Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Subsection (c)(1)(A)(i) of 18 U.S. Code 924 provides “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, shall . . . be sentenced to a term of imprisonment of not less than 5 years[.]” A defendant who “uses or carries” a firearm “during and in relation to” a drug trafficking offense violates the subsection. But so does a defendant who “possesses” a firearm “in furtherance of” a drug trafficking offense. In other words, subsection (c)(1)(A)(i) defines two crimes, the 10th Circuit Court of Appeals opinion noted, citing the decision United States v. Iiland.
A federal trial jury convicted Joel Flores of the second offense. According to Flores, however, the evidence was insufficient to meet the standard he “possessed” a firearm “in furtherance of” a drug trafficking offense because the government presented no evidence beyond that which was necessary to meet the standard he “possessed” a firearm “during and in relation to” the offense, which Flores pointed out is not a crime under 924(c)(1)(A)(i). Exercising appellate jurisdiction applying the appropriate standard of review, citing the 10th Circuit decision United States v. King, the 10th Circuit held the evidence was sufficient under its precedents to sustain Flores’ conviction for possessing a firearm in furtherance of a drug trafficking offense and affirmed.
Flores admitted the relevant facts proven at trial. On April 17, 2019, Flores was the lone passenger in a sedan in Greeley, Colorado. Following evasive maneuvers to avoid getting pulled over for a minor traffic violation, the sedan collided with a curb and the airbags deployed. Flores and the driver fled from the scene in different directions. The officer lost sight of the driver but observed Flores run around the backside of the liquor store.
Backup assistance, including a police canine trained to detect human odor, soon arrived. A search of the abandoned sedan uncovered a spent 9mm shell casing in its front console. With the assistance of the canine, officers searched a nearby trailer park and discovered Flores. A search of Flores’ person revealed a 9mm bullet in his jacket pocket, cash in small denominations in the front pocket of his hoodie and 12.3 grams of 98% pure methamphetamine in the same location. Additional evidence, including a twenty and fifty dollar bill, was uncovered along Flores’ presumptive flight path. After the canine was alerted to a scent in the bushes, officers located a 9mm Smith & Wesson handgun. The gun’s magazine contained three bullets. A fourth bullet was in the gun’s chamber ready to fire with the pull of a trigger. Flores acknowledged that subsequent testing confirmed the shell casing discovered in the sedan had been used in the firearm located in the bushes.
In an interview following Miranda warnings, Flores admitted the firearm belonged to him and he intended to sell the methamphetamine found on his person. Flores admitted to discarding the gun behind the liquor store. When asked where he had been carrying the gun, Flores indicated it was on his ankle.
As a result of the foregoing incident, a federal grand jury indicted Flores for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1) (count I), possessing with intent to distribute methamphetamine in violation of 21 U.S.C. 841(a)(1) (count II) and possessing a firearm in furtherance of a drug trafficking crime in violation of 924(c)(1)(A)(i) (count III). Following a trial, a jury convicted Flores on all counts. The district court subsequently sentenced Flores to concurrent 60-month terms of imprisonment on counts I and II and a consecutive 60-month term of imprisonment on count III.
On appeal, Flores challenged only his 924(c)(1)(A)(i) conviction and its mandatory five-year sentence of imprisonment. Flores acknowledged he possessed a firearm at the same time he possessed methamphetamine with the requisite intent to distribute. But he said the evidence the government presented at trial was insufficient to establish the firearm he possessed was “in furtherance of” his drug trafficking activity. According to Flores, “the Tenth Circuit’s current interpretation of ‘in furtherance of’ adds nothing to ‘during and in relation to,’ and is thus contrary to the expressed intent of Congress” that the former phrase imposed a greater burden of proof on the prosecution than the latter.
The 10th Circuit disagreed. “Although the differences between the [two] standards are ‘subtle’ and ‘somewhat elusive,’ they exist nonetheless,” the opinion noted, citing the 6th Circuit decision United States v. Combs.
According to the 10th Circuit opinion, an intent to possess a firearm “in furtherance of” a drug trafficking crime is usually proven, as it was here, through circumstantial evidence.
In this case, Flores was in the business of selling “user” amounts of methamphetamine on the streets of Greeley. Flores admitted he had the gun strapped to his ankle just prior to discarding it while fleeing from the police. The firearm, of suspect origin, was chambered, loaded and ready to fire. Flores possessed the firearm in close proximity to both his drugs and apparent drug profits. A shell casing found in the sedan was identified as coming from Flores’ firearm.
