UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60310
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT MORRIS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
(3:96-CV-166-LN)
June 6, 1997
Before POLITZ, Chief Judge, WIENER and STEWART, Circuit Judges.
POLITZ, Chief Judge:*
The opinion rendered herein on May 23, 1997 is withdrawn and the
following is substituted in its place.
Robert Morris appeals the decision of the district court to retry him for
violating 18 U.S.C. § 924(c)(1). Finding that the government presented sufficient
evidence that Morris carried a firearm during and in relation to a drug trafficking
offense, we affirm.
BACKGROUND
On May 18, 1992, police officers in Jackson, Mississippi executed a search
warrant on Robert Morris’s residence and found Morris and two others in the den.
Morris was sitting on a sofa wrapped in a comforter which hid bags containing
1206 grams of marihuana and approximately $9200 in cash. At the time Morris
weighed nearly 400 pounds, suffered from chronic heart and lung ailments, and
could walk only with the aid of crutches. At trial the police officers testified that
they found a loaded Colt .25 caliber semi-automatic pistol under a newspaper on
the table next to the sofa. Morris testified that the weapon was located in a
briefcase 18-feet distant.
*
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not be published and is not precedent except under the limited circumstances set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.
2
Morris pled guilty to possession of marihuana with intent to distribute and
was tried and found guilty of using and carrying a firearm during and in relation to
a drug trafficking crime.1 The district court sentenced him to 12 months in prison
on the drug count, 60 months for the firearm offense, two 3-year terms of
supervised release to be served concurrently, and a $3,000 fine. Morris appealed
and we affirmed his conviction and sentence in an unpublished opinion. 2
After serving the 12-month sentence for the drug offense Morris filed a
motion under 28 U.S.C. § 2255 to vacate his firearm conviction on the basis of the
Supreme Court’s intervening decision in Bailey v. United States.3 The district
court granted the motion to vacate in part, concluding that under Bailey the
government failed to produce sufficient evidence that Morris used a firearm.4 The
district court found, however, that the government presented sufficient evidence to
convict under the carry prong of section 924(c)(1). Because at trial the jury had not
1
18 U.S.C. § 924(c)(1).
2
United States v. Morris, No. 93-07229 (5th Cir. April 1, 1994).
3
116 S. Ct. 501 (1995).
4
We note that Bailey applies retroactively on collateral review under United
States v. McPhail, ____ F.3d ____ (5th Cir. 1997), even though that issue is not
before us because the government did not cross-appeal the district court’s decision
to vacate the conviction based upon the “use” prong of section 924(c)(1).
3
been given a carry instruction, the district court ordered a new trial to determine
whether Morris carried a firearm within the meaning of section 924(c)(1). Morris
timely appealed.
ANALYSIS
Morris contends that the government presented insufficient evidence to
support a conviction for carrying a firearm under section 924(c)(1) and, therefore,
that retrying him would violate the double jeopardy bar. We have held that to
sustain a carrying conviction the prosecution must show that the defendant
transported the firearm or had it within his reach during and in relation to the
commission of the underlying offense.5 In the case at bar, the government
presented sufficient evidence that had the jury been instructed on the carry prong,
it rationally could have found Morris guilty. The police officers testified that the
firearm was located next to the sofa on which Morris was seated. Morris
challenged this evidence. The jury reasonably could have concluded that the
firearm was within Morris’s reach during the commission of the drug offense. That
is a classic jury call.
The judgment appealed is AFFIRMED.
5
United States v. Hall, ____ F.3d ____ (5th Cir. 1997).
4