United States Court of Appeals,
Fifth Circuit.
No. 96-50539.
UNITED STATES of America, Plaintiff-Appellee,
v.
Chuck HARLAN, Defendant-Appellant.
Dec. 30, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.
PER CURIAM:
In December, 1990, Chuck Harlan pleaded guilty to one count of
conspiracy to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841 and 846, and one count of using and carrying a firearm
during and in relation to a drug trafficking offense, in violation
of 18 U.S.C. § 924(c). The district court sentenced Harlan to 63
months imprisonment on the narcotics count and 60 months
imprisonment on the firearms count, to run consecutively as
required by § 924(c).
After an unsuccessful appeal and the district court's denial
of Harlan's motion to vacate his sentence, Harlan now appeals the
district court's denial of his subsequent motion, under 28 U.S.C.
§ 2255, to vacate his § 924(c) conviction in light of the Supreme
Court's decision in Bailey v. United States, --- U.S. ----, 116
S.Ct. 501, 133 L.Ed.2d 472 (1995). Section 924(c) imposes
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liability for using or carrying a firearm during and in relation to
a drug trafficking offense. Although Bailey did restrict the scope
of the "use" prong of § 924(c) by requiring "active employment" of
the firearm, that decision left the "carry" prong of § 924(c)
unmodified. See Bailey --- U.S. at ----, 116 S.Ct. at 509 ("The
"carry' prong of § 924(c)(1), for example, brings some offenders
who would not satisfy the "use' prong within the reach of the
statute."); accord United States v. Muscarello, 106 F.3d 636, 638
(5th Cir.1997) ("Bailey does not alter our prior precedent
analyzing the "carrying' facet of § 924(c), at least when the gun
is possessed in a motor vehicle."), cert. petition filed, 65
U.S.L.W. 3728 (Apr. 18, 1997) (No. 96-1654). The district court
properly applied Fifth Circuit precedent regarding the "carry"
prong of § 924(c); therefore, we affirm the district court's
denial of Harlan's § 2255 motion.
In the factual basis to Harlan's guilty plea, the government
stated that, on May 14, 1990, Harlan delivered approximately 215
grams of methamphetamine to an undercover officer and that, upon
Harlan's arrest, officers found two semiautomatic handguns in the
trunk of his car, including a .32 caliber semiautomatic handgun.
The factual basis for Harlan's guilty plea stated that five days
before his arrest, Harlan "advised the [undercover] officer that he
carried a handgun in his car to protect himself should one of his
drug deals go wrong." Furthermore, after reading the factual basis
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in court, the prosecutor asked Harlan, "As to the weapons that were
found in your vehicle, isn't it true that you had told the officer
earlier that those were, that you had carried weapons for your
protection?" Harlan replied, "Yes, sir." The factual basis also
stated that police found either one or several .32 caliber bullets
in Harlan's pockets, and an additional 22.4 grams of
methamphetamine inside Harlan's car.
Analysis
The factual basis for Harlan's guilty plea adequately
supports his conviction under the "carry" prong of § 924(c)(1). In
Muscarello, this Court held that:
When, as here, the defendant knowingly possesses a firearm in
a motor vehicle and uses the vehicle during the commission of
the underlying crime, then as a matter of law the firearm is
carried during a drug-trafficking offense for purposes of §
924(c).
106 F.3d at 639. This Court held that the factual basis for a
defendant's guilty plea, which stated that the defendant possessed
and carried a loaded firearm in the glove compartment of his truck
for protection in relation to drug trafficking offenses, adequately
supported the defendant's conviction under the "carry" prong of §
924(c)(1). Id. at 638-39. Similarly, here, the factual basis for
Harlan's guilty plea states that, a few days prior to his arrest,
Harlan told the undercover officer that he "carried a handgun in
his car to protect himself should one of his drug deals go wrong."
In addition, in open court, Harlan admitted telling the undercover
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officer that he kept the firearms in his car for that purpose.
Accordingly, as in Muscarello, the evidence in the present case
supports Harlan's conviction under the "carry" prong of §
924(c)(1).
Harlan's conviction under § 924(c)(1) was proper because he
transported a firearm in relation to a drug transaction. It does
not matter that the firearms at issue were in the trunk of Harlan's
car. Muscarello pointed out that "the fact that the glove
compartment was locked does not prevent conviction." Id. at 639.
The same holds true if the firearm is in the trunk, as § 924(c) is
not so narrow as to require that the firearm be "immediately
accessible" to the defendant in order to convict.
Although some courts have held that the "carry" prong of §
924(c) requires that the firearm be "immediately accessible" to the
defendant, see United States v. Cleveland, 106 F.3d 1056, 1065-68
(1st Cir.1997) (discussing apparent circuit split), immediate
accessibility is not the test in the Fifth Circuit. Recently, in
United States v. McPhail, 112 F.3d 197 (5th Cir.), rehearing en
banc denied, 119 F.3d 326 (5th Cir.1997), this Court held that the
fundamental element of carrying a weapon for purposes of the
"carry" prong of § 924(c)(1) is actual transportation of the weapon
in relation to the drug transaction. 112 F.3d at 199; see also
United States v. Thompson, 122 F.3d 304, 307 (5th Cir.1997)
(""[C]arry' in § 924(c)(1) involves moving or transporting the
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firearm in some fashion, or bearing the firearm upon one's person
in some way. It is clear that "carry' connotes more than mere
possession."). McPhail more specifically held that placing a gun
in a car and then driving to another location constitutes
"carrying" for purposes of § 924(c)(1). Id. As McPhail
specifically describes the conduct which forms the basis of
Harlan's § 924(c)(1) conviction, that conviction satisfies the
requirements for conviction under the "carry" prong of § 924(c)(1).
Although this Court has held that mere possession of a firearm in
the home or elsewhere is insufficient to support a conviction, see,
e.g., United States v. Tolliver, 116 F.3d 120 (5th Cir.), cert.
denied, Sterling v. United States, --- U.S. ----, 118 S.Ct. 324, --
- L.Ed.2d ----, 1997 WL 592674 (1997) Harlan's case is obviously
distinguishable because he did actually transport the firearm.
Conclusion
Here, as in Muscarello, the factual basis for the defendant's
guilty plea establishes that the defendant knowingly possessed and
transported a firearm in a motor vehicle during the commission of
a drug trafficking crime. The factual basis also establishes that
Harlan carried the firearms in his car for protection in case one
of his drug deals took a turn for the worse, thereby satisfying §
924(c)'s requirement that the defendant carried the firearms "in
relation to" the drug trafficking offense. 18 U.S.C. § 924(c).
The district court properly found that Bailey did not affect the
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"carry" prong of § 924(c) and correctly applied Fifth Circuit law
in denying Harlan's motion to vacate his conviction. Accordingly,
we hereby AFFIRM the district court's decision below.
AFFIRMED.
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