United States v. Sorrells

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 96-40873
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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID SORRELLS,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of Texas

July 22, 1998

Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

A jury convicted David Sorrells (“Sorrells”) of using a

firearm during and in relation to a drug trafficking offense in

violation of 18 U.S.C. § 924(c)(1). We affirmed his conviction on

direct appeal and on Sorrells’ first motion to vacate his sentence

under 28 U.S.C. § 2255. He now appeals from the district court’s

denial of his second § 2255 motion to vacate his § 924(c)(1)

conviction. We affirm.

I

The facts in this case are relatively straightforward. Both
parties agree that, viewed in the light most favorable to the

verdict, the relevant facts are as follows: In 1989, Sorrells’

adopted son, Mark Sorrells (“Mark”), contacted Victor Ayala

(“Ayala”) and asked him where he could get chemicals to manufacture

methamphetamine. Mark told Ayala that he did not have money to

purchase the chemicals, but that he could use a deed to his

father’s house as collateral. Unbeknownst to Mark, Ayala was

working as a paid informant for Gene Tandy (“Tandy”) of the Texas

Department of Public Safety. After Ayala informed Tandy of Mark’s

request, Tandy told Drug Enforcement Administration (“DEA”) Agent

James Palestino (“Palestino”) about Ayala’s contact with Mark.

Palestino instructed Tandy to set up a meeting with Mark.

At the meeting between Palestino and Mark, Palestino posed as

an employee of a chemical store with access to the chemicals needed

to make methamphetamine. Mark stated that he was low on cash, but

he offered to provide the deed to Sorrells’ house as collateral for

the chemicals. Mark also gave Palestino a written list of the

chemicals he needed and a telephone number where he could be

reached. Mark said that after he manufactured the methamphetamine

he would pay Palestino $2,000 and give him a pound of the finished

methamphetamine. Palestino told Mark that he wanted to meet with

Sorrells to assure himself that Sorrells was aware of the details

of the transaction. Ayala later telephoned Sorrells and asked him

if he was aware that the deed to his house was being used as

collateral to purchase methamphetamine; Sorrells replied that he

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was.

Shortly after their first meeting, Palestino called Mark and

recorded their conversation. Palestino told Mark that he was

uncomfortable about the method of payment and asked to speak to

Sorrells to verify that Sorrells knew the purpose for which the

deed to his house was going to be used. Mark told Palestino that

Sorrells knew about the plans and that there would be no problem

arranging a meeting with Sorrells. The meeting with Sorrells took

place on the following day at Sorrells’ home. Palestino was

wearing a body microphone and waited in the car while Tandy and

Ayala went inside. Mark came out and showed Palestino the deed to

Sorrells’ house. Sorrells then came out of the house and assured

the officers that they could use the deed as collateral for the

chemicals. Sorrells stood by as Palestino and Mark discussed

financial arrangements should something go awry with Mark’s “cook.”

Sorrells also commented to Palestino that this was not Mark’s

“first time.”

After the meeting, the officers decided to provide Mark with

the chemicals. Ayala arranged for the parties to meet at a mall in

Galveston. Ayala called Sorrells at his home and told him that he

and Tandy were in town with the chemicals and were waiting for Mark

at the mall. Sorrells eventually relayed the message to Mark, and

Mark subsequently arrived at the mall driving a van. After they

loaded the chemicals into Mark’s van, Ayala and Mark drove off in

the van, with Ayala wearing a body microphone. Ayala and Mark then

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went to a real estate office, and Mark picked up a key to a beach

house that Sorrells had rented for the processing of the

methamphetamine.

After taking the chemicals to the beach house, Mark began

“cooking” the chemicals. Mark also sent Ayala to get a gun and a

box of bullets from inside the van. Mark loaded the gun and toyed

with it as he began to process the chemicals. Ayala convinced Mark

to get something to eat, and when they left, Mark took the gun with

him. When they returned, Mark took the gun out and told Ayala that

“if anybody knocks on the door, I’m going to shoot through it, I

don’t play funny business.” Frightened for his own safety, Ayala

surreptitiously left the house in search of a police officer. He

could not find an officer, and when he returned to the beach house,

Mark was waiting outside with a crowbar. Mark told Ayala to get

back inside the house and not to leave again. When the chemicals

began to give off a strong odor, Ayala talked Mark into leaving the

house to purchase gas masks from Sears. They later left the house

again and the police stopped them as they returned.

The officers arrested Mark and searched the beach house,

finding a functioning methamphetamine laboratory, a loaded gun, and

a gas mask lying on the kitchen counter. Thereafter, the officers

sent Ayala to Sorrells’ home (which was approximately sixteen miles

from the beach house) to speak with Sorrells. Ayala told Sorrells

that the reason he left the beach house was that there was a bad

odor. When he mentioned to Sorrells that the odor was strong,

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Sorrells stated: “I know, I know.” Sorrells indicated that he

expected to profit financially from the venture and that he wanted

to launder the money to an island and bring it back in small

amounts. Sorrells also mentioned that he paid for the rental of

the beach house where Mark cooked the methamphetamine.

