), claim-
ing that the application of § 924(e) violated Apprendi v. New Jersey, 530
U.S. 466 (2000), because his prior convictions were not alleged in his
indictment. Lomax’s contention is without merit because Apprendi
expressly excluded prior convictions from its holding. Apprendi, 530
U.S. at 490; see also, e.g., United States v. Skidmore, 254 F.3d 635, 642
(7th Cir. 2001) (holding that Apprendi does not affect enhanced sentence
under § 924(e) and citing cases).
4 UNITED STATES v. LOMAX
(i) be sentenced to a term of imprisonment of not less than
5 years[.]
18 U.S.C. § 924(c)(1)(A). The provision of § 924(c) criminalizing the
"possession" of a gun "in furtherance of" a crime of violence or drug
trafficking crime was added by Congress in 1998 in the wake of the
Supreme Court’s decision in Bailey.
Bailey dealt with a prior version of the statute that did not mention
possession, and instead prohibited only using or carrying a firearm
"during and in relation to" a crime of violence or drug trafficking. See
Bailey, 516 U.S. at 138. The Bailey Court rejected a broad interpreta-
tion of "use," holding that it required "evidence sufficient to show an
active employment of the firearm by the defendant." Id. at 143. The
Court stressed that Congress’ choice of the word "use" implied that
the mere possession of a firearm was insufficient to sustain a convic-
tion under § 924(c). Id. at 143, 148, 150. And the Court noted that if
"Congress intended possession alone to trigger liability under
§ 924(c)(1), it easily could have so provided." Id. at 143.
In response to Bailey, Congress amended § 924(c) to indicate just
such an intention. By adding the "possession in furtherance of" lan-
guage, Congress meant to broaden the reach of the statute beyond the
Supreme Court’s narrow construction. See, e.g., United States v.
Ceballos-Torres, 218 F.3d 409, 413 (5th Cir. 2000), cert. denied, 531
U.S. 1102 (2001). Indeed, "[t]he legislative history indicates that the
amended version of the statute added the phrase criminalizing posses-
sion ‘in furtherance of’ a drug trafficking crime in order to ‘reverse
the restrictive effect of the Bailey decision.’" United States v. Tim-
mons, 283 F.3d 1246, 1252 (11th Cir. 2002) (quoting House Report).
Because Lomax was convicted under the new provision of § 924(c),
not under the "use" or "carry" prongs, the Bailey decision and the sub-
sequent amendment of the statute provide the context for the proper
resolution of this case.
III.
A.
Lomax claims that there was insufficient evidence to support his
conviction under § 924(c). Lomax does not challenge that he commit-
UNITED STATES v. LOMAX 5
ted a drug trafficking crime by possessing nineteen individually
wrapped packages of crack cocaine with the intent to distribute. Nor
does he dispute that he simultaneously possessed the drugs and a
9mm semiautomatic pistol. Instead, Lomax asserts that there was
insufficient evidence from which the fact finder could conclude that
he possessed the gun "in furtherance of" his drug trafficking activity.
In reviewing the sufficiency of the evidence following a convic-
tion, this court views "the evidence and the reasonable inferences to
be drawn therefrom in the light most favorable to the Government."
United States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en banc).
And we must sustain the fact finder’s verdict if "any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt." United States v. Myers, 280 F.3d 407, 415 (4th
Cir. 2002) (internal quotation omitted); see also, e.g., Burgos, 94 F.3d
at 862-63. Furthermore, "determinations of credibility are within the
sole province of the [fact finder] and are not susceptible to judicial
review." Burgos, 94 F.3d at 863 (internal quotation omitted).
In determining what evidence is sufficient to establish a violation
of § 924(c), the statutory term "furtherance" should be given its plain
meaning. According to the dictionary, "furtherance" means "[t]he act
of furthering, advancing, or helping forward." Webster’s II New Col-
lege Dictionary 454 (1999); see also, e.g., Ceballos-Torres, 218 F.3d
at 412. We agree with our sister circuits that adopting this interpreta-
tion of "furtherance" is consistent with Congress’ intent in amending
§ 924(c). See Timmons, 283 F.3d at 1252; United States v. Mackey,
265 F.3d 457, 460-61 (6th Cir. 2001), cert. denied, 122 S. Ct. 849(2002); Ceballos-Torres, 218 F.3d at 415. But see United States v.
