United States v. Echeverry, No. 10-2828 (2d Cir. 2011)
Annotate this CaseDefendant appealed from a judgment of the district court convicting him of conspiracy to distribute narcotics and possession of a firearm during and in relation to a drug-trafficking crime. The district court imposed a sentencing enhancement pursuant to 18 U.S.C. 924(c)(1)(A)(iii) for the discharge of the weapon, even though it was the intended victim, and not defendant, who fired the gun. Defendant contended that because he did not possess the gun when it was discharged, the district court erred in applying the enhancement. The court held that the district court correctly held that defendant was subject to the discharge enhancement where, as here, defendant possessed a firearm in furtherance of a drug-related crime and the firearm was discharged during the course of that crime. Therefore, by its plain terms, the statute applied. The court also held that when a defendant possessed a firearm during a drug-trafficking offense, the risk of an intended victim trying to seize the gun was just as real as an accidental discharge and that defendant's reliance on United States v. Daija was unavailing. Accordingly, the judgment of the district court was affirmed.
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