In U.S. v. Montano, No. 03-11950 (Feb. 4, 2005), the Court (Barkett, Hill & Forrester, b.d.) held that bartering drugs to obtain a firearm cannot constitute "use" of a firearm within the meaning of 18 U.S.C. § 924(c). The Court recognized the circuit conflict on this issue. However, the Court found no "active employment" of a firearm when drugs are being used to obtain it, and the firearm is never actually obtained (the defendant bartered with an undercover law enforcement official). The defendant merely passively viewed the firearms, and then never again came into view of them, and never possessed them, either actually or constructively. Moreover, Montano could not, as a matter of law, conspire with government officials in the commission of an unlawful act.
The Court noted, however, that Montano was pressing this issue for the first time in a § 2255 motion and,had pled guilty to the § 924(c) offense and not challenged this on appeal. Therefore, to overcome his procedural default, had to show not just factual innocence of the § 924(c) but "actual innocence," i.e., that he was actually innocent of the other charges which the government dismissed in exchange for his guilty plea to the § 924(c) offense. The Court remanded the case for this determination.
