Posted by WLS:
This morning the 9th Circuit affirmed both the conviction and sentence of former Border Patrol Agent Michael Carlos Gonzalez, including that portion of his sentence — a mandatory consecutive term of 5 years — that stemmed from his conviction under 18 USC Sec. 924(c) for “using or carrying” a firearm during and in relation to a drug trafficking crime.
The facts are straightforward – a load vehicle full of marijuana was stopped by a state law enforcement officer in Arizona. Three Border Patrol agents in plain clothes and a personal vehicle stopped to assist the Arizona officer who had made the stop. Two of the BP agents along with the DPS officer went in pursuit of the load vehicle’s occupants who had fled the scene. A third BP agent remained behind to safeguard the load vehicle. Shortly after, BP Agent Gonzalez, on-duty and in uniform driving a BP vehicle arrived at the scene and conferred with the BP agent who had remained behind. Gonzalez claimed to hear a gunshot, and the plain clothes BP agent went to investigate while Gonzalez remained with the load vehicle. While alone, Gonzalez removed a 10 KG “bale” of marijuana from the load vehicle and placed it in the trunk of his BP vehicle. Unknown to Gonzalez at the time, however, was that the dash-mounted video camera in the Arizona officer’s vehicle had been activated during the traffic stop, and continued running, catching Gonzalez on video in the act of removing the marijuana.
Gonzalez was indicted and later convicted at trial for possessing marijuana with the intent to distribute, and for using or carrying a firearm during and in relation to a drug trafficking crime. He was convicted by the jury on both counts.
The defendant argued, similar to Ramos and Compean, that his “using and carrying” a firearm was because it was a part of his uniform that was required, and played no role in his other criminal activity. The Ninth Circuit rejected this claim in affirming the conviction and sentence:
“Congress intended § 924(c) to apply when police officers, or in this case, Border Patrol agents abuse the privilege of carrying a firearm by committing a crime with the weapon. See United States v. Contreras, 950 F.2d 232, 241 (5th Cir.1991)(citing S.Rep. No. 225, 98th Cong., 2d Sess. 315 n.10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n.10). However, courts have recognized that § 924(c) is not automatically violated any time a uniformed law enforcement officer commits a drug trafficking crime. See, e.g. Vasquez-Guadalupe, 407 F.3d at 500 n.4 (1st Cir. 2005) (quoting Castro-Lara, 970 F.2d at 983). There must be more to trigger a violation of § 924(c). “The phrase ‘in relation to’… clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence ….[T]he gun at least must facilitate, or have the potential of facilitating, the drug trafficking offense.”
The 924(c) statute applies to “using or carrying” a firearm during or in relation to a “crime of violence” or a “drug trafficking crime.” The 9th Circuit cited the following evidence as supporting the conviction:
The government presented sufficient evidence for a rational jury to find that Gonzalez possessed a firearm in relation to his theft of the marijuana. Agent Rogers testified that he never would have left Gonzalez alone with the marijuana had he been unarmed, because doing so would have put Gonzalez in danger. Agent Rogers testified that he had safety concerns when leaving Gonzalez alone with the vehicle because the occupants could have come back for the marijuana or another vehicle could have ambushed him. He further testified he would not leave an unarmed officer alone to protect a load of marijuana and that the fact that Gonzalez had a gun was “crucial” to his decision to leave Gonzalez there alone.
 Gonzalez himself admitted that he thought drug trafficking was a dangerous activity and that having a service weapon protected him. Gonzalez’s own testimony tends to show that the weapon emboldened him and allowed him to take control of the marijuana load, lent him an air of legitimacy, and reduced the chance that he would be interrupted.
Gonzalez recevied a 30 months sentence on the marijuana charge, and an additional 60 months for the gun count. This is the same manner in which Compean and Ramos received 120 additional months on their sentences — the difference being that they discharged their firearms rather than merely using/carrying them.
I still think there is a serious issue in the trial record of Compean and Ramos with respect to limits placed upon the cross-examination of Aldrede-Davila, and the inability of the government to clearly explain the nature of the immunity he had been afforded, which influenced the court’s ruling on the scope of cross-examination. I’m not convinced that error was so severe as to require reversal, and since much of the trial transcript on the subject of Aldrede-Davila’s other criminal activity remains under seal, its hard to know what was before the court when it made the ruling.