USA v. Michael Rains

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USA v. Michael Rains

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 23, 2010 N o . 09-50724 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t iff - Appellee v. M I C H A E L GLYN RAINS; DAVID ALAN ALDRIDGE D e fe n d a n t s - Appellants

A p p e a ls from the United States District Court for the Western District of Texas

B e fo r e KING, HIGGINBOTHAM, and GARZA, Circuit Judges. E M I L I O M. GARZA, Circuit Judge: F ollow in g a jury trial, Michael Rains and David Aldridge were found guilty o f various crimes related to the manufacture and sale of methamphetamine. Rains challenges the sufficiency of the evidence supporting the jury's finding t h a t he was in an agreement to manufacture methamphetamine, the weight in v o lv e d , and his intent to distribute. Aldridge argues that the district court e r r e d in denying his motion to suppress and in enhancing his sentence under 21 U .S .C . § 841(b)(1)(A) based on a prior conviction under 18 U.S.C. § 924(c). I R a in s and Aldridge were members of a drug ring that manufactured, used, a n d sold methamphetamine in and around Odessa, Texas. They used a

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No. 09-50724 r u d im e n t a r y chemical process commonly known as the "red P method" to m a n u fa c t u r e methamphetamine. The red P method requires certain precursor c h e m ic a ls , specifically, phosphorus, iodine, and pseudoephedrine, which can be p r o d u c e d using a variety of household items and legally available products, such a s matchbooks, iodine, and over-the-counter decongestants. In an effort to curb methamphetamine production, the federal government h a s implemented restrictions on the amount of decongestants containing p s e u d o e p h e d r in e , such as Sudafed, that can be purchased on a daily and m o n th ly basis. See 21 U.S.C. § 844(a). Pharmacies keep records of the sale of t h e s e decongestants and often require a purchaser to furnish identification and s ig n a dated receipt. In order to avoid the limits, Aldridge and Rains purchased d e c o n g e s t a n t s at a variety of different pharmacies.1 Pharmacy records indicated t h a t during the relevant period, Aldridge purchased 121.5 grams of p s e u d o e p h e d r i n e and Rains purchased 193 grams. Other conspirators also p u r c h a s e d pseudoephedrine pills and exchanged them with the cookers for drugs o r money. Because of the difficulty in acquiring pseudoephedrine, Aldridge and R a in s cooked relatively small batches of methamphetamine two to three times a week, usually at Rains's house. The conspirators also went to some length to acquire iodine. Because m a n y stores that previously sold crystalized iodine had stopped doing so in r e s p o n s e to its use in methamphetamine production, the conspirators turned to p u r c h a s in g concentrated liquid iodine from a veterinary clinic in Andrews, T e x a s . Although they had to process the liquid iodine in order to use it, the c o n s p ir a t o r s purchased numerous bottles from the clinic.2

Apparently, pharmacies often cannot or do not share these records, and individuals are able to exceed the statutory limits by purchasing decongestants from different pharmacies. The frequent purchases raised the veterinarian's suspicions, causing him to report the purchases to the police. These tips lead to a traffic stop and arrest, during which evidence
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No. 09-50724 T h e conspirators worked together to ready the precursors and cook the m e t h a m p h e t a m in e . A grand jury indicted several members of the conspiracy in la t e 2008, and the police executed a series of coordinated arrests. Over the next fe w months, several of the indicted conspirators pled guilty and agreed to testify a g a in s t Rains and Aldridge. The grand jury subsequently issued a superceding in d ic t m e n t, charging Rains, Aldridge, two other named persons, and persons k n o w n and unknown with conspiring to manufacture in excess of fifty grams of m e t h a m p h e t a m in e . It further charged both Rains and Aldridge with possession o f methamphetamine with the intent to distribute 3 and a variety of counts of p u rch a sin g more than nine grams of pseudoephedrine within a thirty-day period. Aldridge was also charged with possession of methamphetamine and p ossession of methamphetamine-manufacturing equipment))charges stemming fr o m the traffic stop. Aldridge moved to suppress the evidence from the stop and h is subsequent arrest, arguing that the police lacked reasonable suspicion to s t o p the car. After holding a hearing, the district court denied the motion. Rains and Aldridge were tried together before a jury. The jury returned a guilty verdict against both men on all counts of the superceding indictment. As discussed below, the district court applied a sentencing enhancement that r e s u lt e d in a mandatory life sentence for Aldridge.4 This appeal followed. II A R a in s challenges the sufficiency of evidence supporting his convictions on t h r e e grounds. Specifically, he contends there was insufficient evidence that (1)

of methamphetamine production was seized. The intent-to-distribute counts were not based on the same methamphetamine being possessed by both men. Rather, each count was based on distinct drugs.
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Rains does not challenge his sentence on appeal.