In reference to Mark and Sorrells’ plan to conduct another

drug deal with Ayala and Palestino, Sorrells told Ayala he had some

information for their next deal. He wrote down the address and

telephone number of a real estate agent and instructed Ayala to

give it to Mark, explaining that the next deal would take place at

that location. Ayala asked Sorrells if he realized that Mark had

a gun with him at the beach house, and Sorrells told him “yes, I

know, I know.” The police arrested Sorrells at his home shortly

thereafter. During the arrest, Sorrells told DEA Special Agent

Dickmond Rice that he owned a gun and that he had given it to Mark.

Sorrells later admitted that the gun recovered from the beach house

was similar to the gun that he owned.

The government charged Sorrells in a superseding indictment,

along with Mark, with conspiracy to manufacture in excess of 10

grams of methamphetamine (Count 1), with aiding and abetting an

attempt to manufacture methamphetamine (Count 2), and with using

and carrying a firearm in relation to a drug-trafficking offense in

violation of 18 U.S.C. § 924(c)(1) (Count 4). Following a jury

trial, the jury convicted Sorrells on all counts. The district

court imposed a sentence of concurrent 78-month terms of

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incarceration on each count and a mandatory consecutive 60-month

term of incarceration for the § 924(c)(1) violation. We affirmed

Sorrells’ conviction in an unpublished opinion, rejecting his sole

claim on appeal that his conviction be reversed because the

original record had been lost. See United States v. Sorrells, No.

90-2361, slip op. at 3-5 (5th Cir. Sept. 24, 1992). In 1993,

Sorrells filed a motion to vacate his sentence pursuant to 28

U.S.C. § 2255. Sorrells raised a litany of issues, including a

claim that there was insufficient evidence to prove that he

knowingly violated § 924(c). The district court denied relief, and

we affirmed in an unpublished opinion. See United States v.

Sorrells, No. 93-7737, slip op. at 1 (5th Cir. Jan. 25, 1995).

Sorrells filed the instant § 2255 motion on April 1, 1996,

challenging only his conviction on the 18 U.S.C. § 924(c)(1) charge

in light of the Supreme Court’s decision in United States v.

Bailey, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).

The United States responded that Sorrells’ successive § 2255 motion

should be denied as an abuse of the writ, and alternatively, that

Sorrells’ motion should be denied on the merits. The district

court did not address the government’s abuse of the writ argument,

but denied Sorrells’ § 2255 motion on the merits instead. Sorrells

filed a timely notice of appeal from this decision. Sorrells

subsequently filed with the district court a motion to proceed in

forma pauperis on appeal. The district court denied this motion

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and certified that Sorrells’ appeal was not taken in good faith.

Sorrells filed a separate notice of appeal from this order.1

II

Because Sorrells filed the instant § 2255 petition before the

effective date of the Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), we

consider his petition under our pre-AEDPA standards of review,2 and

no certificate of appealability is necessary to vest jurisdiction

in this Court. See United States v. Carter, 117 F.3d 262, 264 (5th

Cir. 1997); United States v. Rocha, 109 F.3d 225, 228-29 (5th Cir.

1997). Sorrells challenges only his conviction for using a firearm

during a drug trafficking crime in violation of § 924(c)(1),

claiming that there was insufficient evidence to support his

conviction under the Supreme Court’s definition of “use” in Bailey.

1
As a preliminary matter, we reject Sorrells’ argument
that the district court erred in denying his motion to proceed in
forma pauperis on appeal. Sorrells failed to attach a copy of an
affidavit showing his inability to pay fees and costs and failed to
file a motion in this Court. Therefore, he failed to comply with
the strictures of FED. R. APP. P. 24 for proceeding in forma
pauperis on appeal, and his request to do so is hereby denied.
2
Several recent decisions have considered whether Bailey
claims can be brought in successive § 2255 motions under AEDPA.
See Triestman v. United States, 124 F.3d 361, 368-80 (2d Cir.
1997); In re Hanserd, 123 F.3d 922, 928-32 (6th Cir. 1997); In re
Dorsainvil, 119 F.3d 245, 248-49 (3d Cir. 1997). Because AEDPA
limits successive § 2255 motions to claims based on “a new rule of
constitutional law” or “newly discovered evidence,” these courts
have had to address the difficult questions surrounding the
availability of § 2255 or § 2241 relief for such claims under
AEDPA. Because Sorrells’ § 2255 motion was filed before the
effective date of AEDPA, we express no opinion on these questions.

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 In Bailey, the Supreme Court clarified that a conviction for

“use” of a firearm under § 924(c)(1) requires the government to

show “active employment of the firearm” including “brandishing,

displaying, bartering, striking with, and most obviously, firing or

attempting to fire, a firearm.” Bailey, 516 U.S. at 148, 116 S.

