United States v. Wainuskis

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-60742

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
VERSUS

CHRISTINE WAINUSKIS,

Defendant - Appellant.

Appeal from the United States District Court
For the Southern District of Mississippi
April 9, 1998

Before GARWOOD, DUHÉ, and DEMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Defendant-Appellant Christine Wainuskis appeals the district

court’s denial of her 28 U.S.C. § 2255 motion to set aside her

judgment of conviction for violation of 18 U.S.C. § 924(c)(1)

because of a change in the law, resulting from a clarification of

the meaning of “use” of a firearm in Bailey v. United States,

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

we affirm the district court’s denial of her motion.

I.

Following an investigation of her activities and a search of
the residence she shared with Joseph Materne (“Materne”), Christine

Wainuskis (“Wainuskis”) was indicted by a federal grand jury on

four counts involving drugs and weapons: conspiracy to possess

with intent to distribute; possession with intent to distribute;

knowing use or carrying of a firearm during or in relation to a

drug trafficking offense; and felon in possession of a firearm.

Officers found methamphetamine, scales, baggies, other items

associated with the packaging and distributing of illegal drugs,

and 27 guns during the search. Wainuskis was discovered in a

bedroom of her residence, lying on a bed with a loaded gun tucked

under the mattress. Her co-defendant, Materne, was seated near two

weapons, both of which were visible to the searching officers and

easily accessible to him.

In exchange for the government dropping charges of conspiracy

to possess with intent to distribute methamphetamine and of

possession with intent to distribute that drug, Wainuskis pled

guilty to the remaining two counts: violations of 18 U.S.C. 924

(c)(1)1 and 18 U.S.C. § 922(g) (felon in possession of a firearm).2

1
The pertinent portion of the statute reads as follows:

“Whoever, during and in relation to any crime

of violence or drug trafficking crime... uses

or carries a firearm, shall,...be sentenced to

imprisonment for five years... .”
2
The defendant had an earlier conviction for possession for

Sale of a Controlled Substance (methamphetamine) in California, for

2
She admitted that the underlying drug trafficking offense in her

violation of § 924(c)(1) was possession with intent to distribute

methamphetamine. After hearing the plea colloquy and reviewing the

Presentencing Investigation Report (“PSR”), the district judge

imposed the mandatory 5-year sentence for the violation of § 924

(c)(1). He departed downward from the sentencing guidelines on the

remaining count and assigned a 30-month sentence to run

consecutively.

Wainuskis moved to set aside her conviction and sentence for

the violation of § 924(c)(1), based on a change in the law

resulting from the clarification of “use” of a firearm in Bailey v.

United States, U.S. , 116 S.Ct. 501, L.Ed. 2d 472 (1995). The

district court referred the motion to a magistrate judge, who

determined that the gun confiscated from under Wainuskis’s mattress

at the time of her arrest was not “used or carried” in relation to

a drug trafficking offense as defined in Bailey and in United

States v. Andrade, 83 F.3d 729 (5th Cir. 1996). Initially, the

district court agreed with the magistrate judge’s recommendation to

vacate the conviction and sentence imposed for the violation of §

924(c)(1), concluding that, under Bailey, the record did not

establish a factual basis for such a conviction. Upon further

examination of the plea colloquy and the PSR, the district court

found that there was sufficient information to support Wainuskis’s

guilty plea and conviction and denied her motion.

which she was on probation at the time of her arrest for the

current offense.

3
 Wainuskis appeals. She argues that the factual basis for her

plea establishes no more than mere possession and is insufficient

to support a conviction of “use.” The Government agrees that there

is an insufficient factual basis to support her plea to violating

the 18 U.S.C. § 924(c)(1) “use” prong under Bailey. It argues,

however, that the plea colloquy record sufficiently supports a

guilty determination under the unaffected “carry” prong of §

924(c)(1). We agree.

II.

Wainuskis’s guilty plea was taken under Rule 11 of the Federal

Rules of Criminal Procedure. Her appeal is properly before this

Court because we have ruled in Andrade, 83 F. 3d 729, 731 (5th

Cir.) that although

[a] plea of guilty typically waives all non-
jurisdictional defects in the proceedings
below... nonetheless, in this particular
context, where intervening law has established
that a defendant’s actions do not constitute a
crime and thus that the defendant is actually
innocent of the charged offense, application
of this rule is misplaced.”

Bailey’s clarification of “use” provides Wainuskis with

grounds to appeal her conviction and sentence.

We review a district court’s denial of a § 2255 motion under

two standards. Because “acceptance of a guilty plea is considered

a factual finding that there is an adequate basis for the plea,”

the standard of review of this matter is clear error. United

States v. Rivas, 85 F.3d 193, 194 (5th Cir. 1996), (citing United

States v. Adams, 961 F.2d 505, 509 (5th Cir. 1992)). We review the

court’s conclusions of law de novo. United States v. Faubion, 19 F.

4
3d 226, 228 (5th Cir. 1994).

III.

A.

In denying Wainuskis’s motion to set aside her conviction and

sentence imposed under a Rule 11 plea, the district court examined

both the facts available at the time of the plea colloquy and those

provided later by the PSR. According to the United States

Sentencing Commission, Guidelines Manual, § 6B1.1(c)(Nov. 1995),

when a dismissal of charges is part of a plea agreement, the court

“shall defer its decision to accept or reject” any plea agreement

“until there has been opportunity to consider the presentence

report.” The Government dismissed two counts against Wainuskis in

exchange for her guilty plea. The district court relied on both

the plea colloquy and PSR to find a factual basis to support her

guilty plea. Logically, it must examine the same information to

determine if there is a factual basis to set aside her conviction.

This Court has upheld the district court’s use of the PSR to

find an insufficient factual basis and to reject a plea agreement.

United States v. Foy, 28 F. 3d 464 (5th Cir. 1994). See also

United States v. Gulledge, 491 F. 2d 679 (5th Cir. 1974).3

Based on the U. S. Sentencing Guidelines and our

jurisprudence, the district court was correct in considering all

3
Although the plea colloquy did not establish a sufficient

factual basis for the defendants’ pleas, the district court could

develop an adequate record at the sentencing proceeding to sustain

the pleas. Gulledge, 491 F.2d at 679.

