United States v. Tolliver

United States Court of Appeals,

Fifth Circuit.

Nos. 93-3873, 93-3877.

UNITED STATES of America, Plaintiff-Appellee,

v.

Sylvester TOLLIVER, et al., Defendants,

Noah Moore, Jr., Glenn Metz, and Shane Sterling, Defendants-
Appellants.

June 11, 1997.

Appeals from the United States District Court for the Eastern
District of Louisiana.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Defendants were convicted of federal drug offenses arising

from a narcotics conspiracy and gang war in New Orleans, Louisiana.

Six of these eight Defendants, viz., Gennero Arthur, Gerald Elwood,

Marlo Helmstetter, Glenn Metz, Noah Moore, Jr., and Shane Sterling,

were also convicted of violating 18 U.S.C. § 924(c)(1), which

punishes any person who uses or carries a firearm during and in

relation to any drug trafficking crime. In United States v.

Tolliver, 61 F.3d 1189 (5th Cir.1995), we, inter alia, affirmed

Defendants' firearms convictions. We revisit this case today on

remand from the Supreme Court to determine whether Defendants'

firearms convictions survive Bailey v. United States, --- U.S. ----

, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). For reasons that follow,

1
Circuit Judge of the Eighth Circuit, sitting by
designation.
we affirm in part, vacate in part, and reverse and remand in part.

BACKGROUND

Arthur, Elwood, Helmstetter, Moore, and Sterling each occupied

the positions of gunman, enforcer, and firearms procurer/storer in

the Metz Organization. Metz led this drug organization. Their

firearms convictions are based upon the following facts: (1)

Arthur was convicted for possession of a loaded Mac 11 9 mm. pistol

and a loaded Mini 14 .223 caliber assault rifle, both recovered

from his vehicle after a police chase (count 13); (2) Metz was

convicted for his vehicular possession of two loaded semi-automatic

.380 pistols (count 14); (3) Helmstetter was convicted for

possession of a 9 mm. semi-automatic pistol incident to his arrest

(count 15); (4) Elwood was convicted for possession of two .38

caliber revolvers, three rifles, and a semi-automatic pistol, all

recovered during two searches of his residence (counts 16 and 17);

(5) Sterling was convicted for (a) possession of several loaded

firearms, including two semi-automatic pistols and two assault

rifles, several loaded high-capacity magazines, and extra

ammunition—all recovered in the apartment he shared with Moore and

all in proximity to drug paraphernalia, drug records, and receipts

indicating Sterling's ownership of certain of the firearms, and (b)

his act of reaching for a nearby loaded .40 caliber semi-automatic

pistol when federal agents entered his room (count 22);2 and (6)

Moore was convicted for possession of several loaded firearms,

2
Sterling was indicted on three firearms counts (counts 20,
21, and 22) in the superseding indictment. Pursuant to an
earlier ruling by this Court, however, counts 20 and 21 were
dismissed.
including a loaded drum magazine capable of providing rapid

firepower of ninety additional rounds, found in proximity to drug

records and other drug paraphernalia in his apartment. (count 22).

Drugs were not found on or near these Defendants contemporaneously

with the seizure of these firearms.

In Tolliver, 61 F.3d at 1218, we affirmed Defendants' firearms

convictions based upon these facts. The Supreme Court granted

Sterling's and Moore's subsequent petitions for writ of certiorari,

vacated the judgments on their § 924(c)(1) convictions, and

remanded to this Court for further consideration in light of

Bailey. Pursuant to Bailey, Metz moved this Court to recall the

mandate in his case to allow his contest of his firearms

conviction. Arthur, Elwood, and Helmstetter did not petition for

certiorari, and this Court's mandate therefore issued as to them.

They have neither requested recall of the mandate nor made any

other request for relief.

DISCUSSION

I

Before reaching the merits, we must first consider Metz's

motion to recall the mandate. Metz contends that our disposition

of his firearms conviction directly conflicts with the Supreme

Court's subsequent decision in Bailey v. United States, --- U.S. --

--, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We agree, as discussed

in Part II below, and thus order the mandate recalled.