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No. 09-50724 h e was involved in a conspiracy with any of the co-conspirators named in the in d ic tm e n t; (2) the conspiracy involved more than fifty grams of

m e t h a m p h e t a m in e ; and (3) he possessed the 15.84 grams with intent to deliver. When reviewing challenges to the sufficiency of evidence supporting a c o n v ic t io n , we view the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, and determine whether a reasonable ju r y could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Martinez, 151 F .3 d 384, 388 (5th Cir. 1998). "The evidence need not exclude every reasonable h y p o t h e s is of innocence or be wholly inconsistent with every conclusion except t h a t of guilt, and the jury is free to choose among reasonable constructions of the e v id e n c e ." United States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007). E v id e n c e presented to the jury supports a conclusion that Rains conspired w it h other named and unnamed co-conspirators.5 Misty Crow testified that she p u r c h a s e d pseudoephedrine pills for Rains so that he could manufacture m e t h a m p h e t a m i n e . Crow testified that she and others would aggregate their p i l l s for Rains to cook methamphetamine at Rains's house in Odessa, Texas. Rains admitted to police that Crow bought pills for him to manufacture m e t h a m p h e t a m in e , and that he gave her methamphetamine in return. Crow fu r t h e r testified that Aldridge and Rains manufactured methamphetamine t o g e t h e r , usually at Rains's house. Crow explained that Aldridge performed the s a m e tasks as she did, such as crushing pills and cutting up matches, in order t o cook methamphetamine at Rains's house. Randi Mutter and Michelle Preston a ls o testified that they gave Rains pills in exchange for money and drugs and

Contrary to Rains's argument, the government was not required to prove that Rains was in a conspiracy with any of the co-conspirators named in the indictment. The superceding indictment charges that Rains conspired with named co-conspirators "and with other persons known or unknown." The inclusion of the "other persons" language broadens the conduct beyond the named conspirators. See United States v. Thomas, 348 F.3d 78, 83 (5th Cir. 2003).

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No. 09-50724 h e lp e d him crush pills and strip match boxes to ready the cooking ingredients. This evidence was sufficient for a reasonable juror to conclude that Rains was in v o lv e d in a conspiracy to manufacture methamphetamine with Aldridge, who w a s named in the superceding indictment, and various unnamed other persons. See United States v. Lewis, 476 F.3d 369, 386)87 (5th Cir. 2007).6 R e g a r d in g the weight of drugs involved, the testimony of the state's expert c h e m is t and the records of Rains's pseudoephedrine purchases are sufficient to s u p p o r t the jury's finding that more than fifty grams of methamphetamine were in v o lv e d . The chemist testified that an average methamphetamine cook could o b t a in a yield of "somewhere between 45 and 70 percent," or 4.5 to 7 grams of m e t h a m p h e t a m in e from every 10 grams of pseudoephedrine. Records from v a r io u s pharmacies established that Rains purchased approximately 193 grams o f pseudoephedrine. Even using the low end of the average methamphetamine c o o k 's potential yield and only the pseudoephedrine Rains himself purchased, t h e jury could reasonably have concluded the conspiracy involved more than fifty

At oral argument, Rains's counsel additionally argued that it was improper for the government to prove a two-member conspiracy when the indictment alleged a four-member conspiracy. He contended that because the indictment mentioned certain alleged coconspirators by name, the government was obligated to provide evidence of their participation. In support of the argument, he cited to United States v. Miller, 471 U.S. 130 (1983), Russell v. United States, 369 U.S. 749 (1961), and Ex Parte Bain, 121 U.S. 1 (1887). Assuming without deciding that this argument could be raised for the first time at oral argument, we find it unavailing because the evidence presented was within the indictment. See United States v. Gonzales, 436 F.3d 560, 577 (5th Cir. 2006) ("[A]n instruction which does not broaden the possible bases of conviction beyond what is embraced in the indictment does not constitute a constructive amendment." (emphasis in original)); United States v. Easter, No. 05-41352, 2006 WL 1877218, slip op. at 7 (5th Cir. 2006) (per curiam). Although, as noted in United States v. McGilberry, 480 F.3d 326, 332 n.5 (5th Cir. 2007), "a constructive amendment complaint might be successful if [the indictment were so broad that] there were reason to believe the defendant lacked notice as to the underlying conduct he was being charged with," here, there is no indication that Rains lacked such notice. See United States v. Thomas, 12 F.3d 1350, 1358 (5th Cir. 1998). Accordingly, we find no issue with any discrepancy between the conduct charged in the indictment and the conduct proven at trial.

