IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20892
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
CHARLES WILLIE WILLIAM,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(H-96-CV-928)
_________________________________________________________________
August 14, 1997
Before KING, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
The government appeals the district court’s denial of its
Federal Rule of Civil Procedure 60(b) motion for reconsideration
of an order issued by the district court vacating Charles
William’s conviction for carrying a firearm during the commission
of a drug trafficking offense. Finding that the district court
abused its discretion, we reverse and remand.
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
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I. BACKGROUND
In October 1990, Charles Willie William (“William”), Gina
Lewis, and Larry Bryant were charged in a superseding indictment
with seven counts relating to a conspiracy to import cocaine from
the Republic of Panama and distribute it in the United States.
Based on a plea agreement with the government, William pled
guilty to aiding and abetting the importation of more than 500
grams of cocaine, in violation of 21 U.S.C. §§ 952(a),
960(b)(2)(B) and 18 U.S.C. § 2 (count four), and using and
carrying a firearm during the commission of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (count seven). In
addition to his plea of guilty to counts four and seven, William
agreed to forfeit a .38 caliber firearm and property seized at
the time of his arrest. The government agreed to dismiss the
remaining charges against William, to recommend limiting his
sentencing exposure to a total of nine years, and to permit
William to provide substantial assistance to receive a motion for
downward departure. The district court found a factual basis to
support William’s guilty plea.
On September 9, 1991, William was sentenced to 80 months
under count four, followed by a 60 month mandatory term of
imprisonment under count seven. William was further ordered to
pay $100 in mandatory costs and a $20,000 fine, which was
suspended on the condition that William’s earnings while in
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prison be sent to his minor dependent children. William did not
appeal.
On June 28, 1994, William filed his first post-conviction
motion under 28 U.S.C. § 2255. The district court summarily
denied relief in an order and judgment entered August 3, 1994.
William appealed, presenting new claims, and the Fifth Circuit
dismissed his case as frivolous.
On March 14, 1996, William filed his second § 2255 motion,
arguing that he had not “used” a firearm, as defined by the
Supreme Court in Bailey v. United States, 116 S. Ct. 501 (1995).
On April 22, 1996, the district court entered an order denying
William’s motion on the ground that the facts supported William’s
conviction for “carrying” a firearm in relation to a drug
trafficking offense.1
William then filed a motion for reconsideration of the
court’s April 22 order denying relief. The motion was unsigned,
unsworn, and unverified, and does not reflect that the pleading
was served upon the government. In the motion, William alleged
for the first time that he did not “carry” the weapon “during and
in relation to a drug trafficking offense.” He asserted that the
firearm was not readily accessible to him because the glove
compartment was locked and the only key to the glove compartment
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Several guns, one of which belonged to William, were found in
the glove compartment of the rental car driven by Bryant and
William in facilitation of their scheme.
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was in the ignition. He also pointed out that the firearm was
not found in the same car as the cocaine. William requested an
evidentiary hearing to resolve his allegations.
Without inviting government response, the court issued an
“Opinion on Alteration of Sentence” on June 28, 1996, finding
that William’s firearm was not immediately accessible and that
the gun was not in the same vehicle as the drugs. The court
concluded that the facts did not support William’s conviction for
“carrying” the firearm. Thus, the court granted William’s motion
and vacated his § 924(c) conviction and sentence.
On August 27, 1996, the government filed a motion for
reconsideration of the June 28 order vacating William’s 924(c)
conviction. The court summarily denied the government’s motion
on September 4, 1996.
On September 9, 1996, the government filed a notice of
appeal of the June 28 order vacating sentence and the order
denying the motion for reconsideration. The government concedes
that only its appeal of the order denying the motion for
reconsideration was timely.
