United States Court of Appeals For the First Circuit

Nos. 19-2010, 19-2017

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM RAMIREZ-FRECHEL, JONATHAN RAMIREZ-FRECHEL,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges, and Saris, District Judge.

Johnny Rivera-Gonzalez, with Alex Omar Rosa-Ambert on brief, for appellant William Ramirez-Frechel. Juan F. Matos de Juan on brief for appellant Jonathan Ramirez- Frechel. Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

 Of the District of Massachusetts, sitting by designation. January 13, 2022 SARIS, District Judge. Two brothers, Jonathan and

William Ramirez-Frechel, were convicted of gun and drug crimes and

were sentenced to 111 months' imprisonment. They now appeal the

district court's denial of their Rule 29 sufficiency of the

evidence challenges to their convictions for possession of a

firearm in furtherance of a drug trafficking crime. See

(c)(1)(A). William also contests the district court's

admission of certain WhatsApp messages. Finally, they both argue

the district court inappropriately applied a four-point

enhancement when calculating their guidelines ranges under the

United States Sentencing Guidelines ("U.S.S.G."). The government

concedes this last point, so long as the sufficiency challenge is

denied, but says the enhancement should be applied if the

sufficiency challenge is sustained.

I. BACKGROUND FACTS

We begin with the background facts. An undercover Puerto

Rico Police Department officer, Agent Pablo García-Irizarry

("García"), arranged to purchase a Glock pistol from a man named

"Juanki." On March 16, 2017, García arrived at the arranged

meeting place and contacted Juanki, who told García that he was

waiting for Jonathan to bring the pistol. When Juanki and Jonathan

arrived at the meeting place, Juanki got into García's car and

gave him a .45 caliber Glock pistol, a thirteen-round magazine

with eleven rounds of ammunition, and a twenty-four-round magazine

- 3 - with sixteen rounds of ammunition. García paid Juanki the arranged

price of $1,700.00, and all three then discussed doing business in

the future: Jonathan told García that the pistol was his, that he

could get ahold of automatic weapons for García, and that he could

get marijuana for García (backed up by pictures on his cell phone).

He gave García his phone number so they could keep talking.

That evening, Jonathan offered to sell García a 9mm

IntraTec (a semi-automatic pistol) for $1,200.00. García told

Jonathan he was interested, and they continued speaking. As

related by García, they "talked about the IntraTec pistol, the

price, and the weed" and planned where to meet to complete the

sale of those items (at a package price of $2,100.00). Jonathan

and William met García the next day on March 17th and sold him a

9mm IntraTec, one twenty-round magazine, and a bag of marijuana,

all of which Jonathan had brought inside the same black bag.

García confirmed that the marijuana was the half a pound of

marijuana they had agreed he would purchase for $900.00 as part of

the agreement. William then told García that he had a thirty-

round magazine with twenty-eight rounds of ammunition to sell for

the Glock that García had purchased the day before. The brothers

initially asked for $100.00 for the magazine but then lowered the

price of the marijuana by $100.00 so the total purchase price for

the package (the gun, the marijuana, and the magazines) remained

$2,100.00.

- 4 - García kept in touch over cell phone with the brothers

over the next few days, and García and William arranged the sale

of an American Tactical Rifle, with a thirty-round magazine, and

four .223 caliber bullets for $2,500.00. William sent Agent García

photos of rifles via WhatsApp text message. The sale was completed

on March 23, 2017, and afterwards García continued to correspond

with a number that he testified belonged to the brothers (though

it was a different number from the one he had previously used to

speak with them). Through this number, García and the brothers

exchanged WhatsApp messages after the March 23rd transaction in

which the brothers offered to sell García more weapons, sent him

images of an AK-47 and of marijuana, and offered to sell them to

him.

Because of these events, the brothers were each indicted

on four counts. In three, they were co-defendants: one count of

engaging in the business of dealing firearms without a license for

the March 17th sale,

, 922(a)(1)(A), 923(a),

924(a)(1)(D); one count of possession of a firearm in furtherance

of a drug trafficking crime for the March 17th sale,

, 924(c)(1)(A); and one count of possession with intent to

distribute controlled substances for the March 17th sale,

(a)(1). William was also indicted for unauthorized firearm

dealing for the March 23rd sale, and Jonathan was indicted for

- 5 - unauthorized firearms dealing for the March 16th sale. See

(a)(1)(A), 923(a), 924(a)(1)(D).

At trial, the brothers objected to the admission of the

WhatsApp messages between García and the brothers after March 23rd

on grounds of irrelevance and impermissible character evidence.

The district court overruled the objections because it determined

the messages established the "context" and "overall scheme that

was taking place." The jury convicted the brothers on all counts.

At sentencing, in calculating the brothers' guidelines

ranges, the district court applied a four-point enhancement to

each because they possessed a firearm in relation to another felony

under U.S.S.G. § 2K2.1(b)(6)(B) (2018). Over defendants'

objection, the district court imposed a sentence of 111 months'

imprisonment for each brother. The brothers filed a joint Rule 29

motion on the count of possession of a firearm in furtherance of

a drug trafficking crime; the district court denied the motion,

giving rise to this appeal.