5
information at its disposal to determine that a factual basis for

Wainuskis’s guilty plea existed and to deny her motion to set aside

her conviction and sentence.

B.

Wainuskis argues that Bailey’s clarification of “use” in §

924(c)(1) requires the setting aside of her sentence and

conviction. “Use” under Bailey connotes more than mere possession

of a firearm by a person who commits a drug offense.4 The Bailey

Court held that the language, context and history of § 924(c)(1)

indicates that the Government must show “active employment” of the

firearms.5 Reviewing the language of the statute and Congressional

intent, the Court noted that nothing indicates that Congress, when

it provided the two terms “use” and “carry,” intended that they be

understood to be redundant. “We assume Congress used two terms

because it intended each term to have a particular nonsuperfluous

meaning. A firearm can be used without being carried and a firearm
6
can be carried without being used.”

In clarifying “use” the Court provided an illustrative list:

“brandishing, displaying, bartering, striking with and ... firing

or attempting to fire a firearm.”7 More importantly, the Court

noted that use cannot extend to encompass the action of an offender

4
U.S. , 116 S.Ct. at 506.
5
Id.
6
Id. at 507.
7
Id. at 508.

6
who has hidden a gun where he can grab and use it if necessary.8

Wainuskis’s plea colloquy established that she was in a back

bedroom during the search of her residence. A pistol was found

under a mattress within arm’s reach at the time that the search was

executed. The PSR indicated that Wainuskis was lying on the bed in

that bedroom and that the semi-automatic pistol was loaded. Under

Bailey, Wainuskis merely possessed the weapon and did not actively

employ it at the time of the search. She is correct in stating

that under the Bailey clarification of “use” she has not violated

§ 924(c)(1).

C.

Section 924(c)(1)constitutes one offense, but can be violated

in either of two ways: using or carrying. Bailey recognized that

the “carry” prong of § 924(c)(1) brings some offenders who would

not satisfy the “use” prong within the reach of the statute.9

This Court recently held that, because Bailey did not address

the “carry” prong of § 924(c)(1), it had no effect on prior

precedent analyzing this language. United States v. Rivas, 85 F.3d

193, 195 (5th Cir.) cert denied, U.S. , 117 S.Ct. 593 (1996);

United States v. Tolliver, 116 F.3d 120, 127 (5th Cir. 1997), cert.

denied, 1997 WL 592674 (U.S., Oct. 14, 1997); United States v.

Muscarello, 106 F.3d 636, 638 (5th Cir. 1997), cert. filed, 65 USLW

3728 (Apr. 18, 1997).10 Our “carry” jurisprudence, when vehicles

8
Id.
9
Id. at 509.
10
Muscarello recognized no change in prior precedent analyzing

7
are not involved, requires a showing that the gun was within arm’s

reach during the commission of the drug offense. Tolliver, 116

F.3d at 127, (citing United States v. Pineda-Ortuna, 952 F.2d 98,

103 (5th Cir. 1992)). We have stated that mere possession of the

firearm is insufficient to support a conviction under the “carry”

prong. Tolliver, 116 F.3d at 127; United States v. Hall, 110 F.3d

1155, 1161 (5th Cir. 1997).

In Pineda-Ortuno, we noted that nothing in the legislative

history of § 924(c)(1) suggests that the term “carry” should be

construed as having any meaning beyond its literal meaning. That

literal meaning we derived from Webster’s Third International

Dictionary, 353 (1966): “to move while supporting (as in a vehicle

or in one’s hands or arms:...sustain as a burden or load and bring

along to another place.” We also recognized that the “easy reach”

element arose from a judicial expansion of “carrying” in a non-

vehicle context. Pineda-Ortuno, 952 F.2d at 104. Earlier we

explained in U.S. v. Blankenship, 923 F.2d 1110, 1116 (5th Cir.

“carrying” prong at least where the gun is possessed in a motor

vehicle. There the defendant knowingly possessed a loaded pistol

in the glove compartment of his truck. The vehicle itself was used

as a means of carrying the weapon. [W]e observe[d] that what

constitutes “carrying” under § 924(c)(1) when the firearm is

possessed in the motor vehicle differs substantially from what

constitutes carrying a firearm on a person because the means of

carrying is the vehicle itself. 106 F.3d at 639, citing United

States v. Pineda-Ortuno, 952 F.2d 98 (5th Cir. 1992).

8
1991) that 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.11

More recently in U.S. v. Fike, 82 F.3d 1315 (5th Cir. 1996),

we reiterated the necessity of applying a literal meaning to

“carry,” again based on Webster’s definition. Although Fike

involved a vehicle, which satisfied the element of transportation,

the firearm was also within easy reach, thus sufficiently

supporting a jury finding of “carrying.” Most recently in U.S. v.

Thompson, 122 F.3d 304 (5th Cir. 304 (5th Cir. 1997), we held that

carrying involves moving or transporting the firearm in some manner

or bearing the firearm upon one’s person. It is clear that our

jurisprudence in a non-vehicle context requires both that the

weapon be moved in some fashion and that it be within arm’s reach

(readily accessible) for a violation of the “carry” prong of §

924(c)(1).12

11
Blankenship was found not to have violated the “carry” prong

of § 924(c)(1) because he was arrested some miles away from the

motel where he had hidden a gun under a mattress.
12
We recognize that the following phrasing is found in U.S. v.

Hall, 110 F.3d 938 (5th Cir.1997): “[W]e 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. The text of the decision, citing the Fifth

Circuit precedent discussed above, and the facts of Hall, however,

9
 There is sufficient information before this Court to find that

Wainuskis’s conduct satisfies both the transportation and the ready

accessibility elements of the “carry” prong. According to the PSR,

Wainuskis, her mother, and Materne lived together in Petal,

Mississippi. During a five-month period beginning in January 1993,

officers searched the trash at the residence, finding numerous

labels and boxes for firearm accessories. At some point during

that time, Wainuskis’s mother moved out. Confidential informants

told the government that the defendants had possession of firearms,

based on what they had seen when they bought drugs from Wainuskis

and Materne.

The defendants moved to Ellisville, Mississippi around July

12, 1993, and a search warrant was executed there July 29, 1993.

Twenty-seven guns were found in the residence the two shared. A

semi-automatic pistol was seen on a stool next to Materne; a 9mm

assault pistol was observed within his reach. Officers discovered

Wainuskis lying on a bed with a loaded gun under the edge of the

mattress.