Iiland, 254 F.3d 1264, 1271, 1274 (10th Cir. 2001). Therefore,
§ 924(c) requires the government to present evidence indicating that
the possession of a firearm furthered, advanced, or helped forward a
drug trafficking crime. However, whether the firearm served such a
purpose is ultimately a factual question. See, e.g., Myers, 280 F.3d at
415; Ceballos-Torres, 218 F.3d at 411.
When making this factual determination, the fact finder is free to
consider the numerous ways in which a firearm might further or
advance drug trafficking. For example, a gun could provide a defense
against someone trying to steal drugs or drug profits, or it might
6 UNITED STATES v. LOMAX
lessen the chance that a robbery would even be attempted. Addition-
ally, a gun might enable a drug trafficker to ensure that he collects
during a drug deal. And a gun could serve as protection in the event
that a deal turns sour. Or it might prevent a transaction from turning
sour in the first place. Furthermore, a firearm could help a drug traf-
ficker defend his turf by deterring others from operating in the same
area. See Ceballos-Torres, 218 F.3d at 412.
Moreover, there are many factors that might lead a fact finder to
conclude that a connection existed between a defendant’s possession
of a firearm and his drug trafficking activity. Some of these factors
may include, but are not limited to: "the type of drug activity that is
being conducted, accessibility of the firearm, the type of weapon,
whether the weapon is stolen, the status of the possession (legitimate
or illegal), whether the gun is loaded, proximity to drugs or drug prof-
its, and the time and circumstances under which the gun is found."
Ceballos-Torres, 218 F.3d at 414-15; see also Timmons, 283 F.3d at
1253; United States v. Basham, 268 F.3d 1199, 1206-08 (10th Cir.
2001), cert. denied, 122 S. Ct. 1336 (2002); Mackey, 265 F.3d at 462.
B.
In this case, there was more than sufficient evidence presented at
the bench trial to support the district court’s finding that Lomax pos-
sessed a firearm in furtherance of a drug trafficking crime. Lomax had
nineteen hits of crack on his person, and he has not challenged his
conviction for possession with the intent to distribute. In finding a
nexus between this drug trafficking activity and Lomax’s simulta-
neous possession of a semiautomatic pistol, the district court stressed
that Lomax "wouldn’t be waving a heavy duty 9 millimeter firearm
unless it was for the purpose of protecting something of value." The
court also noted that the only thing of value Lomax had on him was
the crack.
Furthermore, Lomax’s weapon was fully loaded and immediately
accessible to him as he ran down the street holding it. And the firearm
was clearly in close proximity to the drugs — Lomax carried the gun
in his right hand and had the cocaine in his pants pocket. In addition,
Lomax’s possession of the gun was illegal because he was a felon in
possession of a firearm. Moreover, the gun was discovered at night
UNITED STATES v. LOMAX 7
under circumstances indicating that Lomax was involved in drug traf-
ficking. The police found him with individually packaged hits of
crack, and he had called 911 in a cocaine-induced paranoia.
Given this abundance of evidence, the district court could easily
have concluded that Lomax possessed the firearm in furtherance of
drug trafficking. In fact, carrying a firearm during a drug trafficking
crime like Lomax did will "always seem to constitute ‘possession in
furtherance’" because "carrying a firearm always serves to protect the
holder." Ceballos-Torres, 218 F.3d at 413.
Lomax’s contention that there was insufficient evidence to show a
connection between the firearm and the drugs is without merit. It is
true that at trial Lomax offered an alternate explanation for why he
had the gun. He claimed that he was carrying it because he feared
someone was after him due to a misunderstanding about a woman.
However, the district court was not required to accept Lomax’s
account of the events, and we cannot second guess the district court’s
credibility determination. See, e.g., Burgos, 94 F.3d at 863. We there-
fore refuse to disturb the district court’s verdict on appeal.
IV.
Fact finders are not required to blind themselves to the unfortunate
reality that drugs and guns all too often go hand in hand. Indeed,
§ 924(c)’s purpose has been described "as an effort to combat the dan-
gerous combination of drugs and guns." Muscarello v. United States,
524 U.S. 125, 132 (1998) (internal quotation omitted). Therefore, a
fact finder is certainly entitled to come to the common-sense conclu-
sion that when someone has both drugs and a firearm on their person,
the gun is present to further drug trafficking. For the foregoing rea-
sons, we affirm the judgment of the district court.
AFFIRMED