UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60551
UNITED STATES OF AMERICA
VERSUS
SAMUEL RAY HALL, JR.,
Appeal from the United States District Court
for the Northern District of Mississippi
April 14, 1997
Before POLITZ, Chief Judge, and REAVLEY and DENNIS Circuit Judges.
DENNIS, Circuit Judge.
Defendant, Samuel Ray Hall, Jr., pleaded guilty to the use and
the carrying of a firearm (in relation to a drug trafficking
crime), 18 U.S.C. § 924(c)(1), and was sentenced to 60 months.
Defendant appealed directly. We vacate his conviction and sentence
and remand this case to the district court for further proceedings.
The record does not establish a factual basis for defendant’s plea
to either the use or the carrying of a firearm in relation to a
drug trafficking crime. “To sustain a conviction under the “use”
prong of § 924(c)(1), the Government must show that the defendant
actively employed the firearm during and in relation to the
predicate crime.” Bailey v. United States,____U.S.____, 116 S.Ct.
501, 509 (1995). On the other hand, to sustain a conviction under
the “carry” prong of that statute the prosecution must show that
the firearm was transported by the defendant, or was within his
reach, during and in relation to the predicate crime. United
States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert. denied,
504 U.S. 928 (1992). United States v. Blankenship, 923 F.2d 1110,
1116 (5th Cir.), cert. denied, 500 U.S. 954 (1991). The facts do
not show that Hall either “used” or “carried” a firearm during and
in relation to his drug trafficking crime.
BACKGROUND
Defendant-appellant, Samuel Ray Hall, Jr., was named with
DeMarco Morgan, Michlene Morgan, and Raymond Kinsey in a two-count
indictment on March 19, 1993. Count one charged Hall with aiding
and abetting the Morgans and Kinsey in the possession with intent
to distribute crack cocaine on February 11, 1993, in violation of
21 U.S.C. § 841. Count two charged Hall and the others with
knowingly and intentionally using and carrying a firearm during and
in relation to a drug trafficking crime on February 11, 1993, in
violation of 18 U.S.C. § 924 (c)(1). In this appeal, only the use
and the carrying of the firearm count is at issue.
On August 4, 1993, Hall pleaded guilty to the use and carrying
of a firearm in relation to a drug trafficking crime. On January
6, 1994, Hall was adjudged guilty of “possession of a firearm
during the commission of a drug trafficking crime” in violation of
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18 U.S.C. §924(c)(1) and sentenced to 60 months imprisonment to be
served consecutively with his predicate offense sentence. In this
direct appeal, Hall challenges the conviction and sentence based on
his guilty plea to using and carrying the firearm in violation of
the statute.
STANDARD OF REVIEW
“An acceptance by the district court of a guilty plea is a
factual finding reviewable under the clearly erroneous standard.”
United States v. Briggs, 920 F.2d 287, 293 (5th Cir. 1991)(citing
United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984); see
also United States v. Dayton, 604 F.2d 931 (5th Cir. 1979), cert.
denied, 445 U.S. 904 (1980).
ANALYSIS
The statute at issue, 18 U.S.C. § 924(c)(1), in pertinent
part, provides that:
Whoever, during and in relation to any crime of violence
or drug trafficking crime . . . uses or carries a
firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking crime, be
sentenced to imprisonment for five years....
The only source from which the trial court determined that
there was a factual basis for Hall’s plea of guilty to a violation
of § 924(c)(1) was the Government attorney’s statement:
In early February, 1993, agents with the Lowndes County
Sheriff’s Department Narcotics Division received information
from different sources of a group in town from Florida who
were involved in selling crack cocaine in the area and were
located at a mobile home in the area. On February 11, 1993,
the agents executed a search warrant at 1322 Mike Para Road
for a trailer located on lot 55. That’s a mobile home. And
in the mobile home they found four persons, the defendants in
this case, Demarco Morgan, Michlene Morgan, Samuel Hall and
Raymond Kinsey. In the mobile home the agents found
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approximately 323.4 grams of cocaine base, which is also known
as crack cocaine. Most of the cocaine was on a coffee table
in the living room and on the floor beside the coffee table.
A couple packages of the cocaine were located in a bedroom on
the floor beside a bed in which Raymond Kinsey was located.