II. STANDARD OF REVIEW

Preserved sufficiency challenges are reviewed de novo,

"considering the evidence, both direct and circumstantial, in the

light most friendly to the verdict." United States v. Bobadilla-

Pagan,

(1st Cir. 2014). Appellate courts are not

to "re-weigh the evidence or second-guess the jury's credibility

determinations."

"[I]f the verdict is 'supported by a

- 6 - plausible rendition of the record,' we must uphold it."

(quoting United States v. Cortés-Cabán,

(1st Cir.

2012)). Preserved evidentiary challenges are reviewed for abuse

of discretion. United States v. Walker,

(1st

Cir. 2011). Challenges to the reasonableness of a criminal

sentence imposed under the advisory guidelines regime are reviewed

for abuse of discretion, with the district court's factfinding

reviewed for clear error and its interpretation and application of

the sentencing guidelines reviewed de novo. United States v.

Flores-Machicote,

(1st Cir. 2013). Finally, we

may "affirm on any basis apparently in the record," even where the

government fails to argue that basis. United States v. Farmer,

, 64 n.7 (1st Cir. 2021) (quoting Williams v. United

States,

(1st Cir. 2017)).

III. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

The brothers argue their convictions for possession of

a firearm in furtherance of a drug trafficking crime,

(c)(1)(A), were based on insufficient evidence because the

IntraTec pistol and the marijuana sales on March 17th were "two

parallel but distinct transactions" and the sales were

"unrelated." The government argues that the gun sale facilitated

the marijuana sale because it was part of a package deal with the

- 7 - marijuana and selling the gun was "good business strategy to

attract and retain customers."

There is a mandatory minimum sentence for any person who

"during and in relation to any . . . drug trafficking crime . . .

uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm."

(c)(1)(A). To convict

a defendant for possessing a firearm in furtherance of a drug

trafficking crime,

(c)(1)(A), the prosecution must

prove beyond a reasonable doubt that the defendant "1) committed

a drug trafficking crime; 2) knowingly possessed a firearm; and 3)

possessed the firearm in furtherance of the drug trafficking

crime." United States v. Pena,

(1st Cir. 2009).

Only the third in-furtherance element is contested here.

"The 'in furtherance of' element does not have a settled,

inelastic, definition." United States v. Marin,

(1st Cir. 2008). To establish that a defendant possessed a firearm

"in furtherance of" a drug trafficking crime, the government must

show by specific facts "a sufficient nexus between the firearm and

the drug crime such that the firearm advances or promotes the drug

crime." Pena,

(citing Marin,

).

Courts apply a multifactor analysis to determine whether a

- 8 - sufficient nexus between the firearm and the drug crime exists.

Id.1

This case is not the typical conviction for possession

of a firearm in furtherance of drug trafficking. For example, in

Pena, we held that a sufficient nexus existed where the defendant

was carrying the firearm to protect his drugs and drug proceeds.

. However, courts have held that the nexus test

for the in-furtherance element has been met in other contexts.

For example, we have held that "a defendant who exchanges drugs

for guns 'possesses' the guns 'in furtherance' of a drug

trafficking crime within the meaning of

(c)(1)(A)."

United States v. Gurka,

(1st Cir. 2010) (involving

a defendant who paid the agent cash and drugs to obtain guns). In

a related line of cases, two circuits have held that evidence of

selling guns and drugs together in a single transaction could

support a jury conviction under

(c)(1)(A) for

"us[ing]" a firearm "during and in relation to" a drug trafficking

1 In the typical case, the court assesses whether there is a sufficient nexus by doing a multi-factor objective analysis and assessing the defendant's subjective intent. Bobadilla-Pagan,

. The objective factors include: "(1) the proximity of the firearm to drugs or contraband; (2) whether the firearm was easily accessible; (3) whether the firearm was loaded; and (4) the surrounding circumstances."

"Evidence of subjective intent might include a showing that a defendant obtained a firearm to protect drugs or proceeds. Where direct evidence of subjective intent is lacking, the jury may infer intent from the objective circumstances."

(citation omitted). - 9 - crime. See United States v. Claude X,

(8th Cir.

2011) (holding that the meaning of "use" in § 924(c) caselaw

"clearly encompasses selling a firearm and drugs, in the same

container, in a single transaction"); United States v. Lipford,

, 266–67 (4th Cir. 2000) (holding that the sale of

drugs and firearms was sufficient to meet the "in relation to"

requirement because the participation in the drug transaction was

facilitated by the firearm transaction).

