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United States v. Cotto

Court of Appeals for the First Circuit
2006 U.S. App. LEXIS 19430, 2006 WL 2141737, 456 F.3d 25 (2006)
ELI5:

Rule of Law:

Bartering drugs in exchange for firearms constitutes the 'use' of firearms within the meaning of 18 U.S.C. § 924(c)(1)(A), subjecting the defendant to mandatory sentencing enhancements.


Facts:

  • Jose Cotto, Jr. was a heroin dealer who established a business relationship with Amanda Tew, a teenager living with her grandparents.
  • Tew stole firearms from her grandfather's basement and bartered them with Cotto in exchange for heroin approximately twenty times between 1999 and 2000.
  • Cotto's standard practice was to inspect the firearm and then pay Tew with a 'brick' or several 'bundles' of heroin.
  • After being arrested, Tew agreed to cooperate with the ATF and arranged a recorded meeting with Cotto to trade more guns for drugs.
  • On July 11, 2000, Cotto met Tew at a parking lot where Tew presented him with three firearms supplied by the ATF (a MAC-11 and two handguns).
  • Cotto inspected the weapons and moved them into the trunk of his own vehicle.
  • Federal agents arrested Cotto immediately after he took possession of the guns.
  • At the time of arrest, Cotto possessed two bundles of heroin and cash intended for the transaction, though he had not yet physically handed the drugs to Tew.

Procedural Posture:

  • The government charged Cotto in the U.S. District Court for the District of Massachusetts with being a felon in possession of a firearm and using a firearm during a drug trafficking crime.
  • Cotto pled guilty to the felon-in-possession count but proceeded to trial on the § 924(c) 'use' count.
  • The jury convicted Cotto on the § 924(c) count.
  • The District Court sentenced Cotto to a total of 144 months of imprisonment (84 months for possession and 60 consecutive months for the § 924(c) count).
  • Cotto filed an appeal with the United States Court of Appeals for the First Circuit challenging the sufficiency of the evidence for the 'use' conviction and the sentencing procedure.

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Issue:

Does a defendant 'use' a firearm during a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) when he trades drugs in order to obtain the weapon, rather than trading the weapon to obtain drugs?


Opinions:

Majority - Lynch

Yes, trading drugs to acquire a firearm constitutes 'use' of that firearm during a drug trafficking crime. The court relied heavily on the Supreme Court's decision in Smith v. United States, which held that trading a gun for drugs is 'use,' and Bailey v. United States, which requires 'active employment' of the weapon. The court reasoned that receiving a gun is not passive; Cotto required the guns as payment, inspected them, and accepted them to close the drug transaction. The court rejected the 'metaphysical distinction' between bartering with a firearm (giving it) and bartering for a firearm (receiving it), noting that in both scenarios, the firearm is an operative factor in the commercial transaction. The court further noted that Congress intended to punish the dangerous combination of drugs and guns, regardless of which side of the transaction the gun originated from.



Analysis:

This decision deepens a circuit split regarding the interpretation of 'use' under § 924(c). While the Supreme Court had previously established in Smith that trading a gun for drugs is use, the First Circuit here joins the Third, Fifth, Eighth, and Ninth Circuits in applying the inverse: that trading drugs for a gun is also use. This rejects the narrower interpretation held by the Sixth, Seventh, Eleventh, and D.C. Circuits. The legal significance lies in the expansion of mandatory minimum sentencing liability; drug dealers who accept weapons as currency are now liable for the additional firearms charge, even if the weapon was never brandished or used for protection. The court effectively treats the firearm as a form of currency that, due to its dangerous nature, triggers the statute regardless of the direction of the exchange.

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