Possession of precursor chemical is “drug trafficking crime” for purposes of 18 U.S.C. § 924(c)(1)(A) firearm possession offense

SUFFICIENCY OF EVIDENCE/SENTENCING United States v. Rockey, No. 05-7006, ___ F.3d ___ (10th Cir. Jun. 2, 2006)(E.D. Oklahoma). Appeal of conviction and sentence for being felon in possession of firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), possessing firearm in furtherance of drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and possessing listed chemical knowing or having reason to believe it would be used to manufacture controlled substance in violation of 21 U.S.C. § 841(c)(2). HELD: (1) Term “drug trafficking crime” within meaning of 18 U.S.C. § 924(c)(1)(A)(possession of firearm in furtherance of drug trafficking crime) includes any felony punishable under Controlled Substances Act (21 U.S.C. § 801 et seq.) including possession of ephedrine, a precursor chemical for methamphetamine, in violation of 21 U.S.C. § 841(c)(2). (2) There is no requirement that sentence enhancement under U.S.S.G. § 4B1.4(b)(3)(A) for use or possession of firearm during crime of violence be applied only when defendant is charged with or convicted of crime of violence. Rather, if district court finds, by preponderance of evidence, that the unlawful conduct occurred, enhancement under § 4B1.4(b)(3)(A) is proper. Thus, despite finding by jury that government failed to prove beyond reasonable doubt that defendant pointed firearm at police officer while fleeing arrest, sentence enhancement was proper under § 4B1.4(b)(3)(A) because judge found sentence enhancing fact by preponderance of evidence. Read the opinion here.