Ct. at 508. The Court in Bailey concluded that “a defendant cannot

be charged under § 924(c)(1) merely for storing a weapon near drugs

or drug proceeds,” or for “placement of a firearm to provide a

sense of security or to embolden.” Id. The government assumes

here that the district court’s § 924(c)(1) instructions failed to

comply with the Bailey Court’s definition of “use,” but argues,

nonetheless, that there was sufficient evidence to convict Sorrells

of “aiding and abetting” the use of a firearm during a drug

trafficking crime, and that in any event, Sorrells cannot

demonstrate that the alleged error resulted in a complete

miscarriage of justice. Sorrells argues that there was

insufficient evidence to convict him of personally “using” the

firearm, that he was not charged with aiding and abetting the use

of a firearm, and that there was insufficient evidence to convict

him of aiding and abetting Mark’s “use” of the firearm.

III

We first address the procedural hurdles to considering the

merits of Sorrells’ Bailey claim, as well as the proper standard of

review for doing so. We have recently joined most courts of appeal

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in holding that Bailey applies retroactively to cases pending on

collateral review. See United States v. McPhail, 112 F.3d 197, 199

(5th Cir. 1997); see also Triestman v. United States, 124 F.3d 361,

368 & n.7 (2d Cir. 1997) (collecting cases); In re Hanserd, 123

F.3d 922, 928-32 (6th Cir. 1997); Stanback v. United States, 113

F.3d 651, 654-55 (7th Cir. 1997); United States v. Barnhardt, 93

F.3d 706, 708-09 (10th Cir. 1996). Although Bailey itself is a

non-constitutional case involving the statutory interpretation of

§ 924(c)(1), we have held that petitioners asserting that a

§ 924(c)(1) conviction is invalid in light of Bailey can properly

bring their claims in a § 2255 motion. See United States v.

Gobert, 139 F.3d 436, 438-39 (5th Cir. 1998) (“Even though Bailey

itself is a statutory, non-constitutional case, it does not

necessarily follow that a prisoner’s post-Bailey petition for

collateral relief sounds in statutory, non-constitutional law.”);

see also Carter, 117 F.3d at 264-65 (granting § 2255 motion and

vacating § 924(c)(1) conviction because there was no factual basis

to support guilty plea for “use” of a firearm in relation to a drug

trafficking offense); McPhail, 112 F.3d at 199-200 (granting § 2255

motion and vacating § 924(c)(1) conviction because, in light of

Bailey, conviction “seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings [and] the appellant shows

clear or obvious error that affects his substantial rights”).

The government correctly notes, however, that Sorrells failed

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to object to the jury instructions defining “use” of a firearm

under § 924(c)(1), or to challenge those instructions on direct

appeal. It is well settled that where a defendant has procedurally

defaulted a claim by failing to raise it on direct review, the

claim may be raised in a § 2255 motion only if the petitioner can

first demonstrate either (1) cause and prejudice, or (2) that he is

“actually innocent” of the crime for which he was convicted.3 See

Bousley v. United States, ___ U.S. ___, ___, 118 S. Ct. 1604, 1611,

___ L. Ed. 2d ___ (May 18, 1998); Murray v. Carrier, 477 U.S. 478,

485, 496, 106 S. Ct. 2639, 2643-44, 2649-50, 91 L. Ed. 2d 397

(1986); United States v. Logan, 135 F.3d 353, 355 (5th Cir. 1998).

Because Sorrells did not challenge the § 924(c)(1) instructions at

trial or on direct appeal, we apply this standard of review here.

3
Because this is Sorrells’ second § 2255 motion, he also
has to overcome the abuse of the writ hurdle. We need not,
however, separately consider this issue because we apply the
functionally identical standard for determining whether a
successive § 2255 motion constitutes an “abuse of the writ” under
pre-AEDPA standards. See, e.g., McCleskey v. Zant, 499 U.S. 467,
494-95, 111 S. Ct. 1454, 1470-71, 113 L. Ed. 2d 517 (1991) (holding
that there is no abuse of the writ where the petitioner can
demonstrate either (1) cause and prejudice, or (2) that the failure
to consider the issue would result in a “fundamental miscarriage of
justice”); United States v. Flores, 981 F.2d 231, 234 (5th Cir.
1993) (extending the McCleskey standard to § 2255 motions). The
“actually innocent” standard is the same as the “fundamental
miscarriage of justice” standard, which applies “‘when a
constitutional violation probably has caused the conviction of one
innocent of the crime.’” Rodriguez v. Johnson, 104 F.3d 694, 697
(5th Cir.) (quoting McCleskey, 499 U.S. at 494, 111 S. Ct. at
1470), cert. denied, 117 S. Ct. 2438 (1997). Therefore, the fact
that this is Sorrells’ second § 2255 motion does not affect our
standard of review. See infra note 5.

