UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-31206
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LAWSON PARKER,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(91-CR-304-J)
March 7, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
PER CURIAM:*
A jury convicted Lawson Parker and his codefendant, Pierre
Parsee, of conspiring to possess with intent to distribute cocaine,
possessing cocaine with intent to distribute, and using and
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
carrying a firearm during and in relation to the drug trafficking
offense in violation of 18 U.S.C. §924(c). Parker argues that the
evidence was insufficient to support his conviction for using and
carrying a firearm.
The record reveals that the gun was found on the rear
floorboard of the vehicle driven by Parker and that the gun was
within Parker’s reach. In Bailey v. United States,1 the Supreme
Court considered whether the concealment of a gun “nearby to be at
the ready for an imminent confrontation” could be the “use” of a
firearm under §924(c).2 The Supreme Court concluded that “‘use’
cannot extend to encompass this action”.3 Applying Bailey, this
court has found that mere presence of a gun on the floorboard of a
vehicle does not constitute “use” under §924(c).4 Accordingly, the
evidence does not support a jury finding that Parker “used” a
firearm under §924(c).
Although the evidence was insufficient to establish “use”
under the statute, the indictment charged Parker with both use and
carrying a firearm. Clearly, the evidence is sufficient to support
a jury finding that Parker “carried” a firearm for the purposes of
1
133 L.Ed.2d 472 (1996).
2
Id. at 484.
3
Id.
4
United States v. Fike, 82 F.3d 1315, 1327 (5th Cir.)
cert. denied, -- U.S. --, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996).
2
the statute.5 However, because the jury may have rendered a
guilty verdict on this count based on the liberal pre-Bailey
instructions regarding “use” of a firearm, we must REVERSE Parker’s
conviction under 18 U.S.C. §924(c) and REMAND this case.6 The
Government may retry Count 3 on the “carrying” theory only.
5
See Id. at 1328.
6
Id.; United States v. Brown, 102 F.3d 1390 (5th Cir. Dec.
23, 1996), No. 95-10969, 1996 WL 734702, at *10-*11.
3