OPINION OF THE COURT
WATSON V. UNITED STATES
552 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-571
MICHAEL A. WATSON, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the fifth circuit
[December 10, 2007]
Justice Souter delivered the
opinion of the Court.
The question is whether a person
who trades his drugs for a gun “uses” a firearm “during and in
relation to … [a] drug trafficking crime” within the meaning of 18
U. S. C. §924(c)(1)(A).[
Footnote 1] We hold that he does not.
I
A
Section 924(c)(1)(A) sets a
mandatory minimum sentence, depending on the facts, for a defendant
who, “during and in relation to any crime of violence or drug
trafficking crime[,] … uses or carries a firearm.”[
Footnote 2] The statute leaves the term
“uses” undefined, though we have spoken to it twice before.
Smith v.
United
States,
508 U. S. 223 (1993) raised the
converse of today’s question, and held that “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., at 241. We rested primarily on the “ordinary or
natural meaning” of the verb in context,
id., at 228, and
understood its common range as going beyond employment as a weapon:
“it is both reasonable and normal to say that petitioner ‘used’ his
MAC–10 in his drug trafficking offense by trading it for cocaine,”
id., at 230.
Two years later, the issue in
Bailey
v.
United States,
516 U. S. 137 (1995) was whether
possessing a firearm kept near the scene of drug trafficking is
“use” under §924(c)(1). We looked again to “ordinary or natural”
meaning,
id., at 145, and decided that mere possession
does not amount to “use”: “§924(c)(1) requires evidence sufficient
to show an
active employment of the firearm by the
defendant, a use that makes the firearm an operative factor in
relation to the predicate offense,”
id., at 143.[
Footnote 3]
B
This third case on the reach of
§924(c)(1)(A) began to take shape when petitioner, Michael A.
Watson, told a Government informant that he wanted to acquire a
gun. On the matter of price, the informant quoted no dollar figure
but suggested that Watson could pay in narcotics. Next, Watson met
with the informant and an undercover law enforcement agent posing
as a firearms dealer, to whom he gave 24 doses of oxycodone
hydrocholoride (commonly, OxyContin) for a .50 caliber
semiautomatic pistol. When law enforcement officers arrested
Watson, they found the pistol in his car, and a later search of his
house turned up a cache of prescription medicines, guns, and
ammunition. Watson said he got the pistol “to protect his other
firearms and drugs.” App. to Pet. for Cert. 11a.
A federal grand jury indicted him
for distributing a Schedule II controlled substance and for “using”
the pistol during and in relation to that crime, in violation of
§924(c)(1)(A).[
Footnote 4]
Watson pleaded guilty across the board, reserving the right to
challenge the factual basis for a §924(c)(1)(A) conviction and the
added consecutive sentence of 60 months for using the gun. The
Court of Appeals affirmed, 191 Fed. Appx. 326 (CA5 2006)
(per
curiam), on Circuit precedent foreclosing any argument that
Watson had not “used” a firearm, see
id., at 327 (citing
United States v.
Ulloa, 94 F. 3d 949 (CA5
1996) and
United States v.
Zuniga, 18 F. 3d
1254 (CA5 1994)).
We granted certiorari to resolve a conflict
among the Circuits on whether a person “uses” a firearm within the
meaning of 18 U. S. C. §924(c)(1)(A) when he trades narcotics
to obtain a gun.[
Footnote 5]
549 U. S. ___ (2007). We now reverse.
II
A
The Government’s position that
Watson “used” the pistol under §924(c)(1)(A) by receiving it for
narcotics lacks authority in either precedent or regular English.
To begin with, neither
Smith nor
Bailey
implicitly decides this case. While
Smith held that
firearms may be “used” in a barter transaction, even with no
violent employment, see 508 U. S.
, at 241, the case
addressed only the trader who swaps his gun for drugs, not the
trading partner who ends up with the gun.
Bailey, too, is
unhelpful, with its rule that a gun must be made use of actively to
satisfy §924(c)(1)(A), as “an operative factor in relation to the
predicate offense.” 516 U. S., at 143. The question here is whether
it makes sense to say that Watson employed the gun at all;
Bailey does not answer it.
