IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30591
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
FRANK J. MUSCARELLO,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
February 13, 1997
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:
In this direct criminal appeal, the government asks us to
reverse the district court’s dismissal of one count in a multi-
count indictment to which Defendant-Appellee Frank J. Muscarello
had pled guilty. Count Three charged Muscarello with knowingly
using and carrying a firearm in relation to a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c)(1). Based on the
presentence report (PSR), the court dismissed Count Three, to which
Muscarello had already pled guilty and on which he had already been
convicted. Agreeing with the government that the district court
erred in dismissing the firearms count, we reverse and remand for
further proceedings consistent with this opinion.
I
FACTS AND PROCEEDINGS
Pursuant to a plea agreement, Muscarello pleaded guilty in May
1995 to drug charges and to “using and carrying” a firearm in
relation to those crimes. The factual basis for the guilty plea,
which was signed for approval by Muscarello’s attorney, established
that “[l]ocated inside the glove compartment of the Defendant
Muscarello’s Ford truck was a loaded firearm which the Defendant
knowing [sic] possessed in his vehicle and carried for protection
in relation to the above described drug trafficking offense”
(emphasis added). Muscarello did not object to the factual basis
supporting his convictions.
After Muscarello was thus convicted but prior to his being
sentenced, the United States Supreme Court rendered its decision in
Bailey v. United States,1 significantly narrowing the “use” facet
of § 924(c) (but not addressing the “carrying” facet). This
prompted Muscarello to file a motion under Fed. R. Crim. P.
12(b)(2) to quash or dismiss the firearm count.2 After holding a
hearing on Muscarello’s motion, the district court granted it,
1
116 S.Ct. 501 (1995).
2
Notwithstanding Muscarello’s argument to the contrary, it
is of no moment that the indictment charged that Muscarello carried
“and” used a firearm rather than that he carried “or” used a
firearm. See United States v. Pigrum, 922 F.2d 249, 253 (5th
Cir.), cert. denied, 500 U.S. 936 (1991) (a disjunctive statute may
be pleaded conjunctively and proved disjunctively).
2
dismissing and quashing Count Three. In so doing, the district
court chose no longer to credit the factual basis presented by the
government and concurred in by Muscarello, but instead to switch
its reliance exclusively to the following two paragraphs from
Muscarello’s post-conviction PSR:
As to the weapon, Muscarello does not deny his possession
of the pistol. The pistol was in the glove compartment
of his truck where it had been for a long period of time.
He denies any conscious decision to carry the gun in
relation to the marijuana sale, and stated that he
carried in relation to his job with the Tangipahoa Parish
Sheriff’s office as balif [sic] at the courthouse in
Amite.
. . . .
In 1954, [Muscarello] became constable of the 6th Ward of
Tangipahoa Parish, a mostly rural area that included the
farming community of Tickfaw. He held this position
until 1958. In 1957 Tickfaw was incorporated, and
Muscarello was elected Chief of Police in the town. He
maintained both positions until his term as constable
expired in 1958. Muscarello was the Chief of Police in
Tickfaw until his retirement in 1987. From 1987 until
his arrest on December 8, 1994, he was employed with the
Tangipahoa Parish Sheriff’s office, working as a bailiff
in the 21st Judicial District Courthouse, Amite,
Louisiana.
The court stated that “[t]he equities herein favor
[Muscarello]” and concluded that Muscarello “did not knowingly
possess in relation to a drug-trafficking crime,” but that “[t]o
the contrary, defendant, his employment background considered,
knowingly possessed in the glove compartment of his vehicle in
furtherance of his job requirements and not for active employment
in the charged transaction.”
The government moved for reconsideration but the district
court denied that motion despite its acknowledgment that
3
Muscarello, “in the guilty plea colloquy, [had] acquiesced in and
admitted to the government’s factual basis[.]” The court went on to
note that “this [was] a pre-Bailey composition by the government
and a pre-Bailey consideration by defendant and his counsel.” The
court then quoted the foregoing paragraphs from Muscarello’s PSR
again, and repeated the conclusion that Muscarello “did carry a
firearm in a locked glove compartment of his vehicle, but not in
relation to the commission of a drug-trafficking crime.” The case
is before us for review by virtue of the government’s timely filing
of a notice of appeal.3
II
ANALYSIS
To support a conviction under § 924(c), the evidence must
prove that the Defendant (1) used or carried a firearm, (2) during
and in relation to a drug-trafficking offense.4 The government
concedes that, after Bailey, the evidence in the instant case will
not support a conviction for use under § 924(c). The government
nevertheless contends that, as Bailey did not address the carrying
facet of § 924(c), our prior jurisprudence on carrying remains
3
We have jurisdiction under 18 U.S.C. § 3731, which permits
the government to appeal from “an order of the district court
dismissing an indictment . . . as to any one or more counts[.]” See
United States v. Mann, 61 F.3d 326, 330-31 (5th Cir.), cert.
denied, 116 S.Ct. 434 (1995). Section 3731 gives the government 30
days in which to appeal, and here the government’s motion to
reconsider was filed within the 30-day period, extending the time
in which to appeal and thus recommencing the running of the 30-day
period on the date the government’s motion was denied. United
States v. Brewer, 60 F.3d, 1142-1143 (5th Cir. 1995).
