Page 28 - TPA Journal May June 2021

Cooper properly consented to the magistrate not know about the firearm. He does not,
judge conducting the colloquy; the magistrate however, address the fact that the backpack also
judge explored the factual basis for count two by contained drug paraphernalia and plastic baggies
comparing the available facts to the elements of commonly used in the distribution process. While
the offense alleged; and the district judge Cooper claims he did not know about the
reviewed and accepted Cooper’s guilty plea. contents of the backpack, he knew about the
backpack itself, and he certainly knew about the
Cooper’s second argument that the factual basis methamphetamine he was transporting.
was insufficient also fails. Because Cooper did Furthermore, firearms are common “tools of the
not challenge the sufficiency of the factual basis trade” of drug trafficking. Together, this evidence
for his guilty plea in the district court, this court is more than sufficient to support the conclusion
reviews for plain error. To show plain error, that Cooper knew about the firearm and that the
Cooper must show a forfeited error that is clear possession was in furtherance of the
or obvious and that affects his substantial rights. methamphetamine trafficking charged in count 1.
We may, in our discretion, correct the error if it Cooper does not show any plain error.
seriously affects the fairness, integrity, or public Finally, Cooper forfeited any argument he might
reputation of judicial proceedings. have under Rosemond by not briefing the issue.
Our March 30 order instructed Cooper’s counsel
To determine if the facts support Cooper’s guilty to either file a supplemental Anders brief
plea to count 2, we may consult all relevant addressing Rosemond or “a brief on the merits
materials in the record. This includes the addressing any nonfrivolous issues that counsel
indictment itself, evidence available at the plea deems appropriate.” Consistent with that order,
hearing, evidence “adduced after the acceptance Cooper’s counsel chose the latter route, filing a
of a guilty plea but before or at sentencing,” the brief on the merits which does not address
pre-sentencing report, et cetera. Rosemond. In Rosemond, the Supreme Court
addressed the issue of the mens rea required to
According to Cooper, his possession of the aid and abet the possession of a firearm in
firearm could not have been “in furtherance” of furtherance of a drug-trafficking offense in
the drug-trafficking offense in count 1 because he violation of 18 U.S.C. §§ 2 and 924(c). 572 U.S.
did not have any “prior knowledge of [the at 75. Cooper does not cite to Rosemond, and he
firearm] before Marriott entered the vehicle.” discusses instead the distinct mens rea issue of
Possession of a firearm is “in furtherance” of a the knowledge required to directly commit—
drug-trafficking offense if the possession rather than aid and abet—a § 924(c) offense.
furthers, advances, or helps forward that Assuming arguendo that Cooper did not forfeit a
offense.3 Rosemond argument, any Rosemond challenge
would fail on this record. In Rosemond the
This possession must be “knowing possession Supreme Court explained that § 924(c) is a
with a nexus linking the defendant and the “combination crime” because it requires not just
firearm to the [drug-trafficking] offense.” Smith, the possession of a firearm but also the
878 F.3d at 502. commission a drug-trafficking crime. 572 U.S. at
71, 75. To show that the defendant intended to
Cooper points to the fact that the firearm was facilitate the commission of a § 924(c) offense—
found in Marriott’s closed backpack on the the intent requirement for aiding and abetting—
passenger side of the car as evidence that he did the government must show that the defendant

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