Jonathan points to the legislative history of

§ 924(c)(1)(A) to support the argument that evidence showing only

that a defendant sold guns and drugs together would not be enough

to support a conviction for possessing a firearm in furtherance of

a drug trafficking crime. When "in furtherance" was added to

§ 924(c)(1)(A), the House Committee on the Judiciary Report

observed that "in furtherance of" is a "slightly higher standard"

than the "during and in relation to" language. H.R. Rep. No. 105-

344, at 11 (1997). As noted by the Committee, "[b]oth Webster's

New International Dictionary and Black's Law Dictionary define[d]

'furtherance' as the 'act of furthering, helping forward,

promotion, advancement, or progress.'" Id. (citing Webster's New

International Unabridged Dictionary 1022 (2d ed. 1959); Black's

Law Dictionary 675 (6th ed. 1990)).2 So in everyday meaning, the

2 Current dictionary editions have similar definitions: Black's Law Dictionary defines furtherance as "[t]he act or process of - 10 - government must prove that the defendants' firearm sale forwarded,

promoted, or advanced the drug sale. Cf. Watson v. United States,

(2007) (emphasizing that courts should define

statutory language "as we normally speak it").

A recent Seventh Circuit case stands pretty much on all

fours. See United States v. Bailey,

(7th Cir. 2018).

Just as here, the seller's possession of a gun for sale brought

the buyer to his door. Just as here, the seller used the occasion

to entice the buyer to purchase drugs as well. The Seventh Circuit

reasoned that "[b]ecause it was the opportunity to purchase a

firearm that brought the informant to [the seller] and made

possible the secondary sale of marijuana to the informant, the

facts support the finding that [the seller's] possession of the

weapon furthered the marijuana sale."

. We agree.

Our dissenting colleague does not disagree with the

legal test we apply, but with the sufficiency of the evidence and

what inferences can reasonably be drawn from the record. He posits

that such a seller might simply be participating in two "distinct"

markets, suggesting that it was serendipitous that the gun buyer

facilitating the progress of something or of making it more likely to occur; promotion or advancement." Furtherance, Black's Law Dictionary (11th ed. 2019). Merriam-Webster defines "furtherance" as "a helping forward: advancement, promotion." Furtherance, Merriam-Webster Unabridged Dictionary, https://unabridged .merriam-webster.com/unabridged/furtherance (last visited Oct. 20, 2021). - 11 - was also interested in drugs. But jurors may well think most

sellers more clever than that, especially given the chronology

here: Jonathan offered a gun, got a putative buyer, then promptly

offered drugs as well before even closing the gun sale. And we

cannot agree that selling a tool of the drug trade is selling in

a market that is wholly "distinct" from the drug market.

A person hoping to sell coffee would be well-advised to

offer donuts rather than shovels. So too, here, jurors could use

their common sense that selling guns is a reasonable way to get in

contact with those who might buy illegal drugs. After all, as our

circuit has repeatedly recognized, guns are tools of the drug

trade. See, e.g., United States v. Tanco-Baez,

(1st Cir. 2019) (noting "the oft-remarked-upon connection between

firearms and drug trafficking") (citing United States v. Bianco,

) (1st Cir. 1991) ("[W]e often observe that

firearms are common tools of the drug trade.")); United States v.

Torres-Rosario,

(1st Cir. 2011) ("[D]rug dealing

is notoriously linked to violence."); United States v. Green,

(1st Cir. 1989) ("This circuit and others have

recognized that in drug trafficking firearms have become 'tools of

the trade.'").

Importantly, the evidence supports the government’s

argument that the gun and drugs were delivered together in a

package deal with a single lump sum bill. The fact that the

- 12 - sellers here did not also give the buyer the bag in which they

delivered the two offerings hardly belies the fact that the gun

and drugs came in a single package that never would have been

delivered but for the offer in the first instance of the gun.

Additionally, Jonathan offered to sell García both guns and drugs

in their meeting on the 16th and again in the post-March 23rd

WhatsApp message.3 The government does not argue, and we do not

hold, that it suffices under § 924(c) for the government to prove

that the defendant merely sold guns and marijuana near in time to

one another. A jury could reasonably have found that the sale of

marijuana together with the guns was not a matter of happenstance,

serendipity, or an afterthought; it was the defendants' business

model. See Bailey, 882 F.3d at 721–22 (pointing out that the sale

of drugs to the buyer was not by "happenstance" because the

defendant was engaged in the sale of drugs and guns on a regular

basis).

In sum, based on the chronology of the dealings and the

relationship of the two products purchased in a single transaction,

the jury had sufficient evidence to find that the sale of guns

sufficiently promoted, advanced, and made more likely to occur the

sale of marijuana, satisfying the "in furtherance of" inquiry.

3 The parties disagree about the intent of the undercover officer, but the intent of the buyer is not an element of the offense or even one of the factors outlined in Bobadilla-Pagan,

, and so is not dispositive here. - 13 - B. ADMISSION OF THE WHATSAPP MESSAGES

Only William challenges the admission of the WhatsApp

messages sent for about a month after March 23rd. He argues the

messages should have been excluded for lack of relevance because

the indictment charged conduct only up through March 23, 2017. He

also says that even if the messages were relevant, they were

unfairly prejudicial, and claims that the government failed to

provide the jury with proper context for the messages. Finally,

he argues the messages were inappropriate character evidence in

violation of Federal Rule of Evidence 404(b).