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 Before the Supreme Court’s recent decision in Bousley,

applying the “cause and prejudice” standard to Bailey claims raised

in § 2255 motions was relatively straightforward. We had joined

every court of appeals except the Eighth Circuit in concluding that

a petitioner bringing a post-Bailey challenge to a pre-Bailey

conviction could show “cause” for failing to raise such a claim on

direct review. See Logan, 135 F.3d at 355 (“Applying [the two-part

cause and prejudice test], we find that [the defendant] has shown

adequate cause for his failure to raise earlier the present issue

because the Bailey decision had not been rendered at the time of

his trial or appeal.”); Rocha, 109 F.3d at 229 (“Rocha, of course,

could hardly be expected to have raised a Bailey claim before

Bailey was decided . . . .”); see also Triestman, 124 F.3d at 368

n.6 & 8 (collecting cases); Stanback, 113 F.3d at 654-55 & n.2

(collecting cases). Thus, before Bousley, when reviewing a § 2255

motion raising a Bailey claim when there had been no objection

below, we would proceed to the “prejudice” prong to decide whether

the petitioner could “demonstrate that, but for the alleged error,

he might not have been convicted.” Logan, 135 F.3d at 355

(emphasis added); see also United States v. Guerra, 94 F.3d 989,

994 (5th Cir. 1996).

In Bousley, however, the Supreme Court clarified that a

petitioner seeking collateral review for a Bailey claim must

demonstrate “factual innocence” if he failed to raise the issue on

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direct appeal.4 See Bousley, ___ U.S. at ___, 118 S. Ct. at 1611;

see also United States v. Ramos, No. 96-7356, 1998 WL 337889, *5

(3d Cir. June 26, 1998) (holding that in light of Bousley

petitioner must demonstrate “actual innocence” of § 924(c)(1)

violation because he could not demonstrate “cause” for failing to

challenge the jury instruction on direct appeal). In Bousley, the

Eighth Circuit had held that the petitioner waived his right to

bring a § 2255 motion based on Bailey by not raising the issue on

direct appeal because he could not satisfy the “cause” prong,

notwithstanding the fact that the petitioner’s conviction and

direct appeal occurred before the Supreme Court had decided Bailey.

See Bousley v. Brooks, 97 F.3d 284, 287-88 (8th Cir. 1996). On

appeal to the Supreme Court, the petitioner in Bousley argued that

he had “cause” for his failure to raise his Bailey claim because

“the legal basis of the claim was not reasonably available to

counsel” and because “before Bailey, any attempt to attack [his]

4
Although the Supreme Court in Bousley considered the
permissibility of collateral attacks on § 924(c)(1) convictions
obtained pursuant to guilty pleas (rather than jury verdicts), the
Bousley Court’s discussion of whether there was “cause” for failing
to challenge the definition of “use” on direct appeal (even before
Bailey) applies equally to § 924(c)(1) convictions obtained
pursuant to jury verdicts. See United States v. Ramos, No. 96-
7356, 1998 WL 337889, *5 (3d Cir. June 26, 1998) (applying Bousley
standard to § 924(c)(1) conviction obtained pursuant to jury
verdict). The standard for determining “cause” for a procedural
default does not depend on the method of conviction. See Murray,
477 U.S. at 488, 106 S. Ct. at 2645 (explaining that the “cause”
standard requires “a showing that the factual or legal basis for a
claim was not reasonably available to counsel”).

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guilty plea would have been futile.” Bousley, ___ U.S. at ___, 118

S. Ct. at 1611.

The Supreme Court rejected this argument and held that the

petitioner was unable to establish “cause” for his default because

even before Bailey “the Federal Reporters were replete with cases

involving challenges to the notion that ‘use’ is synonymous with

mere ‘possession.’” Id. After agreeing with the Eighth Circuit

that the petitioner could not satisfy the “cause and prejudice”

standard for failing to raise his § 924(c)(1) challenge on direct

appeal, the Supreme Court nonetheless held that the Eighth Circuit

erred in refusing to consider the petitioner’s claim because the

petitioner could overcome the procedural default if he established

that the error “‘probably resulted in the conviction of one who is

actually innocent.’” Id. (quoting Murray, 477 U.S. at 496, 106 S.

Ct. at 2649).

The Supreme Court confirmed that the “actually innocent”

standard imposes a higher burden on petitioners than the

“prejudice” prong in the cause and prejudice standard. “To

establish actual innocence, petitioner must demonstrate that, ‘in

light of all the evidence,’ ‘it is more likely than not that no

reasonable juror would have convicted him.’” Id. (quoting Schlup

v. Delo, 513 U.S. 298, 327-28, 115 S. Ct. 851, 867-68, 130 L. Ed.

2d 808 (1995)); cf. Logan, 135 F.3d at 355 (explaining that

“prejudice” exists where petitioner can show “he might not have

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been convicted”). The Supreme Court reaffirmed in Bousley that

“‘actual innocence’ means factual innocence, not mere legal

insufficiency.’” Bousley, ___ U.S. at ___, 118 S. Ct. at 1611; see

also Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir.) (“‘[T]he

term ‘actual innocence’ means factual, as opposed to legal,

innocence))’legal’ innocence, of course, would arise whenever a

constitutional violation by itself requires reversal, whereas

‘actual’ innocence, as the Court stated in McCleskey, means that

the person did not commit the crime.’”) (emphasis in original)

(quoting Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992)),

cert. denied, 117 S. Ct. 2438 (1997).

While this undoubtedly is a strict standard of review, the

Supreme Court explained that to demonstrate “factual innocence” in

the context of a Bailey claim where the government charged only the

“use” of a firearm, the “petitioner need demonstrate no more than

that he did not ‘use’ a firearm as that term is defined in Bailey.”