At the time the agents entered the residence, Demarco Morgan
and Samuel Hall were in the living room where the cocaine was
located. Michlene Morgan was in a different bedroom. Cocaine
residue was found in two beer cans and also on razor blades at
the location of the coffee table. The agents will testify
that the razor blades are commonly use [sic] to cut up rock
cocaine into smaller rocks for distribution. And in fact,
when the agents entered the residence a quantity of the
cocaine was packaged up in small rocks and another quantity
there at the coffee table had not yet been cut up. And the
razor blades and other implements for cutting up the cocaine
were located there, and Demarco Morgan’s hands had cocaine
powder on them at the time.
The agents also received $2,064 in U.S. currency, which
was in bills that was consistent with drug trafficking scales.
They seized one set of Old House Scales, which are commonly
used for weighing drugs for distribution. They also seized
three boxes of plastic bags of the type used to package
cocaine and the type that was found in the residence in which
cocaine was packaged and repackaged. They found two pagers,
one box of single edge razors, eight plastic bags containing
cocaine and residue.
Inside they also found two firearms. A Cobra 9
millimeter caliber semiautomatic pistol with the serial number
described in the indictment. That was on the floor within a
few feet of the coffee table where the quantity, vast majority
of the cocaine base was located. In the bedroom in which
Raymond Kinsey was located, the officers found a 7.62 caliber
MAK .90 Sporter semiautomatic rifle of the serial number
described in the indictment. It was laying on the bed in that
bedroom. Next to the bed on the floor was also a quantity of
cocaine. Raymond Kinsey was found in that room and he was
zippered [sic] up inside a suitcase where he was attempting to
hide from the officers.
The firearms were readily available to the occupants of
the trailer and they could be easily accessible to protect the
drugs, the drug proceeds, and to protect the drug trafficking
operation from the rip offs and from law enforcement officers.
To show intent and knowledge, the government would also
show that on March 3, 1993, approximately a month after their
search, one ounce, approximately one ounce of cocaine base was
seized from Raymond Kinsey and Demarco Morgan in Jacksonville,
Florida, in the car that they were stopped by law enforcement
officials. Kinsey attempted to run and was apprehended, and
he had the approximately one ounce of cocaine base on him.
Demarco Morgan was in the car with him at the time they were
stopped.
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The Crime Lab in the case identified the cocaine base
seized as approximately 323.4 grams of cocaine base.
At trial, agents will testify based on their training and
experience and knowledge that cocaine in the Columbus area is
usually sold in $20 rocks. The $20 rocks generally weigh
about 1/10 of a gram, and that the 323 grams of crack cocaine
would convert into approximately 3,230 street sales of $20
rocks, which would generate an income of approximately
$64,000.
On April 4, 1993, while in jail in Jacksonville, Florida,
after his arrest down there, Raymond Kinsey asked to speak
with and waived his Miranda rights and was interviewed by the
Sheriff’s office and the FBI. Raymond Kinsey told the FBI
that he first saw Demarco Morgan and Samuel Hall with cocaine
around October 1992. He saw them break crack cocaine cookies
into smaller pieces for resale. Also he stated that Hall and
Demarco Morgan obtained crack from a person in San Antonio,
Texas, and he identified that person. He also stated that
while in Columbus Raymond Kinsey saw Samuel Hall bring back 8
ounces of crack cocaine to Demarco Morgan, and that Samuel
Hall brought it back from his source in Texas.
On the date of the seizure in this case, February 11,
1993, Michlene Morgan gave the officers a signed statement.
She stated that she knew that her husband, Demarco Morgan, had
been dealing cocaine for about three months. She stated that
in mid January, 1993, Raymond, who is Raymond Kinsey, came to
Florida, picked her up and took her to Lowndes County. While
in Lowndes County she walked into the living room of the
trailer and saw Demarco Morgan and Raymond with about five
sandwich bags containing rocks of cocaine.
She stated that she went back to Florida, returning in
early February, and she saw a pile of crack cocaine on the
coffee table while Demarco and Raymond were there with Samuel,
who [sic] she did not know Samuel’s last name. And, of
course, he was identified as Samuel Hall.
She also stated on February 11th, the date of the
seizure, just prior to the seizure, Demarco Morgan, Raymond
and Samuel had six or more bags of rock cocaine on the living
room coffee table. That Samuel had a bag of cocaine in his
hand and that Demarco had residue on his hand from cutting up
the rocks.
She stated that Raymond was sitting on the floor next to
the coffee table where the cocaine was located. A few minutes
later the warrant was executed. She stated that based on what
she saw and heard she knew that Demarco and Raymond and Samuel
were selling crack rock cocaine in Lowndes County. She heard
them discussing it and discussing making trips to pick up
more.