4
18 U.S.C. § 924(c).
4
applicable, and the factual basis is more than sufficient to
support Muscarello’s conviction for carrying the firearm. We
agree. Our recent decision in United States v. Rivas recognizes
that Bailey does not alter our prior precedent analyzing the
“carrying” facet of § 924(c), at least when the gun is possessed in
a motor vehicle.5 Consequently, “the `carrying’ requirement of
§ 924(c) is met if the operator of the vehicle knowingly possesses
the firearm in the vehicle during and in relation to a drug
trafficking crime.’”6 Although none question that (1) the
possession element of the carrying facet of § 924(c) was met by the
uncontested fact that Muscarello knowingly possessed a loaded
pistol in the glove compartment of his truck, or (2) the gun was
thus possessed “during” the commission of the drug-trafficking
crime, the district court determined on the basis of the PSR that
the “in relation to” element was not present. We conclude that the
district court clearly erred in this determination, and did so as
a result of two errors of law. First, the district court erred
in discrediting and disregarding the factual basis concurred in by
Muscarello, by characterizing it as a “pre-Bailey composition by
the government and a pre-Bailey consideration by Defendant and his
counsel.” Although that might be a valid legal basis for
disregarding the factual basis as to the use facet of § 924(c), it
is a legal non sequitur when the carrying facet is under scrutiny.
5
85 F.3d 193, 195 (5th Cir. 1996), petition for cert. filed,
(U.S. Nov. 5, 1996) (No. 96-6558).
6
Id. (quoting United States v. Pineda-Ortuno, 952 F.2d 98,
104 (5th Cir.), cert. denied, 504 U.S. 928 (1992).
5
It follows that the court’s disregard of the factual basis was
legal error. Second, the court erred in relying on Muscarello’s
post-conviction self-serving declaration to the probation officer,
recounted in the PSR, regarding his subjective intent in possessing
the pistol in the truck that he used in facilitating his illicit
drug trafficking. Under the circumstances of this case, the court
should not have allowed the PSR to supplant the formal plea
agreement, given the defendant’s knowing and voluntary concurrence,
and that of his counsel, in the clear and unambiguous factual basis
for that plea.
III
CONCLUSION
The Supreme Court decision in Bailey addressed the use facet
of § 924(c) but did not address the carrying facet. Although
Bailey indirectly heightened the focus on the carrying facet of
§ 924(c) by narrowing the use facet, it did nothing to invalidate
our pre-Bailey “carrying” jurisprudence, at least as to those
instances of drug trafficking that involve the use of motor
vehicles in which firearms are possessed. We recognized in United
States v. Pineda-Ortuno7 that “[w]hen a vehicle is used, `carrying’
takes on a different meaning from carrying on a person because the
means of carrying is the vehicle itself.” Thus, for example, the
fact that the glove compartment was locked does not prevent
conviction.8 This is not to say, however, that every time a gun is
7
952 F.2d 98 (5th Cir.), cert. denied, 504 U.S. 928 (1992).
8
Id. at 104.
6
knowingly possessed in a vehicle and the vehicle is used during and
in relation to the commission of a drug-trafficking crime, the
firearm is, as a per se matter of law, carried in relation to a
drug-trafficking offense for purposes of § 924(c). Albeit a
rarity, it is at least conceivable for such a vehicle-contained gun
to be carried “during” but not necessarily “in relation to” the
offense.
When, as here, the defendant knowingly possesses a firearm in
a motor vehicle and uses the vehicle during the commission of the
underlying crime, then as a matter of law the firearm is carried
during a drug-trafficking offense for purposes of § 924(c). It
matters not that the government confected the factual basis in the
instant case before the decision in Bailey, or that Muscarello’s
knowing and voluntarily agreement with the accuracy of the factual
basis predated Bailey. Neither does it matter that, according to
the PSR, Muscarello subjectively intended to possess the firearm in
connection with his bailiffing job and not in connection with his
drug-trafficking crime when he has already knowingly and
voluntarily signed on to a plea agreement with a factual basis that
expressly includes the “in relation to” element.
The district court erred both in disregarding the factual
basis for Muscarello’s guilty plea and in relying on the content of
the PSR regarding Muscarello’s subjective intention. As this
reliance led the district court to err in dismissing Count Three of
the indictment, we (1) reverse that dismissal, (2) reinstate Count
Three of the indictment and Muscarello’s conviction thereon
7
pursuant to his guilty plea, (3) vacate the sentence imposed to the
extent that Muscarello’s guilt on the firearms charge was not
considered in calculating the sentence, and (4) remand the case to
the district court for reimposition of Muscarello’s conviction on
Count Three and for resentencing. In so doing, we observe that
what constitutes “carrying” under § 924(c) when the firearm is
possessed in the motor vehicle differs substantially from what
constitutes carrying a firearm in a non-vehicle situation. Thus
our pronouncements today regarding carrying a firearm should not be
applied in a non-vehicle situation without closely scrutinizing the
effects of this distinction and questioning charily whether our
vehicle case jurisprudence is properly applicable to a non-vehicle
case, and vice versa.
DISMISSAL REVERSED; DISMISSED COUNT AND CONVICTION THEREON
REINSTATED; SENTENCE VACATED; and CASE REMANDED for resentencing.
8