On October 9, 2007, the Court will hear oral arguments in Watson v. US.
Watson revolves around the question of whether or not the presence of a firearm in a drug exchange consitutes ‘use’ as it applies to sentencing provisions. If an individual is convicted of using a firearm within the context of a drug deal, a mandatory sentence must be added to their sentence. 18 U.S.C 924(c)(1)(a) reads:
… [A]ny person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or … 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;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
In 1993, the Supreme Court held in Smith v. US that trading guns for drugs does constitute ‘use’ under Section 924. The vote in Smith was 6-3, with Justices Scalia, Stevens, and Souter dissenting.
In 1996, the Court unanimously held in Bailey v. US that simple possession of a gun did not constitute ‘use’ under Section 924. Defendant Bailey was convicted of gun possession under Section 924 when officers found a gun stashed in a bag in the trunk of his car after cocaine was found during a routine traffic stop. Bailey differed from Smith in the fact that guns had been traded in Smith while guns were simply present at the scene of the crime in Bailey. In Bailey the Court held that:
Section 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense. Evidence of the proximity and accessibility of the firearm to drugs or drug proceeds is not alone sufficient to support a conviction for “use” under the statute.
Based on the Court’s analysis in Bailey it is obvious that a multi-tier punishment structure was not in place when defendent Bailey committed the crime in question. Justice O’Connor clarifies that “[t]he active employment understanding of “use” certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm” but her analysis is irrelevant now that the new sentencing structure has made those different categories. A 1995 article (JSTOR subscription required) in the Journal of Criminal Law and Criminology includes a rather detailed amendment history of Section 924 but makes no mention of the inclusion of new classifications for brandishing and discharging a weapon. A Sixth Circuit ruling from 2000 includes the multi-tier system.
It appears as though the Court has accepted review in this case in order to clarify a very clear circuit split. Justices Scalia, Stevens, and Souter may also believe that they have gained the necessary votes to overturn the Court’s ruling in Smith 14 years ago.
In my opinion, the fact that the statute takes into account the ‘active deployment’ of a firearm as a specific instance means that the simpler act of possessing a firearm is enough to define ‘use.’ If it were not, the mandatory 5-year imprisonment would be irrelevant to sentencing structures. This statute has very specifically set aside three classes of weapons possession: (1) possession, (2) presentation, and (3) employment. The Court should dispose of this case very easily. I expect to see this case be one of the first decided and the Court will hand down its ruling in mid-November.
You can always find more information about upcoming cases before the court at our 2007 Term Case Index.