Bousley, ___ U.S. at ___, 118 S. Ct. at 1612; see also Gobert, 139

F.3d at 439 (explaining that a refusal to vacate a sentence where

Bailey has placed the alleged conduct beyond the scope of

§ 924(c)(1) “would result in a complete miscarriage of justice”).

Accordingly, we will overturn Sorrells § 924(c)(1) conviction, only

if he can demonstrate, in light of all the evidence, that “it is

more likely than not that no reasonable juror would have convicted

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him.”5 Bousley, ___ U.S. at ___, 118 S. Ct. at 1611; cf. Ramos,

1998 WL 337889, at *5 (concluding that petitioner could not

demonstrate factual innocence “where the evidence was sufficient to

support the § 924(c)(1) conviction”).

IV

Thus, we now consider whether Sorrells can demonstrate his

factual innocence of the § 924(c)(1) offense under Bailey. First,

we have little doubt, and the government appears to agree, that the

court’s jury instructions on “use” were inconsistent with the

strictures of Bailey. Cf. United States v. Cooke, 110 F.3d 1288,

5
The government notes that it raised in the district court
the argument that Sorrells’ instant motion was an abuse of the
§ 2255 proceedings and that the district court failed to consider
this argument. See Rule 9(b), RULES GOVERNING § 2255 PROCEEDINGS FOR THE
U.S. DISTRICT COURTS. This Court has stated that when the abuse of
the writ argument is properly raised in the district court, the
district court commits reversible error if it proceeds to consider
the merits of the § 2255 motion without considering whether the
motion is abusive. See Foret v. Whitley, 965 F.2d 18, 19-20 (5th
Cir. 1992); Alexander v. Whitley, 940 F.2d 946, 947-48 (5th Cir.
1991). For obvious reasons, however, the government here does not
seek a reversal of the district court’s denial of Sorrells’ § 2255
motion. Significantly, we did not state in either Foret or
Alexander that we must reverse the district court’s denial on the
merits and remand for a determination on the abuse of the writ
argument. Moreover, where the standard of review on appeal would
be identical because of the petitioner’s procedural default, see
supra note 3, the record is fully established (as it is here), and
neither party seeks a remand for a determination on the abuse of
the writ question, the district court’s error is undoubtedly
harmless. Cf. Macklin v. Singletary, 24 F.3d 1307, 1311 (11th Cir.
1994) (“Convinced of our authority to decide an abuse of the writ
issue not addressed by the district court, we now turn to
prudential considerations in order to decide whether we should
exercise that authority in this case.”); see also Jones v. White,
992 F.2d 1548, 1558 (11th Cir. 1993) (same).

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1292-93 (7th Cir. 1997) (explaining that “[t]here can be little

doubt that the instructions . . . were plainly erroneous in light

of Bailey” when instruction permitted guilty verdict by finding

mere possession of weapon that facilitated drug offense). The

court instructed the jury in pertinent part as follows:

The defendant is considered to have used a firearm if its
presence in his possession in any manner facilitated the
carrying out of a felony. It is not necessary that the
firearm be fired nor that it be considered to have been
used.

While this instruction was understandable in light of our pre-

Bailey case law that held that § 924(c)(1) merely required

“evidence that the firearm was available to provide protection to

the defendant in connection with his engagement in drug

trafficking,” see United States v. Ivy, 973 F.2d 1184, 1189 (5th

Cir. 1992) (internal quotation marks and citation omitted), it

cannot withstand post-Bailey scrutiny. See United States v.

Thompson, 122 F.3d 304, 306-07 (5th Cir. 1997). “[T]he Bailey

Court explicitly declared that intended use or accessibility alone

does not constitute ‘use’ under section 924.” Logan, 135 F.3d at

355; see also Cooke, 110 F.3d at 1292-93. Here, while it is clear

that Mark “used” the gun within the meaning set forth in Bailey,6

the government presented no evidence that Sorrells “actively

6
Sorrells does not dispute that Mark’s acts of waiving the
gun while cooking the methamphetamine and stating that he would
shoot through the door if anyone knocked constitute “active
employment” under Bailey.

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employed” the gun, let alone that he did so in relation to the drug

trafficking offense. Consequently, Sorrells cannot be guilty of

“using” the firearm on his own; as such, we can uphold Sorrells’

