Octavio Jimenez-Marquez was arrested in February 2022 after Albuquerque police found him stepping out of the driver's seat of a stolen truck containing 445 grams of methamphetamine under his seat, an unloaded stolen revolver, and an assault rifle with ammunition that he admitted moving from the back seat. Officers also discovered an additional 84 grams of methamphetamine in a Ziploc bag in the back-seat area, with the total drug haul worth up to $10,800 according to government expert testimony.
The Tenth Circuit held there was sufficient evidence to convict Jimenez-Marquez under the 'in furtherance of' standard, which requires possession 'for the purpose of assisting in, promoting, accomplishing, advancing, or achieving the goal or objective of the underlying offense.' As Judge Hartz explained, multiple factors supported the conviction: the firearms were 'easily accessible to Defendant from the driver's seat,' text messages showed he was 'seeking to get a gun because someone had recently stolen drugs and a gun from him,' and expert testimony established that 'drug traffickers often possess firearms for protection and deterrence.'
The court rejected the defendant's unusual constitutional challenge with particularly pointed language. 'This argument is hard to parse,' Judge Hartz wrote, calling the vagueness claim 'a puzzle to us' because 'nothing in the language of the statute, or the statutory history, creates this safe harbor for possession that is in relation to.' The panel found no merit in Jimenez-Marquez's contention that the statute failed to adequately distinguish between possession 'in furtherance of' versus 'in relation to' drug crimes.
The case reached the Tenth Circuit after U.S. District Judge William P. Johnson in the District of New Mexico convicted Jimenez-Marquez on multiple charges, including possession with intent to distribute methamphetamine, being an alien in possession of a firearm, and escape. Jimenez-Marquez challenged only the § 924(c) conviction on appeal, arguing both insufficient evidence and constitutional vagueness, while conceding at oral argument that his facial vagueness challenge was inappropriate.
The defendant argued that Congress's 1998 amendment to § 924(c) — which added the 'in furtherance of' standard for mere possession while maintaining the 'during and in relation to' standard for use or carrying — created an unconstitutional gap that made it 'impossible to know when one's conduct is safely within the 'in relation to' standard and not violating the slightly higher 'in furtherance of' standard.' The court dismissed this reasoning, noting that 'if you possess a firearm in furtherance of the crime, you always possess it in relation to the crime' and that the 'in furtherance of' language 'was meant to be stricter than 'in relation to.''
The decision reinforces the Tenth Circuit's eight-factor 'Basham test' for determining whether firearm possession furthers drug trafficking, including the type of criminal activity, accessibility of the weapon, whether it's loaded, proximity to drugs, and circumstances of discovery. The court distinguished cases where defendants kept firearms locked away or otherwise inaccessible, noting that here the evidence was 'similar to, if not stronger than, the evidence in other cases where we have held that the in-furtherance-of element was satisfied.'
The ruling provides clarity for practitioners defending § 924(c) cases by firmly establishing that possession 'in furtherance of' encompasses a narrower category than possession 'in relation to,' eliminating any potential safe harbor argument. The decision also demonstrates that accessibility and recent drug robberies can provide strong evidence of the requisite nexus between firearms and drug trafficking, even when weapons are unloaded.