Tuesday, November 26th, 2019

Factual basis for § 924(c) plea insufficient where proffer showed only that defendant “possessed the gun while simultaneously engaging in [] drug trafficking” and did not establish “specific nexus” between gun and drug-trafficking offense necessary for “in furtherance” element

In United States v. Luis Rosario, a summary order, the Circuit vacated a guilty plea to a § 924(c) count, charging Mr. Rosario with possessing a firearm in furtherance of a drug-distribution conspiracy, on the ground that the factual basis for his plea was insufficient. The essential facts are that Mr. Rosario participated in a drug conspiracy for about two months; that he occasionally used a white van during this time frame; and that a gun was later found inside the van. After arrest, Mr. Rosario said that he “carries the gun for protection.”

These were the only facts on the record when Mr. Rosario pleaded guilty. But as the Court summarized, “th[is] evidence . . . established only that Rosario possessed the gun while simultaneously engaging in a drug-trafficking conspiracy” and did not show a ‘specific nexus’ between the gun and the drug-trafficking offense . . . [as] required to support a plea to possession ‘in furtherance of’ such an offense.” Order at 5.

The factual basis was thus insufficient. As the Court reminds us, “a gun may, of course, be possessed for any of a number of purposes, some lawful, others unlawful.” Order at 4 (quoting United States v. Chavez, 549 F.3d 119, 130 (2d Cir. 2008)). And § 924(c)’s “‘in furtherance of’ element cannot be satisfied ‘by relying on the generalization that any time a drug dealer possesses a gun, that possession is in furtherance, because drug dealers generally use guns to protect themselves and their drugs.'” Id. (quoting United States v. Snow, 462 F.3d 55, 62 (2d Cir. 2006)). Rather, there must be evidence of a “‘specific nexus’ between the charged firearm and the federal drug-trafficking crime.” Id.


A final, unfortunate twist: At the originally scheduled sentencing — which then became a conference focused on Mr. Rosario’s pro se request to withdraw his guilty plea — the Government told the judge that it possessed surveillance evidence that Mr. Rosario was “seen in [the] van” while speaking with undercover agents about a drug transaction. Order at 5. This suggested that there were “records that would at least connect Rosario’s use of the van to his drug trafficking activity.” Id.

But these statements “were not on the record ‘at the time of the plea,'” as required for the factual-basis inquiry. As the Circuit has long held, “The factual basis for the plea must be developed on the record at the time the plea is taken” and thus “statements put on the record after this point, including at the plea-withdrawal proceeding[,] are irrelevant to our [Rule 11] inquiry.” United States v. Adams, 448 F.3d 492, 502 (2d Cir. 2006).

Nonetheless, because the prosecutor’s belated comments “provide some reason to believe that additional proceedings below might develop . . . that there was a factual basis for the plea,” the Court remanded with instructions to the district court “to reopen the plea allocution to determine whether a factual basis exists to support [the] conviction.” Order at 6. And “[i]f a satisfactory basis is found on remand, the district court shall reinstate the conviction.” Id.

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