Wainuskis agreed at the plea colloquy that she was discovered

in a back bedroom and that the pistol was within arm’s reach at the

time the search was executed. She did not dispute, either, the

more specific PSR that described her as “lying in a bed in a rear

bedroom,... a loaded semi-automatic pistol lying in the edge of the

do not reflect that a carry violation is proved by either element.

It is clear that we require both transportation and ready

accessibility for a “carry” violation.

10
mattress between the mattress and the night stand.” She admitted

that the two had moved from Petal where they were drug trafficking

to Ellisville. She acknowledged that they had bought guns to

protect their drugs and that they had continued to sell drugs when

they moved to Ellisville. From both the PSR and the plea colloquy

we could infer that the defendants, in their move, took with them

the weapons they had acquired while in Petal to protect their

drugs. Because Wainuskis was not charged with using or carrying a

particular firearm, we could infer that the gun under the mattress

was one of those transported by the defendants and kept within

reach for Wainuskis to protect their drugs.

The findings and recommendations proposed by the magistrate

judge provide an additional link between Wainuskis, the weapon

under the mattress, and the transportation element of “carry.” He

found that “Wainuskis secreted under her mattress a loaded firearm

which was discovered during a search... .” In her traverse to the

Government’s response to her motion to set aside her conviction,

Wainuskis merely contested the application of pre-Bailey “use” to

her situation, not that she was the one who had hidden the weapon.

Pursuant to 28 U.S.C.§ 636(b)(1) she had 10 days in which to object

to specific findings of fact, but she did not.

In entering her guilty plea to a violation of § 924(c)(1),

Wainuskis admitted all the facts necessary to show that the gun was

”carried” within the context of our jurisprudence.13 Not only did

13
The record clearly indicates that Wainuskis possessed drugs

with an intent to distribute both when she lived in Petal and when

11
she acknowledge her proximity to a weapon she and Materne had

purchased to protect their drugs, but she also did not dispute that

she secreted that weapon under the mattress. Additionally, her

admissions indicate that there were guns present both in Petal and

in Ellisville. It is only logical to infer that she played a part

in their move from one residence to the other. Under our “carry”

jurisprudence, these facts are sufficient to support Wainuskis’s

guilty plea to a violation of § 924(c)(1) and a denial of her

motion to set aside her conviction.

D.

18 U.S.C. § 214 provides grounds to uphold Wainuskis’s

she moved to Ellisville. By its nature, this violation is an on-

going offense, rather than a one-time transaction. Likewise, it is

clear from confidential informants, narcotics agents, and

Wainuskis’s own testimony that guns played a part in the offense in

both locations. The obvious inference that the guns owned by

Wainuskis and Materne went with them as they transferred their base

of operations to Ellisville satisfies the § 924(c)(1) requirement

that the weapons violation occur during and in relation to a drug

trafficking offense. Despite the dissent’s assertion, it is clear

that Wainuskis moved, secreted, and positioned herself within arm’s

reach of the gun for the purpose of protecting the drugs she

possessed and intended to distribute.
14
18 U.S.C. § 2(a) reads:

12
conviction under both the “use” prong and the “carry” prong of §

924(c)(1) as an aider and abettor of Materne’s crime.15 That the

couple lived together and sold drugs together for a period of five

months indicates the type of on-going offense to which this

doctrine may be easily applied. In U.S. v. Williams,16 we stated

that, to be found liable for another’s criminal activity, an aider

and abettor must share in the criminal intent to use the firearm

Who ever commits an offense against the United

States or aids, abets, counsels, commands,

induces or procures its commission, is

punishable as a principal.
15
It is not necessary, as the dissent suggests, that Materne

be convicted of a § 924(c)(1) violation for Wainuskis to be guilty

as an aider and abettor. See, e.g., United States v. Pearson, 667

F.2d 12 (5th Cir. 1982)(upholding a conviction of aiding and

abetting when the charges against the other defendant were

dismissed) and United States v. Robins, 978 F.2d 881 (5th Cir.

1992)(holding that where one of the principals was acquitted the

other defendant’s conviction of aiding and abetting him was not

consequently reversed because sufficient evidence existed to find

aiding and abetting.) Materne’s withdrawal of his guilty plea to

§ 924(c)(1) is akin to a dismissal or an acquittal. Because we

find sufficient evidence of aiding and abetting on Wainuskis’s

part, Materne’s withdrawal of a guilty plea to § 924(c)(1) is of

little consequence.
16
985 F.2d 749, 754 (5th Cir. 1993).

13
during a drug trafficking offense. This requires that Wainuskis

have knowledge of the presence of firearms.17 She admitted that she

and her co-defendant purchased guns to protect themselves and their

drugs. Confidential informants told of seeing guns during their

drug deals with the two defendants. Wainuskis and Materne lived

together in a house where 27 guns were found.

Agents saw Materne seated in the kitchen with a gun visible

next to him on a stool and another loaded weapon visible within

arm’s reach. The open display of these weapons satisfies the
18
Bailey “use” requirement for his conviction under 924(c)(1).

Wainuskis’s conduct, her continued association with Materne in the

drug dealing scheme, indicates her intent to bring about the

success of the venture. It is evident that Wainuskis possessed

both the necessary knowledge,19 that weapons were available for

Materne’s use, and the intent to be convicted as an aider and

abettor in Materne’s crime.

As an aider and abettor, Wainuskis can also be found guilty of

a violation of the “carry” prong of § 924(c)(1). After Wainuskis’s

mother had moved from Petal, only Wainuskis and Materne remained in

that residence. They moved together to Ellisville. It is a

17
Id., p. 755.
18
The dissent’s comment that a weapon in plain view does not

equate to “use” according to Bailey seems directly contrary to the

Supreme Court’s illustration of “use” as “the silent but obvious

and forceful presence of a gun on a table.” 116 S.Ct. at 508.
19
See Id.

14
reasonable inference that one or the other had to move the guns

they were known to have possessed in Petal to their new residence

in Ellisville where 27 guns were found. Because there is no

evidence of any other occupants in the residence, it is also

reasonable to infer that one of the two placed the guns found with

Materne so that they were readily accessible to him and that one of

the two placed the gun found under the mattress where Wainuskis was

lying.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s

denial of Wainuskis’s motion to set aside her conviction and

sentence.