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No. 09-50724 g r a m s of methamphetamine.7 Thus, the evidence on weight was sufficient to s u p p o r t the verdict. T h e r e was also sufficient evidence of intent to sell. When Rains was a r r e s t e d , he had 15.84 grams of methamphetamine in his possession, along with a p p r o x im a t e ly $3,000 cash in a pouch around his neck. The methamphetamine w a s relatively impure, which a police expert testified was indicative of d is t r ib u t io n rather than personal use because a cooker would not dilute the p r o d u c t he was using. See United States v. Gonzalez, 339 F. App'x 400, 403 (5th C ir . 2009) (per curiam). Moreover, there was testimony from which the jury c o u ld infer that 15.84 grams is much more than a normal amount for daily p e r s o n a l use, thus negating Rains's defense theory. See United States v. Torres, 2 1 2 F. App'x 361, 366)67 (5th Cir. 2007) (per curiam). Based on the evidence p r e s e n t e d , the jury could reasonably conclude Rains possessed the drugs with t h e intent to sell. See id. In conclusion, we find the evidence sufficient to support Rains's c o n v ic tio n s . B A ld r id g e argues that an investigatory vehicle stop that led to his arrest and the seizure of several items related to the manufacture of

m e t h a m p h e t a m in e was made without the necessary reasonable suspicion. According to Aldridge, since the stop was illegal, the district court erred in d e n y in g his motion to suppress the evidence as fruit of the poisoned stop. In reviewing the district court's ruling on a motion to suppress, we review t h e district court's factual findings for clear error and its legal conclusions de n o v o . Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. R a n g e l-P o r tillo , 586 F.3d 376, 379 (5th Cir. 2009). The evidence is viewed in the
Assuming Rains achieved only a 45% yield, the 193 grams he purchased would produce approximately 87 grams of methamphetamine.
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No. 09-50724 lig h t most favorable to the party that prevailed in the district court. See United S ta te s v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000). "The reasonableness of an in v e s t ig a t o r y stop . . . is reviewed de novo." See United States v. Campbell, 178 F .3 d 345, 348 (5th Cir. 1999) (internal quotation marks and citation omitted). W e analyze the reasonableness of traffic stops and investigative detentions o f motorists who are suspected of criminal activity under the framework e s t a b lis h e d in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Stevens, 487 F .3 d 232, 244 (5th Cir. 2007). "Under Terry, we determine the reasonableness o f an investigative stop by examining: (1) whether the officer's action of stopping t h e vehicle was justified at its inception, and (2) whether the officer's actions w e r e reasonably related in scope to the circumstances that justified the stop." Id. (citing Terry, 392 U.S. at 19)20). An investigative vehicle stop is permissible u n d e r Terry when an officer has a reasonable suspicion, supported by articulable fa c t s , that criminal activity may be afoot. United States v. Lopez-Moreno, 420 F .3 d 420, 430 (5th Cir. 2005). A "mere hunch" will not suffice, but a reasonable s u s p ic io n does not need to rise to the level of probable cause. Id. A tip may p r o v id e the reasonable suspicion necessary to justify an investigative stop. United States v. Martinez, 486 F.3d 855, 861)62 (5th Cir. 2007). In this case, prior to the challenged stop, Andrews, Texas police officers h a d received information from Benjamin Hada, a veterinarian, about an increase in the number of iodine purchases made at his veterinary clinic. Whereas p r e v io u s ly he sold between three and six pint-sized bottles of 7% iodine per year, h e was selling that many in a month. The police confirmed Dr. Hada's suspicion t h a t the iodine might be used to manufacture methamphetamine, and Dr. H a d a 's clinic employees thereafter notified police officials when they noticed in d iv id u a ls purchasing large or unusual amounts of iodine. On the day of the stop, a clinic employee called the Andrews Police D e p a r t m e n t with information that a female had just purchased three bottles of 7