Also, too, Raymond Kinsey stated that Michlene Morgan had
gone on trips with them to pick up cocaine. That she was
taken along in hopes that that would help avoid interdiction
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on the highways by officers who are trained to profile and
stop people who are transporting drugs by vehicle.
Also, too Your Honor, I would note that the individuals
in this case have agreed to cooperate with the government.
Demarco Morgan has already started cooperating with the
government as, of course, has Raymond Kinsey.
That would summarize the government’s proof, Your Honor.
After the judgment of conviction and sentence was entered
upon Hall’s guilty plea, the United States Supreme Court rendered
its decision in Bailey v. United States, ____U.S.____, 116 S.Ct.
501, 133 L.Ed.2d 472 (1995), definitively interpreting the “use”
prong and indirectly shedding light on the meaning of the
“carrying” prong of § 924(c)(1). Bailey’s authoritative
interpretation of § 924 (c)(1) applies retroactively to the present
case which comes before us on direct appeal. United States v.
Andrade, 83 F.3d 729, 730, n.1 (5th Cir. 1996). Although a guilty
plea typically waives objection to a non-jurisdictional defect in
the proceedings below, we nevertheless consider a challenge to a
guilty plea on direct appeal on grounds that an intervening
decision establishes that a defendant’s conduct did not constitute
a crime. Id. at 731 (citing authorities).
A. Hall did not “use” the firearm.
In Bailey the Supreme Court held “that § 924(c)(1) requires
evidence sufficient to show an active employment of the firearm by
the defendant, a use that makes the firearm an operative factor in
relation to the predicate offense.” 116 S.Ct. at 505; and
concluded that the evidence was insufficient to support either of
the two defendants’ convictions. Id. at 509.
Roland Bailey and Candisha Robinson were separately convicted
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of federal drug offenses and of violating 18 U.S.C. § 924(c)(1).
Police stopped Bailey in his car for lack of a license plate and
safety sticker, seized cocaine in his passenger compartment and
found a loaded pistol in his locked trunk. Police executing a
search warrant at Robinson’s apartment, based on her previous sales
of crack cocaine, found an unloaded, holstered firearm locked in a
trunk in her bedroom closet. There was no evidence in either case
that the defendant actively employed the firearm in any way. The
Court of Appeals, sitting en banc, consolidated the cases and
affirmed the convictions, applying an “accessibility and proximity”
test to determine “use” within § 924(c)(1)’s meaning, holding, in
both cases, that the gun was sufficiently accessible and proximate
to the drugs or drug proceeds that the jury could properly infer
that the defendant had placed the gun in order to further the drug
offenses or to protect the possession of the drugs. United States
v. Robinson, 36 F.3d 106 (D.C. Cir. 1994)(en banc).
The Supreme Court, in arriving at its interpretation that
§924(c)(1) firearm “use” requires that the defendant “actively
employ” the firearm as an “operative factor” in relation to the
predicate offense, considered the history and purpose of the law,
the generally prevailing meaning of its words, the context in which
the words occur, the text of the law as a whole, and other laws on
the same subject matter. The Court reasoned that Congress intended
“use” to have a more limited meaning than “mere possession” because
it had frequently used the term “possess” in gun-crime statutes to
describe prohibited gun-related conduct and easily could have done
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so in §924(c)(1). Consequently, the Court rejected the Court of
Appeals’ proximity and accessibility standard which provided almost
no limitation on the kind of possession that would be criminalized.
Instead, the Court observed that the ordinary and natural meaning
of the word “use” implies “action and implementation,” 116 S.Ct. at
506, and quoted with approval from then Chief Judge Breyer’s
dissenting opinion in United States v. McFadden, 13 F.3d 463, 467
(1st Cir. 1994)(“the ordinary meanings of the words ‘use’ and
‘carry’...connote activity beyond simple possession”).
The Bailey opinion noted other factors supporting the
ordinary, more active and limited meaning of “use”: while a broader
reading of “use” would undermine virtually any function for
“carry,” a more limited, active interpretation of “use” preserves
a meaningful role for “carries” as an alternative basis for a
charge; courts hesitate to treat statutory terms as surplusage,
especially if they describe an element of a criminal offense; there
is nothing to indicate that Congress, when it specified two types
of conduct with a firearm, “uses” and “carries,” intended that they
be understood to be redundant. On the contrary, the Court
determined that the original version of the statute showed that
“use” and “carry” were employed with distinctly different meanings,
the original phrase, “uses to commit,” indicating that Congress
initially intended to reach the situation in which the firearm was
actively employed during commission of the crime. Although
Congress’ 1984 amendment substituted “during and in relation to”
the predicate crimes for the earlier provisions linking the firearm
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to the predicate crimes, the Court concluded that there is no
evidence to indicate a legislative intent to expand the meaning of
“use” so far as to swallow up any significance for “carry.”
