“In Furtherance Of” Under § 924(c) Is a Stricter Subset of “In Relation To,” and Creates No Possession Safe Harbor

Introduction

In United States v. Jimenez-Marquez (10th Cir. Apr. 3, 2026), the Tenth Circuit affirmed Octavio Jimenez-Marquez’s conviction under 18 U.S.C. § 924(c) for possessing firearms “in furtherance of” a drug-trafficking crime. The appeal focused on a single count: whether the evidence showed the required nexus between the firearms and the drug-trafficking offense, and whether the statutory phrase “in furtherance of” is unconstitutionally vague as applied.

The factual setting was a vehicle stop/arrest involving a stolen truck, substantial methamphetamine found under the driver’s seat and in the back-seat area, and two firearms located within the passenger compartment (including a rifle with ammunition in an attached magazine and an unloaded revolver that was stolen). The government also presented expert testimony about traffickers’ use of guns for protection and deterrence, and text messages indicating the defendant was seeking firearms after a recent drug robbery.

Summary of the Opinion

The Tenth Circuit held (1) the evidence was sufficient for a rational jury to find the defendant possessed the firearms “in furtherance of” methamphetamine trafficking under § 924(c), and (2) § 924(c)’s “in furtherance of” language was not unconstitutionally vague as applied. Critically, the court rejected the premise that a defendant must be able to distinguish “in relation to” (the standard for “use or carry”) from “in furtherance of” (the standard for “possess”) in order to have constitutionally adequate notice for the possession offense. For a possession charge, the only question is whether possession was “in furtherance of.”

Analysis

Precedents Cited

1) Sufficiency review framework

  • United States v. Wood, 207 F.3d 1222 (10th Cir. 2000): Provided the governing standard of review—whether, viewing evidence in the light most favorable to the government, any rational trier of fact could find guilt beyond a reasonable doubt. The court used this lens to evaluate the § 924(c) nexus evidence.
  • United States v. Poe, 556 F.3d 1113 (10th Cir. 2009): Restated the elements for a possession-based § 924(c) conviction: (1) possession; (2) possession “in furtherance of” a drug-trafficking crime. Because possession was not disputed, the case centered on element (2).

2) Defining “in furtherance of” and the “nexus” factors

  • United States v. Basham, 268 F.3d 1199 (10th Cir. 2001): The court relied on Basham for the definition of “in furtherance of”—possession “for the purpose of assisting in, promoting, accomplishing, advancing, or achieving the goal or objective of the underlying offense”—and for the nonexclusive list of practical factors used to infer that purpose from circumstances.
  • United States v. Russian, 848 F.3d 1239 (10th Cir. 2017) and United States v. King, 632 F.3d 646 (10th Cir. 2011): These decisions supplied the commonly repeated articulation of the “Basham factors” and emphasized their role in identifying the “requisite nexus” between firearm possession and drug trafficking.

3) Comparators illustrating when the nexus is (and is not) satisfied

  • United States v. Lowe, 117 F.4th 1253 (10th Cir. 2024): Used as a modern example where proximity and storage (gun kept with drugs in a suitcase) plus an inference of protective availability supported the “in furtherance of” element.
  • United States v. King, 632 F.3d 646 (10th Cir. 2011): Reinforced that a loaded rifle placed near drugs (in a trunk) coupled with testimony about traffickers’ practices supports a finding the gun furthered trafficking via protection and intimidation.
  • United States v. Rockey, 449 F.3d 1099 (10th Cir. 2006): Supported the proposition that keeping an unlawfully possessed firearm with drug-manufacturing materials indicates the firearm was kept to advance the drug offense. The opinion also supplied limiting hypotheticals (e.g., “unloaded antiques mounted on the wall,” or a hunting pistol “locked and inaccessible”) to show that not all gun possession by a drug offender satisfies § 924(c).
  • United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001): Served two roles. First, it marked the boundary where nexus evidence was too thin—no evidence the gun and drugs were kept together or that the gun was accessible during drug transactions. Second, it framed the statutory relationship: “in furtherance of” is “a slightly higher standard” than “during and in relation to.”
  • United States v. Garza, 566 F.3d 1194 (10th. Cir. 2009): Provided an example where possession in furtherance was supported by firearm location near drugs held for sale and contextual evidence of violence connected to drug robbery, strengthening the inference of protective/retaliatory purpose.

4) Statutory-history anchor and constitutional-vagueness standards

  • Bailey v. United States, 516 U.S. 137 (1995): The court used Bailey to explain why Congress amended § 924(c) in 1998. Bailey narrowed “use” to “active employment,” rejecting the government’s expansive theories that blurred “use” into mere possession.
  • United States v. Platte, 401 F.3d 1176 (10th Cir. 2005): Provided the Tenth Circuit’s articulation of the void-for-vagueness doctrine: fair notice and non-arbitrary enforcement.
  • United States v. Morales-Lopez, 92 F.4th 936 (10th Cir. 2024): Supported limiting the vagueness inquiry to an as-applied challenge (outside the First Amendment), and the principle that a defendant whose conduct clearly falls within a statute generally cannot mount a facial vagueness attack.

Legal Reasoning

1) Sufficiency: applying the nexus factors to the facts

The court treated the case as a straightforward application of established Tenth Circuit doctrine: the question was whether a jury could reasonably infer the firearms were possessed to advance drug trafficking (protection, deterrence, intimidation, safeguarding product/proceeds, or facilitating transactions), rather than being coincidental.