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No. 09-50724 io d in e from Dr. Hada's clinic. The clinic records indicated that this same woman h a d purchased eleven bottles of iodine over the prior nine months, and the clinic e m p lo y e e indicated to the police her "numerous" previous purchases. The clinic e m p lo y e e also informed the police that the individual in question listed an a d d r e s s in Odessa, Texas as her residence, meaning that the woman drove from O d e s s a to Andrews, a rural area approximately thirty-five miles northwest of O d e s s a , to make these purchases. The clinic employee gave the police the license p la t e number and a description of the vehicle in which the woman left. Based on this tip, the police stopped the vehicle, which belonged to A ld r id g e . Aldridge, the woman who purchased the iodine, and one other person w e r e in the car. During the stop, a police officer noticed a syringe and arrested t h e occupants for possession of drug paraphernalia. A further search, conducted in c id e n t to the arrest, yielded the three pint-sized bottles of iodine purchased fr o m the clinic, plastic tubing, two drug pipes, and receipts for muriatic acid and h ydrogen peroxide, which are also used in the manufacture of

m e th a m p h e ta m in e . Aldridge's argument is directed at the first Terry prong, namely, whether t h e officer's decision to stop the vehicle was justified at its inception. According t o Aldridge, the tip regarding the purchase of iodine, a legal product, is in s u ffic ie n t , at least in this case, to establish reasonable suspicion without some a d d it io n a l investigatory work. Because the officers admittedly had no basis for t h e stop other than the tip from the veterinary clinic, he concludes that the stop w a s illegal. He cites to United States v. Hauser, 34 F. App'x. 372 (9th Cir. 2002), U n ite d States v. Reinholz, 245 F.3d 765 (8th Cir. 2001), and United States v. A r a q u e , 255 F. Supp. 2d 1010 (D. Neb. 2003), in support of this proposition. The cases cited by Aldridge do not directly address the issue before the c o u r t. In Araque, the district court did not hold that facts similar to the instant fa c t s would necessarily run afoul of the Fourth Amendment. Rather, the court 8

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No. 09-50724 s a id that the tip "might not alone have been sufficiently reliable to justify an in v e s t ig a t o r y stop of the car." 255 F. Supp. 2d at 1012 (emphasis added). Araque did not have to reach the question presented here because additional fa c t s supported the stop, namely, the purchase of pseudoephedrine shortly after t h e aborted attempt to purchase iodine. Likewise, Reinholz did not address the is s u e before us. In that case, the police conducted additional investigation fo llo w in g a tip from a pharmacist about the suspicious purchase of iodine c r y s t a ls . 245 F.3d at 770)71. The issue, however, was whether the police a ffid a v it misled the judge that issued the search warrant, not the propriety of a n investigative vehicle stop. Id. at 773. Finally, in Hauser, the court

m e n tio n e d some follow-up investigation, but in no way intimated that all stops r e ly in g on tips are necessarily invalid without such investigation. 34 F. App'x. a t 372. Thus, we do not find that these cases provide persuasive support to A ld r id g e . Aldridge's argument might have more force if the tip had come from a m e r c h a n t reporting a single purchase of ordinary strength iodine. Here,

h o w e v e r , the tippee reported the purchase of three bottles of highly concentrated i o d i n e , following the purchase of numerous such bottles in the prior months. Based on previous discussions between Dr. Hada and the police concerning the t y p ic a l sale of iodine in the clinic, it was reasonable for the officers to infer that t h e purchase of such a large quantity in a relatively short period of time in d ic a te d that the purchaser intended to use the iodine illegally, that is, for the p r o d u c t io n of methamphetamine. See United States v. Arvizu, 534 U.S. 266, 273 (2 0 0 2 ) (noting that officers are allowed "to draw on their own experience and s p e c ia liz e d training to make inferences from and deductions about the c u m u la t iv e information available to them"). Indeed, as the district court noted, p r e v io u s tips from the clinic had already resulted in the police shutting down a d iffe r e n t methamphetamine manufacturing operation. Moreover, this same 9

