§ 924(c) Conviction a "Felony Drug Offense" for Controlled Substance Act Enhancement Purposes If Record Shows It Involved Drug-Trafficking Crime

United States v. Rains, No. 09-50724 (5th Cir. Aug. 23, 2010) (King, Higginbotham, Garza)

Rains confronts what is surprisingly a question of first impression for the court. In fact, only one other circuit has addressed it in a published opinion. That question is whether a § 924(c) conviction is a "felony drug offense" for purposes of the enhanced penalties in 21 U.S.C. § 841. Which means we'll have to look at statutory language.

"Felony drug offense" is defined, for purposes of the Controlled Substances Act, in 21 U.S.C. § 802(44). It is

an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.

And § 924(c) provides that

any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime [be subject to additional penalties for violation of this section].

(alterations in Rains). "The issue is whether § 924(c) qualifies as a 'law . . . that prohibits or restricts conduct relating to [drugs].'"

In a split decision, the Fourth Circuit "held that § 924(c) could be the basis for the enhancement, at least when the record made clear the conviction involved a drug trafficking crime rather than a crime of violence." The dissent in that case "focused on § 802(44)’s use of the word 'law,' and concluded that an examination of the documents of conviction was inappropriate: a law either does or does not prohibit drug related conduct, and § 924(c), at least in some circumstances, does not." For that reason, the dissent argued, § 924(c) is not a "felony drug offense."

Rains concludes that the answer is controlled by an earlier Fifth Circuit decision, United States v. Curry, which applied the Taylor/Shepard approach to determine whether a state conviction for possessing of contraband in a state prison was a "felony drug offense." The state statute covered a variety of contraband, including drugs. "Curry establishes that it is permissible to apply the enhancement even when the statute of conviction covers non-drug related conduct so long as the record makes clear the actual violation involved drugs." And so it is with § 924(c):

In conclusion, we join the Fourth Circuit in holding that § 924(c) can be the basis for an enhancement under § 841(b)(1) when the record makes clear that the conviction involved a drug trafficking crime rather than a crime of violence.

Recoginizing one potentially deleterious implication of this holding, the court ended the discussion with this important footnote:

We are concerned that this decision could be read to support a double enhancement when the same underlying conduct gives rise to both a substantive drug offense and a § 924(c) conviction for possession of a firearm in furtherance of a drug trafficking crime. At oral argument, the government indicated it would not pursue a double enhancement under these circumstances. Although we take the government at its word, we also want to be clear that it is not our intention to authorize such a double enhancement.

Keep that in mind.