Argument Preview

By Lauren Beck

Watson v. United States, No. 06-571, presents the question whether receipt of an unloaded firearm as payment for drugs constitutes "use" of a firearm during and in relation to a drug offense. If such receipt does qualify as "use," it would prompt a greater sanction under federal drug trafficking statutes.


Petitioner Michael Watson is a fifty-five-year-old legally blind man with two prior state felony convictions. Seeking to protect himself and his property, he discussed his desire to purchase a gun with a government informant who was assisting law enforcement officers in investigating Watson's potential drug trafficking activities. The informant told Watson that he could assist him in acquiring a gun, but that he did not know a price; instead, he suggested that Watson exchange drugs for the firearm. In November 2004, the informant brought Watson to an undercover agent to execute the exchange. The government agent gave Watson an unloaded pistol, in return for which Watson provided the agent with twenty-four dosage units of a prescription drug. After the transaction, agents arrested Watson.

In addition to charges for distribution of a controlled substance and possession of firearms by a convicted felon, Watson was also indicted in federal district court in Louisiana for using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), which prohibits using or carrying a firearm during and relation to a drug trafficking crime, as well as possessing a firearm in furtherance of such crime. It punishes violations with an additional, consecutive sentence of at least five years.

Watson was convicted and sentenced to 262 months in prison, a term that included a sixty-month sentence for violating § 924(c)(1)(A). In an unpublished opinion, the Fifth Circuit rejected Watson's challenge to his conviction under § 924(c)(1)(A), relying on circuit precedent to hold that Watson's receipt of the firearm constituted a "use" for purposes of the statute.

Petition for Certiorari

Watson urged the Court to grant certiorari to resolve a circuit split and to further clarify the Court's interpretation of § 924(c)(1)(A). While six circuits "“ the First, Third, Fourth, Fifth, Eighth, and Ninth "“ have held that one who receives a firearm in exchange for drugs "uses" the firearm, four circuits "“ the Sixth, Seventh, Eleventh, and D.C. "“ have reached the opposite result. Watson further argued that the Fifth Circuit's rule conflicted with Supreme Court precedent in Smith v. U.S. (1993) and Bailey v. U.S. (1995). In Smith, the Court held that a defendant "uses" a firearm when he employs it to barter to obtain drugs. However, three justices dissented, arguing that bartering did not fall within the ordinary meaning of the term "use." The Bailey Court held that merely possessing a firearm during a drug transaction does not constitute "use." The presence of a firearm is not sufficient to trigger the statute; rather, the defendant must actively employ the weapon.

In opposing certiorari, the United States argued that it was clear that a gun was "used" within the statute's meaning when it was used as an item of barter in a drug transaction, regardless of whether the defendant traded the gun for drugs, or the drugs for a gun. Watson's attempt to distinguish his case was a "distinction without a difference." Moreover, the government contended, the lower courts' decisions were fully consistent with Bailey: In contrast with the defendant in Bailey, who merely passively possessed the gun, Watson initiated the request for a gun and agreed to provide drugs in exchange for the gun. Bailey also listed bartering as an example of active employment. Finally, the government emphasizes, the post-Bailey amendment to § 924(c)(1), which added to its list of offenses the possession of a firearm in furtherance of a drug trafficking crime, is decisive in the determination that Watson used the gun"”i.e., he came into possession of it to close the transaction.

Watson countered that the post-Bailey amendment does not address his scenario and did not alter the meaning of "use." He also argued that he did not possess a gun in furtherance of a drug transaction, but rather came into possession of one as a result of a drug transaction.

The Supreme Court granted certiorari in February 2007.

Merits Briefs

On the merits, petitioner and respondent dispute points regarding plain meaning, textual context, statutory purpose, and canons of construction. First, Watson argues that it is unnatural to interpret "use" to include the simple receipt of an object. He distinguishes between bargaining with a firearm and bartering for a firearm and contends that a seller does not "use" the buyer's consideration. Watson did not employ the gun, or engage in active conduct with it, as Bailey requires, when he received it. The United States responds that in Smith, the Court held that "use" encompasses use of a firearm not only as a weapon but also as an item of barter or commerce, while Bailey also made clear that active employment included bartering. Watson "used" the gun by accepting it to close the drug deal, and he actively employed it as the means to do so.

Second, Watson points out that the circuit courts holding "use" to include receipt of a firearm for drugs have not suggested that § 924(c)(1) compels this result. The statute's legislative history supports reading it as it is written, and there is no policy concern that would mandate a broader reading. However, the United States argues that the purpose of the statute in fact confirms the result. Watson's agreement to trade drugs for a gun caused the very risk of harm"”that is, mixing drugs and guns"”that Congress sought to prevent.

Finally, Watson argues that the rule of lenity should resolve any ambiguity in the statute, thus favoring a narrower interpretation of "use" that would exclude Watson's conduct. Congress could have included receipt of a firearm in the list of proscribed conduct, but it did not, and as such the statute indicates that such an activity does not fall within the statute's scope. The government denies that the rule of lenity even comes into play, because it is clear from all other sources of statutory interpretation that § 924(c)(1)(A) prohibits a defendant from taking a firearm to close a drug deal.

In its amicus curiae brief, the National Association of Criminal Defense Lawyers echoes Watson's argument that Bailey mandates a ruling in his favor. Someone who receives a gun in exchange for drugs does not actively employ the weapon, it asserts. Even if the statute were ambiguous on this point, the rule of lenity would apply, and the Court should construe use against finding criminal liability. Watson would not have received fair notice that his conduct would receive an additional penalty.


In deciding the case, the Court will continue to debate the ordinary meaning of "use" in the statute. As it has in Bailey and Smith, it will also look to the purposes of the statute and whether Congress, in drafting it, intended to proscribe the receipt of a gun in exchange for drugs. The three dissenters in Smith, who advocated a narrower construction of the term "use" based on ordinary meaning, are still serving on the Court, while only two justices from the majority remain. Yet even if receipt does not fall within the ordinary meaning of "use," it might constitute "use" according to Supreme Court precedent.

The fact that the gun Watson received was unloaded will be relevant, as it could not have been converted as easily "from currency to cannon" as the loaded gun in Smith. Yet, the distinction between trading for a gun and trading with a gun seems weaker. Watson portrays the receipt as passive, as in Bailey. While he may not have actively employed the gun, neither did he merely possess it since it was part of the transaction.

The resolution of Watson v. U.S. will carry significant implications for defendants going forward. The Court's interpretation of the term "use" in § 924(c)(1)(A) will either limit or expand the number of prosecutions under the statute. Because § 924(c)(1)(A) prescribes a minimum mandatory sentence, the Court's decision could mean longer sentences for those who sell drugs for guns.

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