SMITH v. U.S., (W.D.Tex. 1997)

JOHN W. PRIMOMO, United States Magistrate Judge.

Austin R. Smith pled guilty to and was convicted of manufacturing cocaine base and of using and carrying a firearm in relation to a drug-trafficking offense. He now seeks to vacate his conviction on the firearm charge, pursuant to Title 28 U.S.C. § 2255, based upon the Supreme Court's decision in Bailey v. United States, 516 U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), contending that the evidence is insufficient to establish that he used or carried a firearm. Having reviewed his motion, the government's response, the record and the applicable law, the Court is of the opinion the motion to vacate should be granted.

In a superseding indictment filed December 1, 1993, Smith was charged as follows: Count one — manufacturing cocaine base, in violation of Title 21 U.S.C. § 841 (a)(1); Count Two — possessing with intent to distribute cocaine, in violation of Title 21 U.S.C. § 841 (a)(1); Count Three — maintaining a place for the purpose of manufacturing cocaine base, in violation of Title 21 U.S.C. § 856 (a)(1); and Count Four — using and carrying a firearm during a drug-trafficking offense, in violation of Title 18 U.S.C. § 924 (c)(1). (Docket no. 26). The government filed a Notice of Enhanced Penalty alleging that the amount of cocaine base in Count One exceeded 50 grams, and the amount of cocaine in Count Two exceeded 500 grams. (Docket no. 27).

Smith and the government entered into a plea agreement whereby the government agreed to dismiss Counts Two and Three in exchange for his plea of guilty to Counts One and Four. (Docket no. 36). The government also agreed not to oppose Smith's request for a sentence of 120 months. Smith pled guilty February 7, 1994 and was sentenced April 8, 1994 to serve 120 months in prison, plus a term of supervised release of 5 years. (Docket no. 39). The sentencing judge initially sentenced Smith to 180 months, consisting of a 120 month sentence on Count One, the statutory minimum, and a consecutive sentence of 60 months on Count Four. After a discussion at the bench, the court, in order to allow Smith to receive the 120-month sentence envisioned in the plea agreement, altered the sentence to 60 months on Count One and 60 months on Count Four, to be served consecutively. (Docket no. 50, pp. 7-9). He did not appeal.

On December 6, 1995, the Supreme Court rendered its decision in Bailey. Section 924(c) imposes a mandatory 60-month sentence if a defendant is convicted of using or carrying a firearm during a drug-trafficking crime. Bailey addressed the "use" prong of the statute. The Supreme Court held that a defendant can be convicted under Section 924(c) of using a firearm only if he actively employs the weapon, and not merely because he possessed it or was in close proximity to it. Id . at ___, 116 S.Ct. at 506. The government concedes that the factual basis for Smith's guilty plea does not establish that he actively employed the firearm during the drugtrafficking crime for which he was convicted. However, the government contends that the evidence was sufficient to prove Smith carried the weapon. Alternatively, the government states that Smith has tacitly rejected the plea agreement and the original charges should be reinstated.

Analysis

The factual basis in support of Smith's guilty plea is contained in the plea agreement and was repeated at the time of his guilty plea hearing. (Docket no. 49, pp. 12-13). Pursuant to the execution of a search warrant at Smith's residence on August 19, 1993, agents seized quantities of cocaine and cocaine base. The cocaine base was found in the kitchen. The cocaine was located under a dresser in the bedroom. The firearm was found within feet of the cocaine.

A conviction under Section 924(c) requires that the defendant (1) used or carried a firearm, (2) during and in relation to a drug-trafficking offense. United States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997). The Supreme Court in Bailey did not address the "carry" element of Section 924(c); thus, prior precedent analyzing that prong is not affected. United States v. Rivas, 85 F.2d 193, 195 (5th Cir.), cert. denied, ___ U.S. ___, 117 S.CL. 593, 136 L.Ed.2d 521 (1996). To "carry" a firearm means more than merely possessing it. United States v. Hall, 110 F.3d 1155, 1161 (5th Cir. 1997). In a vehicle, the carrying requirement is met if the operator of the vehicle knowingly possesses the firearm during and in relation to a drug-trafficking crime. United States v. Wilson, 116 F.3d 1066, 1090 (5th Cir. 1997). When a firearm is recovered outside of a vehicle context, as here, the government must show, to establish carrying, that the firearm was transported by the defendant — or was within his reach during and in relation to the predicate crime. Hall, 110 F.3d at 1161.