With no statutory definition or
definitive clue, the meaning of the verb “uses” has to turn on the
language as we normally speak it, see,
e.g.,
Lopez v.
Gonzales, 549 U. S. ___, ___ (2006)
(slip op., at 5);
Asgrow Seed Co. v.
Winterboer,
513 U. S. 179,
187 (1995);
FDIC v.
Meyer,
510 U. S. 471, 476
(1994); there is no other source of a reasonable inference about
what Congress understood when writing or what its words will bring
to the mind of a careful reader. So, in
Smith we looked
for “everyday meaning,” 508 U. S.
, at 228, revealed in
phraseology that strikes the ear as “both reasonable and normal,”
id., at 230. See also
Bailey, supra, at 145. This
appeal to the ordinary leaves the Government without much of a
case.
The Government may say that a person “uses” a
firearm simply by receiving it in a barter transaction, but no one
else would. A boy who trades an apple to get a granola bar is
sensibly said to use the apple, but one would never guess which way
this commerce actually flowed from hearing that the boy used the
granola. Cf.
United States v.
Stewart, 246
F. 3d 728, 731 (CADC 2001) (“[W]hen a person pays a cashier a
dollar for a cup of coffee in the courthouse cafeteria, the
customer has not used the coffee. He has only used the dollar
bill”). So, when Watson handed over the drugs for the pistol, the
informant or the agent[
Footnote
6] “used” the pistol to get the drugs, just as
Smith
held, but regular speech would not say that Watson himself used the
pistol in the trade. “A seller does not ‘use’ a buyer’s
consideration,”
United States v.
Westmoreland,
122 F. 3d 431, 436 (CA7 1997), and the Government’s contrary
position recalls another case;
Lopez, supra, at ___ (slip
op., at 7), rejected the Government’s interpretation of 18 U.
S. C. §924(c)(2) because “we do not normally speak or write
the Government’s way.”[
Footnote
7]
B
The Government would trump
ordinary English with two arguments. First, it relies on
Smith for the pertinence of a neighboring provision, 18 U.
S. C. §924(d)(1), which authorizes seizure and forfeiture of
firearms “intended to be used in” certain criminal offenses listed
in §924(d)(3). Some of those offenses involve receipt of a
firearm,[
Footnote 8] from which
the Government infers that “use” under §924(d) necessarily includes
receipt of a gun even in a barter transaction.
Smith is
cited for the proposition that the term must be given the same
meaning in both subsections, and the Government urges us to import
“use” as “receipt in barter” into §924(c)(1)(A).
We agree with the Government that
§924(d) calls for attention; the reference to intended use in a
receipt crime carries some suggestion that receipt can be “use”
(more of a hint, say, than speaking of intended “use” in a crime
defined as exchange). But the suggestion is a tepid one and falls
short of supporting what is really an attempt to draw a conclusion
too specific from a premise too general.
The
Smith majority rested principally
on ordinary speech in reasoning that §924(c)(1) extends beyond use
as a weapon and includes use as an item of barter, see 508 U. S.,
at 228–230, and the
Smith opinion looks to §924(d) only
for its light on that conclusion. It notes that the “intended to be
used” clause of §924(d)(1) refers to offenses where “the firearm is
not used as a weapon but instead as an item of barter or
commerce,”
id., at 234, with the implication that Congress
intended “use” to reach commercial transactions, not just gun
violence, in §924(d) generally, see
id., at 234–235. It
was this breadth of treatment that led the
Smith majority
to say that, “[u]nless we are to hold that using a firearm has a
different meaning in §924(c)(1) than it does in §924(d)—and clearly
we should not—we must reject petitioner’s narrow interpretation.”
Id., at 235 (citation omitted); see also
Bailey,
supra, at 146 (“[U]sing a firearm should not have a different
meaning in §924(c)(1) than it does in §924(d)” (internal quotation
marks omitted)).