II. DISCUSSION
The government asserts that the district court abused its
discretion in denying its Federal Rule of Civil Procedure 60(b)2
2
FED. R. CIV. P. 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may
relieve a party . . . from a final judgment, order, or
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motion for reconsideration of the court’s June 28 order. In
Seven Elves Inc. V. Eskenazi, 635 F.2d 396 (5th Cir. 1981), we
articulated the standard for reviewing the government’s
challenge, stating that “[i]t is not enough that the granting of
relief might have been permissible, or even warranted -- denial
must have been so unwarranted as to constitute an abuse of
discretion.” Id. at 402. In determining whether the denial of a
Rule 60(b) motion was sufficiently unwarranted to require
reversal, we must balance the interest in finality of judgment
and the demands of justice. Id. We consider eight factors when
making such a determination:
(1) That final judgments should not lightly be
disturbed; (2) that the Rule 60(b) motion is not to be
used as a substitute for appeal; (3) that the rule
should be liberally construed in order to achieve
substantial justice; (4) whether the motion was made
within a reasonable time; (5) whether -- if the
judgment was a default or a dismissal in which there
was no consideration of the merits -- the interest in
deciding cases on the merits outweighs, in the
particular case, the interest in the finality of
judgments, and there is merit in the movant’s claim or
defense; (6) whether -- if the judgment was rendered
after a trial on the merits -- the movant had a fair
opportunity to present his claim or defense; (7)
whether there are intervening equities that would make
it inequitable to grant relief; and (8) any other
factors relevant to the justice of the judgment under
proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; . . . (3)
fraud . . ., misrepresentation, or other misconduct of an
adverse party; . . . or (6) any other reason justifying
relief from the operation of the judgment. The motion
shall be made within a reasonable time, and for reasons
(1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken.
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attack.
Id. at 402 (citations omitted).
While the first two factors weigh against the government, on
the balance, we find that in this instance justice must prevail
over any interest in finality. The district court abused its
discretion in denying the Rule 60(b) motion because the relief
granted by the court in the June 28 order was based on an error
of law, the government was not informed of William’s motion for
reconsideration and had no chance to respond, and the government
made its motion for reconsideration within a reasonable time.
First, in its opinion, the district court stated:
William had placed the pistol in the car’s glove
compartment. Though it remained within a theoretical
arm’s reach, the gun was locked in the compartment and
was not immediately accessible. The car was driven to
the scene of the exchange, but another car contained
the drugs. These facts do not support an inference of
intent to have the pistol available for use in the drug
transaction, which is the meaning of carry in the
statute. 18 U.S.C. § 924(c).
While this analysis is relevant to drug transaction cases in
which the suspect is carrying a firearm in a non-vehicle
context,3 we apply a different analysis when the suspect is
carrying a firearm in a vehicle. In such cases, no showing that
the gun is immediately available for use is required. United
States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert.
3
See, e.g., United States v. Blankenship, 923 F.2d 1110, 1116
(5th Cir.), cert. denied, 500 U.S. 954 (1991)(in a non-vehicle
context, showing that gun was in reach during commission of drug
offense was required to sustain conviction for “carrying”).
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denied, 504 U.S. 928 (1992). Constructive possession of a
firearm in a car will support a conviction for carrying a firearm
under § 924(c) if the defendant “knowingly possesses the firearm
in the vehicle during and in relation to a drug trafficking
crime.” Id. The rationale for this distinction is that when a
vehicle is used, “the means of carrying is the vehicle itself.”
Id.
Second, the court abused its discretion in denying the
government’s motion because the government was never given a
chance to respond to William’s motion for reconsideration. The
government did not even know about William’s motion until the
court issued its June 28 order granting the motion. In effect,
the district court disposed of the case without a full
examination of the merits. The government’s motion for
reconsideration argued that the district court had misapplied the
law and included a sworn affidavit by the prosecutor that the
record did not support William’s statements about the glove
compartment, but the court did not hold a hearing on the
government’s contentions and denied the motion in a one sentence
order that made no reference to the government’s claims.
Third, the government filed its motion for reconsideration
within a reasonable time after it learned of the district court’s
order. When it learned of the order, the government had to
reopen the case file, request a docket sheet, request the court
file, review the pleadings, research the substance of the unsworn
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factual assertions, and prepare a response. The government made
its motion for reconsideration within sixty days of the June 28
order. Under the circumstances, there is no question that the
government made its motion within a reasonable amount of time.
The interest in determining the merit of the government’s
legal and factual arguments in this case outweighs any interest
in finality of judgment. Because the district court used the
wrong definition of “carry” and relied on unsworn factual
assertions by William to vacate his § 924(c) conviction without
giving the government a chance to respond, the court abused its
discretion in denying the government’s motion for reconsideration
of the June 28 order.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
order denying the government’s motion for reconsideration and
REMAND the case to the district court.
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