DENIAL AFFIRMED.

ENDRECORD

15
DeMOSS, Circuit Judge, dissenting:

Christine Wainuskis was arrested after officers executed a

search warrant at her residence. Officers found Wainuskis in a

bedroom lying on a bed. Either under the mattress (Rule 11

colloquy) or “lying in the edge of the mattress between the bed and

the night stand” (Presentence Report), officers found a Colt semi-

automatic pistol. Officers also found Wainuskis’ boyfriend

Materne, an indeterminate number of other people, a quantity of

drugs, and additional firearms in another part of the house. There

is nothing in the Rule 11 colloquy or the PSR that suggests drugs

were found in the bedroom. There is nothing in the Rule 11

colloquy or the PSR that suggests when or by whom the gun was

placed under the mattress. There is nothing in the Rule 11

colloquy or the PSR that suggests any particular drug transaction

was occurring any place in the house at the time police began the

search.

The government prosecuted Wainuskis and she pleaded guilty on

the theory that she “used” the Colt .38 caliber semi-automatic

pistol taken from under her mattress in violation of 18 U.S.C.

§ 924(c) by exercising “constructive possession” of the pistol to

protect her constructive possession of illegal drugs. Thus,

Wainuskis’ plea was premised upon exactly the type of “possession

with a floating intent to use” that was repudiated in United States

v. Bailey, 116 S. Ct. 501 (1995). Wainuskis filed this post-

judgment motion under 28 U.S.C. § 2255, asking for relief from her

16
plea.

On appeal, we all agree that Wainuskis’ plea cannot be

sustained upon the “use” theory that Wainuskis, the government, the

probation officer and the district court uniformly understood to be

the basis of Wainuskis’ plea at the Rule 11 hearing. The majority

opinion nonetheless proceeds to the conclusion that Wainuskis’ plea

should be sustained on the alternative basis that she “carried” the

Colt pistol found beneath her mattress or that she aided and

abetted Materne’s independent § 924(c) conviction. Because I

disagree with both the majority’s approach and the substance of its

conclusions, I respectfully dissent.

I.

Wainuskis’ guilty plea is based entirely upon the “use” prong

of § 924(c). Both the PSR, which describes her offense, and the

criminal judgment, which prescribes her guilt, limit Wainuskis’

offense to “using a firearm during and in relation to a drug

trafficking offense.” Neither of those documents purports to base

Wainuskis’ criminal liability upon the “carry” prong of § 924(c).

Likewise, the transcript of the Rule 11 hearing leaves no doubt

that the government’s prosecution and Wainuskis’ plea were based

upon pre-Bailey notions of § 924(c) liability. The government’s

theory, as expressed in the Rule 11 hearing, was that Wainuskis

“exercised constructive possession” of the Colt pistol at the same

time she was in constructive possession of drugs. Wainuskis’ plea

is consistent. When asked to explain the offense, she admitted to

17
“having drugs with guns,” and stated “I was in possession of

methamphetamine, and I had guns.” Wainuskis also stated that she

kept firearms, “among other reasons,” to protect her possession of

unlawful drugs.

When Wainuskis’ plea was taken, evidence that she kept a

firearm for protection related to her engagement in drug

trafficking was sufficient to establish a violation of § 924(c).

E.g., United States v. Ivy, 973 F.2d 1184, 1189 (5th Cir. 1992).

After Bailey, such evidence is no longer considered sufficient.

See Bailey, 116 S. Ct. at 508 (“placement for protection” is

indistinguishable from possession and is insufficient to establish

§ 924(c) liability); see also United States v. Thompson, 122 F.3d

304, 306 (5th Cir. 1997); United States v. Carter, 117 F.3d 262,

265 (5th Cir. 1997). Thus, it is patently apparent that Wainuskis

entered a plea to conduct that amounted to criminal “use” of a

firearm when her plea was accepted, but was rendered non-criminal

by the Supreme Court’s disposition in Bailey.

To allow Wainuskis’ plea to stand when premised upon conduct

that the Supreme Court later determined to be non-criminal offends

notions of traditional fairness and undermines the consensual

nature of Wainuskis’ plea. See United States v. Addonizio, 99

S. Ct. 2235, 2241 (1979); Davis v. United States, 94 S. Ct. 2298,

2304-05 (1974). When a case has been tried to a jury and may be

based upon either the “carry” prong or an impermissibly broad pre-

Bailey construction of the “use” prong, we have generally required

that the case be remanded for retrial on the “carry” prong alone.

18
United States v. Johnston, 127 F.3d 380, 404 (5th Cir. 1997),

petition for cert. filed, 66 U.S.L.W. __ (U.S. Jan. 24, 1998) (No.

97-7680); United States v. Brown, 102 F.3d 1390, 1401 (5th Cir.

1996), cert. denied, 117 S. Ct. 1455 (1997); United States v. Fike,

82 F.3d 1315, 1328 (5th Cir.), cert. denied, 117 S. Ct. 241 (1996).

The theory underlying cases such as Johnston, Brown, and Fike is

that the appellate record cannot disclose which of the two

alternative theories, the impermissible “use” theory or the

permissible “carry” theory, was made the basis of the defendant’s

conviction. Johnston, 127 F.3d at 404; Brown, 102 F.3d at 1400-01;

Fike, 82 F.3d at 1328. When that approach is applied to Wainuskis’

case, we find there is no confusion about the theory made the basis

of her conviction -- the government, Wainuskis, the probation

department, and the district court were all operating on the

assumption that Wainuskis’ conviction was to be based upon the

“use” prong of § 924(c). Where it is absolutely clear, as it is in

this case, that the conviction is based upon a legally erroneous

theory of prosecution, the principles articulated in those cases

require that the conviction be vacated for repleading or trial on

the permissible theory of liability.20

20
The breadth of the Court’s per se rule requiring reversal

was recently questioned in United States v. Wilson, 116 F.3d 1066

(5th Cir. 1997). Shortly thereafter, the Court voted to consider

en banc the scope of the per se rule requiring reversal as applied

to Alfred Brown, one of the defendants in United States v. Wilson.