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No. 09-50724 w o m a n had purchased eleven pint sized bottles of concentrated iodine over the p r io r nine months. We therefore hold that the purchase of the three additional b o t t le s of iodine, when viewed within the "totality of the circumstances," see U n ite d States v. Perkins, 352 F.3d 198, 199 (5th Cir. 2003), including the ongoing a n d previously reliable communication between the veterinary clinic and the p o lic e , provided reasonable suspicion sufficient to justify the stop. Accordingly, t h e district court did not err in denying Aldridge's motion to suppress. C T h e district court gave Aldridge a lifetime mandatory minimum sentence p u r s u a n t to 21 U.S.C. § 841(b)(1)(A) because it found that Aldridge had two p r e v io u s "felony drug offenses."8 Aldridge acknowledges that he has one such o ffe n s e but argues that a previous conviction under 18 U.S.C. § 924(c) for p o s s e s s io n of a firearm in furtherance of a drug trafficking crime is not a "felony d r u g offense," and thus cannot serve as the basis for the enhancement. We review de novo whether a conviction under § 924(c) counts as a felony d r u g offense for purposes of applying the enhancement under § 841(b)(1)(B). United States v. Santos-Riviera, 183 F.3d 367, 369 (5th Cir. 1999). This is an is s u e of first impression in this circuit, and we approach it with the gravity a p p r o p r ia te to a consideration on which a mandatory life sentence depends. As in any case involving statutory interpretation, we begin by examining t h e text of the relevant statutes. Watt v. Alaska, 451 U.S. 259, 265 (1981). Section 841(b)(1) does not define "felony drug offense," but the term is defined i n 21 U.S.C. § 802(44). "Because the term `felony drug offense' is specifically d e fin e d in § 802(44), and § 841(b)(1) . . . makes use of that precise term, the

21 U.S.C. § 841(b)(1)(A)(viii) provides: "If any person commits a violation of [the subsection criminalizing the manufacture of 50 grams or more of methamphetamine, among other offenses] after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release."

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No. 09-50724 lo g ic a l, commonsense way to interpret `felony drug offense' in § 841(b)(1) . . . is b y reference to the definition in § 802(44)." United States v. Roberson, 459 F.3d 3 9 , 52 (1st Cir. 2006). Section 802(44) provides that a "felony drug offense" is: a n offense that is punishable by imprisonment for more than one y e a r under any law of the United States or of a State or foreign c o u n t r y that prohibits or restricts conduct relating to narcotic drugs, m a r ih u a n a , anabolic steroids, or depressant or stimulant su b sta n ces. The law under which Aldridge was punished, § 924(c), provides: a n y person who, during and in relation to any crime of violence or d r u g trafficking crime . . . uses or carries a firearm, or who, in fu r t h e r a n c e of any such crime, possesses a firearm, shall, in a d d it io n to the punishment provided for such crime of violence or d r u g trafficking crime [be subject to additional penalties for v io la t io n of this section]. T h e issue is whether § 924(c) qualifies as a "law . . . that prohibits or restricts c o n d u c t relating to [drugs]." I n the only circuit case addressing this issue, United States v. Nelson, 484 F .3 d 257 (2007), a panel of the Fourth Circuit split. The majority held that § 924(c) could be the basis for the enhancement, at least when the record made c le a r the conviction involved a drug trafficking crime rather than a crime of v io le n c e . Id. at 261. The court reasoned that because Nelson's conduct was not c r im in a l under § 924(c) without his possession of crack with the intent to d is t r ib u t e , the § 924(c) conviction was an offense that prohibited or restricted c o n d u c t relating to narcotic drugs under § 802(44). Id. The dissent focused on § 802(44)'s use of the word "law," and concluded that an examination of the d o c u m e n t s of conviction was inappropriate: a law either does or does not prohibit d r u g related conduct, and § 924(c), at least in some circumstances, does not. Id. a t 264)66. Therefore, it could not be the basis of the enhancement. Id.

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No. 09-50724 T h e government analogizes the instant case to United States v. Mankins, 1 3 5 F.3d 946 (5th Cir. 1998), which was cited by both the majority and dissent in Nelson. See 484 F.3d at 261, 264 n.1. In Mankins, we held that a conviction u n d e r 21 U.S.C. § 843(b) for using a communications facility to facilitate the c o m m is s io n of a drug offense counted as a "felony drug offense" under § 802(44). 1 3 5 F.3d at 949)50. We reasoned that because some drug conduct, either an in d e p e n d e n t drug crime or the facilitation of such a crime, is an element of a § 843(b) conviction, the statute prohibits drug-related acts, and thus falls within t h e definition of a"felony drug offense" in that it "prohibits or restricts conduct r e la t in g to [unlawful controlled substances]." Id. at 849 (quoting § 802(44)). Although this reasoning supports the government's argument, Mankins does not c o n t r o l this case. Unlike § 924(c), which penalizes some non-drug-related