Evidence is relevant if it is probative and material.

Fed. R. Evid. 401. Relevant evidence is generally admissible

unless its probative value is substantially outweighed by the

danger of, inter alia, unfair prejudice. Fed. R. Evid. 403.

Evidence of a person's "other" crimes, wrongs, or acts is not

admissible to show a propensity to act in a particular way but may

be admissible for another purpose. Fed. R. Evid. 404(b)(1)–(2).

Evidence of bad acts that are "part of the charged crime" is

admissible as "intrinsic" evidence. United States v. Rodríguez-

Soler,

, 297–98 (1st Cir. 2014); see also United States

v. Souza,

(1st Cir. 2014) (holding intrinsic

evidence includes other acts that go to an element of the charged

offense); United States v. Brizuela,

, 793–94 (4th

Cir. 2020) (holding that uncharged conduct is intrinsic and not

- 14 - barred by Rule 404(b) when it arises from the same series of

transactions as the charged offense).

The government argues that the messages were relevant to

the elements of a charged crime: "engag[ing] in the business" of

dealing in firearms without a license. See

(a)(1)(A). A person engages in the business of dealing in

firearms when he "devotes time, attention, and labor to dealing in

firearms as a regular course of trade or business with the

principal objective of livelihood and profit through the

repetitive purchase and resale of firearms."

(a)(21)(C). Excluded from this category are people who

"make[] occasional sales, exchanges, or purchases of firearms for

the enhancement of a personal collection or for a hobby, or who

sell[] all or part of [their] personal collection of firearms."

Because the messages showed William was engaged "in the

business" of dealing in firearms with the purpose of making a

livelihood and profit, the district judge did not abuse his

discretion in admitting the WhatsApp messages that happened in the

month after March 23rd as intrinsic evidence of the charged gun-

dealing crime. And the district court did not abuse its discretion

in concluding they were not unfairly prejudicial. See Old Chief

v. United States,

(1997) (explaining that

evidence is unfairly prejudicial if it might "lure the factfinder

- 15 - into declaring guilt on a ground different from proof specific to

the offense charged").

C. APPLICATION OF THE SENTENCING ENHANCEMENT

Defendants argue that the district court imposed

procedurally unreasonable sentences because the calculations of

the sentencing guidelines ranges were faulty. See United States

v. Trinidad Acosta,

(1st Cir. 2014). In

reviewing a sentence, the court of appeals "must first ensure that

the district court committed no significant procedural error, such

as failing to calculate (or improperly calculating) the Guidelines

range." Gall v. United States,

(2007).

"[A]rguments that the sentencing court erred in interpreting or

applying the guidelines" are reviewed de novo. United States v.

Leahy,

(1st Cir. 2012) (citing United States v.

Pho,

(1st Cir. 2006) (holding that such "error[s]

of law" are reviewed de novo and render a sentence "per se

unreasonable")).

The parties agree that the § 2K2.1(b)(6)(B) four-point

enhancement that was applied in calculating the brothers'

guidelines sentencing ranges was in error if the court declined to

set aside the § 924(c)(1)(A) convictions. Defendants objected to

the four-level enhancement at the sentencing hearing.

We agree that the district court erred in applying a

four-point enhancement at sentencing pursuant to § 2K2.1(b)(6)(B).

- 16 - The relevant sentencing guideline for a conviction under § 924(c)

is § 2K2.1(b). "If a sentence under this guideline is imposed in

conjunction with a sentence for an underlying offense, [courts] do

not apply any specific offence characteristic for possession . . .

of . . . [a] firearm when determining the sentence for the

underlying offense." U.S.S.G. § 2K2.4, cmt. n.4 (2018). So if

the weapon that was possessed "in the course of the underlying

offense also results in a conviction that would subject the

defendant to an enhancement under . . . § 2K2.1(b)(6)(B) . . . ,

[courts] do not apply that enhancement." Id. Accordingly, the

sentences must be vacated. Cf. Molina-Martinez v. United States,

(2016) ("In most cases a defendant who has

shown that the district court mistakenly deemed applicable an

incorrect, higher Guidelines range has demonstrated a reasonable

probability of a different outcome.").

IV. CONCLUSION

For the reasons stated above, we find that the district

court did not err when it denied the brothers' Rule 29 motion and

allowed the WhatsApp messages from after March 23rd to be admitted

at trial. We vacate the brothers' sentences and remand for

resentencing in accordance with this opinion.

Affirmed in part, reversed in part.