The opinion noted a reasonable jury could conclude Flores had access to the firearm on his person while he conducted his drug transactions. As the 10th Circuit previously observed: “when guns and drugs are found together and a defendant has been convicted of possession with intent to distribute, the gun, whether kept for protection from robbery of drug- sale proceeds, or to enforce payment for drugs, may reasonably be considered to be possessed ‘in furtherance of’ an ongoing drug-trafficking crime,” citing the decisions United States v. Trotter and United States v. Garner.
The 10th Circuit affirmed.
Eric Adams filed this lawsuit seeking damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The district court concluded his claim couldn’t proceed under Bivens and dismissed it. The court later denied Adams’ post-judgment motions. Adams appealed the district court’s rulings, and the 10th Circuit Court of Appeals affirmed.
Adams, a federal inmate, filed this lawsuit against a corrections officer. Seeking damages under Bivens, he alleged the officer violated his Eighth Amendment rights by tampering with his food. The officer moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The officer argued a Bivens remedy didn’t exist for Adams’ claim.
The Supreme Court recognized a Bivens remedy — an implied cause of action for damages against federal officers for a constitutional violation — in only three cases, the 10th Circuit opinion noted, citing the decision Ziglar v. Abbasi. In the decades since these three decisions, however, expanding Bivens has become not merely a “disfavored judicial activity,” but one “that is impermissible in virtually all circumstances,” the opinion noted, citing the 10th Circuit decision Silva v. United States.
Deciding whether to recognize a Bivens remedy is a two-step process, the appellate court noted, citing the decision Egbert v. Boule. First, a court asks if “the case presents a new Bivens context—i.e., is it meaningfully different from the three cases in which the Court has implied a damages action.” “Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are special factors indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.”
In this case, the district court concluded Adams’ claim presented a new Bivens context and a special factor — the existence of alternative remedies — cautioned against recognizing a Bivens remedy. And so the district court dismissed the case under Rule 12(b)(6). Adams then moved to withdraw his consent to the magistrate judge’s jurisdiction and to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The district court denied both motions. Adams appealed.
The 10th Circuit started with Adams challenging the district court’s Rule 12(b)(6) dismissal. The court reviewed that ruling de novo. To survive scrutiny under Rule 12(b)(6), a “complaint must allege sufficient facts to state a claim for relief plausible on its face,” the 10th Circuit explained, citing the decision Strain v. Regalado.
According to the opinion, the district court correctly concluded Adams’ claim presented a new Bivens context. His claim alleged an Eighth Amendment violation, and so did the claim in Carlson. But that didn’t clinch the issue for Adams: “a claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized,” the opinion added, citing the decision Hernandez v. Mesa. And unlike the claim in Carlson, Adams’ claim didn’t allege deliberate indifference to medical needs. For that reason, Adams’ claim sought to expand Bivens to a new context.
The district court, the opinion added, also correctly concluded the existence of alternative remedies prevented it from recognizing a Bivens remedy for Adams’ claim. The prison grievance system available to Adams “offers an independently sufficient ground to foreclose” his Bivens claim.
Aside from the merits, Adams objected to the district court’s dismissal on several other grounds. He claimed the district court ignored a memorandum he filed and failed to address his arguments. The record belies these claims. The dismissal order, more than seven pages long, referenced the memorandum and adequately addressed the parties’ arguments, the opinion noted. The 10th Circuit reviewed the dismissal de novo, and Adams didn’t present any argument below that could change the outcome of this case, the opinion added.
Adams also argued the court erred by refusing to consider his surreply opposing dismissal. But for support, he primarily relied on the practice standards of a judge who didn’t rule on the dismissal motion. And the surreply was unnecessary in any case because the officer’s reply didn’t raise new issues, the opinion noted. For these reasons, the 10th Circuit saw no abuse of discretion in the district court’s declining to consider the surreply, citing the decision Green v. New Mexico.
Having concluded the district court correctly dismissed Adams’ claim, the 10th Circuit took up his objections to the post-judgment rulings denying his motion to withdraw his consent to the magistrate judge’s jurisdiction and his Rule 59(e) motion. The 10th Circuit reviewed these rulings for an abuse of discretion, citing the decisions Etherton v. Owners Ins. Co. and Carter v. Sea Land Servs., Inc.
According to the opinion, the district court didn’t err when it denied Adams’ motion to withdraw his consent to the magistrate judge’s jurisdiction. Adams asserted the magistrate judge’s failure to entertain the arguments in his response opposing dismissal amounted to “extraordinary circumstances” warranting withdrawal of his consent. The premise of that argument is incorrect, according to the 10th Circuit. The magistrate judge adequately addressed Adams’ arguments.
The 10th Circuit affirmed the district court’s judgment and granted Adams’ motion to proceed on appeal without prepaying costs or fees.