conviction only if the evidence is sufficient to demonstrate that

Sorrells’ aided and abetted Mark’s “use” of the firearm in relation

to the drug trafficking offense.7

A

We first address Sorrells’ arguments that we cannot uphold his

conviction on an aiding and abetting theory because he was not

indicted for aiding and abetting the firearm count, and because the

aiding and abetting instruction to the jury related only to the

manufacture of methamphetamine count.8 Neither argument merits

7
Under the Supreme Court’s recent decision in Muscarello
v. United States, Nos. 96-1654 & 96-8837, 1998 WL 292058 (U.S. June
8, 1998), it is clear that Mark also “carried” the firearm within
the meaning of § 924(c)(1) because he “knowingly possess[ed] and
convey[ed] firearms in a vehicle” in relation to the drug offense.
Id. at *2. Nonetheless, because the district court here did not
instruct the jury on the “carrying” element and the government
presented no evidence that Sorrells himself “carried” the gun, the
government does not argue that we uphold Sorrells’ conviction under
the “carry” prong of § 924(c)(1). See United States v. Carter,
117 F.3d 262, 264 (5th Cir. 1997); United States v. Garcia, 86 F.3d
394, 403 (5th Cir. 1996). Moreover, because the jury was not
instructed that Sorrells was responsible for all crimes committed
by Mark during the course of the drug conspiracy, his § 924(c)(1)
conviction cannot be upheld on the grounds of Pinkerton liability.
See Thompson, 122 F.3d at 307; United States v. Dean, 59 F.3d 1479,
1490 n.18 (5th Cir. 1995); United States v. Crain, 33 F.3d 480, 486
n.7 (5th Cir. 1994).
8
Sorrells’ argument stems from the fact that the
indictment included an aiding and abetting charge for Count 2, the
manufacturing methamphetamine charge, but not for Count 4, the use
and carry of a firearm charge. Sorrells correctly points out that

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much discussion. First, “[a]iding and abetting is not a separate

offense, but it is an alternative charge in every indictment,

whether explicit or implicit.” See United States v. Neal, 951 F.2d

630, 633 (5th Cir. 1992). Consequently, Sorrells’ argument that he

was not indicted for aiding and abetting the § 924(c)(1) violation

is unavailing. See, e.g., id; United States v. Gordon, 812 F.2d

965, 968-69 (5th Cir. 1987) (“The words ‘aid and abet’ need not

appear in the indictment in order to sustain a conviction as an

aider and abettor.”).

Second, we reject Sorrells’ argument that the general aiding

and abetting instruction did not apply to the § 924(c)(1) offense,

notwithstanding the order in which it was read to the jury.

Significantly, “the aiding and abetting statute, 18 U.S.C. § 2,

does not define a separate crime,” but rather provides another

means of convicting someone of the underlying offense. See Gordon,

812 F.2d at 968 (footnote omitted). “[A]s a general rule, an

aiding and abetting instruction may be given to the jury even

though the indictment does not specifically mention aiding and

the government did not specifically argue at trial that Sorrells
was guilty of the use of a firearm as an aider and abettor; he also
notes that the court read the aiding and abetting charge to the
jury directly after the manufacturing charge (but before the
§ 924(c)(1) charge). Notwithstanding these facts, as we discuss
below, the district court gave the jury a general aiding and
abetting instruction and, as long as the evidence supports such a
conclusion in relation to the § 924(c)(1) charge, Sorrells is not
entitled to relief. See United States v. Botello, 991 F.2d 189,
191 (5th Cir. 1993); Gordon, 812 F.2d at 968-69.

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abetting, so long as evidence is introduced to support an aiding

and abetting conviction.” United States v. Botello, 991 F.2d 189,

191 (5th Cir. 1993). At trial, the district court gave a general

aiding and abetting instruction, quoting the language of 18 U.S.C.

§ 2 and explaining its elements, and Sorrells did not (and in this

motion still does not) challenge the correctness of this jury

charge.9 Thus, the issue of aiding and abetting was properly

before the jury at trial, and Sorrells is entitled to relief only

if he can demonstrate that he is “actually innocent” of aiding and

abetting the § 924(c)(1) charge in light of Bailey. See Gordon,

812 F.2d at 969 (“‘[T]he rule is well established, both in this

Circuit and others, that one who has been indicted as a principal

may be convicted on evidence showing that he has merely aided and

abetted the commission of the offense.’”) (quoting United States v.

Vines, 580 F.2d 850, 853 (5th Cir. 1978)).

B

1

In order to convict a defendant of aiding and abetting a crime

under 18 U.S.C. § 2, “the Government must prove (1) that the

defendant associated with the criminal venture, (2) participated in

9
18 U.S.C. § 2 states as follows: “Whoever commits an
offense against the United States or aids, abets, counsels,
commands, induces, or procures its commission is punishable as a
principal. Whoever willfully causes an act to be done, which if
directly performed by him or another would be an offense against
the United States, is punishable as a principal.”

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the venture, and (3) sought by action to make the venture succeed.”

United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991). The

criminal venture with which the defendant must “participate” and

“associate” here is the use or carry of a firearm in relation to

the drug offense. See United States v. Wainuskis, 138 F.3d 183,

187 (5th Cir. 1998). “Association means that the defendant shared

in the criminal intent of the principal.” United States v.

Salazar, 66 F.3d 723, 729 (5th Cir. 1995). “Participation means

that the defendant engaged in some affirmative conduct designed to

aid the venture. Although relevant, mere presence and association

are insufficient to sustain a conviction of aiding and abetting.”

Id.