-Dissenting Opinion Follows-

- 17 - BARRON, Circuit Judge, dissenting. Under

(c)(1), any person who "possesses a firearm" "in furtherance

of" a "drug trafficking crime" shall be sentenced to a prison term

of no less than five years. In amending § 924(c) to encompass

such "in furtherance of" cases, "Congress likely had in mind a

gun's possession in order to threaten or use it, if necessary, to

accomplish the drug sale or at least to make the other party (or

interlopers) fear its use." United States v. Gurka,

(1st Cir. 2010) (Boudin, J., concurring). "[O]bvious examples"

would be "[p]ossessing a gun to protect one's drugs from theft

incident to sale or to secure a base of operations."

But,

words being what they are, this Circuit had construed the "in

furtherance of" language prior to this case to encompass the far

less obvious circumstance of a barter in which a gun is exchanged

for drugs. In such a case, we had held that the "in furtherance

of" element is satisfied because the gun serves as consideration

for the drugs and its possession thus advances the drug trafficking

crime. See

.

Other circuits have stretched the "in furtherance of"

element to encompass even more peripheral cases than the one

involving barter. They have held that the element is met whenever

the possession of the firearm is "causally connected" to the drug

offense and that, in consequence, the sale of a gun can constitute

possession of it "in furtherance" of a drug offense even when the

- 18 - weapon is not exchanged directly for the drugs.

. Rather,

the gun need only have been offered for sale to a customer for the

purpose of enticing that customer to make a purchase of drugs down

the line. See United States v. Bailey,

(7th

Cir. 2018).

The government asks us -- in effect -- to follow suit in

affirming the convictions at issue here based on there being a

causal connection between a defendant's possession of a gun and a

drug offense. It argues that the "in furtherance of" element may

be proven beyond a reasonable doubt so long as there is sufficient

evidence in the record either that a sale of a gun and drugs by a

defendant to a customer was "a package deal" or that the

defendant's "sale of a gun is what [entices or otherwise] brings

a purchaser [of drugs] to the table." The government then goes on

to argue that there is sufficient evidence of either a "package

deal" or "enticement" in the record here to support the

convictions.

But, even if the "in furtherance of" element may be

satisfied by proof of a "package deal" or "enticement," I am not

persuaded that the record in this case suffices to show anything

more than that the gun that the defendants are charged with

possessing was sold along with marijuana to the same buyer at the

same time. Thus, because Congress plainly intended for the "in

furtherance of" element to require something more than proof of a

- 19 - mere close temporal nexus between a defendant's possession of a

gun and a drug trafficking crime, I would reverse these

convictions.4

I.

The question presented by a sufficiency-of-the-evidence

challenge "is not whether a jury rationally could have acquitted."

United States v. Levin,

, 99–100 (1st Cir. 2021)

(quoting United States v. Breton,

(1st Cir. 2014)).

4 Notably, prior to Congress's amendment of § 924(c), which added the "in furtherance of" formulation of the offense at issue here, the statute provided that the five-year mandatory minimum prison sentence applied only when a person "uses or carries" a firearm "during and in relation to" a drug trafficking crime. See

Stat. 3469 (1998) (codified at

, 3559). By adding the class of cases encompassed in the "in furtherance of" amendment, Congress not only shifted "uses or carries" to "possess[ion]," but it also shifted "during and in relation to" to "in furtherance of." Thus, Congress must have meant for that latter phrase to mean something distinct from "during and relation to" or it would not have shifted to the "in furtherance of" phrase in making the amendment. See Env't Def. v. Duke Energy Corp.,

(2007) (explaining the "natural presumption that identical words used in different parts of the same act are intended to have the same meaning" and that different words have "different shades of meaning" (quoting Atlantic Cleaners & Dyers, Inc. v. United States,

(1932))). I note as well that the government makes no argument here that the conduct in question falls with the "uses or carries" "during and in relation to" portion of § 924(c). Instead, it stakes its defenses of these convictions solely on the ground that the underlying crime that the defendants committed was "posses[ion]" of a firearm "in furtherance of" a drug trafficking offense without suggesting that even if the evidence does not suffice to show that, the defendants still violated § 924(c) by "us[ing] or carr[ying]" a firearm "during and in relation to" a drug trafficking offense. I thus do not address any question regarding that possibility. - 20 - The question is whether the jury "rationally could have found guilt

beyond a reasonable doubt." Id.

Nonetheless, "[w]hen a jury is confronted . . . with

equally persuasive theories of guilt and innocence[,] it cannot

rationally find guilt beyond a reasonable doubt." United States v.

Andujar,

(1st Cir. 1995); see also United States v.

Montilla-Rivera,

(1st Cir. 1997) (same).

Otherwise, we would be permitting mere speculation to suffice to

support a finding of guilt beyond a reasonable doubt.