Our authority to recall our own mandate is clear. Under Rule

41.2 of the Fifth Circuit Rules, we may recall our mandate if

necessary in order to prevent injustice. An example of such an
injustice is when a subsequent decision by the Supreme Court

renders a previous appellate decision demonstrably wrong. See,

e.g., Greater Boston Television Corp. v. F.C.C., 463 F.2d 268, 278

n. 12 (D.C.Cir.1971). Bailey squarely fits this description.

Recalling the mandate is also appropriate "where there is a danger

of incongruent results in cases pending at the same time." See

American Iron & Steel Inst. v. Environmental Protection Agency, 560

F.2d 589, 594 (3d Cir.1977); see also Greater Boston, 463 F.2d at

278-79. Failure to recall the mandate as to Metz would result in

such incongruity. This Court's opinion in Gradsky v. United

States, 376 F.2d 993, 995 (5th Cir.1967), which presents a

procedural posture analogous to our own, is instructive. In

Gradsky, this Court was faced with nine codefendants, five of whom

petitioned the Supreme Court for writs of certiorari, were granted

writs, and to whom the mandate was stayed, and four of whom failed

to seek further review and as to whom mandate issued.3 "[T]o

prevent injustice, this Court, on motion to recall by three of the

four non-peitioning defendants, recalled its mandate to allow them

to join in the proceedings after their co-defendants obtained a

remand. Id. Guided by these authorities, we are convinced that

recalling the mandate as to Metz is appropriate and in the interest

3
One of these four defendants either petitioned the Supreme
Court nor moved this Court to recall its mandate. As to her,
this Court declined to recall its mandate, noting that the her
failure to appear properly before the court was evidence of her
lack of "interest in participating in th[e] proceeding."
Gradsky, 376 F.2d at 995 n. 1. Accordingly, this Court did not
grant her any relief.
of justice, do so today.4

II

Section 924(c)(1) penalizes "[w]hoever, during and in

relation to any ... drug trafficking crime ... uses or carries a

firearm." In Bailey, the Supreme Court addressed only the "use"

prong of this text, leaving the remainder of the section untouched.

As to "use," Bailey 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." Id. at ----, 116 S.Ct. at 505

(emphasis added). A defendant is culpable under § 924(c)(1), the

4
We are equally convinced that we should not recall sua
sponte our mandate as to Arthur, Elwood, and Helmstetter. These
three neither petitioned the Supreme Court for writs of
certiorari nor moved this Court to recall its mandate. As was
true of the non-petitioning, non-moving defendant in Gradsky, 376
F.2d at 995 n. 1, see supra note 3, these Defendants "ha[ve]
shown no interest in participating in this proceeding" and are
thus not properly before us. We are therefore unable to address
their firearms convictions. As a court of error, we have
jurisdiction over only those parties who seek relief. See United
States v. Johnson, 718 F.2d 1317, 1325 n. 23 (5th Cir.1983) (en
banc ), cited in United States v. Coscarelli, 105 F.3d 984, 995
(5th Cir.1997) (Jones, J., dissenting).

This does not suggest that this Court lacks authority
to act sua sponte on all matters. Where a party evinces
interest in judicial review, this Court has authority to
act. See, e.g., Reeves v. International Tel. & Tel. Corp.,
705 F.2d 750, 752-53 (5th Cir.1983) (per curiam) (acting sua
sponte to modify original mandate where interest was omitted
in final judgment and motion to recall mandate was not filed
because party "did promptly seek a judicial determination of
the interest question" albeit in district court); cf.
Leroy v. City of Houston, 906 F.2d 1068, 1075 (5th Cir.1990)
(noting that it treats appellate request for prejudgment
interest as authority "to sua sponte recall our earlier
mandate where we deemed that required in the interests of
justice," but declining to do so where, as here, plaintiffs,
who were experienced attorneys representing themselves,
"adamantly refused to file a motion to recall the mandate").
Court emphasized, "only [in] cases of actual use, not intended use,

as when an offender places a firearm with the intent to use it

later if necessary." Id. at ----, 116 S.Ct. at 507 Examples of

"use" include "brandishing, displaying, bartering, striking with,

and most obviously, firing, or attempting to fire, a firearm." Id.

at ----, 116 S.Ct. at 508.