Although the panel noted the defendant’s claim that “Basham factors cut against” him, the analysis that followed effectively described multiple factors cutting in the government’s favor:

  • Accessibility: firearms were readily accessible from the driver’s seat.
  • Proximity: firearms were in the passenger compartment near substantial methamphetamine.
  • Type/features and practical utility: the firearms had characteristics supporting their use for protection/intimidation.
  • Condition/load status: while the revolver was unloaded and the rifle lacked a chambered round, the rifle had ammunition in an attached magazine, and expert testimony supported that even an unloaded firearm can provide deterrence or intimidation.
  • Contextual evidence of purpose: texts showed the defendant sought firearms after a recent drug robbery in which drugs and a gun were stolen—evidence directly linking the desire to arm himself to drug-trade risks.
  • Transaction circumstances: presence of a smaller bag of methamphetamine and a passenger fleeing supported an inference of contemporaneous drug-dealing activity, making defensive/transactional arming more probative.

The court then compared this record favorably to prior cases where the nexus was sufficient (United States v. Lowe; United States v. King; United States v. Garza) and distinguished the insufficiency scenario (United States v. Iiland) where the gun was not shown to be co-located or accessible during drug activity.

2) Vagueness: clarifying what must be “clear” for a possession charge

The heart of the opinion is its treatment of the defendant’s vagueness theory. The defendant argued, in essence, that because § 924(c) contains both “during and in relation to” (for “use or carry”) and “in furtherance of” (for “possess”), ordinary people cannot reliably tell when firearm possession falls on one side of the line or the other—leading courts to “conflate” the standards.

The panel rejected the premise as a category mistake. For a possession-based § 924(c) prosecution, the relevant statutory inquiry is whether the defendant possessed a firearm “in furtherance of” the drug crime. There is no textual or historical basis for a “safe harbor” allowing firearm possession that is merely “in relation to” a drug crime to escape liability if it also satisfies “in furtherance of.”

The court’s key doctrinal clarification: possession “in furtherance of” is a stricter subset of possession “in relation to.” If the higher standard is met, the lower one is necessarily met; therefore, in a possession case, the defendant does not need to parse the lower standard to have fair notice.

The court anchored this in statutory history: Congress amended § 924(c) after Bailey v. United States to add a possession prong—but did so with a higher nexus phrase (“in furtherance of”) rather than simply criminalizing possession “during and in relation to.” The opinion also relied on the existing definitional and factor-based framework from United States v. Basham and its progeny, treating that body of law as supplying administrable content rather than vagueness.

Finally, the panel observed that the defendant did not specifically argue that the meaning of “in furtherance of” (as defined and applied through the Basham factors) is itself impermissibly indeterminate; instead, he argued the standards are difficult to distinguish. Because the purported uncertainty about “in relation to” is irrelevant to a possession charge, the as-applied vagueness challenge failed.

Impact

  • Narrows a recurring defense framing: Defendants charged under the possession prong of § 924(c) cannot credibly ground an as-applied vagueness claim in the alleged “blur” between “in relation to” and “in furtherance of.” The possession case turns on “in furtherance of” alone.
  • Reinforces the subset relationship: The opinion crystallizes (and operationalizes) the idea, hinted in United States v. Iiland, that “in furtherance of” is “a slightly higher standard” than “during and in relation to,” and explicitly explains why that structure forecloses any “in-relation-to-only” safe harbor.
  • Encourages fact-driven nexus proof: By approving reliance on accessibility, proximity, and contextual evidence like robbery-related texts and expert testimony on trafficking practices, the decision signals that prosecutors can satisfy “in furtherance of” through circumstantial evidence that the firearm was meant to protect or facilitate the drug operation.
  • Constrains vagueness challenges to the actual standard applied: Future challenges in the Tenth Circuit will likely need to confront the administrability of the “in furtherance of” definition itself (and its factor-based application), rather than arguing confusion with “in relation to.”

Complex Concepts Simplified

  • § 924(c) has two different nexus phrases for different conduct:
    • uses or carries a firearm: must be during and in relation to a drug-trafficking crime.
    • possesses a firearm: must be in furtherance of a drug-trafficking crime.
  • “In furtherance of” (possession) means “to help advance the drug crime”: Not mere coincidence. Courts look at practical indicators (accessibility, proximity, loading, illegality, type of gun, circumstances, etc.) to decide if the gun was kept to protect drugs/proceeds, deter theft, intimidate, or otherwise facilitate trafficking.
  • Void-for-vagueness (as applied): A statute is unconstitutional as applied if it fails to give ordinary people fair notice that the charged conduct is prohibited, or if it invites arbitrary enforcement. In this case, the court held the “in furtherance of” standard—backed by established definitions and factors—gave adequate notice and guidance.
  • Subset logic (the opinion’s key move): If “in furtherance of” is satisfied, then “in relation to” is necessarily satisfied too—so debating the lower phrase is unnecessary in a possession prosecution.

Conclusion

United States v. Jimenez-Marquez affirms a § 924(c) conviction by applying the Tenth Circuit’s established “in furtherance of” nexus framework and, more importantly, clarifies the structure of § 924(c): the possession prong stands on its own “in furtherance of” requirement and does not depend on parsing “in relation to.” The opinion strengthens the doctrinal message that “in furtherance of” is a higher, narrower standard—yet sufficiently definite—while signaling that future vagueness challenges must target that standard’s content, not confusion with the separate “use or carry” clause.