The Government overreads
Smith. While
the neighboring provision indicates that a firearm is “used”
nonoffensively, and supports the conclusion that a gun can be
“used” in barter, beyond that point its illumination fails. This is
so because the utility of §924(d)(1) is limited by its generality
and its passive voice; it tells us a gun can be “used” in a receipt
crime, but not whether both parties to a transfer use the gun, or
only one, or which one. The nearby subsection (c)(1)(A), however,
requires just such a specific identification. It provides that a
person who uses a gun in the circumstances described commits a
crime, whose perpetrator must be clearly identifiable in
advance.
The agnosticism on the part of §924(d)(1)
about who does the using is entirely consistent with common
speech’s understanding that the first possessor is the one who
“uses” the gun in the trade, and there is thus no cause to admonish
us to adhere to the paradigm of a statute “as a symmetrical and
coherent regulatory scheme, … in which the operative words have a
consistent meaning throughout,”
Gustafson v.
Alloyd
Co.,
513 U. S.
561, 569 (1995), or to invoke the “standard principle of
statutory construction … that identical words and phrases within
the same statute should normally be given the same meaning,”
Powerex Corp. v.
Reliant Energy Services, Inc.,
551 U. S. ___, ___ (2007) (slip op., at 7). Subsections (d)(1) and
(c)(1)(A) as we read them are not at odds over the verb “use”; the
point is merely that in the two subsections the common verb speaks
to different issues in different voices and at different levels of
specificity. The provisions do distinct jobs, but we do not make
them guilty of employing the common verb inconsistently.[
Footnote 9]
C
The second effort to
trump regular English is the claim that failing to treat receipt in
trade as “use” would create unacceptable asymmetry with
Smith. At bottom, this atextual policy critique says it
would be strange to penalize one side of a gun-for-drugs exchange
but not the other: “[t]he danger to society is created not only by
the person who brings the firearm to the drug transaction, but also
by the drug dealer who takes the weapon in exchange for his drugs
during the transaction,” Brief for United States 23.
The position assumes
that Smith must be respected, and we join the Government
at least on this starting point. A difference of opinion within the
Court (as in Smith) does not keep the door open for
another try at statutory construction, where stare decisis
has “special force [since] the legislative power is implicated, and
Congress remains free to alter what we have done.”
Patterson v. McLean Credit Union, 491 U. S. 164, 172–173
(1989). What is more, in 14 years Congress has taken no step to
modify Smith’s holding, and this long congressional
acquiescence “has enhanced even the usual precedential force” we
accord to our interpretations of statutes, Shepard v.
United States, 544 U. S. 13, 23
(2005).
The problem, then, is not with the
sturdiness of Smith but with the limited malleability of
the language Smith construed, and policy-driven symmetry
cannot turn “receipt-in-trade” into “use.” Whatever the tension
between the prior result and the outcome here, law depends on
respect for language and would be served better by statutory
amendment (if Congress sees asymmetry) than by racking statutory
language to cover a policy it fails to reach.
The argument is a peculiar one, in
fact, given the Government’s take on the current state of
§924(c)(1)(A). It was amended after Bailey and now
prohibits not only using a firearm during and in relation to a drug
trafficking crime, but also possessing one “in furtherance of” such
a crime. 18 U. S. C. §924(c)(1)(A); see n. 3,
supra. The Government is confident that “a drug dealer who
takes a firearm in exchange for his drugs generally will be subject
to prosecution” under this new possession prong. Brief for United
States 27; see Tr. of Oral Arg. 41 (Watson’s case “could have been
charged as possession”); cf. United States v.
Cox, 324 F. 3d 77, 83, n. 2 (CA2 2003) (“For
defendants charged under §924(c) after [the post-Bailey]
amendment, trading drugs for a gun will probably result in . . .
possession [in furtherance of a drug trafficking crime]”). This
view may or may not prevail, and we do not speak to it today, but
it does leave the appeal to symmetry underwhelming in a contest
with the English language, on the Government’s very
terms.
* * *
Given ordinary
meaning and the conventions of English, we hold that a person does
not “use” a firearm under §924(c)(1)(A) when he receives it in
trade for drugs. The judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Footnote 1
Formerly 18 U. S. C.
§924(c)(1) (1994 ed.).
