What is the test for a federal drug dealer to be convicted of possessing a firearm in furtherance of drug trafficking?

A gun may, of course, be possessed for any of a number of purposes, some lawful, others unlawful. The government does not establish that a firearm was possessed in furtherance of drug trafficking merely by relying on the proposition that drug dealers generally use guns to protect themselves and their drugs, and thus that any time a gun is possessed by a drug dealer it is possessed in furtherance of his drug offenses. See, e.g., United States v. Snow, 462 F.3d 55, 62 (2d Cir. 2006), cert. denied, 549 U.S. 1150, 127 S.Ct. 1022, 166 L.Ed.2d 770 (2007). "Instead, the government must establish the existence of a specific `nexus' between the charged firearm and the [federal drug trafficking crime]." Id.; see, e.g., United States v. Lewter, 402 F.3d 319, 321-22 (2d Cir.2005); United States v. Finley, 245 F.3d at 203. The "nexus" inquiry is fact-intensive.

"Although courts look at a number of factors to determine whether such a nexus exists," United States v. Snow, 462 F.3d at 62, such as "the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found," id. at 62 n. 6 (internal quotation marks omitted), "the ultimate question is whether the firearm `afforded some advantage (actual or potential, real or contingent) relevant to the vicissitudes of drug trafficking,'" id. at 62 (quoting United States v. Lewter, 402 F.3d at 322). "Thus, while no conviction would lie for a drug dealer's innocent possession of a firearm, . . . a drug dealer may be punished under 924(c)(1)(A) where the charged weapon is readily accessible to protect drugs, drug proceeds, or the drug dealer himself." United States v. Snow, 462 F.3d at 62-63 (internal quotation marks omitted).

[549 F.3d 131]