Under our broad, pre-Bailey definition of “use,” a defendant

could be convicted of aiding and abetting a § 924(c)(1) violation

if the jury concluded that the defendant knew the gun was at least

available to the principal and took some action that assisted the

principal’s use of the gun. See Salazar, 66 F.3d at 729; see also

United States v. Morrow, 977 F.2d 222, 231 (6th Cir. 1992) (en

banc). This standard incorporated the same definition of “use”

that Bailey rejected, allowing a conviction for aiding and abetting

a § 924(c)(1) violation when the defendant knew the weapon was

merely “available” to the principal and that it facilitated the

crime. See Salazar, 66 F.3d at 728 (“To prove the use or carrying

of a firearm, the government need not show that the defendant used

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or brandished the weapon in an affirmative manner; it is sufficient

for the government to prove that the ‘firearm facilitated or had a

role in the crime, such as emboldening an actor who had the

opportunity or ability to display or discharge the weapon to

protect himself or intimidate others.’”) (quoting United States v.

Contreras, 950 F.2d 232, 241 (5th Cir. 1991)). Consequently, while

Bailey does not affect the elements of “aiding and abetting” (i.e.,

the defendant must aid, abet, counsel, command, induce, or procure

the commission of a crime with the requisite intent), Bailey does

affect the “use” element of § 924(c)(1)))and thus, it also affects

the elements for aiding and abetting a § 924(c)(1) violation. See

United States v. Pipola, 83 F.3d 556, 562 (2d Cir.) (“To show

specific intent the prosecution must prove the defendant knew of

the proposed crime))suspicion that it might occur is not enough))and

had an interest in furthering it.”), cert. denied, 117 S. Ct. 183

(1996).

We recently explained that “to be found liable for another’s

criminal activity [under § 924(c)(1)], an aider and abettor must

share in the criminal intent to use the firearm during a drug

trafficking offense.” Wainuskis, 138 F.3d at 189; see also AIDING

AND ABETTING INSTRUCTION, FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 2.06 (1997)

(“If another person is acting under the direction of the defendant

or if the defendant joins another person and performs acts with the

intent to commit a crime, then the law holds the defendant

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responsible for the acts and conduct of such other persons just as

though the defendant had committed the acts or engaged in such

conduct. Before any defendant may be held criminally responsible

for the acts of others it is necessary that the accused

deliberately associate himself in some way with the crime and

participate in it with the intent to bring about the crime.”)

(emphasis added). After Bailey, the “intent to bring about

the crime” defined in § 924(c)(1) is the intent that the firearm be

“used” within the meaning of Bailey.

Thus, in order to be convicted of aiding and abetting the

§ 924(c)(1) offense (under the “use” prong), the defendant must act

with the knowledge or specific intent of advancing the “use” of the

firearm in relation to the drug trafficking offense.10 See, e.g.,

United States v. Giraldo, 80 F.3d 667, 676 (2d Cir.) (“Proof simply

that a defendant knew that a firearm would be carried, even

accompanied by proof that he performed some act to facilitate or

encourage the underlying crime in connection with which the firearm

was carried, is insufficient to support a conviction for aiding and

abetting the carrying of a firearm . . . .”), cert. denied, 117 S.

Ct. 135 (1996); United States v. Bennett, 75 F.3d 40, 45 (1st Cir.)

10
Both parties agree that in order to convict the defendant
of aiding and abetting a § 924(c)(1) violation, the principal must
have committed acts that would violate § 924(c)(1). See 18 U.S.C.
§ 2. As we have stated, Sorrells concedes that Mark’s actions
constitute “use” of the firearm during the drug offense. See supra
note 6.

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(“Thus, his conviction can be sustained under 18 U.S.C. § 2 if [the

defendant] knew a firearm would be carried or used by a co-

conspirator in the drug trafficking offense and willingly took some

action to facilitate the carriage or use.”), cert. denied, 117 S.

Ct. 130 (1996); see also Barrett v. United States, 120 F.3d 900,

900-01 (8th Cir. 1997) (upholding aiding and abetting conviction

for 924(c)(1) when “Barrett admitted at his guilty-plea hearing

that he gave Gilstrap the revolver intending for Gilstrap to take

it with him while distributing cocaine Barrett had given

Gilstrap.”); cf. United States v. Foreman, 914 F. Supp. 385, 387

(C.D. Cal. 1996) (“An aider and abettor must knowingly and

intentionally aid and abet the actual elements of the crime, and

not just create the circumstances that permit the crime to

occur.”). Of course, the jury is entitled to draw reasonable

inferences of knowledge or intent from the actions of the

defendant. See Pipola, 83 F.3d at 565; Bennett, 75 F.3d at 45.

In addition to requiring proof of knowledge or intent for a

conviction of aiding and abetting, “there must also be proof that

the defendant performed some affirmative act relating to the

firearm.” Giraldo, 80 F.3d at 676; United States v. Bazemore, 138

F.3d 947, 949 (11th Cir. 1998) (“In addition to knowledge, in order

to sustain a conviction under an aiding and abetting theory, there

must be some proof “linking” the defendant to the gun, because

section 924(c) does not permit ‘guilt by association.’”). The link

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to the firearm is necessary because the defendant is punished as a

principal for “using” a firearm in relation to a drug offense, and

therefore must facilitate in the “use” of the firearm rather than

simply assist in the crime underlying the § 924(c)(1) violation.