For these reasons, the Court rejected the Government’s
argument that “use” includes having or putting a weapon anywhere
with the intention of resorting to it later if necessary to protect
drugs or drug sale proceeds. This meaning would deprive “use” of
its active connotations, render it indistinguishable from
“possession,” and leave no nonsuperfluous meaning for “carry.” The
Court found further support for its interpretation in § 924(d)(1),
which provides for the forfeiture of any firearm that is “used” or
“intended to be used” in certain crimes. The Bailey Court stated:
In that provision, Congress recognized a distinction
between firearms “used” in commission of a crime and
those “intended to be used,” and provided for forfeiture
of a weapon even before it had been “used.” In §
924(c)(1), however, liability attaches only to cases of
actual use, not intended use, as when an offender places
a firearm with intent to use it later if necessary. The
difference between the two provisions demonstrates that,
had Congress meant to broaden application of the statute
beyond actual “use,” Congress could and would have so
specified, as it did in § 924(d)(1).
116 S.Ct. at 507.
According to Bailey, “‘use’ certainly includes brandishing,
displaying, bartering, striking with, and most obviously, firing or
attempting to fire, a firearm.” Id. at 508. “But the inert
presence of a firearm, without more, is not enough to trigger
§924(c)(1).” Id. “If the gun is not disclosed or mentioned by the
offender, it is not actively employed, and it is not used.” Id.
Applying the precepts of Bailey v. United States, we conclude
9
that the record fails to establish a factual basis for Hall’s plea
of guilty to a violation of the “use” prong of §924(c)(1). The
facts contained in the Government attorney’s statement, the only
source from which a factual basis could have been determined, fail
to show that Hall actively employed the firearm, or that the
firearm was an operative factor, during and in relation to Hall’s
predicate drug crime. Under the facts so stated, Hall was in the
same room as the firearm when the officers entered, and the weapon
was on the floor a few feet from the table upon which drugs and
paraphanalia were sitting. But the facts do not show that Hall
disclosed, displayed, mentioned or actively employed the firearm in
any way. Accord, United States v. Blount, 98 F.3d 1489, 1494 (5th
Cir. 1996); United States v. Andrade, 83 F.3d 729 (5th Cir. 1996);
United States v. Fike, 82 F.3d 1315 (5th Cir. 1996); United States
v. Wilson, 77 F.3d 105 (5th Cir. 1996).
B. Hall did not “carry” the firearm.
“Carry” as well as “use” in §924(c)(1) means more than mere
possession of a firearm during and in relation to a drug
trafficking crime. Bailey requires this conclusion by its express
statement, statutory interpretation methodology, and result.
The Court explicitly stated: “Had Congress intended
possession alone to trigger liability under §924(c)(1), it easily
could have so provided. This obvious conclusion is supported by
the frequent use of the term “possess” in the gun-crime statutes to
proscribe gun-related conduct. See, e.g., §§ 922(g), 922(j),
922(k), 922(o)(1), 930(a), 930(b).” Bailey v. United States, 116
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S.Ct. 501, 506 (1995).
In interpreting §924(c)(1), a court must start with the
language of the statute, giving its words their “‘ordinary or
natural’” meaning. See Bailey, 116 S.Ct. at 506 (citing Smith v.
United States, 508 U.S. 223, 232 (1993)). The meaning of “carry”
is variously defined (within the context of carrying a physical
object) as “to move while supporting,” “transport,” “to wear or
have on one’s person.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 343
(1961); see also BLACK’S LAW DICTIONARY 214 (6th ed. 1990) (defining
carry as “to bear, bear about, sustain, transport, remove, or
convey. To have or bear upon or about one’s person, as a watch or
weapon; locomotion not being essential....”)
The placement and purpose of a word in the statutory scheme
including §924(c)(1) must be considered in addition to its bare
meaning. Bailey, 116 S.Ct. at 506. “[T]he meaning of statutory
language, plain or not, depends on context.” Id. (citing Brown v.
Gardner, 513 U.S. 115, 118 (1994)(citing King v. Vincent’s Hosp.,
502 U.S. 215, 221 (1991))). Accordingly, the Supreme Court in
Bailey looked past the word “use” itself, read §924(c)(1) with the
assumption that Congress intended each of its terms to have
meaning, and decided that “use” and “carry” each have a
“particular, nonsuperfluous meaning.” Id. at 506-507.