Bailey 's "active employment" requirement clearly overrules

our pre-Bailey precedent upon which we had relied to affirm

Defendants' firearms convictions. This precedent held that to

convict under § 924(c)(1), the Government need show only that the

defendants possessed the firearms in question. See United States

v. Blake, 941 F.2d 334, 342 (5th Cir.1991) (holding that evidence

demonstrating " "that the weapon involved could have been used to

protect, facilitate, or have the potential of facilitating the

operation, and [that] the presence of the weapon was in some way

connected with the drug trafficking' " is sufficient to sustain a

§ 924(c)(1) conviction), quoted in Tolliver, 61 F.3d at 1218. In

contrast, Bailey emphasizes that the mere possession of firearms

for the protection of or to embolden an offender is not enough to

constitute "use" under § 924(c)(1). See Bailey, --- U.S. at ----,

116 S.Ct. at 508 (emphasizing that the inert presence of a firearm,

without more, cannot trigger § 924(c)(1) culpability).

We turn now to examine whether Defendants' firearms

convictions survive Bailey.

A

Sterling concedes that his act of reaching for his pistol in

self-protection when federal agents stormed into his bedroom
constitutes a "use" of the gun within the post-Bailey meaning of §

924(c)(1). Sterling insists, however, that such action does not

constitute use "in relation to" a drug trafficking crime.5 We are

not persuaded.

Whether Sterling's use of the loaded pistol during the raid

was "in relation to" the underlying drug conspiracy is a mixed

question of law and fact. We defer to the jury's factual findings

on this issue unless clearly erroneous. The ultimate determination

of whether § 924(c)(1) is satisfied, however, is a question of law

for this Court to decide. See United States v. Muniz-Melchor, 894

F.2d 1430, 1439 n. 9 (5th Cir.1990) (determining standard of review

for mixed question whether probable cause for warrantless search

existed).

Bailey did not address the "in relation to" prong of §

924(c)(1). The pre-Bailey interpretation of the "in relation to"

language therefore remains unaffected. See United States v.

Richardson, 86 F.3d 1537, 1548 n. 5 (10th Cir.) (noting that the

"question of whether a weapon was used ... "during and in relation

to' a drug trafficking offense" is distinct from the pre-Bailey

"use" requirement that the firearm be an integral part of the

criminal undertaking), cert. denied, --- U.S. ----, 117 S.Ct. 588,

136 L.Ed.2d 517 (1996); see also United States v. David, No.

96-1391, 1997 WL 26581, at *3 (10th Cir.1997) (unpublished)

5
Sterling does not contest that his "use" of the firearms
occurred "during" the predicate drug offense, here, drug
conspiracy. Nor could he, as the Government points out, because
Sterling's "use" of the loaded pistol occurred during the period
for which the conspiracy was charged, and found, to have existed.
See Tolliver, 61 F.3d at 1218.
(stating "Bailey did not affect the clearly established "in

relation to' element of § 924(c)(1)"), petition for cert. denied,

--- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----, 65 USLW 3767 (U.S.

April 18, 1997). In Smith v. United States, 508 U.S. 223, 237-38,

113 S.Ct. 2050, 2058-59, 124 L.Ed.2d 138 (1993), the Supreme Court

interpreted the phrase "in relation to," stating:

The phrase "in relation to" is expansive, ... as the Courts of
Appeals construing § 924(c)(1) have recognized. According to
Webster's, "in relation to" means "with reference to" or "as
regards." The phrase "in relation to" thus, at a minimum,
clarifies that the firearm must have some purpose or effect
with respect to the drug trafficking crime; its presence or
involvement cannot be the result of accident or coincidence.
As one court has observed, the "in relation to" language
"allay[s] explicitly the concern that a person could be"
punished under § 924(c)(1) for committing a drug trafficking
offense "while in possession of a firearm" even though the
firearm's presence is coincidental or entirely "unrelated" to
the crime. Instead, the gun at least must "facilitat[e], or
ha[ve] the potential of facilitating," the drug trafficking
offense.

