Watson v. United States


Federal law imposes a mandatory five year sentence for the "use" of a firearm during and in relation to a drug trafficking crime, but the meaning of "use" is unclear: does a defendant "use" a firearm when he furnishes drugs to an undercover government agent in exchange for an unloaded firearm?

Oral argument: 
October 9, 2007

Following a transaction in which he exchanged illegally-obtained prescription drugs for a firearm, Petitioner Watson was prosecuted under 18 U.S.C. § 924(c)(1)(A) for "use" of a firearm during and in relation to a drug trafficking crime. In addition to sentences imposed under other federal statutes, Watson received a mandatory consecutive five year sentence, imposed under 18 U.S.C. § 924(c)(1)(D). Watson pled guilty but reserved the right to challenge whether the agreed-upon facts supported his conviction. The Fifth Circuit confirmed his conviction, finding that receiving a firearm constitutes "use" under the statute and under Supreme Court law set forth in Bailey v. United States, which defined "use" as "active employment" of the firearm. Watson argues that receiving a firearm is insufficient to constitute use, while the United States contends that both receiving and offering a firearm constitute "active employment" and therefore "use" under the statute. The Court's decision will set uniform standards of punishment throughout the country. A finding for Watson could reduce crowding in an already overburdened prison system, while a decision for the United States could reduce the strain on a similarly overburdened court system.

Questions as Framed for the Court by the Parties 

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.


On November 12, 2004, Michael A. Watson purchased an unloaded semi-automatic pistol in exchange for 24 dosage units of the drug oxycodone hydrochloride (OxyContin) from an undercover government agent. Earlier that month, Watson had approached a government informant, seeking to purchase a firearm. The informant told Watson that his source (an undercover government agent) would be willing to exchange a firearm for drugs. The exchange occurred on November 12, after which Watson was immediately arrested. The arresting officers found the unloaded pistol in Watson's car. Watson had previously been convicted of two state felony offenses.

Watson was charged in the United States District Court for the Middle District of Louisiana with 1) distributing oxycodone hydrochloride in violation of 21 U.S.C. 841(a)(1); 2) using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and 3) unlawfully possessing a firearm as a convicted felon, in violation of 18 U.S.C. 922(g)(1).

Watson did not dispute the facts and pled guilty to all three charges. He reserved the right to appeal whether the undisputed facts - receipt of a firearm in exchange for drugs - were sufficient to constitute the crime of "use" of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c)(1)(A). The District Court accepted the guilty pleas and found that receipt of a firearm did constitute use. The District Court found that Watson was a "career offender" due to his two prior felony convictions. Conviction of a career offender under § 924(c)(1)(A) requires a minimum sentence of 60 months in prison not to be served concurrently with any other prison time. Watson thus received a total of 262 months in prison for all three charges.

Watson appealed his conviction under § 924(c)(1)(A), arguing that he did not "use" the firearm. He maintained that because he only possessed the gun for a few moments, it was never under his control, and furthermore that it couldn't have been used because it was unloaded. The Fifth Circuit affirmed his conviction based on Fifth Circuit precedents United States v. Zuniga and Unites States v. Ulloa, which both held that receipt of firearms constituted "use" for purposes of § 924(c)(1)(A).


Bailey and the "Active Employment" Requirement

Shaping the core of the debate over the meaning of "use" under 18 U.S.C. § 924(c)(1) is the Supreme Court's 1995 decision in Bailey v. United States. There the Court held that "use" means "an active employment," and that a qualifying "use" is one in which the firearm is an "operative factor" with respect to the underlying drug trafficking crime. . The petitioners in Baileythus did not "use" a firearm when a firearm was found among their belongings when they were arrested for possession of drugs. Prior to Bailey, the Court had specified in Smith v. United States that "use" includes "use as an item of barter." . Bailey is consistent with Smith, which held that bartering with a firearm in exchange for drugs falls within the ambit of § 924(c)(1), since bartering with a firearm makes the firearm an "operative factor" in the drug trafficking crime. . Following Bailey, Congress amended the statute, but did not legislatively overturn the case's central holding. Instead, the revised statute brings Bailey-like defendants within its scope by attaching liability to "possession" of a firearm in furtherance of a drug trafficking crime in addition to liability for "use." .

Watson's Argument

Watson first argues that the Fifth Circuit's decision ignored the ordinary meaning of "use," which according to him cannot include receiving a firearm. . In Smith and Bailey, the Court began its analysis from the principle that the word "use" must be given its ordinary or natural meaning, and Watson's argument parallels that of the Seventh Circuit in United States v. Westmoreland: there is "no grammatically correct way to express that a person receiving a payment is thereby using the payment." . The National Association of Criminal Defense Lawyers ("NACDL") points out that the grammatical difference is key, since an object that one is receiving is not yet in one's possession or control and therefore cannot be "used." .