Consequently, the Bailey Court concluded that “use” cannot be read
broadly to mean “possession” because that interpretation undermines
virtually any function for “carry,” whereas a more limited, active
interpretation of “use” preserves a meaningful role for “carries”
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as an alternative basis for a charge. Id. at 507.
Therefore, “carry,” as well as “use,” must connote more than
mere possession of a firearm by a person who commits a drug
offense. Otherwise, “carry” would be stretched far beyond its
ordinary and natural meaning, disregarding the Congressional
penchant for using the word “possession” when that is what it
means; and “use” would not have a particular, nonsuperfluous
meaning or any meaningful role or function as an alternative basis
for a charge. Id. at 506-507.
What then must the Government show, beyond mere possession, to
establish “carry” for the purposes of the statute? Based on
decisions of this and other Circuits, the ordinary and natural
meaning of “carry,” and the Supreme Court’s statements and
reasoning in Bailey, we conclude that the prosecution, to sustain
a conviction under the “carry” prong of §924(c)(1), must show that
the firearm was transported by the defendant -- or was within his
reach -- during and in relation to the predicate crime.
In United States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th
Cir.), cert. denied, 504 U.S. 928 (1992), this court held that
constructive possession will support a conviction under the
“carrying” prong of §924(c)(1) when a firearm is transported in a
vehicle and the operator of the vehicle knowingly possesses the
firearm in the vehicle during and in relation to a drug trafficking
crime. See also United States v. Muscarello, 106 F.3d 636, 639
(5th Cir. 1997); United States v. Rivas, 85 F.3d 193, 195 (5th Cir.
1996). However, the Pineda-Ortuno court explained that “in a
12
nonvehicle context . . . ‘carrying’ requires a showing that the
firearm was in reach during the commission of the offense.” Id. at
103 (citing United States v. Blankenship, 923 F.2d 1110, 1116 (5th
Cir.), cert. denied, 500 U.S. 954 (1991)([A] person cannot be said
to ‘carry’ a firearm without at least a showing that the gun is
within reach during the commission of the drug offense)). Accord,
United States v. Joseph, 892 F.2d 118, 126 (D.C. Cir. 1989)
(carrying requires a present ability to exercise dominion and
control over a firearm and that the firearm be within easy reach);
United States v. Feliz-Cordero, 859 F.2d 250, 253 (2d Cir. 1988) (a
person cannot be said to carry without at least a showing that the
gun was within reach during the commission of a drug offense).
In Bailey v. United States, 116 S.Ct. at 507, the Supreme
Court compared situations in which an offender could be convicted
of violating one prong of § 924 (c)(1) but not the other:
Under the interpretation we enunciate today, a firearm
can be used without being carried, e.g., when an offender
has a gun on display during a transaction, or barters
with a firearm without handling it; and a firearm can be
carried without being used, e.g., when an offender keeps
a gun hidden in his clothing throughout a drug
transaction.
In the present case, there is no factual basis from which it
reasonably can be determined that, during and in relation to his
predicate drug offense, Hall transported the firearm, had it on his
person or in his clothing, or would have been able to reach the
firearm. The facts merely show that Hall was present in the room
when the officers entered and observed the firearm on the floor a
few feet from the table. The facts do not indicate the spatial
13
arrangement of Hall and the persons in the room with respect to the
gun, the table or to each other. Likewise, the facts fail to
indicate who transported the gun to the trailer or moved it to its
position on the floor. Thus the facts of record conclusively rule
out the possibility that Hall had the firearm on his person or in
his clothing, and they do not show that he carried the gun in any
other way during or in relation to his predicate drug crime.
CONCLUSION
We conclude and that there is not a factual basis for Hall’s
plea of guilty to the use or to the carrying of a firearm during
and in relation to a drug trafficking crime. Our practice when a
plea has been accepted in violation of Rule 11(f) is to vacate and
remand for entry of a new plea. United States v. Briggs, 920 F.2d
287, 294-295 (5th Cir. 1991); See also, e.g., United States v.
Graves, 720 F.2d 821, 822, 825 (5th Cir. 1983); Sassoon v. United
States, 561 F.2d 1154, 1159-60 (5th Cir. 1977); United States v.
Johnson, 546 F.2d 1225, 1227 (5th Cir. 1977). Accordingly, Hall’s
guilty plea, conviction and sentence with respect to the use and
carrying of a firearm charges are VACATED and the case is REMANDED
for further proceedings.
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