a c t iv it y , § 843(b) always involves drugs. Because it is impossible to violate § 843(b) without drug-related activities, Mankins does not present a situation in w h ic h some violations may constitute felony drug offenses, whereas others may n o t. Therefore, it is not entirely applicable to the issue before the court. W e have, however, issued another decision closely analogous to this case. See United States v. Curry, 404 F.3d 316 (5th Cir. 2005) (per curiam). Just as in this case, Curry had received a life sentence under § 841(b)(1)(A) and c h a lle n g e d whether one of his prior convictions should have counted as a "felony d r u g offense" under § 802(44). Id. at 317. The disputed conviction was under a L o u is ia n a state law criminalizing the possession of contraband in a state c o r r e c t io n a l institution. Id. at 318. Because the underlying state offense

r e a c h e d contraband of any kind, whether it be a weapon or crack cocaine, it was p o s s ib le to be convicted under the statute without drugs being involved. Id. at 3 2 0 . Acknowledging that a conviction for "the general crime of possession of c o n t r a b a n d in a penal institution" might not sustain the enhancement, the court n o n e t h e le s s held that the conviction supported the enhancement because the 12

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No. 09-50724 " s t a t e court Bill of Information . . . identified marijuana as the contraband." Id. The court cited to Shepard v. United States, 544 U.S. 13 (2005), to support its c o n c lu s io n that "not just the generic crime of possession of contraband [should b e ] considered . . . , but the underlying facts, proved by the undisputed formal c o n v ic t io n records." Id. Applying Curry to the facts of this case, we must conclude that Aldridge's § 924(c) conviction should be considered a felony drug offense under § 802(44). A ld r id g e does not dispute that the indictment and plea indicate his § 924(c) c o n v ic t io n involved a drug trafficking crime and not a crime of violence. Aldridge was charged with possession of methamphetamine with intent to d is t r ib u t e and possession of a firearm in furtherance of that crime. He pled g u ilt y to the § 924(c) charge, and the predicate drug charge was dismissed. However, since Aldridge could only plead guilty to the § 924(c) charge if he e n g a g e d in the predicate drug conduct, he necessarily admitted that his conduct in v o lv e d possession with intent to distribute methamphetamine. See Mankins, 1 3 5 F.3d at 949. That is, Aldridge was punished under a law that, at least in t h is situation, prohibited conduct relating to drugs. Aldridge argues that even if § 924(c) reaches drug conduct, it should not c o u n t as a felony drug offense because it is more appropriately considered a fir e a r m s offense than a drug offense. He points to the fact that § 924(c) is in T it le 18, whereas the majority of drug laws are found in Title 21. This argument h a s a certain intuitive force. However, Curry establishes that it is permissible t o apply the enhancement even when the statute of conviction covers non-drugr e la t e d conduct so long as the record makes clear the actual violation involved d r u g s . 404 F.3d at 320. If the law need not reach drug conduct in its every a p p lic a t io n , Aldridge's argument loses much of its force. Section 924(c) may m o r e appropriately be considered a firearms statute, but, if so, it is a firearms s t a t u t e that, at least in some situations, prohibits conducted related to drugs. 13

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No. 09-50724 S e e United States v. Brown, 598 F.3d 1013, 1015)16 (8th Cir. 2010) (discussing b r o a d ordinary meaning of the phrase "related to narcotic drugs"). A ld r id g e also asks us to apply the rule of lenity, which requires courts to c o n s t r u e ambiguous criminal statutes in favor of defendants. United States v. G r a n d e r s o n , 511 U.S. 39, 54 (1994). As Aldridge notes, the text of § 802(44) does n o t specify whether a law that qualifies as a "felony drug offense" must so q u a lify in its every application. The statute speaks of "any law . . . that prohibits o r restricts conduct relating to narcotic drugs." There is no qualification

in d ic a tin g that the law in question must "only restrict," "always restrict," or m e r e l y "restrict in part" conduct relating to drugs. Thus, the language of

§ 802(44) does not necessarily dictate a result when the enhancement depends o n a law that may or may not constitute a felony drug offense. Curry, however, fo r e c lo s e s application of the rule of lenity based on ambiguity in § 802(44). See 4 0 4 F.3d at 320 ("The statutory language and structure of § 802(44) are clear. There is no need to resort to lenity."). In conclusion, we join the Fourth Circuit in holding that § 924(c) can be the b a s is for an enhancement under § 841(b)(1) when the record makes clear that t h e conviction involved a drug trafficking crime rather than a crime of violence. See Nelson, 484 F.3d at 261.9 III F o r the reasons stated, the judgment and sentence of the district court are A F F IR M E D .

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.

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