UNITED STATES COURT OF APPEALS
Filed 10/28/96
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6055
(D.C. No. CIV-95-225-C)
EMIL BERRY LESLEY, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Emil Berry Lesley, a federal prisoner proceeding pro se, appeals
from the denial of his motion for relief from illegal sentence filed pursuant to 28
U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Defendant was arrested in July 1994 for drug trafficking. During the arrest
agents seized money from him that later became the subject of an uncontested
civil forfeiture under 21 U.S.C. § 881. In September 1994, defendant pleaded
guilty to a criminal information charging him with one count of using a telephone
to facilitate possession with intent to distribute methamphetamine in violation of
21 U.S.C. § 843(b), and one count of using or carrying a firearm in relation to a
drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). He was sentenced
to consecutive four- and five-year terms of imprisonment on the two counts. He
did not appeal. Defendant then filed this § 2255 motion, arguing that subsequent
court decisions rendered his convictions invalid, and that ineffective assistance of
trial counsel established cause and prejudice for his failure to raise his substantive
issues in a direct appeal. The district court denied relief, holding that even if
defendant’s claims were not procedurally barred, they were without merit.
On appeal defendant argues that he was: (1) subjected to double jeopardy
because a civil forfeiture preceded his criminal prosecution; and (2) improperly
convicted under 18 U.S.C. § 924(c) because the gun he was carrying was in a bag
and inoperable.
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Even if defendant had filed a claim to contest the forfeiture, which he
concedes he did not do, the Supreme Court’s recent decision, United States v.
Ursery, 116 S. Ct. 2135 (1996), forecloses his double jeopardy argument. In
Ursery, the Supreme Court held that an in rem civil forfeiture pursuant to 21
U.S.C. § 881(a)(6) is neither punishment nor criminal for double jeopardy
purposes, and therefore does not preclude subsequent criminal prosecution. 116
S. Ct. at 2140-44, 2147; see also United States v. Hudson, 92 F.3d 1026, 1028 n.4
(10th Cir. 1996).
Defendant’s challenge to his conviction under § 924(c)(1) also fails. He
correctly points out that Bailey v. United States, 116 S. Ct. 501, 509 (1995),
changed our law interpreting the “use” prong of § 924(c)(1). United States v.
Spring, 80 F.3d 1450, 1464 (10th Cir.) (noting Bailey “held that ‘use’ in
§ 924(c)(1) means that the defendant must have ‘actively employed the firearm
during and in relation to the predicate crime’”) (quoting Bailey, 116 S. Ct. at
509), petition for cert. filed ___ U.S.L.W. ____ (U.S. June 25, 1996) (No. 95-
9420). The criminal information, however, charged defendant in the alternative
with using or carrying a firearm during and in relation to a drug trafficking
offense. I R., 9/16/94 Information. Our law defining the “carry” prong still
requires only that the defendant possessed and transported a firearm during and in
relation to a drug trafficking offense. Spring, 80 F.3d at 1465.
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Applying this standard, the record contains a sufficient factual basis to
sustain defendant’s conviction under § 924(c)(1) for carrying a firearm during and
in relation to a drug trafficking offense. Although the prosecutor incorrectly
stated at the change-of-plea hearing that defendant was charged with merely being
“in the possession” of a firearm during a drug transaction, II R. 3, defendant also
stated at the plea hearing that he had received a copy of the information and had
discussed it with his attorney, id. at 2. Therefore, the record demonstrates that
defendant knew the true charge against him. Further, although defendant was
asked at the plea hearing only whether he was “in possession” of a firearm during
a drug transaction, id. at 11, defendant admitted in his plea petition that he
“carried a firearm during an attempt to purchase ‘crank.’” Appellant’s Supp.
Add., Petition to Enter Plea of Guilty at 7. Defendant said at the plea hearing that
he had understood the questions in the plea petition, and that the answers in it
were his own and were true. II R. 5-6. It is clear from defendant’s reply brief on
appeal that he does not dispute that he carried a gun in a bag when he attempted
to purchase crank from undercover agents. See Appellant’s Reply Br. 2. Accept-
ing arguendo that the gun would not fire, that fact is irrelevant to a charge under
§ 924(c)(1). United States v. Moore, 919 F.2d 1471, 1475-76 (10th Cir. 1990).
Finally, although in the district court defendant also argued that he should
not be held responsible for drug quantities purchased by a codefendant, he does
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not appear to raise this issue on appeal. However, even if that issue were decided
in defendant’s favor, the guideline sentence still would be above the statutory
maximum to which defendant was sentenced.
We construe defendant’s letter filed September 11, 1996, as a motion for
appointment of counsel. The motion is denied. We construe defendant’s letter
and affidavit filed August 26, 1996, as a motion to file a supplemental brief. That
motion is granted.
AFFIRMED.
Entered for the Court
James K. Logan
Circuit Judge
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