The Court believes that the facts in this case cannot support Smith's conviction for carrying a firearm during a drug-trafficking crime. The factual basis does not indicate that the firearm was on his person or within his reach at the time he was arrested. There is no evidence he transported the weapon during the drug crime. The evidence simply shows that a weapon was found near the cocaine seized from his bedroom. The fact that a weapon found in the defendant's residence is there for the protection of drugs or drug paraphernalia, or is located near the drugs or drug paraphernalia, is not sufficient to prove the defendant carried the firearm. United States v. Thompson, 122 F.3d 304, 307 (5th Cir. 1997); United States v. Tolliver, 116 F.3d 120, 127 (5th Cir.), cert. denied sub nom, Sterling v. United States, ___ U.S. ___ (1997). See Hall, 110 F.3d at 1158.

The government contends that, by pleading guilty, Smith admitted all of the elements of the Section 924(c)(1) offense, including the requirement that the firearm be carried during the drug-trafficking crime. However, a post-conviction change in the law which decriminalizes the behavior of which a defendant is convicted, will permit a challenge to the conviction. In Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974), the Supreme Court held that a defendant can challenge his conviction in a Section 2255 proceeding based upon a change in substantive law. Conviction and punishment for an act that the law does not make criminal ". . . "inherently results in a complete miscarriage of justice' and "present[s] exceptional circumstances' that justify collateral relief under § 2255." Id. at 346-47, 94 S.Ct. at 2305.

Additionally, under Rule 11(f), Fed.R.Crim.P., a court cannot accept a guilty plea unless there is a sufficient factual basis for the plea. United States v. Armtrong, 951 F.2d 626, 629 (5th Cir. 1992). Relief from a formal or technical violation of Rule 11 is available under Section 2255 only if there is a showing of prejudice. Carter, 117 F.3d at 264. If, in light of Bailey, Smith entered a plea of guilty to a crime he did not commit, he has sustained obvious prejudice. Id . Thus, Smith's conviction on Count Four should be set aside.

The Court does not believe that Smith's challenge to the legality of his conviction on Count Four amounts to repudiation of the plea agreement. He has indicated no such intent. Vacating his guilty plea and reinstating the original charges are neither necessary nor warranted. The Court agrees with the government, however, that Smith is not entitled to a 60-month reduction in his sentence. Although the government has not sought to have Smith resentenced, it is clear that resentencing is necessary to accomplish the intent of the plea agreement and the interests of justice.

The Fifth Circuit Court of Appeals has adopted the "aggregate package" approach to resentencing. United States v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997). Thus, a defendant who attacks any part of his sentence necessarily attacks the whole sentence. See United States v.Benbrook, 119 F.3d 338, 340 (5th Cir. 1997). If he does so, he has no legitimate expectation of finality in his sentence and opens his entire sentence to review. Id . Relying upon the aggregate package approach the Fifth Circuit Court of Appeals has held that a defendant who successfully challenges his Section 924(c)(1) conviction based upon Bailey can be resentenced on the underlying drug offense, with application of the enhancement for possession of a dangerous weapon under Section 2D1.1(b)(1) of the Sentencing Guidelines, without violating the Double Jeopardy Clause. Benbrook, 119 F.3d at 340-41; United States v. Hernandez, 116 F.3d 725, 727 (5th Cir. 1997); United States v. Rodriguez, 114 F.3d 46, 48 (5th Cir. 1997).

In this case, the minimum statutory sentence Smith faced on Count One was 120 months in prison. The sentencing court imposed a sentence of 60 months on Count One because of the agreement of the parties. Having challenged his sentence package, Smith can now be resentenced on Count One to the term he would have received on that count but for the plea agreement. There is no need for another sentencing hearing if the trial court imposes the statutory minimum sentence on Count One. The district judge can simply enter an amended judgment vacating Smith's conviction on Count Four and resentencing him to 120 months on Count One, the same length of sentence previously-imposed.

It is, therefore, the recommendation of the Magistrate Judge that Smith's motion to vacate sentence be GRANTED such that his Section 924(c) conviction on Count Four be set aside, and that he be resentenced on Count One to a term of 120 months.

The United States District Clerk shall serve a copy of this Memorandum and Recommendation on all parties by mailing a copy to each of them by Certified Mail, Return Receipt Requested. Pursuant to Title 28 U.S.C. § 636(b)(1) and Rule 72(b), Fed.R.Civ.P., any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the district court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the clerk of the court, and serve the objections on all other parties and the magistrate judge . A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1428-29 (5th Cir. 1996).