It follows, in my view, that the fact that the record

shows that a defendant was selling a gun and drugs at the same

time to a single customer cannot in and of itself suffice to show

beyond a reasonable doubt that the defendant's possession of the

gun was "in furtherance of" the sale of the drugs. A person

selling in two markets might be selling in each to further sales

in the other (just as he might be selling in only one to attract

sales in the other). But, it is just as possible, all else equal,

that the person making those sales is simply exploiting two

distinct markets, without having any intent -- or expectation --

that the sales in one will drive sales in the other. And, I see

no reason why, in principle, the same would not also be true of a

black market. For, while illegal markets are distinct from above-

board ones, I know of no reason to presume the law of supply and

demand does not apply in the shadows. Thus, to show beyond a

- 21 - reasonable doubt that a black-market gun seller is, in fact, making

his sales in that market to further his marijuana sales, the record

must show more than that he is selling in each of those markets at

the same time.

These observations do not strike me as especially

controversial. In fact, neither the government nor the majority

takes issue with them. Instead, the government, like the majority,

relies on the more fact-bound contention that the evidence here

suffices to show beyond a reasonable doubt that these defendants

possessed a gun to further the sale of marijuana. Specifically,

the government and the majority each points to the evidence in the

record that supposedly shows that the defendants sold a gun and

marijuana on March 17, 2017 to a single buyer as a "package deal,"

while the government also points to the evidence in the record

that it contends suffices to show, at the least, that the gun sale

on that date to that customer was made to "entice" that customer's

purchase of marijuana. Thus, the critical question on appeal is

whether the record does contain sufficient evidence of a "package

deal" or "enticement." See United States v. Marin,

(1st Cir. 2008) (explaining that to assess whether the "in

furtherance of" element of § 924(c) is met, this Court "analyze[s]

. . . [the] evidence from both subjective and objective

standpoints"). And, as I will next explain, the record in my view

does not.

- 22 - A.

I'll start with the issue of whether the record suffices

to show, as the government puts it, that "the firearm and the

marijuana were part of a single package deal transaction rather

than two independent and unrelated sales." The government, like

the majority, points first to the evidence in the record that

"Jonathan and William negotiated the sale for both the IntraTec

pistol and the marijuana as part of one transaction . . . and then

delivered them in the same briefcase on a set date for a total

price of $2,100" to the undercover law enforcement agent who was

posing as the buyer.

The record does supportably show that the total price

negotiated for the two items was $2,100. But, the evidence also

shows that the price for each item was negotiated separately in

the conversations between the defendants and the undercover

purchaser: $1,200 for the IntraTec pistol and $900 for the

marijuana. Thus, the evidence of the negotiations over the pricing

for the two items that were sold provides no basis for concluding

that there was a "package deal."

There is evidence in the record that shows that the

pistol and the drugs were brought to the purchaser at the point of

sale in the same black bag. But, that evidence also fails to

provide a supportable basis for a rational juror to reach the

conclusion that the sale of the gun and the sale of the marijuana

- 23 - were a "package deal." The record shows that Jonathan removed the

two items that were being sold from the bag individually when

giving each of them to the buyer. The record thus does not show

that Jonathan handed the bag with all the merchandise to the

customer as might have been expected in a "package deal."

The government also points out that other evidence that

was adduced at trial supportably shows that the defendants lowered

the price of the marijuana so that they could sell a magazine for

a firearm to the buyer who purchased the IntraTec pistol that the

defendants already had agreed to sell to him. But, I do not see

how this aspect of the record supports the reasonable inference

that the transactions that ground the charges at issue were part

of a "package deal."

The price of the IntraTec pistol was not part of the

negotiations between the buyer and the defendants about the price

of either the magazine or the marijuana. In fact, the magazine in

question was not even for the IntraTec pistol. So, while I suppose

a rational juror could conclude that the transactions regarding

the marijuana and the magazine were together a "package deal," I

do not see how a rational juror could conclude that the IntraTec

pistol was part of that "package."

In yet another bid to support the "package deal" theory,

the government (like the majority) directs our attention to

testimony at trial from the undercover buyer -- Agent Pablo García-

- 24 - Irizarry -- who bought the IntraTec pistol on March 17. In that

testimony, he stated that he "probably [would] not" have gone

through with the March 17th transaction in which he purchased a

firearm and the marijuana "if it was only a marijuana transaction."

The notion appears to be that this testimony supports

the reasonable inference that Agent García was only interested in

a "package deal" that included both drugs and guns. But, Agent

García did not testify that he communicated this desire for guns

to be involved in the marijuana transaction to the defendants.

Nor did he testify that a typical buyer of either drugs (of any

kind) or guns would be interested in such a drugs-and-guns "package

deal." Instead, he testified only that he was motivated to have

a gun be part of the deal at issue because he wanted a court case

under § 924(c) that would be "solid." No ordinary dealer of drugs

and guns, however, would add a gun to a drug deal for that purpose.

Thus, this testimony does nothing to show that the defendants

intended to be making the "package deal" that the government

contends that the record supportably shows that they intended to

make.

Finally, to support the "package deal" theory, the

government (and seemingly the majority) each points to the March

16th transaction in which Jonathan accompanied another individual,

"Juanki," to a gun sale. It was at that transaction that Agent

- 25 - García first met Jonathan and that Jonathan began to offer to sell

Agent García marijuana and/or guns.