Watson's argument then turns to the dictionary definitions of "use" to which the Court referred in Smith. When determining if the defendant in that case had used the firearm, the Court's inquiry focused on whether he employed it or derived service from it. Watson identifies the theme in the dictionary definitions as requiring the person who uses something to apply it toward the achievement of a goal. Watson contends that since his receipt of the firearm did not require or even allow the application of the firearm to some other goal, the receipt cannot be use.

Watson contends that the lower courts in his jurisdiction have improperly focused on a phrase from Smith explaining that "bartering" constitutes use. Although Smith established that "bartering" is "use" under § 924(c)(1)(A), Bailey's illustrative list of ways a firearm might be used properly includes only bartering with a firearm for drugs, and not bartering for a firearm with drugs. . Although a narrow ground for distinction (since the Smith Court noted that "Congress apparently was of the view that one could use a gun by trading it") Watson would distinguish obtaining a gun with drugs from obtaining drugs with a gun. To support this argument, Watson maintains that it is not unusual for statutes to proscribe differential treatment for parties on different sides of transactions. .

Watson also maintains that the Bailey "active employment" rule was misinterpreted in United States v. Ulloa, in which the Fifth Circuit determined that receiving a firearm qualified as use. . Watson argues that receiving a firearm involves no active employment, but is instead passive and therefore fails the Bailey "use" test. . According to Watson, active employment of a firearm requires using it to some further end, which necessarily happens only after receipt. . Watson claims it is a misconstruction of Bailey to assume that all bartering necessarily constitutes active employment. .

Finally, Watson argues that conviction under the statute requires proving both that the firearm is used and that it is an "operative factor." Courts that have considered Bailey's use requirement satisfied any time a firearm is an "operative factor" in a drug transaction have misread Bailey, Watson claims. The fact that the drug trafficking crime could not have been completed without Watson's receipt of the gun is therefore insufficient to prove use, even though the gun's role as payment for the drugs inarguably renders the gun an "operative factor" in the transaction. . The Court will need to decide whether the standard enunciated in Bailey can be satisfied with the "operative factor" test alone, without first determining that the defendant "used' a firearm.

The United States' Argument

The United States reads Smith's holding broadly, and concludes that Bailey's list of possible uses includes both bartering for and bartering with a firearm. The Government therefore claims that the plain language of 18 U.S.C. § 924(c)(1)(A)encompasses receipt of a firearm. According to the U.S., since "use" under Smith includes use "as an item of barter," receipt of, as opposed to the sale of, a firearm is a "distinction without a difference." In either case, the Government maintains that a firearm is an item of barter in the stream of commerce, and that the holding of Smith places its presence in the stream of commerce squarely within the meaning of 18 U.S.C. § 924(c)(1).

Further, the Government maintains the Fifth Circuit's decision below does not conflict with Bailey, because the "active employment" requirement is satisfied by the act of receiving a firearm. Under this theory, the defendant's accepting the firearm constitutes active use as an item of commerce because the drug transaction would not occur without the defendant's acceptance. In support of this argument, the United States focuses on a definition of use taken from Bailey, which requires the defendant to carry out a purpose or action by means of the firearm. Id. On this rationale, the U.S. argues that taking the firearm is an action that accomplishes the drug transaction. Bartering "with" a firearm does not differ in consequences from bartering "for" a firearm, since it is actively employed to accomplish the goal in each case.

Crucially, the United States argues that a defendant who makes the firearm an "operative factor" in relation to the drug trafficking crime satisfies Bailey's use requirement. . This "shortcut" to a finding of "active employment" implies no previous finding of "use," focusing the inquiry instead on satisfying the "operative factor" test alone. This approach is accurate, according to the United States, because the "use" inquiry is to be determined "during and in relation to any drug trafficking crime," such that the firearm's status as an operative factor in completing the transaction means it has been "used" during such a crime.

Post-Bailey Amendment to 18 U.S.C. 924(c)(1)

Both parties rely upon legislative history to support their interpretations of "use." After the defendant in Bailey was acquitted for behavior that fell short of the "active employment" of a firearm, Congress amended the statute to clarify that liability attaches in a Bailey-like situation of possession of a firearm by adding a "possession" prong to the statute, but did not touch the Court's reading of "use" as requiring active employment. Watson contends that this amendment suggests Congressional intent that "use" remain narrowly construed. Watson says that receiving a firearm is preliminary to possession, and therefore far from the reach of the statute's "use" prong.

