United States v. Echeverry, No. 10-2828-cr (2d Cir. August 19, 2011) (Winter, Parker, Chin, CJJ) (per curiam)
The facts of this latest per curiam could have been pulled straight from a law school exam. During an ongoing narcotics conspiracy, Echeverry and his accomplice attempted to recover stolen narcotics from a third person; they possessed and brandished a gun but, during the incident, the intended victim grabbed it and discharged it, wounding the accomplice.
The issue was whether Echeverry should get the seven-year brandishing § 924(c) sentence or the ten-year discharge § 924(c) sentence. The district court gave him the longer sentence, holding that if a defendant possesses a firearm during a drug-trafficking offense he is responsible for a subsequent discharge of that firearm, no matter who fires it.
The circuit affirmed. The statute provides that the enhanced sentence applies “if the firearm is discharged,” and “does not require that the firearm be discharged by the defendant.” In addition, the recent Supreme Court case, Dean v. United States, which held that the discharge enhancement applied when the gun went off accidentally, controls. The use of the passive voice in the statute indicates that the statute focuses “on an event that occurs without respect to any specific actor.” Thus, a defendant “need not directly cause a discharge to be subject to the firearm-discharge enhancement.”