United States v. Brown, 123 F.3d 213 (1997) (granting rehearing en

19
 With respect to guilty pleas, the Court’s inquiry has

typically focused upon whether the defendant’s plea is supported by

a sufficient factual basis as required by Federal Rule of Criminal

Procedure 11. In making that determination, the Court has likewise

considered whether the “use” prong, the “carry” prong, or both,

banc). Our en banc consideration of Brown was cut short, however,

when the Supreme Court granted a petition for writ of certiorari in

United States v. Muscarello, 106 F.3d 636 (5th Cir. 1997), cert.

granted, 118 S. Ct. 621 (1997). In Muscarello, the district court

dismissed the defendant’s guilty plea to § 924(c), finding that the

factual basis for Muscarello’s guilty plea was a “pre-Bailey

composition” that could not properly be relied upon to establish

Muscarello’s post-Bailey liability on a different theory.

Muscarello, 106 F.3d at 638-39. On appeal, a panel of this Court

reversed, holding that the district court’s refusal to rely upon

the factual basis was error. Id. The Supreme Court promptly

granted a petition for writ of certiorari, and argument is

presently scheduled for March 23, 1998. The Supreme Court’s

disposition of this issue in Muscarello may well change our

understanding of the appropriate remedy in § 2255 cases raising an

argument that defendant’s conviction is based upon an impermissibly

broad definition of the “use” prong. If nothing else, that

possibility counsels against a hasty decision in this case that may

conflict with the Supreme Court’s ultimate disposition of the issue

in Muscarello and this Court’s disposition of related issues en

banc in United States v. Brown.

20
were made the basis of the plea. Where the defendant pleaded

guilty to both “using” and “carrying” a firearm, the Court has

rejected the conviction to the extent it is based upon a pre-Bailey

definition of “use,” but proceeded to evaluate the adequacy of the

evidence to support the defendant’s liability on the alternative

theory that he or she “carried” the firearm. E.g., United States

v. Hall, 110 F.3d 1155 (5th Cir. 1997). Where the defendant was

not charged with “carrying” a firearm or pleaded only to “using” a

firearm, the Court has refused to consider whether defendant’s

conviction can nonetheless be supported on the alternative “carry”

prong. E.g., Carter, 117 F.3d 262.

The record demonstrates that Wainuskis’ plea was premised

entirely upon a legally erroneous pre-Bailey definition of

§ 924(c)’s “use” prong. I would, therefore, vacate her conviction

and remand the cause to the district court for repleading or trial

on the “carry” prong of that statute.

II.

I also dissent from the majority’s conclusion that Wainuskis

“carried” the gun that the police pulled out from under her

mattress when her home was searched.

Wainuskis’ case is not novel. Prior to Bailey, prosecutors

relied heavily upon the liberal construction given § 924(c)’s “use”

prong. Since Bailey was decided, this Court has considered a

number of § 2255 motions requesting relief on the basis of the

dramatic change effected by the Supreme Court’s narrowing of that

21
oft-invoked statute. That swarm of post-judgment motions for

relief has generated an increasing pressure to expand the “carry”

prong to accommodate those convictions questioned in light of

Bailey. Although our cases are neither completely uniform nor

explicit, my reading of § 924(c) and the applicable precedent is

that the “carry” prong of § 924(c) requires proof of the following

three elements: (1) that a defendant exercised dominion or control

over a firearm by touching, moving or transporting the gun; (2) to

make it accessible; (3) for the purpose of facilitating or

accomplishing the underlying drug trafficking offense. Each of

those elements is discussed briefly below.

The plain and ordinary meaning of the term “carry” demands

some showing that the defendant touched, moved or transported the

gun. See Hall, 110 F.3d at 1161. That interpretation is

consistent with our own precedent and with the Supreme Court’s

discussion of § 924(c) in Bailey. See Bailey, 116 S. Ct. at 507

(“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”) (emphasis added); see also

Thompson, 122 F.3d at 307 (“‘carry’ in § 924(c)(1) involves moving

or transporting the firearm in some fashion, or bearing the firearm

upon one’s person in some way”). A few of our non-vehicular cases

have haphazardly defined “carry” to permit liability any time a

defendant is “within arm’s reach” of the firearm, without regard to

whether there is evidence the defendant moved, handled or

transported the firearm. E.g., Hall, 110 F.3d at 1161. At first

22
blush, those cases appear to be grounded on mere proximity, rather

than handling or movement. A closer examination of those cases,

however, reveals that the proximity of the defendant was measured

in the opinion itself as a necessary, rather than sufficient,

condition for liability. Hall, 110 F.3d at 1162. I have been

unable to find any case in which we relied solely upon the

defendant’s proximity to a gun not carried on his or her person to

sustain a § 924(c) conviction.

The “carry” prong also demands a showing of accessibility.

When a defendant is accused of carrying a gun and there is no

vehicle involved, the logical and obvious meaning of the phrase

“carrying a gun” includes the idea that the gun is at ready and

available for the defendant’s use. See Thompson, 122 F.3d at 307;

Hall, 110 F.3d at 1161-62; see also United States v. Foster, 1998

WL 2521, at *9 (9th Cir.) (en banc). That obvious premise explains

both the derivation of the misleading “within arm’s reach” language

in our opinions defining “carry” and any confusion about whether it

is a necessary or sufficient condition for liability. See United

States v. Pineda-Ortuno, 952 F.2d 98, 103-04 (5th Cir. 1992)

(describing the evolution of the “easy reach” requirement in non-

vehicle cases). Movement without ready accessibility would amount

to nothing more than storage nearby a drug transaction, an even

more ludicrous interpretation of “carry” which would eliminate any

potential purpose the gun might otherwise play in facilitating the

drug trafficking offense.21 Cf. Bailey, 116 S. Ct. at 508 (“A

21
We have on several occasions drawn a distinction between

23
defendant cannot be charged under § 924(c)(1) merely for storing a

weapon near drugs or drug proceeds. Storage of a firearm, without

its more active employment, is not reasonably distinguishable from

possession.").