See Bazemore, 138 F.3d at 949-50.

2

Application of the aiding and abetting standard to the facts

of this case presents a relatively close and difficult question;

ultimately, however, we are guided by our narrow standard of review

for considering Sorrells’ claim. First, as we concluded above, the

court erred in instructing the jury on the “use” element for the

§ 924(c)(1) violation, allowing a conviction for aiding and

abetting based on the mere possession of a firearm that in any

manner facilitated a drug crime. See Bailey, 516 U.S. at 145-46,

116 S. Ct. at 506 (holding that “‘use’ must connote more than mere

possession of a firearm by a person who commits a drug offense”).

Second, although the evidence in the light most favorable to the

verdict indicates that Sorrells gave Mark the firearm and knew that

Mark had the gun while he was manufacturing the methamphetamine,

Sorrells’ criminal intent in relation to Mark’s actual “use” of the

firearm within the meaning of § 924(c)(1) is not as clear. Cf.

Salazar, 66 F.3d at 729 (noting that “[t]his circuit has not

considered aider and abettor liability under § 924(c)(1) when the

defendant was not present during the commission of the crime in

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which the firearm was used” but concluding that we have “never

imposed a requirement that an individual be physically present when

the gun is used”).

Significantly, Sorrells conceded that Mark “used” the gun

within the meaning of Bailey. In addition, the facilitation

element was easily met on these facts because Sorrells gave Mark

the specific gun that Mark used in relation to the drug offense.

Cf. United States v. Medina, 32 F.3d 40, 45-46 (2d Cir. 1994)

(finding that the § 924(c)(1) conviction could not be upheld when

the defendant provided a different gun from the one that was used

in the armed robbery). The difficult question thus becomes whether

the knowledge element was met))in other words, whether a reasonable

jury could have inferred that Sorrells knew or intended that Mark

would “use” the gun during the manufacturing of the drugs. Because

Sorrells must demonstrate that he is “factually innocent” of aiding

and abetting the “use” of the firearm, he must show that it is more

probable than not that no reasonable jury would have convicted him

under the correct instructions for the “use” element. See, e.g.,

Ramos, 1998 WL 337889, at *5; see also Bousley, ___ U.S. at ___,

118 S. Ct. at 1611.

The facts linking Sorrells to the firearm and the drug

trafficking offense are as follows: Sorrells put up the deed to his

house as collateral for the chemicals; Sorrells knew the purpose

for which the deed was going to be used; Sorrells stated that it

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was not the first time for Mark and planned a second deal with the

officers; he rented the beach house where the methamphetamine would

be manufactured; he gave Mark the firearm that Mark used in

relation to the drug offense; and he knew that Mark had the firearm

at the beach house while he was manufacturing the methamphetamine.

On these facts, Sorrells cannot demonstrate his factual innocence

or that no reasonable jury could infer that he knew or intended

that Mark would “use” the gun while manufacturing the

methamphetamine. See Pipola, 83 F.3d at 565 (holding that where

the defendant was the leader of the group and made the planning

decisions for several armed robberies, “the proof permitted the

jury to infer that Pipola specifically encouraged the use of

firearms in the robberies”); Price, 76 F.3d at 529-30 (“Even if Mr.

Price had not known in advance that Mr. Stubbs was going to use a

gun during the robbery, it seems perfectly clear that Mr. Price was

aware that the gun was being used while he continued to participate

in the robbery.”); Bennett, 75 F.3d at 45 (“From this evidence a

jury could find that Bennett knew that one of his companions was

carrying the gun when they committed the attack, and facilitation

is essentially undisputed since Bennett provided his car to

transport himself, his co-conspirators, and the gun to execute the

raid.”).

Sorrells played a significant role in planning the

manufacture of the methamphetamine, gave Mark the gun that was

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“used” during the offense, and knew Mark had the gun during the

commission of the underlying offense; as such, he cannot overcome

the hurdle of demonstrating his factual innocence. While simply

having knowledge of the gun and participating in the underlying

drug trafficking crime is not, on its own, “aiding and abetting”

the use of the firearm after Bailey, the jury could infer from

Sorrells’ knowledge and actions, that he encouraged Mark’s “use” of

the gun to protect the bounty of their drug conspiracy. See

Pipola, 83 F.3d at 562 (“Because aiding and abetting requires a

defendant’s conscious assistance in the commission of the specific

underlying crime . . . . [t]here must be proof . . . that the

defendant’s actions directly facilitated or encouraged either the

use of or the carrying of a firearm.”); see also Wainuskis, 138

F.3d at 189 (“It is evident that Wainuskis possessed both the

necessary knowledge, that weapons were available for Materne’s use,

and the intent to be convicted as an aider and abettor in Materne’s

crime.”) (footnote omitted).

V

We conclude that Sorrells fails to demonstrate that he is

factually innocent of aiding and abetting the § 924(c)(1)

violation. Accordingly, the district court properly denied

Sorrells’ § 2255 motion to vacate his § 924(c)(1) conviction. The

judgment of the district court is hereby AFFIRMED.

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