(citations omitted) (declining to determine precise contours of "in

relation to" requirement). The phrase "in relation to" therefore

requires only that the firearm have played a role in the crime for

which the defendant is charged; the firearm cannot have been

inadvertently used or carried "in relation to" an obviously

unrelated crime. See United States v. Ocampo, 890 F.2d 1363, 1371

(7th Cir.1989) (citation omitted); United States v. Stewart, 779

F.2d 538, 540 (9th Cir.1985), overruled on other grounds, 80 F.3d

1253 (9th Cir.1996).

Sterling maintains that his gun use on the night of the raid

does not satisfy Smith, insisting that the firearm had no purpose

or effect with respect to the underlying drug conspiracy. Sterling

characterizes his act of reaching for the gun as one of "misguided
self-defense," not one "in relation to" a drug conspiracy,

explaining that his instinct for self-protection compelled him to

reach for his gun when he was awakened in the middle of the night

by men in dark clothing. He concludes that the firearm's presence

as to the drug conspiracy was therefore entirely coincidental. The

only crime, if any, to which his use of the firearm could relate,

Sterling contends, is assault of a federal officer—an offense, he

points out, with which he is not charged.

Sterling, however, presented his "sleepy act of self-defense"

defense to the jury. The jury rejected it, and this finding is not

clear error. We agree with the Government that Sterling's use of

the pistol was "in relation to" the underlying drug conspiracy. As

noted above, the Supreme Court has explained that the phrase is

expansive and requires only that the firearm "have some purpose ...

with respect to the drug trafficking crime; its presence or

involvement cannot be the result of accident or coincidence."

Smith, 508 U.S. at 237-38, 113 S.Ct. at 2059. To satisfy the

statute, therefore, the firearm need only facilitate or have the

potential of facilitating the underlying drug trafficking offense.

Sterling's conduct satisfies this standard. A jury could have

found that Sterling's use of the pistol was not accidental and that

the gun had the potential to facilitate the drug distribution

conspiracy of which Sterling is charged. Indeed, present in

Sterling's apartment at the time of the raid were drug records, a

cache of assault weapons, and a co-conspirator, Defendant Moore,

with whom Sterling shared the apartment. Accepting the jury's

factual findings, we conclude that Sterling's use of the gun was
"in relation to" the underlying drug conspiracy; such use could

have facilitated that conspiracy by preventing the arrest of two

conspirators and forestalling the seizure of various

instrumentalities of the conspiracy.6 We therefore affirm

Sterling's § 924(c)(1) conviction.

B

As to Metz, we invoke the concurrent sentence doctrine to

decline review of his firearms conviction. To avoid any possible

adverse collateral consequences our decision may have, we vacate

6
Sterling argues that the lack of drugs in his apartment at
the time of the raid is fatal to this position. We disagree. In
United States v. Riascos-Suarez, 73 F.3d 616, 624 (6th Cir.),
cert. denied, --- U.S. ----, 117 S.Ct. 136, 136 L.Ed.2d 84
(1996), a post-Bailey case, the court approvingly cited a
pre-Bailey case, United States v. Edwards, 994 F.2d 417 (8th
Cir.1993), for the proposition that the "in relation to" element
of § 924(c)(1) does not require the presence of drugs in the
proximity of firearms for a valid gun conviction. In Edwards,
the defendant was convicted of conspiracy to distribute cocaine
and of using a firearm during and in relation to that conspiracy
in violation of § 924(c)(1) even though drugs were not found in
the vicinity of the firearms. In response to the defendant's
challenge to the validity of his gun conviction, the court
replied that the "[p]rotection of drug proceeds furthers a drug
trafficking crime, and use of a firearm to guard such proceeds
therefore violates § 924(c)." Edwards, 994 F.2d at 421.