The government contends that the evidence in the record

regarding those initial negotiations between Jonathan and Agent

García supportably shows that "it was always understood that the

deal was for García to buy firearms and marijuana." Thus, the

government suggests, a rational juror could reasonably infer from

the evidence of what transpired on March 16 that the Intratec

pistol and the marijuana sold on March 17 were part of a "package

deal." In crediting this same contention, moreover, the majority

explains that the "chronology" of the events on March 16 suggests

that Jonathan, and presumably his brother -- although his brother

did not attend the March 16th meeting with Agent García -- offered

to sell Agent García marijuana in the same way that a coffeeshop

may ask a customer if he wants "a coffee with that donut." Maj.

Op. at 10.

But, this donuts-and-coffee (or, with Starbucks in mind,

is it coffee-and-donuts?) analogy does not reveal a "package deal"

reading of the record to be a commonsensical one. In addition to

the fact that donuts and coffee are usually sold separately for

separate prices, there is no reason to think of a firearm and

marijuana as a natural pairing. That is not just because one does

not commonly dunk a gun into marijuana prior to using it (or vice

versa). It is also because it is hardly commonly understood that

- 26 - anyone seeking to buy marijuana illegally is highly likely to also

want to buy a gun.

Thus, as best I can tell, the evidence on which the

majority and the government each relies concerning the March 16th

interactions shows only that Jonathan and, inferentially, his

brother were intending to sell both the pistol and the marijuana

to a customer who was interested in purchasing each. In addition,

nothing in the record indicates that, on March 17, the defendants

sold the gun to Agent García as part of a package deal with the

drugs that he also bought on that date. In fact, as we have seen,

in the actual transaction that occurred on March 17, each item was

sold to Agent García for a separately negotiated price rather than

for one price that encompassed both items.5

B.

The government could also be understood to have

developed -- if we are being generous -- an alternative argument

for rejecting the defendants' sufficiency challenges. Here, the

argument is that the evidence suffices to permit a rational juror

to find beyond a reasonable doubt that the defendants were in the

business of selling guns "in furtherance of" their drug sales,

5 The majority also points to the messages between Agent García and the defendants on March 23 as further evidence that brothers' sold guns and marijuana together as a single "package." But, those messages similarly only involve offers made by the brothers to sell Agent García guns and/or marijuana. - 27 - because selling guns "was a good business strategy to attract and

retain customers" interested in buying drugs. Thus, the argument

proceeds, a juror reasonably could infer that the sale of the gun

at issue on March 17, 2017 must have been made, at least in part,

for that same business purpose, even if there was no "package

deal."

As best I can tell, this enticement-based theory of the

case -- unlike the "package deal" theory addressed above -- rests

chiefly on the evidence that shows that the defendants lowered the

price of the marijuana so that they also could sell a magazine for

a gun. But, it is hard to see how evidence that suffices to show

that the defendants sold drugs on the cheap to promote a sale of

a firearm's magazine shows that the defendants sold the gun in

question to further future marijuana sales. After all, the "in

furtherance of" element requires the government to prove, beyond

a reasonable doubt, that the "firearm was possessed" "in

furtherance of" a "drug trafficking crime,"

(c)(1)

(emphasis added), not that the marijuana was possessed in

furtherance of a gun trafficking crime.

The government does also point -- once again -- to Agent

García's testimony that he would not have gone through with the

purchase of the drugs and gun on March 17 if the transaction had

been only for marijuana. The government contends that this

testimony supports a finding that the defendants' "firearms

- 28 - dealing" "brought the agent-buyer to them in the first place."

But, as I have already explained, Agent García testified that he

was motivated to make the purchases of not just a gun but also

marijuana on March 17 because he wanted a court case under § 924(c)

that would be "solid," and he did so without also testifying that

he communicated that motivation to either defendant. Nor did Agent

García provide testimony from his experience as a law enforcement

officer working in a unit that specializes in drug- and gun-

trafficking crimes that the offer of the sale of guns is often

made in the black market to entice future drug sales from customers

for guns. For these reasons, Agent García's testimony at most

shows that the defendants engaged in a gun sale that happened to

advance a § 924(c) prosecution that the buyer was hoping to

trigger. But, § 924(c)'s "in furtherance of" element is not met

by evidence that merely shows that a defendant sold a gun to a

buyer who was seeking to prosecute him for violating § 924(c).

The only other evidence that the government could be

understood to be pointing to as support for a "bringing them to

the table" theory concerns the March 16th transaction in which

Agent García both met Jonathan for the first time and purchased a

gun from someone other than the two defendants in this case. The

evidence does supportably show that Jonathan claimed to Agent

García that he was the source of the gun that was sold to Agent

García on March 16 by someone other than either Jonathan or

- 29 - William. But, there is no evidence that either Jonathan or William

arranged that March 16th gun transaction. Therefore, any

conclusion that a juror might draw about how or why Jonathan was

there on March 16 is inherently inferential. And, in every

interaction that the defendants had with Agent García, both

marijuana and guns were for sale, including the March 17th

transaction -- as the government itself points out.