Finally, the plain language of § 924(c) requires proof that

the defendant “used” or “carried” the firearm “during and in

relation to” a crime of violence or a drug trafficking crime. The

“in relation to” clause insures that a defendant will not be

“carry” in the vehicular context and “carry” when no vehicle is

involved. When a vehicle is involved, the Court has been tempted

to ignore the requirement that the firearm be accessible and to

rely solely upon the movement element to establish liability for

“carrying” a gun. Two of our recent cases go so far as to hold

that accessibility is not a required element in a vehicular

context. United States v. Harlan, 130 F.3d 1152, 1153 (5th Cir.

1997); Muscarello, 106 F.3d 636 (5th Cir.), cert. granted, 118 S.

Ct. 621 (1997). The petition for writ of certiorari which was

granted in Muscarello framed the relevant issue as whether,

contrary to Harlan and Muscarello, liability for “carrying” a gun

requires a showing of accessibility.

The majority opines that Muscarello affected no change in our

vehicular precedent. I disagree. Muscarello, which requires no

showing of accessibility or contemporaneous connection with the

underlying drug trafficking offense, is inconsistent with our own

precedent and with the Supreme Court’s analysis in Bailey.

24
punished for committing a drug trafficking offense while in

possession of a firearm when the presence of the firearm is

coincidental or unrelated to the crime. Smith v. United States,

113 S. Ct. 2050, 2059 (1993). Section 924(c) requires that there

be some relation-ship between the presence of the gun and the

underlying drug trafficking offense. See United States v. Wilson,

884 F.2d 174, 177 (5th Cir. 1989) (Congress sought to avoid

construction that would allow conviction for inadvertent possession

of a firearm during an unrelated crime). Specifically, the firearm

must have some potential purpose or effect with respect to the drug

trafficking offense. Smith, 113 S. Ct. at 2059; see also United

States v. Pomranz, 43 F.3d 156, 160 (5th Cir. 1995) (the actus reus

of a § 924(c) offense is the employment of a weapon in the context

of a predefined crime); id. at 162 (“the indispensable predicate

offense is as important or essential to the completed offense as

the carrying or using of the firearm”). The statute further

requires that the actus reus of the offense occur “during” a drug

trafficking crime, which makes plain that there must also be some

close temporal relationship between the defendant’s employment of

the firearm and the predicate drug trafficking offense.

Based upon the foregoing elements, Wainuskis’ conviction

cannot be affirmed on an alternative theory that she “carried” the

gun absent evidence that Wainuskis placed the Colt pistol under the

mattress at a time relevant to and for the purpose of facilitating

the predicate drug trafficking offense.

25
 III.

Applying these elements to Wainuskis’ case discloses that the

record is not sufficiently developed to permit liability on the

alternate theory that she “carried” the Colt pistol. Given

Wainuskis’ admission that the firearm was within arm’s reach, there

is no dispute that Wainuskis could have accessed the Colt pistol.

Although the majority agrees in principle that both movement and

accessibility are required, it fails to require evidence of

movement, relying instead upon a series of unjustified inferences

drawn from a silent record. The majority fails to even discuss the

third element, the statutory requirement that Wainuskis’ conduct

occur at a relevant time to and for the purpose of facilitating the

predicate drug trafficking offense. That is because there is no

evidence that Wainuskis’ “constructive possession” of the subject

firearm occurred “during and in relation to” the predicate drug

trafficking offense.

The majority simply decides, without the benefit of any

supporting evidence, that Wainuskis probably placed the gun under

the mattress. To reach that conclusion the majority infers that

Wainuskis and Materne had guns in Petal, where they lived with

Wainuskis’ mother, that they moved those guns from Petal to

Ellisville, where the majority states they lived alone, and that

the gun was found in their home. Therefore, either Wainuskis or

Materne must have placed the gun under the mattress.

26
 Let the record be clear. There is no record evidence that the

Colt pistol found under Wainuskis’ mattress or any other

identifiable weapon was moved from Petal to Ellisville. There is

no record evidence that Wainuskis, or any other identifiable

person, touched or moved the gun found under the mattress at any

particular time. There is no record evidence that Materne and

Wainuskis were the sole occupants of the Ellisville house. There

is likewise no evidence indicating that drugs were found in the

bedroom where Wainuskis was found or that drug transactions ever

occurred in the bedroom or that any particular drug transaction was

occurring when the house was searched. Similarly, there is no

indication that the Colt pistol placed under the mattress was

accessible when drug transactions were occurring or that the pistol

was capable of or did facilitate any particular drug transaction.

I disagree that we can infer from a silent record that

Wainuskis placed the gun under the mattress at some time in the

past (satisfying the movement element) for the purpose of employing

it in a drug trafficking offense. See United States v. McPhail,

112 F.3d 197, 199-200 (5th Cir. 1997) (refusing to infer that gun

seized from defendant known to have been involved in drug trade for

months was carried in car for the purpose of facilitating a drug

transaction). As in McPhail, I do not see how we can simply assume

away the required factual basis for Wainuskis’ plea by substituting

our own view of what likely occurred for a factual basis showing

what actually occurred. Rather, we should require that a

sufficient factual basis be developed in the district court to

27
demonstrate the defendant was connected with this gun, and that the

gun made the basis of her conviction was placed under the mattress

for some purpose related to her drug trafficking offense. It is

absolutely meaningless to first state that § 924(c) liability for

“carrying” a firearm requires some evidence of movement or

transportation and then to simply assume that it occurred.22

Moreover, even assuming that Wainuskis placed the gun under

the mattress, a fact not supported by the record, there can be no

§ 924(c) liability unless the movement or transportation occurs at

a time that is relevant to the predicate drug trafficking offense.

See 18 U.S.C. § 924(c); see also United States v. McKinney, 120

F.3d 132, 134 (8th Cir. 1997). Simply placing or storing a gun in

a given location for future employment in drug trafficking is no

more “carrying” a gun for purposes of § 924(c) than it is “using”

a gun. Notwithstanding the well-worn mantra that Bailey affects no

change in our “carry” precedent, Bailey instructs that both “use”

22
Alternatively, the majority relies upon the Magistrate

Judge’s “finding” that Wainuskis secreted the weapon under the

mattress. The Magistrate Judge never made any such finding. The

statement quoted by the majority is part of the Magistrate Judge’s

finding and conclusion that Wainuskis’ exercised no more control

over the Colt pistol than possession, and that possession alone is

insufficient to establish liability for “carrying” a firearm in

violation of § 924(c). Wainuskis admitted nothing by failing to

object to the Magistrate Judge’s report recommending that she be

granted relief.