Conversely, the United States seizes upon the policy of combating the 'dangerous combination' of guns and drugs motivating the statute, and finds that Watson contributed directly to the harm Congress sought to avoid. If the Court finds, as the U.S. argues, that Congress' overriding intent was to dissuade drug traffickers from combining drugs with guns, then "active employment" would in fact cover receipt since the momentary treatment of a firearm as an item of commerce in no way deprives it of its destructive capacity in the context of a drug deal. . Further, the Government finds no support for a narrow reading of "use" in the Congressional amendment of 18 U.S.C. § 924(c), and considers it irrelevant since Watson's conduct squarely falls within "use" as defined under Bailey. The United States argues that there is no inconsistency in construing "use" to include "receipt" because "possession" is now its own prong of the statute. The United States also calls upon Congress' implicit approval of the Smith holding construing "use" to include barter due to the subsequent lack of amendment to avoid the outcome in that case.


In Watson, the Supreme Court will address a deep split between the circuit courts over whether receipt of firearms during a drug trafficking offense violates 18 U.S.C. § 924(c)(1)(A). A decision for Watson will validate the approach of the Sixth, Seventh, Eleventh and D.C. Circuits, which hold that receipt of a firearm is a passive act and does not meet the "active employment" definition of "use" which the Supreme Court Set out in Bailey v. United States. A decision for the United States will support the First, Third, Fifth and Ninth Circuits, which point to the Supreme Court's reference in Bailey to "bartering" as a type of "use" and claim that receipt of a firearm is not significantly different from bartering with one.

When a defendant is convicted of multiple crimes, a judge may order concurrent sentences. For example a defendant who receives two one-year sentences may serve both sentences simultaneously for a total of one year of prison time rather than two. However, if a defendant is convicted of violating § 924(c)(1)(A), his sentence may not be served concurrently and thus is mandatorily enhanced. Over ten percent of defendants convicted in federal court for a drug offense receive a sentence enhanced under § 924(c)(1)(A). The Court's decision in Watson will establish uniformity in the law, so similarly situated defendants will receive the same punishment (either concurrent or mandatorily enhanced sentences) throughout the country.

Should the Court find for the United States and hold that receipt of a firearm is use, defendants in Watson's situation will receive prison sentences lengthened by at least 60 months. This has the potential to heighten the strain on the overcrowded federal prison system. Federal prosecutors could use the threat of enhanced sentences to negotiate pleas, offering to drop charges under § 924(c)(1)(A) in exchange for guilty pleas to the remaining charges. Similarly, state prosecutors could threaten federal prosecution under § 924(c)(1)(A) to coerce defendants into pleading guilty. An increased number of guilty pleas would reduce the strain on the court system and increase efficient functioning of the court. .

Watson highlights the potential for abuse of a broadly-construed § 924(c)(1) by a government eager for convictions: allowing receipt of a firearm to constitute "use" heightens the potential for government entrapment of potential defendants through undercover sting operations. The National Association of Criminal Defense Lawyers argues in its amicus brief that a reading of "use" encompassing "receipt" may allow for manipulation of a defendant by the government through a set-up, since it incentivizes government sting operators to introduce firearms into drug transactions in order to secure the mandatory prison term envisioned by § 924(c)(1). According to the NACDL, this issue is not merely an academic concern because entrapment is a commonly used law enforcement tactic.

Should the Supreme Court find for Watson, it would be endorsing disparate punishments for defendants involved in the same drug-firearm transaction. Defendants that barter with a firearm in exchange for drugs would violate § 924(c)(1)(A), but those who barter for a firearm in exchange for drugs would not. Thus, defendants who sold a firearm would receive prison sentences at least 60 months longer than those who received a firearm.


The Court's decision in this case will determine whether Watson's receipt of an unloaded firearm in exchange for drugs constitutes "use" under the statute. The decision will impact defendants charged with drug or firearm-related offenses, as well as the broader functioning of the court and prison systems. If Watson prevails, defendants who receive a firearm in exchange for drugs will receive a lighter prison sentence than if the United States prevails. A decision for the United States will extend the war on drugs and illegal firearms by expanding the number of circumstances in which a defendant can receive an enhanced sentence for use of a firearm in connection with drug trafficking. Regardless of how the Court rules, this case will establish uniformity in the application of this type of mandatory sentence enhancement across the country.

Written by: Victoria Bourke & Allison Condon

Edited by: Molly Curren Rowles