So, to conclude that the defendants possessed a gun for

the purpose of furthering their marijuana sales based on the

March 16th meeting between Agent García and Jonathan, a juror would

have to infer that Jonathan must have been present on March 16 to

take advantage of a gun buyer being there so that Jonathan could

offer him marijuana, that William must have known as much, that

Jonathan's offer on March 16 of guns and marijuana was dependent

on the offeree being present at that time only to buy guns, that

William must have known that too, etc. etc. A sufficiency

challenge may be rejected based on evidence in the record that

supports a reasonable inference. But, it cannot be rejected when

the evidence would require a juror to make as many inferences as

would be required here to arrive at a finding of guilt. See United

States v. Guzman-Ortiz,

(1st Cir. 2020) ("[N]either

may a judge 'stack inference upon inference in order to uphold the

jury's verdict.'" (quoting United States v. Valerio,

(1st Cir. 1995))).

- 30 - Nor can an appeal to common sense overcome this

inference-stacking concern. It may well be that it is fair to

assume that a donut-seller knows that he is selling a product that

will attract a ready-made customer base for coffee and so offers

the former in part to lure those who want the latter. But, there

is no reason to think, at least based on anything fairly deemed

common knowledge, that illegal guns sellers are operating in that

market, even in part, to lure marijuana buyers. Thus, I do not

see how it is commonsensical to conclude that those in the illegal

gun trade must be seeking to drive marijuana sales if they sell

both types of contraband.

II.

I take seriously the notion that we cannot look at pieces

of evidence from the record in isolation in assessing a sufficiency

challenge. See id. at 54. So, I recognize that the evidence just

canvassed must be viewed in its totality. But, proving that the

sale of a gun and the sale of drugs to the same buyer occurred at

the same time is not proof that one of those sales caused the other

in any way.

Similarly, I take seriously that credibility judgments

are for the jury to make, not a reviewing court on a cold record.

See United States v. Serunjogi,

(1st Cir. 2014).

But, there is no witness here to believe or not that could be

decisive as between a guilty verdict and an acquittal, as it is

- 31 - not as if any law enforcement officer testified, based on

experience, that in the black market gun sales are made to bring

about marijuana sales.

Thus, nothing in the record here would permit a rational

juror to find beyond a reasonable doubt that these two defendants

were operating in the gun market to further the sale of drugs

rather than merely to exploit those two distinct markets to meet

such demand as existed in each. As such, nothing in the record

suffices to support their convictions, given the "in furtherance

of" element of the underlying offense.

That said, I do not mean to suggest the record must

contain direct evidence that a defendant who was involved in the

sale of drugs and guns was motivated to sell a gun to further the

sale of drugs. Admissible testimony about how the illegal gun and

drug markets work might well suffice to permit a juror to

reasonably infer that the sale of the one must have been to further

the sale of the other. So too may circumstantial evidence that

demonstrates that a sale of drugs and a gun to a single customer

was carried out as a true "package deal" suffice to permit a

rational juror to find beyond a reasonable doubt that the gun sale

was not an independent transaction but instead furthered the drugs

sale.

In other words, there is nothing special about the "in

furtherance of" element that prevents the government from proving

- 32 - that element with circumstantial evidence that gives rise to a

reasonable inference that the defendant engaged in the conduct

that must be proven to satisfy that element. And so, when evidence

giving rise to such an inference is present in the record, an

appellate court cannot then undo what the jury has done by drawing

a different inference that it deems to be more reasonable. See

United States v. Clough,

(1st Cir. 2020).

In this case, though, there is neither testimony about

the way that drug and gun markets generally operate nor any

transaction-specific evidence that would suffice to permit the

reasonable inference either that the sales at issue were part of

a "package deal" rather than merely contemporaneous sales or that

the defendants put up the gun for sale to attract buyers for drugs

that they were also selling. Accordingly, it seems to me that, in

this case, a juror could find the "in furtherance of" element

satisfied beyond a reasonable doubt only by presuming that anyone

selling a gun and marijuana simultaneously to a single customer

must be selling the gun to further the sale of the marijuana. But,

we could permit such a presumption to carry the day only by reading

a statute that requires there to be proof beyond a reasonable doubt

that the possession of a gun is "in furtherance of" drug

trafficking to be a statute that merely requires that the

possession of the gun occurs "during and in relation to" such a

drug crime. And, as much as the "malleable" "in furtherance of"

- 33 - language has been pressed into service to cover cases that no doubt

did not occur to its authors, Gurka,

(Boudin, J.,

concurring), we cannot read those words to say what they do not

say. Cf. Bailey v. United States,

(1995) ("Had

Congress intended possession alone to trigger liability under

§ 924(c)(1), it easily could have so provided.").

For these reasons, I respectfully dissent.

- 34 -