28
and “carry” have an active, rather than passive, connotation.

Bailey, 116 S. Ct. at 506 (“Had Congress intended possession alone

to trigger liability under § 924(c)(1), it could easily have so

provided.”); id. at 508 (“A defendant cannot be charged under

§ 924(c)(1) merely for storing a weapon near drugs or drug

proceeds. Storage of a firearm, without its more active

employment, is not reasonably distinguishable from possession.”);

id. at 509 (noting that Congress did not include “intended” conduct

within the ambit of § 924(c)(1)).

Without regard to whether simply placing a gun in your bedroom

is “carrying” a gun, surely it stretches credibility to contend

that lying on that bed in a room where there are no drugs is

carrying a gun “during and in relation to” a drug trafficking

offense simply because there are drugs in another area of the

house. The majority makes absolutely no attempt to establish a

nexus between Wainuskis’ constructive possession of the Colt pistol

and any underlying drug transaction. Wainuskis was charged with

(though not convicted of) possession with intent to distribute

methamphetamine. I suppose Wainuskis’ ongoing constructive

possession of methamphetamine creates the potential for an argument

that she violated § 924(c) anytime she had constructive possession

of drugs and wandered too close to a firearm. Fortunately, we have

rejected that construction in a factually analogous case.

In United States v. Hall, 110 F.3d 1155 (5th Cir. 1997) the

defendant was arrested after a search warrant was executed on a

private residence. Officers found and arrested Hall in the living

29
room. Id. at 1157-58. There was a large quantity of cocaine on

the coffee table and a gun lying on the floor within a few feet of

the coffee table. Id. Hall pleaded guilty. This Court reversed

and vacated Hall’s conviction, finding that he neither “used” nor

“carried” the gun during and in relation to a drug trafficking

offense. Id. at 1162. Although the Hall panel relied in part on

the fact that the record did not demonstrate how close Hall was to

the coffee table, and hence the gun, the panel also relied upon the

fact that there was no evidence to establish “who transported the

gun to the trailer or moved it to its position on the floor.” Id.

at 1162.

Wainuskis presents an even stronger case for relief than Hall.

In Hall, the gun was discovered in plain view, in the same room as

both the defendant and the drugs. In this case, the gun was found

concealed under a mattress in a room where no drugs were found.

The existing record does not support the inference that Wainuskis

placed the gun under the mattress for the purpose of making it

accessible to facilitate her drug trafficking offense. Thus, the

record contains no evidence that Wainuskis’ constructive possession

of the Colt pistol coincided with her employment of that weapon in

the predicate drug offense.

In truth, although the majority purports to be requiring

evidence that Wainuskis moved or transported the firearm, it has

actually inferred that element out of existence and Wainuskis’

conviction rests upon nothing more than what the government stated

in the Rule 11 hearing -- constructive possession. The majority

30
concedes as much with its comment that “Wainuskis merely possessed

the weapon and did not actively employ it at the time of the

search,” a statement which seems out of line given its conclusion

that Wainuskis “carried” the firearm. Possession of a gun, even

during and in relation to a drug trafficking offense, has never

been enough to support a § 924(c) conviction for “carrying” a gun.

See Smith, 113 S. Ct. at 2059 (possession of a firearm during a

drug trafficking offense is insufficient to support a § 924(c)

conviction absent proof that the gun facilitated the drug

trafficking offense); Thompson, 122 F.3d at 307 (“[i]t is clear

that carry connotes more than mere possession”); Hall, 110 F.3d at

1161 (carry “must connote more than mere possession of a firearm by

a person who commits a drug offense”); see also Bailey, 116 S. Ct.

at 506 (if Congress “intended possession alone to trigger liability

under § 924(c)(1) it easily could have so provided”); id. at 506

(the ordinary meanings of “use” and “carry” connote more than

simple possession). Because the record does not contain any

evidence that Wainuskis moved or transported the gun made the basis

of her plea, I would hold that the factual basis supporting her

plea is insufficient to support her liability on the alternative

theory that she “carried” the Colt pistol.

Recognizing the weakness of the tenuous series of inferences

underlying its conclusions that Wainuskis placed the gun under the

mattress, the majority seeks to expand the offense by relying upon

additional firearms seized from Wainuskis’ house.23 The problem

23
Contrary to the majority’s presentation both the Rule 11

31
with that analysis is that there is no more evidence that Wainuskis

moved any one of those other guns than there is evidence that she

moved the Colt pistol made the basis of her plea. Likewise, there

is no more evidence tying any of those guns to the predicate drug

trafficking offense than there is with respect to the Colt pistol

made the basis of her plea. Expanding the inquiry to the other

guns does not bolster the majority’s conclusion that Wainuskis was

carrying a gun during and in relation to a drug trafficking

offense.

Wainuskis and Materne admitted that the two guns made the

subject of their respective convictions, the Ruger pistol found

near Materne and the Colt pistol found near Wainuskis, were their

guns. There is absolutely no evidence that the remaining guns

found in the home, or any particular one of the guns found in the

home, were exclusively Materne’s and Wainuskis’. To the contrary,

the PSR states that “numerous firearms in the kitchen/den area were

located within arm’s reach of the majority of the occupants of the

kitchen and den.” That statement suggests that there were a number

of people in the house when the search occurred, and that those

individuals may have been in possession of firearms. Likewise,

there is no evidence establishing that Materne and Wainuskis lived

at the Ellisville address alone or that they owned or controlled

all of the firearms found at that address.

The record contains no evidence that Wainuskis moved, handled

hearing and the PSR rely upon Wainuskis’ possession of the Colt

pistol to define her offense.

32
or transported the firearm made the subject of her plea. Even

assuming that Wainuskis placed the gun under the mattress, the

record contains no evidence that Wainuskis actively employed the

firearm during and in relation to a drug trafficking offense. I

do not think we can ignore the lessons of Bailey and resurrect pre-

Bailey § 924(c) law by simply ignoring both of those substantive

elements of § 924(c) liability. Wainuskis’ conviction cannot be

sustained by resort to the novel theory not contemplated in the

district court that she “carried” the Colt pistol in violation of

§ 924(c).

IV.

I also dissent from the majority’s conclusion that Wainuskis’

conviction can be sustained on the theory that she aided and

abetted Materne’s independent violation of § 924(c).

