Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 06 CR 50013-Philip G. Reinhard, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge
Before KANNE, EVANS, and SYKES, Circuit Judges.
Bryan Lang appeals the four-level enhancement he received pursuant to U.S.S.G. § 2K2.1(b)(6). He argues that his trade of a firearm in exchange for drugs was improperly characterized as "use" of the firearm for purposes of the enhancement. We disagree, and affirm Lang's sentence.
Bryan Lang, a convicted felon, used a .38 caliber handgun to purchase cocaine in February 2006. Lang was short on cash, so he traded the gun for the drugs in the parking lot of a Rockford, Illinois bar. The exchange was observed by FBI agents who were conducting surveillance at the location. After questioning him about the transaction, law-enforcement officers arrested Lang on February 25, 2006. He was charged by indictment with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He entered a guilty plea without a written plea agreement with the government.
Lang's Presentence Report included a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6), which calls for the enhancement if the defendant "used or possessed any firearm or ammunition in connection with another felony offense," or if the defendant "possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." After adding the four levels, Lang's total offense level was 25, and his Criminal History Category was VI. This subjected Lang to a guidelines range of 110 to 137 months' imprisonment. The statutory maximum for his offense was capped at 120 months.
Lang objected to the § 2K2.1(b)(6) enhancement, arguing that the guidelines did not contemplate its application where the defendant exchanged his firearm for cocaine. The district court disagreed. Although the court did not think Lang's conduct fell under the second provision of § 2K2.1(b)(6) because he did not possess or transfer the gun with "knowledge, intent, or reason to believe that it would be used in connection with another felony offense," the court viewed Lang's conduct as falling within the first part of § 2K2.1(b)(6) because Lang had used the firearm as an "item of trade" in an illicit cocaine deal that would constitute a felony under either federal or Illinois law.
After considering the sentencing factors enunciated in 18 U.S.C. § 3553(a), the court sentenced Lang to 110 months' imprisonment. Lang timely filed this appeal.
The sole issue on appeal is whether the district court erred by applying the four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6). Lang argues that the text of the guidelines delineates between "use" and "transfer," and that the district court should not have viewed Lang's bartering of his gun for drugs as "use" under the first provision of § 2K2.1(b)(6), because he actually "transferred" the gun. According to Lang, transfers are excluded in the first part of the provision, and the district court erred by categorizing Lang's gun activity as use.
We review de novo the district court's legal interpretation of the sentencing guidelines, United States v. Katalinic, 510 F.3d 744, 746 (7th Cir. 2007), as well as its application of the guidelines to the facts of the case, United States v. Samuels, 521 F.3d 804, 815 (7th Cir. 2008). Specifically, we are reviewing the district court's determination that a defendant's exchange of a gun for cocaine was considered "use" of the firearm in connection with the felony offense of cocaine distribution or sale, pursuant to U.S.S.G. § 2K21.1(b)(6).
In Smith v. United States, 508 U.S. 224, 241 (1993), the Supreme Court considered what "use" meant for the purposes of 18 U.S.C. § 924(c)(1), which prescribes an enhanced penalty if a person uses a fiream in relation to a crime of violence or drug trafficking crime.Although the language in§ 2K2.1(b)(6) is different from the statutory language at issue in Smith, the Supreme Court's reasoning and ultimate definition of "use" is persuasive here. "[A] criminal who trades his firearm for drugs 'uses' it during and in relation to a drug trafficking offense within the meaning of § 924(c)(1)." Id. The Court explained that the attempted drug deal in that case-involving a purchaser who attempted to trade his firearm for cocaine- would not have been possible but for the trade of the gun, so the gun's role in the furtherance of the defendant's activity was not accidental or coincidental. Id. at 237-38. Because the gun played an "integral part" in the attempted offense, it was "used" in relation to the drug trafficking crime. Id.
The Supreme Court recently upheld Smith in Watson v. United States, but limited its scope: Smith "addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun." Watson v. United States, 128 S.Ct. 579, 583, 585 (2007). The Court again explained that the person who hands over a firearm in exchange for something else "uses" it in order to secure the desired item, but the person who simply receives the item in a barter transaction does not use it. Id. at 583. The Court's distinction between the giver and the receiver of a firearm in a trade reflects the same distinction we recognized in United States v. ...