A post-Bailey case supports the same theory. In United
States v. DeSantiago-Flores, 107 F.3d 1472, 1476 (10th
Cir.1997), the court found § 924(c)(1) satisfied even in the
absence of drugs. In DeSantiago-Flores, in exchange for
forgiveness of a drug debt, the defendant had one of his
customers bomb the home of another customer who was
delinquent with her payment. The defendant was convicted
under an aiding and abetting theory with violation of §
924(c)(1) for using an incendiary bomb during and in
relation to a drug trafficking crime. The defendant
challenged his conviction, arguing that the evidence
supported nothing more than an independent personal
vendetta. The court rejected this argument, concluding that
the defendant's attempt to intimidate his delinquent
customer had the potential of facilitating the underlying
drug conspiracy.
his firearms conviction and order that the fifty dollars special

assessment he was assessed on his firearms conviction be returned,

if such assessment has in fact been paid. This Court has vacated

unreviewed convictions in similar situations in the past. See

United States v. Montemayor, 703 F.2d 109, 116 (5th Cir.1983). As

we observed in that case, vacating an unreviewed conviction in no

way alters the jury's verdict or the conviction itself. "The

effect of this judicial action is to suspend imposition of the

sentences. No need of the Government is impaired; at the same

time, no possibility of adverse collateral consequences to

defendants exists." Id. (footnote omitted) (citing United States

v. Cardona, 650 F.2d 54, 58 (5th Cir.1981)).7

C

Moore was charged and convicted under both the "use" and

"carry" prongs of § 924(c)(1). We therefore have occasion to

determine whether either prong may support his conviction.

The facts underlying Moore's conviction do not show that

Moore actively employed firearms, as required by Bailey, --- U.S.

at ----, 116 S.Ct. at 507. Accordingly, we hold that Moore cannot

be convicted under the "use" prong of § 924(c)(1).

Nor can Moore be convicted under the "carry" prong. As noted

above, Bailey did not address the "carry" prong of § 924(c)(1).

Prior precedent analyzing this language is therefore " "not

7
We note that Metz has been sentenced to life on other
counts; vacation of his firearms conviction would therefore make
no difference in the amount of time that he serves. We decline
to invoke the concurrent sentence doctrine as to Moore, however,
because our disposition of his firearms conviction would affect
the amount of time he would have to serve.
affected.' " United States v. Rivas, 85 F.3d 193, 195 (5th Cir.)

(citation omitted), cert. denied, --- U.S. ----, 117 S.Ct. 593, 136

L.Ed.2d 521 (1996). Our "carry" jurisprudence holds that where, as

here, firearms are recovered outside of a vehicle context, "

"carrying' requires a showing that the gun was in reach during the

commission of the drug offense." United States v. Pineda-Ortuno,

952 F.2d 98, 103 (5th Cir.1992); see also United States v.

Blankenship, 923 F.2d 1110, 1116 (5th Cir.1991); accord United

States v. Joseph, 892 F.2d 118, 126 (D.C.Cir.1989) (holding that

"carrying" requires proof that defendant "has a present ability to

exercise dominion and control over a firearm" and "has the firearm

within easy reach and available to protect him during his ongoing

[drug trafficking] offense" (internal quotation marks omitted)).

There is no evidence to suggest that Moore "carried" firearms

within this meaning. Rather, the record reveals only that

authorities found the firearms underlying Moore's gun conviction

scattered throughout Moore's home; the Government points to no

evidence indicating the firearms were within Moore's reach during

the commission of the predicate drug offense. That Moore merely

possessed the firearms is insufficient to support a conviction

under the "carry" prong. See United States v. Smith, 80 F.3d 215,

221 (7th Cir.1996) (concluding that defendant must do more than

possess or store weapon to be convicted of carrying firearm during

and in relation to drug offense); United States v. Morris, 929

F.Supp. 993, 998 n. 2 (S.D.Miss.1996) (stating that "defendant

cannot be said to have carried guns that were not even in the same

room with the defendant and which were locked away in a closet.").
We therefore reverse Moore's firearms conviction and remand for

resentencing.

CONCLUSION

For the foregoing reasons, we grant Metz's motion to recall

the mandate, and the judgment of the district court is AFFIRMED IN

PART, VACATED IN PART, and REVERSED AND REMANDED IN PART.