As an initial matter, I object to the majority’s reliance upon

this theory which was not included in the indictment against

Wainuskis, was not made the basis of her plea and was not in fact

raised until the government filed a motion for reconsideration of

the district court’s decision to grant Wainuskis relief on her

§ 2255 motion. I also believe, however, that the majority reaches

the wrong conclusion from application of this theory.

Wainuskis’ plea cannot be sustained on an aiding and abetting

theory absent evidence that Materne violated § 924(c) and that

Wainuskis engaged in conduct in furtherance of that offense.

Guidry v. Bank of LaPlace, 954 F.2d 278, 283 n.5 (5th Cir. 1992)

33
(aiding and abetting statute requires proof that principal

committed subject offense); United States v. McCoy, 539 F.2d 1050,

1064 (5th Cir. 1976) (“It is true that the existence of the crime

is an element of the offense of aiding and abetting.”); United

States v. Barfield, 447 F.2d 85, 89 (5th Cir. 1971) (aiding and

abetting statute requires proof “beyond a reasonable doubt that the

alleged offense was committed by someone and that the person

charged as an aider and abettor assisted in the commission of the

crime”). Wainuskis’ assistance must be demonstrated with evidence

that she (1) associated with the criminal venture; (2) participated

in the venture; and (3) sought by action to make the venture

succeed. United States v. Salazar, 66 F.3d 723, 729 (5th Cir.

1995); United States v. Martiarena, 955 F.2d 363, 366 (5th Cir.

1992).

The principal defect in the majority’s aiding and abetting

theory is that Materne was not convicted for violating § 924(c).24

Moreover, the record evidence relating to the § 924(c) charge

against Materne suffers from the same deficiencies as that

24
Materne initially pleaded guilty to violating § 924(c) at

the same hearing in which Wainuskis pleaded guilty. The docket

sheet reflects that Materne later filed a motion to withdraw his

guilty plea to the § 924(c) charge, which was granted by the

district court. The substance of Materne’s second Rule 11 hearing,

in which he pleaded guilty to other charges, is not part of the

appellate record, but it is clear that he was not convicted on the

§ 924(c) charge.

34
presented against Wainuskis. The majority posits that Materne was

both “using” and “carrying” the Ruger pistol. The pistol was not

“used” just because it was sitting in plain view when police

searched the house, a fact which the majority equates with

Materne’s active employment by “display.” Bailey, 116 S. Ct. at

508 (“The active-employment understanding of ‘use’ certainly

includes brandishing, displaying, bartering, striking with, and

most obviously, firing or attempting to fire, a firearm.”).

Whatever the Supreme Court meant by “displaying” a firearm, I feel

sure that “active employment” requires something more than simply

being within arm’s reach of a visible gun in your home. Similarly,

the gun was not “carried” just because, as with the Colt pistol

attributed to Wainuskis, it was found within arm’s reach of

Materne. The majority’s construction would permit Materne’s

liability any time he wandered within arm’s reach of a visible

firearm at the same time he was also in constructive possession of

drugs. Such a construction reads out Congress’ limitation to

firearms used and carried “during and in relation to” a drug

trafficking offense. See Smith, 113 S. Ct. at 2059. Thus, I am

not at all certain that the record sufficiently establishes an

independent § 924(c) violation by Materne.

Even assuming the record establishes Materne’s independent

violation of § 924(c), there is absolutely no evidence to establish

the post-judgment theory that Wainuskis aided and abetted that

violation. The majority’s discussion depends upon Wainuskis’

participation in Materne’s drug trafficking. See Majority Opinion

35
at 12-13 (“That the couple lived together and sold drugs together

for a period of five months indicates the type of on-going offense

to which this doctrine may be easily applied.”). Selling drugs,

even when done together, does not violate § 924(c) and does not

tend to show how or whether Wainuskis facilitated Materne’s

possession of the Ruger pistol.

Wainuskis cannot be held liable for aiding and abetting

Materne unless she “engaged in some affirmative conduct designed to

aid the venture.” Martiarena, 955 F.2d at 367 (rejecting as

insufficient government’s evidence that defendant knew about and

attempted to avoid principal’s exposure to liability for offense,

and requiring evidence that defendant “actively participated in

conduct that assisted or rewarded principal’s offense”).

Specifically, Wainuskis’ plea must be supported with evidence that

she knew the particular gun was available to Materne and that she

took some action which assisted Materne’s use or carriage of the

weapon. E.g., Salazar, 66 F.3d at 729 (“the jury was required to

find that Salazar knew that the gun was at least available to

Hernandez and that Salazar took some action which assisted

Hernandez's use of the gun") (internal citation omitted). Mere

presence and association, which are all that has been shown here,

are insufficient. Id.; Martiarena, 955 F.2d at 366-67.

The majority also invokes the aiding and abetting theory with

respect to the Colt pistol found under Wainuskis’ mattress and with

respect to the additional firearms found in the house. I can think

of no reason why, after reaching the conclusion that Wainuskis’

36
plea is supported by a sufficient factual basis with respect to her

own conduct, the majority needs to develop not one but three

separate theories for holding her vicariously liable for Materne’s

conduct. The gist seems to be that there are plenty of bad facts

to support the notion that somewhere, at some time, § 924(c) was

violated, whether by Materne with Wainuskis’ knowledge and

assistance, or by Wainuskis herself. While I can understand, and

perhaps even sympathize with that position, I think the majority’s

indulgence in a fanciful series of inferences and theories reveals

a blindly determined intent to support the guilty plea. Federal

Rule of Criminal Procedure 11 and the well-established

constitutional principles upon which it is based require more. The

appropriate remedy is to remand with instructions that each element

of the pleaded offense be supported with some factual basis. The

government’s Rule 11 burden is light and can be met with evidence

logically addressing each element of the offense. When, as here,

the law changes dramatically after a plea such that we are

purporting to sustain a guilty plea on at least four alternative

theories that were never part of the calculus when the defendant

pleaded guilty, I think justice demands that we return the case to

the district court for a clarification of the plea.

I would vacate Wainuskis’ plea and remand to the district

court for repleading or trial with due consideration of the Supreme

Court’s decision in United States v. Bailey, 116 S. Ct. 501 (1995).

37