Footnote 2
Any violation of §924(c)(1)(A),
for example, demands a mandatory minimum sentence of 5 years. See
18 U. S. C. §924(c)(1)(A)(i). If the firearm is brandished,
the minimum goes up to 7 years, see §924(c)(1)(A)(ii); if the
firearm is discharged, the minimum jumps to 10 years, see
§924(c)(1)(A)(iii).
Footnote 3
In 1998, Congress responded to
Bailey by amending §924(c)(1). The amendment broadened the
provision to cover a defendant who “in furtherance of any [crime of
violence or drug trafficking] crime, possesses a firearm.” 18 U.
S. C. §924(c)(1)(A). The amendment did not touch the “use”
prong of §924(c)(1).
Footnote 4
The grand jury also indicted
Watson as a felon in possession of a firearm, in violation of
§922(g)(1). This count referred to the five firearms found in
Watson’s house, but not the pistol he got for the
narcotics.
Footnote 5
Compare United States v.
Cotto, 456 F. 3d 25 (CA1 2006) (trading drugs for a
firearm constitutes “use” of the firearm under §924(c)(1)(A));
United States v. Sumler, 294 F. 3d 579 (CA3
2002) (same); United States v. Ramirez-Rangel,
103 F. 3d 1501 (CA9 1997) (same); United States v.
Ulloa, 94 F. 3d 949 (CA5 1996) (same); United
States v. Cannon, 88 F. 3d 1495 (CA8 1996)
(same), with United States v. Montano, 398
F. 3d 1276 (CA11 2005) (per curiam) (defendant did
not “use” a firearm within the meaning of §924(c)(1)(A) when he
traded drugs for a firearm); United States v.
Stewart, 246 F. 3d 728 (CADC 2001) (same); United
States v. Warwick, 167 F. 3d 965 (CA6 1999)
(same); United States v. Westmoreland, 122
F. 3d 431 (CA7 1997) (same). The Fourth Circuit has held that
a defendant “used” a firearm where he gave cocaine base to a
compatriot in exchange for assistance in obtaining a gun. See
United States v. Harris, 39 F. 3d 1262
(1994). Subsequent unpublished opinions in that Circuit have relied
on Harris for the proposition that the receipt of a
firearm in exchange for drugs constitutes use of the firearm. See,
e.g., United States v. Belcher, No. 98–4845, 1999
WL 1080103 (CA4, Nov. 29, 1999) (per curiam).
Footnote 6
The record does not say
which.
Footnote 7
Dictionaries confirm the
conclusion. “Use” is concededly “elastic,”
Smith v. United States, 508 U. S. 223, 241 (1993) (Scalia, J.,
dissenting), but none of its standard definitions stretch far
enough to reach Watson’s conduct, see, e.g., Webster’s New
International Dictionary of the English Language 2806 (2d ed. 1939)
(“to employ”); The Random House Dictionary of the English Language
2097 (2d ed. 1987) (to “apply to one’s own purposes”; “put into
service; make use of”); Black’s Law Dictionary 1541 (6th ed. 1990)
(“[t]o avail oneself of; … to utilize”); see also Smith,
supra, at 228–229 (listing various dictionary
definitions).
Footnote
8
See, e.g.,
18 U. S. C. §922(j) (prohibiting, inter alia, the
receipt of a stolen firearm in interstate commerce); §924(b)
(prohibiting, inter alia, the receipt of a firearm in
interstate commerce with the intent to commit a
felony).
Footnote
9
For that matter, the
Government’s argument that “use” must always have an identical
meaning in §§924(c)(1)(A) and 924(d)(1) would upend Bailey
v. United States, 516 U. S. 137 (1995). One of the
relevant predicate offenses referred to by §924(d)(1) is possession
of “any stolen firearm … [in] interstate or foreign commerce.” 18
U. S. C. §922(j). If we were to hold that all criminal conduct
covered by the “intended to be used” clause in §924(d)(1) is “use”
for purposes of §924(c)(1)(A), it would follow that mere possession
is use. But that would squarely conflict with our considered and
unanimous decision in Bailey that “ ‘use’ must
connote more than mere possession of a firearm.” 516 U. S., at
143.
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